Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 15, 2025

CASE NO(S).: OLT-23-000524

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Ganni Properties Inc.

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit a one-storey restaurant with drive-through service facility, and two retail/commercial units

Reference Number: POPA 2019-0007

Property Address: 16054,16060 and 16068 Airport Road

Municipality/UT: Town of Caledon

OLT Case No.: OLT-23-000524

OLT Lead Case No.: OLT-23-000524

OLT Case Name: Ganni Properties Inc. v. Caledon (Town)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Ganni Properties Inc.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit a one-storey restaurant with drive-through service facility, and two retail/commercial units

Reference Number: R2 2019-0010

Property Address: 16054,16060 and 16068 Airport Road

Municipality/UT: Town of Caledon

OLT Case No.: OLT-23-000525

OLT Lead Case No.: OLT-23-000524

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Ganni Properties Inc.

Subject: Site Plan

Description: To permit a one-storey restaurant with drive-through service facility, and two retail/commercial units

Reference Number: SPA 2019-0066

Property Address: 16054,16060 and 16068 Airport Road

Municipality/UT: Town of Caledon

OLT Case No.: OLT-23-000526

OLT Lead Case No.: OLT-23-000524

PROCEEDING COMMENCED UNDER subsection 29(11) of the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended

Applicant and Appellant: Ganni Properties Inc.

Subject: Passing of Application

Description: To appeal the Designation By-law

Reference Number: Bl-2024-046

Property Address: 16054 Airport Road

Municipality/UT: Town of Caledon

OLT Case No.: OLT-24-000951

OLT Lead Case No.: OLT-23-000524

PROCEEDING COMMENCED UNDER subsection 29(11) of the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended

Applicant and Appellant: Ganni Properties Inc.

Subject: Passing of Application

Description: To appeal the Designation By-law

Reference Number: Bl-2024-047

Property Address: 16060 Airport Road

Municipality/UT: Town of Caledon

OLT Case No.: OLT-24-000952

OLT Lead Case No.: OLT-23-000524

Heard: November 25 – December 6, 2024 by Video-Hearing; February 21, 2025 by Written Submissions

APPEARANCES:

Parties

Counsel/Representative*

Ganni Properties Inc.

John Alati Samantha Lampert Alexandra Egi* (Student-at-Law)

Town of Caledon

Sylvain Rouleau Chantal deSereville

DECISION DELIVERED BY n. eisazadeh AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This Decision arises from a hearing of the Appeals filed by Ganni Properties Inc. (“Applicant”) against the Town of Caledon (“Town”) for its failure to make a decision within the required time period for:

• An application to amend the Town’s Official Plan (“OPA”) under s. 22(7) of the Planning Act¹ (“Act”);

• An application to amend the Town’s Zoning By-law No. 2006-50 (“ZBL”) under s. 34(11) of the Act (“ZBA”); and

• Approval of a Site Plan Application under s. 41(12) of the Act (“SPA”).

2Approval of the three Appeals would facilitate the Applicant’s proposal to demolish three existing structures for the development of a Tim Horton’s establishment with drive-through service facility (“DTSF”), and two additional commercial/retail units (“Proposed Development”) on three adjacent parcels of land municipally known as, 16054 Airport Road (“Pettigrew Property”), 16060 Airport Road (“Donaldson Property”), and 16068 Airport Road, (collectively the “Subject Properties”) within the Town.

3The Hearing of the OPA, ZBA and SPA Appeals was held concurrently with the Applicant’s Appeals of the Town’s subsequently passed Designating By-laws (“DBL 2024-046” and “DBL 2024-047”, collectively the Heritage Designation By-laws (“HDBLs”)) under s. 29(11) of the Ontario Heritage Act² (“OHA”), which apply the HDBLs to two of the Subject Properties: the Donaldson Property, and the Pettigrew Property (collectively the “Heritage Properties”). The Applicant has also filed demolition permit applications under the OHA for the Heritage Properties. However, the demolition permit applications are not before the Tribunal on these Appeals.

4The core issues in dispute are outlined more particularly below. As a cursory overview, these Appeals boil down to a threshold issue on the HDBLs, as well as contention over permitting a DTSF as part of the development proposal on the Subject Properties. The Applicant posits that the Subject Properties are the quintessential location for commercial development to occur, being a rural service centre within the commercial core, and that the Proposed Development, inclusive of a DTSF, does not pose any adverse impacts that cannot be mitigated through appropriate means, which satisfy the applicable statutory, legislative, and planning policies. The essence of the Town’s opposing position is, first, that the Tribunal should uphold the HDBLs which are warranted, and which statutorily bar this Tribunal from approving the development which proposes to demolish the heritage structures. Second, and notwithstanding, the Subject Properties are not large enough to accommodate the DTSF as each variation of attempted site configuration to accommodate the DTSF results in inappropriate and unacceptable impacts within the historical part of the community, on multiple fronts, including heritage, compatibility, transportation safety, landscaping, urban design, and noise pollution.

5For the reasons that follow below in this Decision, the Tribunal finds in favour of the Town, determines that the Appeals are denied, and the requested relief is refused.

BACKGROUND: THE SUBJECT PROPERTIES AND SURROUNDING AREA

6The Applicant’s first witness, Michael Vani (Registered Professional Planner), provided uncontested fact evidence at the outset to provide contextual background. The Subject Properties are generally rectangular in shape, totalling a combined area of approximately 0.3 hectares (“ha”) (3,021.99 metres squared (“m²”)). There are approximately 49.9 metres (“m”) of frontage on the west side of Airport Road, south of the intersection with Walker Road. The Subject Properties are currently occupied, respectively, by the Pettigrew Property, the Donaldson Property, and a seasonal ice cream shop.

7The Subject Properties are in Caledon East, identified as an existing “Settlement Area” and “Rural Service Centre” containing lands within the delineated built-up area per the Regional Municipality of Peel’s (“Region”) Official Plan, 1996 (“ROP 1996”) and the Town’s Official Plan, 2018 (“OP”). Rural service centres are at the top of the Town’s settlement hierarchy, designated as the primary growth areas, and defined as a small-town rural settlement predominantly comprising commercial/retail, institutional, rural, and open space lands scattered throughout. The Region’s expansion of the urban boundary within its 2022 Official Plan (“ROP 2022”) now includes Caledon East and the Subject Properties within its “Urban System”, as well as its "Urban System within Greenbelt”. The Urban System consists of a variety of communities that contain diverse living, working, and cultural opportunities. The Subject Properties are zoned CV (Village Commercial) under the ZBL.

8The Subject Properties’ location on Airport Road, identified as a “Major Road” within the ROP 1996, is significant. As set out in s. 7.7.3 of the Caledon East Secondary Plan (“CESP”), the Town envisions Airport Road as a corridor for commercial and retail activity, creating a focus for retail and commercial development within the Caledon East settlement area. Airport Road currently serves as a centralized main street and commercial core and is predominantly occupied with commercial uses which serve the broader residential and rural community. The narrow width of Airport Road contributes to the small-town feel of the Village of Caledon East, which has a community focus, smaller shops, and low-to-medium density residences.

9The following list comprises the additional land uses in the broader area surrounding the Subject Properties:

(a) To the north of the Subject Properties: an abutting single detached residence; the Caledon East General Store; a low-density residential subdivision beyond Walker Road; the Abbeyfield Caledon Retirement Home; and the Caledon East United Church.

(b) To the east of the Subject Properties: retail and commercial establishments along the commercial core area of Airport Road; community uses along Old Church Road, including St. James Anglican Church, the Caledon Fire Station, the Caledon East Community Complex, Caledon East Arena, and Caledon Town Hall; and a more recent residential subdivision inclusive of single detached and townhouse dwelling types.

(c) To the south of the Subject Properties: low density commercial and retail businesses, including restaurants, an auto-repair shop, an LCBO, and other institutional and office spaces fronting Airport Road; commercial plazas; a gas station; and a new residential subdivision currently under construction.

(d) To the west of the Subject Properties: single detached dwellings on large lots that abut the commercial core; three single detached lots abutting the Subject Properties consisting of two single-storey dwellings and one one-and-a-half-storey dwelling; and further west are larger single detached lots and new residential subdivisions.

10Despite both the OP and ZBL permitting the primary commercial land use, amendments to both the OP and ZBL are required for the proposed DTSF as an accessory to the permitted restaurant, which is not permitted by the CESP or the ZBL. The Applicant submits that there are policies within the OP that allow for the consideration of DTSFs in Caledon East, subject to demonstrating certain criteria are met. The Town disagrees.

LEGISLATION, PLANS, AND POLICIES

11The relevant legislative and statutory framework, and planning policies applicable on the OPA, ZBA, and SPA Appeals include: the Act, the Provincial Planning Statement, 2024 (“PPS”); the Oak Ridges Moraine Conservation Plan, 2017 (“ORMCP”); the ROP 1996; the ROP 2022; the Town’s OP; the CESP; and the ZBL.

12In respect of the concurrent Appeals of the HDBLs, the additional framework applicable includes: the OHA; Ontario Regulation 9/06: Criteria for Determining Cultural Heritage Value or Interest (“O. Reg. 9/06”); Ontario Regulation 385/21: General (“O. Reg. 385/21”); and the HDBLs themselves being DBL 2024-046 and DBL 2024-047.

WITNESSES, DOCUMENTS, AND PARTICIPANT STATEMENTS

The Witnesses and Documentary Evidence

13The Tribunal received voluminous documentary and visual evidence which were entered as Exhibits, including five separate agreed statements of fact in the areas of: land use planning; acoustics; transportation; cultural heritage; and arboriculture and landscape architecture. The Tribunal also heard oral testimony from a total of 13 witnesses, who were each qualified without objection to provide expert opinion evidence in their respective fields of expertise, as noted within this Decision.

Participant Statements

14By prior Orders of this Tribunal by a Panel differently constituted, Participant status was granted to eight individuals whose Participant Statements were reviewed and considered in rendering this Decision.

THE CORE ISSUES

15A significant amount of time was spent during the hearing on technical evidence in relation to a wide range of issues, including cultural heritage conservation policies, snow storage, waste collection, urban design, breezeway safety, outdoor lighting standards, the requirement for minimal impervious surfaces per the ORMCP, and the applicability of the Town’s Streetscape Master Plan and Urban Design Study regarding new development requirements for two-storeys with windows. However, the core issues in dispute on which this case turns can be scoped and organized under two categories, as follows:

(a) The OHA issues:

i. Should the HDBLs passed by the Town under the OHA be upheld or repealed?

ii. If the HDBLs are upheld, is the Tribunal statutorily barred from approving the planning applications?

(b) The planning issues under the Act:

i. If the HDBLs are repealed, or if the Tribunal finds it is within its jurisdiction to consider the planning applications in principle, notwithstanding a finding upholding the HDBLs, is it good planning to permit a DTSF on the Subject Properties given its location, size and context, and more specifically given the issues raised with respect to:

1. The height of the noise barrier;

2. Transportation safety, site circulation, road access, and potential road widening;

3. Removal of vegetation and insufficient landscaping; and

4. Consistency with the CESP and Village Character?

THE EVIDENCE, ANALYSIS, AND FINDINGS

Issue No. 1 Under the OHA: The Town’s Threshold Issue – Should the Heritage Designation By-Laws be Upheld?

16The Town submits that the Appeals of the HDBLs is a threshold issue for the Tribunal’s determination – that if the Tribunal upholds the HDBLs, it is statutorily barred from approving the Proposed Development as it contemplates demolition of the designated Heritage Properties. The Tribunal will deal first with the issue of the request to repeal the HDBLs before moving onto the jurisdiction of this Tribunal to dispose of the balance of the planning issues.

17This is a unique case whereby the heritage experts for both Parties agree that the Heritage Properties each meet, and indeed surpass, the minimum two or more of the nine criteria under O. Reg. 9/06 required for designation. The heritage experts for both Parties agree that, in respect of the Pettigrew Property, at least three of the designation criteria are met, for reasons as follows:

(a) Criteria No. 1: The property has design and physical value since, having been built in 1857 or earlier, it is believed to be the oldest surviving structure on the village’s main street and represents an early example of a vernacular farmhouse building with Neoclassical architecture influences in form, massing, and symmetry.

(b) Criteria No. 4: The property has historical value because it has direct association with persons and a theme. Respecting persons, it is associated with early Euro-Canadian settler families in Caledon, including the Parsons, Glassford, and Mathews families (retired farmers and local tradesmen), but particularly the Pettigrew family. Henry Pettigrew was a local saddler and a Divisional Court Clerk in the 1860’s for over 10 years, considered a significant person in the community’s history, for whom the home was likely constructed. Respecting theme, the property is associated with the early settlement of Caledon East and surveyed under James Munsie’s and T.C. Presser’s 1854 Plan “Cal-4”.

(c) Criteria No. 7: The property has contextual value because it is important in defining, maintaining, or supporting the character of the Caledon East area, identified as a distinctive mix of properties with buildings dating from the nineteenth and twentieth centuries. The patterns, sizes, and open space of the lots along with the one-to-two storey rural vernacular building stock make the community distinct. The Pettigrew Property shares a similar scale, massing, and rhythm with the surrounding properties, supporting the mix of residential and commercial forms, thereby supporting the streetscape character of the Town.

18In addition to Criteria 1, 4, and 7, heritage expert witness for the Town, Sally Drummond, a professional in cultural heritage planning and policy, finds that the Pettigrew Property also meets Criteria 5 and 8 in respect of designation, to which the Applicant’s expert witness, Christine Uchiyama, disagrees. This Decision does not turn on this point of contention.

19In respect of the Donaldson Property, the heritage experts for both Parties agree that at least four of the designation criteria are met for reasons, as follows:

(a) Criteria No. 1: The property has physical value as it represents an early example of a vernacular Edwardian residential building constructed with rusticated concrete blocks with red mortar. Built in 1907, it is the first known example of rusticated concrete block house in Caledon East following White & Proctor’s purchase of a cement block making machine in 1906.

(b) Criteria No. 4: The property has historical value because it has direct association with persons and a theme. Respecting persons, it is associated with James Alexander Donaldson, for whom the building was constructed. Mr. Donaldson is considered a significant person in the community as he operated an undertaking and furniture business in Caledon East between 1987-1940, and helped establish the Caledon East Public Cemetery.

(c) Criteria No. 6: The property has historical and associated value because it reflects the work of a significant construction firm in the community, being the firm of White & Proctor. Founded by Joseph O. Proctor and Samuel White, planning mill operators on Emma Street during the late nineteenth century, they added a cement plant in 1906. Following their cement plant, the two builders were known for constructing buildings using rusticated concrete blocks in Caledon East, this property being the earliest known example of such use.

(d) Criteria No. 7: The property has contextual value because it contributes to the character of Caledon East. Specifically, the property, with its rusticated concrete block and red mortar, complements the early twentieth-century architectural style along Airport Road. Its size, placement, and design align with the surrounding residential buildings, helping to define the village’s distinctive mix of nineteenth-and twentieth-century rural vernacular architectural building stock, creating a distinctive community from its surroundings.

20In addition to Criteria 1, 4, 6, and 7, Ms. Drummond, for the Town, finds that the Donaldson Property also meets Criteria 8, to which Ms. Uchiyama, for the Applicant, disagrees. Again, this Decision does not turn on this point of contention.

21To reiterate, it is not in dispute that both Heritage Properties are eligible for designation under s. 29 of the OHA. The Applicant’s basis for its Appeals of the HDBLs are two-fold. First, it submits that there was undue delay by the Town in passing the HDBLs, which it states evidences a clear measure to sterilize the Subject Properties and frustrate the Proposed Development. In this regard, the Applicant highlights the following key dates:

(a) The Inventory List: In 2008, the Heritage Properties were among 1,643 built heritage resources included in the Town’s “Built Heritage Resources Inventory of Pre-1946 Structures” (“Inventory List”).

(b) Initial Development Meeting: In February of 2019, a Development Application Review Team (“DART”) meeting was held between Town Staff and the Applicant on its first proposal to demolish the structures on the Heritage Properties.

(c) Property Registration: In September 2019, the Heritage Properties were among 87 added to the Town’s Municipal Heritage Building Register as listed properties under s. 27 of the OHA.

(d) Initial Application: In December of 2019, the initial OPA, ZBA, and SPA applications were first submitted to the Town in respect of the Donaldson Property and the Pettigrew Property only.

(e) Revised Application: In June of 2022, revised OPA, ZBA, and SPA applications were submitted to include 16068 Airport Road.

(f) Tribunal Appeal: In May of 2023, the OPA, ZBA, and SPA were appealed to the Tribunal for failure to make a decision.

(g) Notice to Designate: In March of 2024, Notices of Intention to Designate were published for the Heritage Properties.

(h) HDBLs Passed: In June 2024, the Town passed the HDBLs.

22The Applicant criticizes that it took eleven years before the Heritage Properties were given formal status under the OHA, and only after the Town was advised that development applications were imminent. Notwithstanding, the Applicant states it took an additional five years from the date the Heritage Properties were given formal registered status, and only after the Appeals were filed with this Tribunal, to designate the properties. The Applicant argues that if the concerns raised by the Town witnesses were genuine, regarding the potential to “permanently alter the historic character of the main street of Caledon East”, the Town would have sought designation sooner, and at a minimum, immediately after the development applications were initially filed with the Town in 2019.

23Second, the Applicant contends that use of the terms “may designate” in s. 29(1) of the OHA imbues a significant amount of discretion on a decision-maker as to whether to designate a property, notwithstanding that it may meet two or more of the prescribed criteria by which properties are to be evaluated for their Cultural Heritage Value or Interest (“CHVI”). To this end, the Applicant submits that use of the term “may” provides a clear indication that simply meeting prescribed criteria does not mean that it ultimately warrants designation. In terms of what warrants designation, the Applicant relies on the evidence of Ms. Uchiyama.

24Ms. Uchiyama testified that she uses a contextual approach and considers various factors to determine whether a property ought to move from “eligible” to “recommended designate”, including whether the CHVI can be readily interpreted, the physical integrity of the property, whether the property is integral to its surroundings, how much the property has changed over time, and whether the CHVI can be easily replicated. In coming to her conclusion that the Heritage Properties do not warrant designation, the Applicant has summarized Ms. Uchiyama’s key findings and opinions in its closing submissions, as follows:

(a) The heritage integrity of the Pettigrew House is limited and is not readily understood without more examination;

(b) The façade of the Pettigrew House does not have the formal arrangement, combined with the details common to Neoclassical style buildings, as many of these details have been removed or covered since 1945;

(c) While the Donaldson House retains its heritage integrity, without interpretation, the CHVI is less apparent than other examples of structures in the Town constructed by Proctor and White; and,

(d) Further interpretation would be needed for the broader audience or typical person walking down the street to understand why either of these buildings would be considered heritage.

25In response, the Town refutes the Applicant’s allegations that the HDBLs were intended to deliberately frustrate the Proposed Development. The Town relies on the evidence of Ms. Drummond, and argues that:

(a) Longstanding Heritage Interest: The Heritage Properties have been recognized to be of heritage interest since 2008 and were added to the Town’s Heritage Register in 2019 as part of a broader initiative, not in response to the development.

(b) Routine Process: Ms. Drummond testified that it is standard practice for development applications to prompt heritage evaluations, which may lead to designation if warranted.

(c) Legislative Influence: The timing of the designation was influenced by Bill 23 and the Town’s Heritage Designation Prioritization Strategy, not by any intent to block development.

(d) Continued Protection: Even without formal designation, the buildings were already protected from demolition due to their listing on the Heritage Register.

26Accordingly, the Town argues there is no factual basis to support the claim that the Town acted with any improper intent in passing the HDBLs.

27In response to the Applicant’s interpretation of the word “may” in s. 29(1) of the OHA, the Town submits that what it imbues is a right to designate a candidate property by a municipality if the requisite criteria under O. Reg. 9/06 are met. Given the experts for both Parties agree that both Heritage Properties meet the criteria, passing the HDBLs was simply a statutory entitlement of the Town. Moreover, the Town submits that Ms. Uchiyama’s rationale for opposing designation imposed artificial criteria that have no basis in the OHA. For instance, whether, as Ms. Uchiyama suggests, heritage attributes are “readily discernible” to the general public or that heritage integrity is limited and not readily understood without closer examination, are arbitrary and self-imposed criterion created by Ms. Uchiyama herself with no legislative basis in the OHA or otherwise. The Town points to the evidence of Ms. Drummond suggesting that the general public often does not know the heritage significance of buildings without interpretive commemorative plaques.

28Notwithstanding, the Town submits that even if one were to look at whether designation is warranted, as suggested by Ms. Uchiyama’s evidence, the answer to both Heritage Properties would be affirmative. In support, the Town asserts:

(a) The Town’s OP encourages the retention and adaptive re-use of cultural heritage resources (s. 3.3.3.3.3 and s. 7.7.6.7).

(b) Ms. Uchiyama herself agrees rehabilitation and adaptive reuse is the preferred option for conserving heritage buildings.

(c) Ms. Uchiyama herself stated that while there are disadvantages to adaptive reuse from a planning perspective, it is possible in terms of mitigation and conservation of both Heritage Properties, and a preferred option in the hierarchy of mitigation and conservation options over deconstruction and reuse/salvage, from strictly a heritage perspective.

(d) Demolition of the Heritage Properties will result in an adverse impact on the CHVI.

(e) There was no structural engineering evidence called directly to support the suggestion that the Pettigrew Property lacks structural integrity. Such evidence arises from Ms. Uchiyama’s evidence, which relies on an appended condition survey letter by Leonard Kalishenko & Associates Limited (“Kalishenko”). Ms. Uchiyama conceded on cross-examination that she was not aware whether Kalishenko were qualified professionals in cultural heritage conservation and that her Heritage Impact Assessment (“HIA”) cannot be relied upon for opinions on structural integrity.

(f) Ms. Uchiyama’s evidence lacks credibility as she conceded during cross-examination that she would not have otherwise conducted the HIA or objected to the HDBLs had it not been for the development application and Appeals before this Tribunal.

29The Town argues that Ms. Uchiyama’s evidence in opposition to the HDBLs should be given little weight, if any, as her evidence was tailored to what was most beneficial to her client’s development, she did not make her own recommendations based on what was preferrable from a cultural heritage conservation perspective, ultimately taking a position that was partisan for the purpose of serving her client.

Findings on Issue No. 1

30While designating by-laws can and have been appealed before this Tribunal, such appeals are typically based on a disagreement as to whether the requisite designating criteria are met. The case at bar is a unique circumstance in which the designating by-laws are being opposed on a novel issue as to whether they warrant designation, notwithstanding that the properties meet the requisite designating criteria. Neither Party tendered guiding case law with such an analysis.

31Having weighed the evidence, the Tribunal ultimately determines that both the Pettigrew Property and Donaldson Property meet and exceed the two of nine criteria required under O. Reg. 9/06 for designation under s. 29(1) of the OHA and that the evidence was not compelling in establishing that designation was unwarranted. Therefore, the Tribunal upholds the HDBLs.

32First, the Tribunal finds no untoward action on the part of the Town in passing the HDBLs as part of a deliberate intent to frustrate the Proposed Development. Both Heritage Properties have been on the Inventory List since 2008, before the initial DART meeting. Both Heritage Properties were added to the Town’s Heritage Building Register as protected properties since September 2019, before the Applicant’s initial application was first submitted. Accordingly, the Applicant was always aware that the CHVI of both Heritage Properties was in issue. The Tribunal accepts that it is commonplace for the review of heritage property evaluations by municipalities to be triggered by development applications, as was the circumstance in this case. There was also the added pressure of the Town’s Heritage Designation Prioritization Strategy being passed in response to Bill 23, as testified to by Ms. Drummond. While the timing of the actual designations was not ideal, it was not out of the realm of possibility, and the Heritage Properties were always protected under s. 27 of the OHA, even before the Appeals to this Tribunal. The logistics of how that impacted the hearing of these Appeals, particularly with respect to the timing of a demolition permit application, is addressed below within the discussion on the jurisdiction of the planning applications.

33Turning to the Applicant’s interpretation of s. 29(1) of the OHA then, the section reads as follows (emphasis added):

Designation by municipal by-law

29 (1) The council of a municipality may, by by-law, designate a property within the municipality to be of cultural heritage value or interest if,

(a) where criteria for determining whether property is of cultural heritage value or interest have been prescribed, the property meets the prescribed criteria; and

(b) the designation is made in accordance with the process set out in this section.

34The Tribunal agrees with the Town that the language of the provision confers a right to a municipality to designate a property where the prescribed criteria are met in accordance with the process set out in the OHA. However, the Tribunal would be cautious to conflate that right with the suggestion that designation is automatic or absolute. A plain and ordinary interpretation of the term “may”, as chosen by the legislature, suggests a choice in exercising that right. Had the intention behind the provision been to designate all properties based solely on meeting the prescribed criteria, it stands to reason that the legislature would have opted to use prescriptive language and substituted the word “may” with the word “shall”. It did not.

35Use of the term “may”, then, does indeed import some flexibility with respect to the decision to designate a property, and accordingly, some discretion in determining whether to uphold HDBLs on appeal to this Tribunal, should the circumstances of a case justify such a result. However, the criteria by which to determine such an outcome has not been set out by legislation, planning or policy documents, nor a higher court, and remain to be clarified through the enactment of new law or guided by developing jurisprudence. At present, the Tribunal considers only the arguments before it in determining that the evidence did not present compelling reasons that warranted overturning the HDBLs, and sets out its reasons as follows.

36An analytical framework for assessing whether designation is warranted was put forth by the Applicant through its cultural heritage expert. Ms. Uchiyama’s framework was predicated on a contextual approach focused on factors that included the degree of the CHVI tied to the evaluation for designation, whether the CHVI could be readily interpreted or discerned by the general public, the condition and physical integrity of the property, the importance of the property within its surroundings, the degree to which its original form remain unchanged, the ease of its replication, and the viability of the properties.

37While a contextual approach may be appropriate for determining whether to exercise the right to designate a property, the Tribunal would be remiss if it did not highlight its concern that many of the factors, and evidence presented in respect of each factor in this case, appear to be more properly within the domain for consideration on an alteration or demolition permit application, once designation has been determined and a HDBL passed – not before in overturning the designation itself. In this regard, the Tribunal finds that:

(a) The opinions contained in Ms. Uchiyama’s written witness statement, as well as her HIA, did not originally opine on whether the designation itself was warranted or whether the HDBLs ought to be overturned – rather that was Ms. Uchiyama’s opinion formed later and provided during viva voce evidence.

(b) Ms. Uchiyama found that the heritage attributes of the Subject Properties are not readily discernible to the general public and not instantly understood without further interpretation and explanation. However, this is not a compelling reason to overturn a HDBL. The Tribunal finds the evidence of Ms. Drummond more compelling that the general public would often not appreciate the heritage significance of buildings without interpretive or commemorative plaques. It is precisely for this reason that protecting heritage structures is vital – so as to preserve and educate the public on the historical and societal significance of heritage buildings by preventing the destruction and erosion of the original heritage structures.

(c) Ms. Uchiyama opined that many of the details in the façade of the Pettigrew Property had been removed or covered over time since 1945, and therefore it did not have the formal arrangement or details common to Neoclassical style buildings. Changes to a heritage property over time, and particularly before they are designated, may be expected, and some changes which may even erode the original attributes. However, again, this is not a compelling reason to overturn a designation where the structure itself qualifies in many other respects, including its historical uses and associations, for designation, as is the case with both Heritage Properties at hand.

(d) It was Ms. Uchiyama’s own evidence that demolishing the Heritage Properties would result in an adverse impact on the CHVI and that from a heritage conservation perspective, rehabilitation and adaptive reuse is typically the preferred option. However, she conceded that her opinion as to the “deconstruction and reuse/salvage” option was informed by the opinion of the Applicant’s planner, Mr. Vani, who indicated that rehabilitation and adaptive reuse was not viable due to planning considerations, economical feasibility, accessibility requirement constraints, and policy constraints associated with retention of the Heritage Properties. While the feasibility of conservation options may be informed by planning constraints, such an analysis is more properly a consideration to be made under a demolition permit application rather than on an appeal as to whether to uphold the designation itself. With respect to the designation under the OHA, Ms. Uchiyama’s opinion that rehabilitation and adaptive reuse is not only preferred from a strict cultural heritage perspective, but also possible, weighs heavily towards upholding the HDBLs.

38The Tribunal wishes to make clear that its findings relate only to the question of whether to uphold a HDBL in the face of the Heritage Properties qualifying for designation under the applicable regulation. In other words, these factors may properly weigh on a decision for an alteration or demolition permit application under the OHA. However, that application is not before the Tribunal on these Appeals for consideration and therefore no findings are made in that regard.

39The one factor which the Tribunal views as most compelling on the question of whether to uphold a HDBL is the consideration of the structural integrity of a heritage property. It would stand to reason that if the structural integrity of a subject property was so poor that demolition was inevitable, then the interests of efficiency and good planning may deem overturning a designating by-law sensible on an appeal that included a viable development proposal which successfully satisfied the applicable planning and policy framework. That is not the case at hand.

40With respect to the Donaldson Property, there is no evidence that the structural integrity of the building is in question. Given that both Heritage Properties are required to be demolished to facilitate the Proposed Development, this alone weighs in favour of upholding the HDBLs.

41With respect to the Pettigrew Property, Ms. Uchiyama relied on the Kalishenko condition survey letter, which concluded that the existing structure is not safe and “outside of any reasonable and feasible rehabilitation/reinforcement procedures (safety issues and prohibited costs) and should be fully demolished”. However, she conceded on cross-examination that she was unaware as to whether Kalishenko had experience in heritage conservation, that her HIA could not be relied upon for any opinion regarding the structural integrity of the Pettigrew Property, and that she could not verify the accuracy of the condition assessment. The Tribunal accepts that the level of evidence before it is insufficient to establish that the structural integrity of the Pettigrew Property, from a heritage conservation perspective, meets the threshold required to overturn its HDBL. This may be a factor that could be reconsidered in the context of a potential future alteration or demolition permit application.

42In summary, the Tribunal accepts the undisputed evidence respecting the heritage attributes of both Heritage Properties. The Pettigrew Property, built in 1857, stands as one of the oldest surviving buildings in the Village. It exemplifies early vernacular farmhouse architecture with Neoclassical influences, reflecting the form, symmetry, and massing typical of that era. The home was constructed for Henry Pettigrew, a respected local saddler and court clerk, whose contributions to the community mark him as a figure of historical significance. The Pettigrew Property is also tied to the early settlement patterns of Caledon East and fits harmoniously within its historic streetscape, sharing architectural characteristics with neighboring nineteenth- and twentieth-century buildings. It satisfies multiple criteria for heritage designation.

43The Donaldson Property, meanwhile, represents a rare and well-preserved example of early twentieth-century architecture in the American Four-Square style. Notably, it was the first known house in Caledon East built using rusticated concrete blocks, a material that became locally significant after 1906. The home’s design integrity and uniqueness set it apart in the Village and the broader region. It is closely associated with James Alexander Donaldson, a long-serving undertaker and furniture business owner who played a key role in the community, including helping to establish the local cemetery. The house was built by White & Proctor, a prominent local construction firm known for their work with concrete block, further enhancing its historical value. Its prominent location and scale contribute to the preserved rural character of Airport Road. The Donaldson Property also meets several criteria for designation.

44In light of this evidence, the Tribunal finds no reason to overturn the HDBLs and upholds the protection of both Heritage Properties.

Issue No. 2 Under the OHA: Tribunal’s Jurisdiction Over Planning Applications Pending Heritage Demolition Permit Applications

45The Applicant argues that even if the HDBLs are upheld, it remains within the jurisdiction of the Tribunal to approve the applications in principle and withhold its final order contingent on a heritage demolition permit being secured, otherwise the Appeals would be dismissed. In support of its position, the Applicant points to s. 9(2) of the Ontario Land Tribunal Act, 2021³ (“OLTA”) as expressly setting out this jurisdiction. In addition, the Applicant contends that the need for other approvals has been addressed in prior Tribunal case law, citing both Kimvar Enterprises Inc. v. Simcoe (Country) (“Kimvar”)⁴ and Camarro Development Inc. v. Burlington (City) (“Camarro”)⁵.

46The Town submits that the Tribunal does not have the statutory authority to uphold the HDBLs and authorize the planning applications before it on these Appeals. The Town states that because the Proposed Development necessitates demolition of both the Pettigrew Property and Donaldson Property, and that the demolition permit application is not before the Tribunal on these Appeals, the Tribunal lacks the jurisdiction to permit any demolition or modification to the Heritage Properties. In support of its position, the Town argues the Tribunal has no way of foreseeing the outcome of a decision by Council, or this Tribunal on potential appeal of the demolition permit application, which could prohibit demolition outright or require the Heritage Buildings to be retained and adaptively reused in the Proposed Development, a conservation method that both heritage experts agreed was the most appropriate option, speaking strictly from a cultural heritage perspective.

47The Town distinguishes the case at bar from the legislation and decisions cited by the Applicant. It states that the details to be determined through the heritage permit process are not mere “minutia” or “technical” matters that can be secured by way of conditions of site plan approval, a holding provision, or an order under s. 9(s) of the OLTA for the mere fact that the potential results are endlessly variable, which could necessitate an entirely new design concept. The Town emphasizes that it would be poor planning and not in the public interest to approve a development application and instruments that may never be able to proceed at all.

48The Town asserts that Kimvar is not applicable as it did not require a heritage permit for development and dealt only with pending environmental assessments, which did not bear the risk of drastically altering the development. Further, that unlike in Kimvar, the Applicant in the present case could have brought a heritage permit appeal before this Tribunal and consolidate it with the balance of Appeals, but did not do so. The Town argues similarly, that Camarro is distinguishable as that case did in fact have a heritage permit appeal before the Tribunal. Therefore, the Tribunal in that case had full jurisdiction to make decisions regarding any heritage permits necessary for the Proposed Development in that proceeding, unlike in the case at bar.

Findings on Issue No. 2

49At the outset, the Tribunal deems it necessary to voice its concerns with respect to its resources being expended on matters that are potentially premature due to pending permit applications with direct implications on the development concept. The Town raises a threshold issue, which in the Tribunal’s view, ought to have been brought in advance, or at the outset, of the Hearing by the Party raising the issue. Similarly, the most practical and efficient course of action may have directed that the Applicant obtain a decision on the demolition permit application, and if necessary, appealed that decision to this Tribunal to have consolidated all related appeals together as they bear issues of fact and law in common. Neither of these routes was taken in this case, which has created a circumstance that is less than ideal and directly opposed to the interests of efficiency. Counsel, who are both capable and experienced, ought to have navigated this issue more effectively. Ultimately, however, neither misstep carries the day on the question of the Tribunal’s jurisdiction over the merits of the planning applications in the face of having upheld the HDBLs in question – on which question the Tribunal finds it does, indeed, retain said jurisdiction.

50The OPA, ZBA, and SPA are all applications under the Act over which the Tribunal has exclusive jurisdiction to determine all questions of law and fact, unless limited by legislation – this authority arises from s. 8 of the OLTA (emphasis added):

Exclusive jurisdiction

8(1) The Tribunal has exclusive jurisdiction in respect of all matters in which jurisdiction is conferred on it by this or any other Act.

Same

(2) The Tribunal has authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction, unless limited by this or any other Act.

51Notwithstanding that it may be proper practice from an efficiency and practical standpoint, the Tribunal agrees with the Applicant that neither the Act nor the OHA contain any provisions that strictly mandate a heritage demolition permit application to be brought together with planning applications under the Act. The Tribunal also agrees that any risk associated with obtaining a future heritage demolition permit that would put the viability of development into question rests with the Applicant.

52Section 9 of the OLTA enables the Tribunal to make determinations on development concepts at the planning approvals stage, notwithstanding that further action, including additional investigations, studies, or permits, may still be required beyond the approvals stage in order to manifest that concept into reality – s. 9 states (emphasis added):

Orders

9 (1) The Tribunal has authority to make orders or give directions as may be necessary or incidental to the exercise of the powers conferred on the Tribunal under this or any other Act.

Conditions

(2) The Tribunal may include in an order conditions that it considers fair in the circumstances, including a condition that the order comes into force at a future fixed time or on the performance of terms imposed by the Tribunal.

53Accordingly, the Tribunal is enabled with the power to make determinations, including “approvals in principle”, subject to conditions it deems fair in the circumstances that may be required to be fulfilled before final approvals are formally ordered – indeed the Tribunal exercises this discretion regularly.

54In Kimvar, the Ontario Municipal Board (“Board”), as this Tribunal then was, dealt with appeals on an OPA, comprehensive ZBA, and approval of a draft plan of subdivision intended to facilitate the development of a resort project for lands at Big Bay Point on the shore of Lake Simcoe. One of the issues in dispute was whether the planning approvals were premature given the need for additional studies and the potential for approvals beyond those required under the Act. Specifically, the project in that case was subject to additional required approvals, including a provincial class environmental assessment, an environmental assessment under the Canadian Environmental Assessment Act, and permits under the federal Fisheries Act and/or the Navigatible Waters Protection Act. While these additional permits and studies are distinguishable from a heritage demolition permit, the findings of the Board are equally apt to the case at bar.

55The relevant paragraphs of the Board’s decision in Kimvar are at paragraphs 58-59 (emphasis added):

As indicated previously, as an integral part of the planning instruments under appeal Kimvar has both recognized and provided for the reality that approvals may be needed under both provincial and federal legislation other than the Planning Act. Mr. Melling and Ms. Rosenthal submitted that their client is entitled to a decision from the Board with respect to the planning approvals it requires, accepting that all other regulatory requirements must be met for the project to proceed. The Board finds that Kimvar's position is correct. The necessity for approvals under legislation other than the Planning Act, which guides the Board, is not a basis upon which to find the project is premature. The Board is statutorily required to deal with any appeals that are made and come to a determination as to whether, among other things, the instruments represent good planning. The Board has indicated on numerous occasions that it has an obligation to hear an appeal and the fact that a different, but related, approval might be required should not deter the Board from proceeding with its mandate (Victoria Point Homes Inc. v. Orillia (City) (1998), 36 O.M.B.R. 254 (O.M.B.); East Gwillimbury (Town) Official Plan Amendment No. 89, Re (1998), 36 O.M.B.R. 307 (O.M.B.); 836769 Ontario Inc. v. Flamborough (Town), 2001 CarswellOnt 7198 (O.M.B.)).

OPA 17, the proposed zoning By-law and the Draft Plan include significant conditions that are intended to ensure that all required approvals beyond those necessary under the Planning Act are secured. If Kimvar is deficient in any area, the development simply cannot proceed. In that sense, approval from the Board is, in effect, conditional on other permits being secured (see for example the requirements set out in Attachments "2" and "3" and the Minutes of Settlement found at Attachment "1"). Moreover, it is largely as a result of the detailed conditions and recognition that other approvals are required that the Province, the County, the Town and two groups of local residents support the project. The Board acknowledges that the evidence was clear that further work is necessary in certain areas. However, as indicated previously, the Board finds that Kimvar has demonstrated that the features and functions found at the site will be protected. The necessity for further work and study is not, as submitted by the Opponents, a reason to delay planning approval. Rather, it reinforces the careful scrutiny of the project undertaken by all levels of government, and with the benefit of detailed evidence, by the Board.

56The Tribunal disagrees that the additional required assessments and permits in Kimvar are distinguishable because they did not bear the risk of drastically altering the development – indeed they also could have prohibited the development outright. It is also frequently the case that additionally required studies or assessments may yield results which do require further amendments to already approved planning instruments. Such potential risks are not a bar to the Tribunal’s jurisdiction, nor a standard by which determinations on the merits of planning applications are assessed or made. Rather, and as stated in Kimvar, the Tribunal has a statutory obligation to dispose of appeals before it based on whether they represent good planning, and related additional approvals under other legislation that are required should not deter the Tribunal from carrying out its mandate.

57In Camarro, this Tribunal approved a settlement on an OPA and ZBA in principle, conditional on, inter alia, the City’s receipt of a heritage conservation plan as well as a heritage permit application. The Town submits Camarro is distinguishable on the basis that the initial heritage permit appeal was before the Tribunal, thereby providing it with the jurisdiction to make decisions on the heritage permit necessary for the Proposed Development. The Tribunal disagrees with this proposition. While the Tribunal in Camarro did have before it an initial heritage permit application, what ultimately occurred was an approved agreement to defer the appeals under the OHA, pending the Tribunal’s issuance of the final order on the OPA and ZBA. As part of the approved settlement, it was agreed that the planning applications could be approved in principle, conditional on dealing with the heritage conservation plan and heritage permit application at a later date. Camarro is indeed an example of the Tribunal exercising its inherent jurisdiction to dispose of the planning appeals before it by ordering the heritage matters to be dealt with incidentally, or as conditional, to the approval.

58Finally, the Town argues it is not good planning or in the public interest to approve a development that contemplates total demolition of two designated heritage resources, and that any determination towards approval of the planning applications would be directly contrary to the applicable policy documents that require the conservation of such resources. The Tribunal disagrees. Any determinations made on the planning applications in the clear absence of a heritage demolition permit application are made in isolation, on the assumed basis that such a permit is possible, and not with any implication that such a permit is probable, nor any insinuation that it ought to be granted. In such compartmentalized fashion, the Tribunal may determine the merits of a development proposal and whether it constitutes good planning within the limited and strict context of the applicable planning framework alone. In any event, the present proposal fails the applicable planning policies and analysis for other key reasons.

Issues Under the Planning Act

59Before finally turning to the planning issues under the Act, an understanding of the Proposed Development is necessary. The Applicant presented two possible site-configurations for the Proposed Development – the “Current Application” and the “Alternate Plan”.

The Current Application

60The Current Application proposes the following:

(a) Two commercial buildings with a total gross floor area (“GFA”) of approximately 404 m², comprised of the following three units:

i. One restaurant building with GFA of approximately 232 m² to be used for the Tim Horton’s establishment with an associated DTSF;

ii. One unit within the second commercial building intended for use as a medical office with GFA of approximately 61 m²; and

iii. A second unit within the same second commercial building intended for use as a commercial/retail store with GFA of approximately 111 m²;

(b) A 4 m breezeway connecting the two commercial buildings with a common roof;

(c) 24 parking spaces inclusive of two barrier-free spaces;

(d) A two-way access from Airport Road, located at the southeast corner of the Subject Properties; and

(e) A DTSF located at the rear of the development, screened along the western lot line by a 4.5 m landscape buffer and a 2.4 m high acoustic fence sitting atop of a 2 m high retaining wall.

The Alternate Plan

61The Alternate Plan revises the configuration of the Current Application as follows:

(a) The total GFA is revised such that the GFA for the main restaurant building would increase to 280.7 m², while the GFA for the second commercial building would decrease to 144.1 m²;

(b) The common roof over the breezeway that adjoined the two commercial buildings would be removed;

(c) The parking spaces would increase from 24 to 26, with a decrease in barrier-free spaces from two to one, now measuring 3.4 m in width by 6 m in length, with a 1.5 m accessible aisle;

(d) The north lot-line landscape buffer would increase by 1 m, from 3 m to 4 m;

(e) The south lot-line landscape buffer would increase by 0.5 m, from 1.5 m to 2 m, now providing a 2 m clearance for vehicular access at the southern property line;

(f) The softscape landscaping would increase by 178 m² to 638 m², totalling 22% of the site area as defined by the ZBL;

(g) The escape lane would be relocated to immediately follow the order station;

(h) Molok (waste receptacle) bins would be relocated along with the loading space;

(i) Snow storage area is now designated;

(j) Walkways from the buildings to the garbage, loading, and parking areas are now delineated;

(k) Refinements are made to the site circulation intended to reduce potential alleged vehicular-pedestrian conflicts and improve overall functionality of site; and

(l) The vehicular entrance to the site would be shifted north so that it is offset by 2 m from the southern property line.

62The Appeals do not raise issues with the proposed commercial and restaurant uses for the Proposed Development – those uses are permitted. The fundamental planning issues in dispute question whether the Subject Properties are large enough to accommodate a DTSF by way of either the Current Application or the Alternate Plan, and more particularly with respect to: the height of the noise barrier; transportation safety, site circulation, site access, and potential road widening; removal of vegetation and insufficient landscaping; and consistency with the CESP prohibiting drive-throughs. The Applicant suggests that the Town’s position on these issues is untenable as it equates to a sterilization of the Subject Properties from any commercial development as the issues raised do not solely arise as a result of the DTSF. The Tribunal disagrees with this proposition.

Issue No. 3(i) Under the Act: The Height of the Noise Barrier

63Both the Current Application and the Alternate Plan propose the same two noise barriers, unchanged between the two plans. The first noise barrier is 2 m in height, located along the west and northwest boundary of the Subject Properties, adjacent to a residential neighbourhood. The Town takes no issue with this noise wall. The second is 4.4 m in height⁶ at its highest and is an acoustic barrier located along the northern boundary of the Subject Properties, which decreases in height as it moves towards Airport Road. The Town takes issue with this second noise wall.

64From a technical noise pollution perspective, the acoustical engineering experts for both Parties agree that the Applicant’s Noise Feasibility Study Report (“Noise Study”), with recommended 4.4 m high mitigating noise-barrier, results in satisfactory sound levels that comply with the Ministry of the Environment, Conservation and Parks (“MECP”) Environmental Noise Guideline Stationary and Transportation Sources – Approval and Planning document (“NPC-300 Guidelines”). The issues then, that the Town raises, regard specifically the height of the second northern noise wall at 4.4 m, which it submits amounts to an unprecedented height in the historic Village Core that exceeds the maximum 2.4 m height within the Town’s Development Standards Manual (“TDSM”), goes against policies within the CESP, and is inappropriate from an urban design perspective.

65The Applicant submits that the northern noise wall separates the Subject Properties from the lands to the north, which are currently used for residential purposes, but as a legal non-conforming use, and that those lands are actually designated and zoned for commercial purposes. Accordingly, the Applicant submits that if, and when, the adjacent northern property redevelops for commercial use, the northern noise barrier will no longer be required. In the meantime, the Applicant argues that the same TDSM, which sets the maximum barrier wall height also provides flexibility for greater heights where a combination of wall and berm or retaining wall are used together. In this regard, the Applicant relies on its acoustical engineering expert, Sheeba Paul.

66Ms. Paul details the processes undertaken within her Noise Study with respect to the potential environmental noise impact of the Proposed Development. Her analysis is based on site visits, a review of the proposed site plans, estimates of rooftop mechanical unit types, locations, tonnages, and quality, regional traffic data for Airport Road, as well as sound level data from her firm’s project files for typical mechanical equipment, and vehicle noise stemming from drive-through queuing lanes and speaker boards. She explains that the sensitive receptors in the area needed to be identified – they are, mainly, the single-storey residences to the west/northwest (where the location of the first 2 m high noise wall is to be located) and the two-storey legal non-conforming residence to the north. More specifically, the closest top floor windows of the neighbouring residences, as they represent the most potentially impacted locations, as well as the rear yards of the adjacent, and most potentially impacted, residences.

67Following the data collection, review, analysis, and calculations, Ms. Paul’s report concludes that the sound levels from the proposed commercial development, including the drive-through queuing and idling lane, as well as the speaker boards, have the potential to exceed the NPC-300 Guidelines at the three key neighbouring properties – the two single-storey residences to the west/northwest of the Subject Properties identified as Residences 3 and 5 (“R3” and “R5”), and the two-storey legal non-conforming residence to the north, identified as Residence 6 (“R6”).

68Given the results, Ms. Paul’s evidence is that mitigation measures are necessary in the form of the two acoustic barriers measuring 2 m and 4.4 m in height. It is noteworthy to mention that during reply evidence Ms. Paul also testified that the northern noise wall could be reduced from 4.4 m to 3.5 m, with the relocation of the drive-through speaker board from the north to northwest of the site (“Further Revised Plan”). In either instance, it is Ms. Paul’s evidence that the TDSM allows greater barrier wall heights beyond 2.4 m when a combination of wall and berm or retaining wall are used. She testified that, in this case, the 4.4 m (or 3.5 m in the Further Revised Plan) noise barrier would be comprised of a 2.4 m high noise fence atop of a 2 m high⁷ retaining wall (or 1.1 m in the Further Revised Plan), thereby complying with the TDSM standards.

69With respect to the urban design, the Applicant’s expert, Shane Morgan, testified that the Proposed Development, including the DTSF and 4.4 m noise wall, meets the Town’s Drive-Through Service Facilities Guidelines (“DTSF Guidelines”). In particular, and in reliance on Ms. Paul’s evidence, he states that s. 2.5 of the DTSF Guidelines regarding noise attenuation design features are met because the noise wall is comprised of a 2.4 m acoustic barrier on top of a 2 m retaining wall. In addition, he states that the order box is located away from the residential area, buffered with landscaping, and that the noise wall visible to the public realm is mainly from the parking area with only a portion visible from Airport Road, and which could be appropriately treated with significant screening through landscaped design, making it aesthetically and visually pleasing.

70With respect to the landscape treatment of the noise wall, the Applicant’s landscape architecture expert, Shannon Gallant, testified that the combined retaining wall/acoustic fence allowed a 2.45 m width of space, which she opines is sufficient space for the appropriate soil volume necessary to support adequate tree planting and shrub planting. In response to the Town’s renderings conceptualizing what the noise wall might look like, Ms. Gallant prepared her own renderings to depict what the wall might look like from the public realm if plexiglass materials were used for the top portion of the wall to provide for sky view and sunlight, as well as the tree and shrub material to screen the wall itself:

71While the Town’s witness disagree on the viability of the proposed tree and shrubbery plantings, the Applicant submits that determining the precise types of trees and shrubs for screening the noise wall are details that may be worked out as a condition of site plan rather than fundamental to whether the wall is appropriate from an urban design perspective.

72In response, the Town’s acoustical engineering expert, Mark Levkoe, opines that the 4.4 m northern noise barrier does not comply with the TDSM, nor the NPC-300 Guidelines, because it is comprised entirely as an acoustic fence. In this regard he points to the landscape cross section figure which depicts that the retaining wall referred to by the Applicant, is in fact only 0.4 m high, the remaining 2m of which is simply a concrete wall above grade. Accordingly, the acoustic barrier is in fact 4 m high atop of 0.4 m retaining wall, and the TDSM does not recognize the use of a retaining wall to obtain greater heights of sound barriers. In respect of the Further Revised Plan with the speaker boards moved further west, Mr. Levkoe responds that there was no modelling completed that demonstrated the noise wall could be lowered, that the direction of the order box may not have been factored into Ms. Paul’s calculations, and there was no evidence that the lowered noise wall could break the line of sight from the second storey window of the neighbouring property to the parapets that are required on the roof of the Proposed Development, as would be required per MECP standards.

73The Town’s landscape architecture and arboriculture witness, Rebecca Egger, testified that the location of the noise wall is within the 4.5 m allocated for a landscaped area creating significant concern as it divides the available soil for trees. Additionally, the noise wall is not reflected in the landscaped plans showing the proposed plantings in that area, which would ultimately conflict when the wall is accounted for. Ms. Egger opines that the noise wall would not allow for sufficient soil volume that is required for large canopy trees to establish and thrive over time.

74Madhuparna Debnath, the Town’s urban design expert, testified that the noise wall would conflict with the traditional small town “main street” character that the OP envisions for the area, given the wall will be imposing and would not create an aesthetically pleasing or high-quality environment. Ms. Debnath opines that the height of the wall would be contrary to the TDSM.

75In light of the opinions of the Town’s expert witnesses, the Town argues that the noise wall runs contrary to the TDSM, particularly s. 1.17.4 of the TDSM, as well as the policies within the CESP, particularly s.7.7.4.1(d) of the CESP.

Findings on Issue No. 3(i)

76In balancing the necessity of the northern noise wall with the overall goals and intent of the relevant planning policies and guidelines, the Tribunal finds that the proposed heights, at either 4.4 m within the Current Application and Alternate Plan, or 3.5 m within the Further Revised Plan, would inappropriately exceed the TDSM and the Town’s DTSF Guidelines, run contrary to the CESP, and fail to maintain a high-quality environment that is pedestrian oriented and in keeping with the small town setting of the area.

77The maximum height of noise walls is set out in s. 1.17.4 of the TDSM which reads, in part (emphasis added):

To ensure attractive streetscape appearance, the Town discourages development layouts that require noise barriers. The need for noise attenuation is identified in the Acoustical Report prepared and submitted in support of the Draft Plan. The heights of walls will be minimized through the use of fence/berm combinations. All aspects of installation must conform to Town policy and MECP Guidelines.

Note:

The maximum barrier wall height shall be 2.4 m. Should a greater height be required, the difference in height may be achieved with the use of a berm.

78An even lower maximum height is set out within s. 2.25 of the DTSF Guidelines, which states (emphasis added):

• Provide noise attenuation measures such as walls and/or soft landscaping to reduce noise on adjacent sensitive land uses.

• Provide noise attenuation wall(s) up to a maximum height of 1.8 metres. Where it is required, additional height may be achieved by incorporating berms in the proposed grading.

• Locate noise attenuation wall(s) on the property line to avoid unusable space.

• Locate audio and video devices in areas of the site so that the operation of these devices would not adversely impact adjacent properties.

• Locate order boxes/speakers away from residential or other sensitive land uses.

79Significantly, neither document identifies a retaining wall as one of the measures in which greater heights can be achieved where necessary. The concept of the retaining wall was introduced by Ms. Paul, who conceded on cross-examination that neither the TDSM nor the DTSF Guidelines allow for retaining walls to increase noise barriers, but that because berms can take up too much space, she has seen in her experience, that retaining walls may be used in the place of a berm. The Tribunal acknowledges that deviations from standards and guidelines can occur, however, such deviations need to be appropriate in the context of a development proposal and the Tribunal does not find that to be the case in the case at bar.

80The proposed northern noise wall is required to sit atop either a 2 m high retaining wall in the Current Application and Alternat Plan, or a 1.1 m retaining wall in the Further Revised Plan. The figure within the landscape cross section, and Ms. Paul herself agreed, that the retaining wall, in the strict sense of the word meaning to support soils that are higher in elevation from one side to the other, is in fact only 0.4 m high. Accordingly, the Tribunal finds it is a far stretch to suggest that the proposed northern noise barrier has regard for the TDSM and the DTSF Guidelines when in fact the proposed noise wall is more accurately described, at best, as either a 2.4 m noise fence atop a 1 m above grade wall, which is atop a 0.4 m retaining wall in the Current Application and Alternate Plan, or a 2.4 m noise fence atop a 0.7 m above grade wall, which is atop a 0.4 m retaining wall in the Further Revised Plan.

81In either case, the total height of the proposed northern noise wall substantially exceeds the standards and guidelines. The Tribunal also agrees with the evidence of Ms. Debnath, and finds that even with extensive landscaping, the northern noise wall would create an overly imposing visual impact that would not respect the continuity and connections between facilities and services on the street, nor the character of the surrounding area within the Village Core. The Tribunal does not agree with the opinion of Mr. Morgan that the noise wall’s visibility to the public realm is mainly from the parking area. While the parking area is where the public may be most engaged with the noise wall, the evidence on record establishes that it would be quite apparent at pedestrian street level along Airport Road as well. Significantly, one must keep in mind that the Subject Properties are within Caledon East with its own Secondary Plan. Airport Road is defined by the CESP as prominent in defining the Town’s “small town” character, thereby expressly discouraging sound walls – s. 7.7.4.1(d) of the CESP states (emphasis added):

Community Design Principles

(d) Airport Road is a High Capacity Arterial and Old Church Road is a medium Capacity Arterial intersecting in the core of Caledon East. These streets accommodate regional and inter-regional traffic, but they also play a prominent role in defining Caledon East’s small town character and community life as locations for and connections between community facilities and services. It is intended that these roads be integrated into the community fabric and exhibit a pedestrian oriented character and scale in keeping with the small town setting. Consequently, commercial and residential development will be oriented toward the street; back lotting and sound walls will be discouraged.

82The Tribunal is of the view that the plans and policies are express and clear that noise walls are to be avoided in Caledon East, even where they meet the height standards, in order that Airport Road may be maintained as a pedestrian oriented street in keeping with the scale and character of a small-town setting.

83In balancing the objectives of the legislative planning framework and policies, the Tribunal emphasizes that the necessity of the northern noise wall in this case is not brought on by a desire for general commercial development meant to revitalize the area. Rather, it is necessitated strictly by the DTSF and would not be required for a proposal for the same commercial development absent its drive-through. In other words, the Town’s concerns, and Tribunal’s findings regarding the height of the noise wall is not a complete sterilization of the Subject Properties from commercial development as suggested by the Applicant. A drive-through simply does not tip the scale in favour of deviating from policies and guidelines intended to further the Town’s vision for maintaining a small-town character and feel.

84The Tribunal further acknowledges that the northern noise wall is also necessitated by the legal non-conforming residential use of a property which is designated and zoned for commercial uses. However, the Tribunal is of the view that future redevelopment for commercial use does not necessarily mean that the wall will no longer be required. Given that the commercial designation also permits residential uses in combination with ground floor commercial uses, use of the northern property for residential purposes may continue indefinitely. Furthermore, the Tribunal agrees with the Town that the zoning has no relevance to the mitigation measures required for development now. The Tribunal agrees that it is the current use which is of importance as it necessitates the noise wall and must be evaluated based on what is required for development today.

Issue No. 3(ii) Under the Act: Transportation Safety, Site Circulation, Road Access, and Potential Road Widening

85The Town submits that the Current Application’s configuration of the DTSF raises concerns related to the internal circulation of the site for pedestrians, vehicles, and employees. More particularly, the Town’s transportation expert witness, Maitham Dinani, opines that the Current Application presents vehicle-pedestrian conflicts. For instance, he states the plan lacks dedicated pedestrian pathways between the location of the Molok waste bins and the buildings, as well as between the delivery space and the building entrances. It also includes a pedestrian walkway through the drive-through lane by way of line-painting. These configurations create risks when employees are required to traverse through the parking lot to access the Molok bins, when delivery personnel are required to access the building from the delivery space, and when the first queued vehicle behind the pick-up window is obstructing pedestrians accessing the walkway across the drive-through.

86Mr. Dinani further opines that the merging of the drive-through’s exit lane into the main parking circulation aisle within the Current Application creates conflict points in respect of vehicles exiting the drive-through, vehicles reversing out of adjacent parking spaces, vehicles circulating in the main parking circulation aisles, pedestrians crossing the drive-through lane, and pedestrians crossing the parking aisle in all directions.

87With respect to the Alternate Plan, Mr. Dinani concedes that the configuration results in better site circulation and alleviates all but one of the concerns raised by the Current Application – that being the location of the site access which remains a concern for both the Current Application and Alternate Plan. Mr. Dinani states that there is no spacing between the proposed site access and the existing driveway to the south at 16052 Airport Road. The result lacks regard for s. 8.9.8 of the Transportation Association (“TAC”) Guidelines, which encourage a minim tangent length of 3 m between two commercial driveways for local and collector roads, and even greater spacing for arterial roads such as Airport Road. Additionally, Mr. Dinani adds that the proposed site access is only approximately 69 m from Walker Road. Accordingly, he opines that per the Region’s Road Characterization Study, 2013 (“RCS”) the more appropriate access is a Right-In/Right-Out access (“RIRO”), which requires 75 m spacing between full-movement and partial-movement intersections or driveways, rather than the full movement access proposed by the Applicant. This is because the RCS would then require a 150 m spacing between full-movement intersections and driveways on Rural Main Streets. He concludes that a RIRO access would reduce the conflict points to two points, down from the nine conflict points that arise from a full access driveway.

88Mr. Dinani also highlights a concern with respect to the right-of-way (“ROW”) for Airport Road per the ROP 2022 which includes a 31.5 m ROW across the site. He states that the Applicant’s revised updated Traffic Operations Assessment, dated May 2022 (“Final TIS”), includes correspondence from the Region stating the 26 m ROW reflected on the site plans are acceptable. However, he points to more recent correspondence from the Region setting out that the ROW required is actually 31.5 m across the site. The Town therefore submits that if the Region exercised its full ROW width, it would further limit the available land on the Subject Properties, making the DTFS even less feasible.

89In contrast, the Applicant submits that the Town’s stated concerns amount to hypothetical speculation without justification for why mitigation measures, including signage and pavement markings, would be ineffective for the Proposed Development when comparable sites elsewhere utilize the same mitigation tools. The Applicant argues that the Town is holding the Subject Properties to higher standards, that no other property in the vicinity of Airport Road has been required to meet, and if the Town’s concerns are endorsed, it would effectively prevent the site from having any satisfactory access.

90In support of its position, the Applicant relies on its transportation expert, Richard Pernicky. Mr. Pernicky is the founding principal of the firm engaged by the Applicant to assess traffic operations, and in so doing authored three reports: (i) a Traffic Operations Assessment, dated December 4, 2019 (“2019 TIS”); (ii) an updated Traffic Operations Assessment, dated December 19, 2020 (“2020 TIS”); and (iii) the Final TIS. In short, he concludes that both site plans have been designed with safe pedestrian and vehicle circulation paths. He states that any conflicts which may arise are minimal, and which may be safely and appropriately mitigated through additional safety measures, including pavement markings, signage, and operational standards such as employee training, high visibility vests, and off-peak loading and delivery hours. Mr. Pernicky points to examples throughout the Region of other drive-through sites with similar circulation patterns.

91With respect to site access, his reports conclude that the road network adjacent to the study area intersections have “residual capacity under projected future background traffic conditions to accommodate the site traffic that the proposed development is projected to generate”. He states that the site access is “projected to operate with residual capacity, with excellent levels of service and with manageable delay and minimal queue lengths”. While he notes that per the ROP 2022 the site is compliant with minimum spacing requirements for left-in/right-in/right-out access (“LI-RIRO”), the results of his analysis for a full movement access demonstrated negligible impact on the projected traffic operations at the proposed site and the surrounding road network and is therefore, supportable. He adds that the current location for site access is more appropriate than the central location first supported by the Region in the original submission, since subsequently, the Applicant acquired 16068 Airport Road, thereby creating greater spacing from the intersection by moving the access to the southern limits. It is critical, in Mr. Pernicky’s opinion, to consider that within the area of the Subject Properties there are a number of full movement accesses, including accesses for commercial and restaurant buildings, notably the nearby Esso Gas Station on Airport Road that also do not comply with the minimum spacing requirements set out by the TAC Guidelines.

Findings on Issue No. 3(ii)

92While the Tribunal finds Mr. Pernicky to be a knowledgeable witness, on the issue of the Current Application’s site circulation, the Tribunal prefers the evidence of Mr. Dinani. First, Mr. Dinani’s opinion included a critique of Mr. Pernicky’s traffic impact studies that the Tribunal finds compelling. The traffic generation calculations were based on data from the Institute of Transportation Engineers Trip Generation Manual (“ITE Manual”) using two land use codes: (i) shopping centre; and (ii) fast food restaurant with DTSF. Mr. Dinani points out that the ITE Manual includes three land use codes that are more reflective of the actual Proposed Development, which would have resulted in higher trip generation: (i) clinic; (ii) strip retail plaza; and (iii) coffee/donut shop with DTSF. Second, Mr. Dinani highlights that the traffic data projections ought to have been based on the traffic volumes from the south leg of the Airport Road-Walker Road intersection rather than the north, as the south leg has higher traffic volumes and provides a more conservative estimate, more robust analysis, and more realistic traffic demand across the site and of the site’s access.

93The Tribunal agrees that the three land use codes raised by Mr. Dinani more accurately capture the Proposed Development, which would result in an increase of trip generation to approximately 230 a.m. peak hour trips and 111 p.m. peak hour primary and pass-by trips, compared to that reflected in the Final TIS being 102 a.m. peak hour trips and 91 p.m. peak hour trips. The Tribunal also agrees that the higher traffic volumes from the south leg of the Airport Road-Walker Road intersection ought to have been assumed for the traffic data projections for a more conservative analysis, which would have resulted in an additional 139 a.m. and 43 p.m. peak hour trips on Airport Road across the site access.

94The Tribunal acknowledges that Mr. Pernicky, in his reply witness statement, addressed the concerns raised with respect to his traffic data assumptions by preparing an updated traffic operations assessment at the intersection of the site access and Airport Road. In that further revised study, he concludes that the revised projected traffic and trip generation increases will have a manageable impact, as the site is projected to remain operational with residual capacity, acceptable levels of service, and manageable delay and queue lengths. However, the Tribunal is of the view that the more favourable assumptions originally considered and put before this Tribunal demonstrate the best efforts taken to rationalize and support a development that is at the boundaries of acceptable limits when it comes to traffic and safety. The increase in traffic volume using the more conservative traffic projections demonstrates quite simply a higher number of vehicles and pedestrians interacting with one another and engaging with the site, which increases the overall potential vehicle and pedestrian conflicts and site circulation related concerns. So, while the levels of service, accordingly to Mr. Pernicky, at its lowest, remain within acceptable limits at a ‘level C’, the Tribunal is of the view that specifically for a DTSF that is not otherwise permitted by the policies and plans, as set out in the balance of this Decision, it would be contrary to good planning to deliberately allow a site configuration which results in nine conflict points through utilizing mitigation measures when there exists an Alternate Plan that would reduce, if not eliminate, those conflicts.

95In this regard, Mr. Dinani was forthright in agreeing that mitigation measures, including signage and pavement markings, are common and important tools to reduce safety risks associated with circulation design conflicts. However, the Tribunal agrees that those measures are not appropriate in the context of the site configuration under the Current Application. Signage and pavement markings ought to be tools utilized to minimize natural risks associated with compliant site configurations, and not to mitigate inferior configurations where pedestrian paths are deliberately designed within drive-through aisles, particularly when there exists an alternate configuration that alleviates those risks entirely.

96Accordingly, the Tribunal is of the view that the Current Application fails from a circulation and traffic safety perspective in that it lacks dedicated pathways between the Molok waste bins and building entrances, it lacks dedicated pedestrian pathways between the delivery spaces and building entrances, it includes pedestrian pathways through active drive-through lanes, and the drive-through exit lane merges with the main parking circulation aisle creating additional conflicts with vehicles exiting the drive-through, reversing out of adjacent parking spaces, circulating in the main parking circulation aisle, with pedestrians crossing the drive-through lane, and pedestrians crossing the parking aisle in all directions. The Tribunal consequently finds that the Current Application fails to conform with s. 5.10.36.2 of the ROP 2022 directing the optimization of road safety, including pedestrian, cyclist, and road-user safety, and s. 5.9.5.5.1 of the Town’s OP encouraging the maintenance of efficient traffic flows.

97As conceded to by Mr. Dinani, the Alternate Plan results in improved site circulation, leaving only the site-access issues. The Tribunal is not convinced that the site-access issues raised by the Town are sufficient grounds to oppose development in and of itself. First, the Tribunal acknowledges there was contention over the position of the Region with respect to the appropriate site access. What is clear is that both Parties agree the Region was initially supportive of a LI-RIRO, with an extension of the proposed northbound left turn lane, within a prior iteration of the plan proposed in the 2020 TIS that included only the original two properties – correspondence from the Region on record verifies this. This iteration of the development proposed the site’s access as centrally located along Airport Road between its intersection with Walker Road and 16052 Airport Road’s driveway. The Applicant’s acquisition of the third property, 16068 Airport Road, resulted in a consolidation with greater frontage along Airport Road. The Tribunal accepts Mr. Pernicky’s evidence that this allowed relocating the site access further south which is favourable, given that an access closer to Walker Road results in increased safety risk given the proximity to an arterial road intersection. In other words, the Tribunal accepts and agrees that it is safer to move the access closer to the southern driveway at 16052 Airport Road, rather than leave it centrally located resulting in closer proximity to Walker Road.

98This finding is supported by Mr. Dinani’s admission on cross-examination that meeting both the guidelines set out in the Region’s RCS (requiring 75 m spacing between full-movement and partial-movement intersections) as well as the TAC Guidelines (encouraging 3 m distances between commercial driveways) would prevent any access to the Subject Properties. Accordingly, the most optimal option that achieves the greatest safety within the intent of the guidelines as a whole must be the goal. The Tribunal is of the view that the site access located at its southern limit achieves optimal safety, including optimal site configuration by preventing a fragmenting of the site. A centrally located access would result in site fragmentation, leading to poorer vehicular and pedestrian circulation, and increased safety risks over what is currently contemplated in the Alternate Plan.

99As for the movement of the access, it is unclear to the Tribunal how the Region moved in position from an acceptable LI-RIRO centrally located access, to a RIRO centrally located access. Nonetheless, the Tribunal would agree that a RIRO access would be the most appropriate from a transportation safety standpoint, which would comply with the Region’s RCS and reduce the number of potential vehicular conflicts from nine down to two. The Tribunal disagrees that requiring a RIRO access would be holding the development to higher standards than other properties in the area. The other properties highlighted by Mr. Pernicky as having full movement access were developed prior to the implementation of the TAC Guidelines and RCS. Development today must strive for the highest safety standards which are guided by updated policies and guidelines, and so must be guided by the TAC Guideline and RCS presently in effect. Moreover, Mr. Pernicky himself acknowledged other DTSF developments within the Region with a RIRO access, demonstrating that such an access wouldn’t necessarily preclude the development of a DTSF.

100Finally, appropriate space for a DTSF is challenged by the Region’s ROW. While potentially impractical for the many reasons raised by the Applicant, a simple fact remains: regardless of any speculation, the evidence establishes that the Region has the ability to require a ROW of up to 31.5 m. This right has already been exercised across the street at 16061 Airport Road. Good planning ought to consider the site configurations conservatively, in which case the additional 5.5 m widening would restrict the available space on the Subject Properties further. However, this issue is among those with the least impact on the proposal as the DTSF fails on other more significant planning considerations, including the height of the noise wall, and as set out further below.

Issue No. 3(iii) Under the Act: Removal of Vegetation and Insufficient Landscaping

101In order to accommodate the Proposed Development, by way of either the Current Application or the Alternate Plan, the Applicant’s Arboricultural expert, Laura Watson, states three key things are required: (i) the removal of all trees within the bounds of the site requiring a tree planting plan; (ii) recommended removal of two trees on the adjacent, privately-owned property; and (iii) mitigation measures in order to preserve a mature Black Walnut tree in the rear yard of the property at 4 Walker Road West.

102The Town raises some key concerns with respect to the impact of the development on the existing trees, namely: (i) that it fails to conform with the policies within the OP, encouraging the preservation of trees and enhancement of the community’s character; and (ii) it fails Town’s zoning standards respecting minimum planting strips around queuing lanes.

103Specifically, the Town’s landscape architecture and arboriculture expert, Ms. Egger, testified that the Proposed Development fails to conform with ss. 3.3.3.3.2, 5.4.3.17, 5.4.9, 5.10.3.10, and 7.7.4, 7.7.9.5 of the OP, as well as s. 4.10.9(a) of the Town’s ZBL, for the following reasons:

(a) The two White Spruce trees (#414 and #415, as identified in the Tree Preservation Plan) are likely remnants of a tree row planted between property lines and form a significant part of the character of the Subject Properties and larger village beyond. They link the Subject Properties to the historical nature of this part of the village as original lots within the village’s first plan of subdivision and fit the description of mature trees consistent with rural village character as set out in the HDBLs. Accordingly, their removal fails to support policies directing maintenance of landscaped elements connected to built heritage resources.

(b) The removal of all mature vegetation with a large expanse of paved surfacing is not compatible with the character of Caledon East, which includes large mature vegetation, open lawn, and planted areas.

(c) The removal of all existing vegetation on the site conflicts with the community design values which encourage the preservation and enhancement of natural features, as well as the maintenance of valued landscape features.

(d) There are two White Spruce trees and one Sugar Maple tree in very good health, and while they do not fall under a designated Environmental Policy Area, removing them does not support the policies directing preservation of existing trees.

(e) The proposed landscape buffer around the north and west edges of the Subject Properties are essential for year-round screening given the proximity to residential dwellings. However, the Applicant’s Landscape Plan does not account for the retaining wall and acoustic fence, which will divide the available soil for plantings and restrict replanting of large canopy species, thereby conflicting with the policies directing the application of standards and guidelines within the ZBL and the Caledon Comprehensive Town-wide Design Guidelines (“CCD Guidelines”).

(f) All landscape features proposed are minimal and located at the rear, or border, of the site. There is no plant material within the interior of the site, with no proposed parking islands or landscaping within the parking lot contrary to the CCD Guidelines.

(g) The queuing lane does not have a proposed 2 m wide planting strip on both sides, contrary to the ZBL standards, and modification of the standards should not be supported given the minimal impervious areas and planting areas currently proposed.

(h) The proposed Landscape Plan does not depict infiltration features beyond a 1 m wide swale at the northeast corner of the Subject Properties. The Proposed Development requires a large amount of impervious surface to accommodate the DTSF, leaving little space to accommodate low impact development strategies.

104In response, Ms. Watson opines that the Proposed Development is in conformity with the PPS, the OP, and the ZBL for the following key reasons:

(a) Her tree inventory revealed that 65% of the trees are invasive or non-native species and 39% of the overall trees were of poor-quality vegetation. The new tree plantings will allow longer lived and more desirable tree species.

(b) No culturally significant heritage trees were identified. While the Black Walnut trees was identified on adjacent private property, it is not on the Ontario Heritage Tree Registry and has no significant cultural heritage vegetation attributes. Additionally, with proposed mitigation it will be preserved.

(c) There is no mention of tree size being a criterion within the OP speaking to heightened protection or preservation.

(d) The two White Spruce trees are approximately 40-70 years old, while the dwellings on those Heritage Properties are approximately 163-167 years old. They are also planted in a north-south direction rather than east-west along the property boundary, as one would expect for a hedgerow defining a property line. This does not support that these trees link the properties to the historical nature of the village.

(e) The Subject Properties are not considered a wooded area and are zoned for commercial development. The OP policies do not require preservation of trees, rather they encourage preservation where feasible. The feasibility of retaining trees with any development at the Subject Properties is low, particularly because the vegetation is centrally located or at the rear and sides of the site, and other OP policies direct parking to be located to the side.

(f) The Alternate Plan provides increased opportunity to install large-growing shade trees within the increased landscape buffers near Airport Road, which will mature with time adding to the character, streetscape, and views from the town entrances.

105The Applicant’s landscape architect, Ms. Gallant, opines that the soil volume of 1.2 m, which could be increased to 1.6 m, in the landscape buffers along the north and west of the Subject Properties is adequate for plant material, which would have sufficient room to grow to screen the noise wall.

Findings on Issue No. 3(iii)

106Suspending the issues surrounding demolition of the Heritage Properties momentarily, the Tribunal finds the removal of a certain level of vegetation on the Subject Properties to be likely inevitable with any redevelopment that would be permitted as-of-right. In this regard, the Tribunal finds that the existing vegetation on the Subject Properties is neither legislatively protected under environmental protections, nor registered as heritage trees. With respect to the conflicting evidence regarding the linkage between the two White Spruce trees with the historical nature of the original lots within the Village’s first plan of subdivision, the Tribunal prefers the evidence of Ms. Watson who indicated the age of the trees were approximately 100 years younger than the age of the dwellings on the Heritage Properties. This evidence was uncontradicted by Ms. Egger on cross-examination and ultimately does not support that the trees are linked to the historical nature of the Village as suggested. Accordingly, while the policies of the PPS and OP encourage the preservation of trees where feasible, there is no statutory requirement mandating to do so.

107The Tribunal agrees that based on the ZBL’s permissions of a maximum building area of 25%, a maximum GFA of 925 m², and a minimum landscaping area of 20%, coupled with the OP policies directing the maximization of the utility of lands and directing parking to be located to the side or rear of commercial buildings where possible, it is apparent that the policies encouraging tree preservation are to be balanced with all competing policy goals in the context of the Proposed Development.

108Having said that, the Tribunal is also of the view that one must carefully consider the goals being achieved by the DTSF in the context of the Proposed Development in relation to its impact on competing goals, here being the preservation of mature and healthy trees. While there are not any environmentally protected or registered heritage trees, there are still many mature, non-invasive, and thriving trees which serve significant importance to the health and vibrancy of the community and its residents. Their removal is not to be decided lightly, and the question is whether their preservation is feasible. In this case, the Tribunal finds that while any redevelopment would likely require the removal of a certain extent of the vegetation, there was insufficient evidence to establish that all redevelopment, and particularly without a DTSF, would fail to preserve at least some of the mature and healthy trees. In this regard the Tribunal concurs with the submissions from the Town that there was no grading, engineering, or other qualified professional analysis tendered to conclude that all commercial development would necessitate the removal of all existing vegetation, as is contemplated by Proposed Development. Indeed, Ms. Watson herself conceded on cross-examination that if the Heritage Properties were adaptively re-used, that may obviate the need of removing all vegetation in their entirety. In such an instance, the goal of redeveloping commercial business along Airport Road would be supported alongside the goal of preservation of existing vegetation.

109Additionally, and as a direct result of the DTSF, laid out in both the Current Application and the Alternate Plan, the Tribunal finds there would remain little available space within the site for adequate tree and vegetation replanting such that would conform with OP policies and zoning planting standards. First, to accommodate the DTSF there would only remain 2.45 m strip of space available on only one side of the queuing lane, which is also the location of the proposed retaining wall and acoustic fence, thereby dividing that strip into two segments on either side of the wall measuring 1.65 m and 0.8 m wide. This is a departure from s. 4.10.9(a) of the zoning standards which require a 2 m wide planting strip on both sides of the queuing lane, and the Tribunal agrees that such a departure cannot be supported given the minimal Landscape and Tree Planting Plans proposed for the replanting of removed vegetation and the minimal proposed impervious areas. Indeed, it is an agreed fact among the experts that the majority of the Subject Properties is to be hardscaped, contrary to the OP’s policies directing, inter alia, enhancement of natural features, maintaining views of landscape features, and incorporating non(environmentally)-designated trees into development patterns.

110Second, it is questionable whether there will be sufficient soil volume within the planting strip that would be necessary for robust plantings that would screen the height of the noise wall. In this regard the Tribunal prefers the evidence of Ms. Egger. Ms. Egger addresses comments from Ms. Gallant and agrees that the Town’s Green Development Standards (“Green Standards”) do not set out soil depth. However, she states that even if in this case the soil depth is increased from 1.2 m to 1.65 m by pushing down the footing further below grade, the majority of the vegetation appropriate for the site would grow in the top 1 m portion of the soil, thereby resulting in insufficient cubic metres of soil per tree within the planting strip to accommodate a large number of taller tree types that could be established to thrive over time.

111Ms. Egger explains that using the recommended 20 cubic metres of soil per tree per the Town’s Green Standards, the full 2.45 m width strip (excluding the retaining wall and acoustic fence) would accommodate nine trees along the west wall, which is one less than the proposed Landscape Plan indicates. When recalculated at the reduced divided width of 1.65 m, Ms. Egger opines that only five trees can be accommodated, being only half of that shown on the Landscape Plan. Ms. Egger contends that the planting strip would not support the robust planting that would be needed to screen the height of the 4.4 m high noise wall. Ms. Gallant herself concedes that using the Town’s Green Standards of 20 cubic metres of soil per tree, even with an increased soil depth of 1.65 m, approximately 14 trees could be supported, still falling short of the 18 deciduous trees within her Landscape Plan. While she suggested that the deciduous trees could be substituted to coniferous ones, she also conceded on cross examination that the taller planting selections for the portion of the wall measuring 0.8 m wide could grow only as tall as between 3 m to 3.5 m in height, thereby still leaving approximately 1.4 m of the top portion of the noise wall visible.

112For these reasons alone, the Tribunal is of the view that the removal of all existing vegetation and the proposed Tree Planting and Landscape Plans are insufficient, as they fail to conform with ss. 5.4.3.17 and 5.4.9.1(c) of the OP, which direct a high standard of landscape and streetscape features for all commercial uses. This is evident when one takes guidance from the CCD Guidelines. The Proposed Development fails to show any parking islands or landscaping within the parking lot. The queuing lane is within 4.5 m of the rear lot line of residential dwellings with insufficient landscaped buffering to screen the noise wall that would be necessary to accommodate the DTSF. The proposed replanting is minimal, falling short of the Town’s Terms of Reference for Arborist Reports for compensation replanting proposing only 50 of the required 74 trees, many of which are found to not likely be feasible due to insufficient soil volumes, and are located predominantly to the rear of the site. The removal of all vegetation and insufficiency of landscaping demonstrate that the Subject Properties are indeed too small to adequately accommodate the Proposed Development, inclusive of the DTSF.

Issue No. 3(vi) Under the Act: Consistency with the Secondary Plan and Village Character

113The Town submits that even if the Proposed Development, inclusive of DTSF, could appropriately fit within the Subject Properties without adverse land use impacts, the applicable planning and policy framework is clear regarding the intention to prohibit DTSFs within Caledon East. The Town submits that while the OP allows consideration of a DTSF where it is demonstrated that the OP’s intention for Caledon East is preserved, the CESP itself explicitly prohibits DTSFs, making the intention for Caledon East clear. In any case, the Town submits that a DTSF fails to conform with the OP’s goal of promoting a traditional main street in order to maintain the rural small-town character of Caledon East.

114Summarizing her evidence on key issues not addressed elsewhere within this Decision, Ms. Frieday testified, namely, that policy 5.4.3 of the OP requires compatibility with existing and future land uses, as well as directing that the CESP policies and CCD Guidelines must be addressed to inform whether the intent of the OP regarding Caledon East is preserved. Speaking strictly to compatibility with the character of the area, Ms. Frieday opines that the Proposed Development fails to comply with s. 5.4.8.2(a) of the CESP by failing, in use and site layout, to be in harmony with the character of the surrounding community in the Village Core and with the existing heritage streetscape. She stated that s. 7.7.4 of the CESP endorses community values expressed during public engagement in preparation of the CESP, and the values have been included in the community design principles. They include maintaining the historic character of the Village Core, preserving and enhancing natural features, providing greener streetscapes that are pedestrian safe, and maintaining views of valued landscape features and the night sky. She contends that there is no conformity with the CESP in this regard since, inter alia, the Proposed Development includes the demolition of two built heritage resources, the removal of all natural features with minimal green streetscapes, the use of a noise wall at unprecedented heights, the placement of several lighting standards to service the DTSF, and a partial impediment of night sky views due to the commercial parking area.

115Ms. Frieday adds that the Village Core is not a typical main street with a row of buildings fronting on the street with typical ground floor commercial uses and residential units above. Rather, the Caledon East Village Core commercial buildings have front yards with a variety of setbacks and an eclectic mix of buildings, including those with historic heritage attributes. She opines that the OP directs that this historic eclectic character be retained which is not achieved by the Current Application or Alternate Plan. In reliance on the urban design evidence of Ms. Debnath, Ms. Frieday further opines that the Proposed Development does not conform to applicable urban design and land use compatibility policies within the OP.

116Ms. Debnath testified that the Proposed Development, inclusive of DTSF, is not compatible with the character of the Rural Service Centre, which is an intimate and low-key main street. She states that main streets generally have a mixed-use character with high-quality public realm focused on safe pedestrian movement. They are usually characterized by a concentration of commercial activity that includes a variety of small and independently owned businesses for which drive-throughs are not usually considered conducive to the small-town feel. Ms. Debnath opines that the DTSF would generate a significant volume of vehicular traffic that would disrupt this main street character and impact pedestrian flow.

117In contrast, Mr. Vani opines that s. 7.7.6.3 of the CESP does not reflect the intent of the Town to expressly prohibit DTSFs, rather it simply does not permit it as-of-right. He states this is because of the paramountcy of the parent OP which permits a DTSF on additional review. Specifically, he states s. 5.4.3.17 of the OP expressly authorizes a DTSF where it can be demonstrated that the intent of the OP can be preserved and where the development is subject to site plan control and CCD Guidelines. He states that the Proposed Development maintains the intent of the OP for a few key reasons. First, that Caledon East is a Rural Service Centre designated as a primary growth area and location of focus for new residential and employment growth, as well as the focus for a provision of a wide range of goods and services. Second, that the objectives of the Commercial designation and Commercial Core area are to strive to provide a wide range of retail and personal service opportunities and to support the development of existing commercial areas. He states that the Proposed Development achieves these intentions, and that the OP recognizes Rural Service Centres as emerging urban communities that will have evolving character over time.

118Mr. Vani contends that both the Current Application and Alternate Plan also meet the design policies set out in s. 5.4.9.1 of the OP through an aesthetic and low-rise scale compatible with the surrounding context, enhanced pedestrian realm and active street frontage, and minimizing modal conflicts. Mr. Vani opines that compatibility is achieved with existing and future land uses since the vehicle-related infrastructure is located to the rear of the site, behind the commercial buildings so as to reduce conflict with other modes of transportation and promote a walkable environment along Airport Road. He adds that the studies undertaken confirm negligible impact to air quality, and with implemented mitigation measures, no unacceptable noise impact.

119With respect to the CESP, Mr. Vani states it builds on the intent of the OP by allowing for growth in Caledon East in keeping with its role as a Rural Service Centre. In his opinion, the Subject Properties are located in the Commercial Core area where commercial development is permitted and appropriate. With respect to the character of Caledon East, Mr. Vani opines the area is primarily an automobile-oriented community, rather than a traditional small-town main street.

120Mr. Morgan also provided his professional urban design opinion as to the character of Caledon East. He disagreed with the characterization as “intimate” or “low-key”. To the contrary, he opined that the area consists of large volumes of traffic and that Airport Road is isolated in that it lacks pedestrian activity. He stated that the Proposed Development respects the character of the area in massing and scale as it maintains a low-rise built form, compatible with existing low-rise uses, and has been redesigned to respect the historic character of Caledon East. More specifically, he states that the Proposed Development adheres to the DTSF Guidelines and the CCD Guidelines as follows:

(a) The buildings are situated close, and parallel, to the street framing its edge while parking is located at the rear and screened from the streetscape;

(b) A patio area is established along the street frontage for street animation and increased focus and animation on the street;

(c) The queuing lane is located behind the building and screened from the street;

(d) The rear parking area is connected to the main building through sidewalks and marked crossings;

(e) Landscaping is provided around the periphery of the site to buffer the adjacent neighbours;

(f) The buildings are traditionally designed with hipped roofs and dormers and materials that respect the historical character of the area.

Findings on Issue No. 3(vi)

121Section 7.7.6.3 of the CESP states (emphasis added):

All General Commercial Uses as described in Section 5.4.4, with the exception of automotive related uses and drive-through service facilities shall be permitted in the Caledon East General Commercial designation.

122To Mr. Vani’s point, while DTSFs are not included in the as-of-right permissions set out within this provision, on a plain and ordinary reading of the language, the Tribunal finds there is also no express prohibitory language respecting DTSFs. There is generally a distinction to be made between something which is not permitted with that which is outrightly prohibited. These two propositions ought not to be conflated. Having acknowledged that, however, the Tribunal nonetheless prefers the evidence of Mmes. Frieday and Debnath over that of Messrs. Vani and Morgan, regarding the general intent of the Town against DTSFs in Caledon East.

123First, while Caledon East is identified as a Rural Service Centre, is designated General Commercial, and located within the Caledon East Commercial Core area within the OP, neither of these designations or definitions actually permit automotive related uses and DTSFs. Similarly, the Subject Properties are zoned CV (Village Commercial) in the ZBL, which also does not permit DTSFs. More significantly, and as pointed out by Ms. Frieday, s. 7.2 of the ZBL, which deals with permitted uses in Commercial zones, not only sets out that DTSFs are not permitted uses within the Village Core Commercial zone, but it also explicitly states in Footnote 13 (emphasis added):

Subject to compliance with Section 4.9, drive-through service facilities shall only be permitted in the Settlement Areas of Bolton and Mayfield West, and in Tullamore, Victoria, Sandhill, and Caledon Village only in existing commercial zones along Hurontario Street (Highway 10) and Charleston Sideroad (Regional Road 24).

124This language within the ZBL, the key implementing instrument of the OP, is quite clear with prescriptive language that DTSFs shall only be permitted in specific locations, which expressly excludes Caledon East and Airport Road, thereby giving greater clarity to the intention behind s. 7.7.6.3 of the CESP.

125Notwithstanding that the Tribunal agrees with the Town that its intention is quite clear from the planning and policy documents that DTSFs are not to be permitted within Caledon East, the Tribunal also agrees that a DTSF would fail to conform with the rural small-town character of the Village Core.

126While it is true that Ms. Debnath used terms such as “intimate” and “low-key” in describing what she viewed as the character of the area, terms which do not appear in any Town policy or guideline, the Tribunal accepts this as a fair characterization of the Village Core, which does not necessarily conflict with a lack of pedestrian activity, auto-oriented businesses, or the focused location for development and strengthening of a wide range of commercial services and activity. It is the OP itself that introduces the concepts of small-town and traditional main street. Specifically, it is s. 7.7.4.1(a) of the OP which states that community design shall be used to maintain the appearance of a rural small town commercial core consisting of a “traditional main street”. These are not concepts introduced by expert opinion. Ms. Debnath simply opines that main streets typically include a variety of small and independently owned businesses that usually do not include DTSFs. It matters not whether all of the businesses on Airport Road are small independently owned businesses or well-known and branded commerce. In either case, the Tribunal accepts that the introduction of a DTSF would disrupt the small-town and traditional main street character through introducing a noise wall of between 3.5 m to 4.4 m high immediately adjacent to residential use properties visible from the public realm, the elimination of all vegetation on the Subject Properties reducing the greenery of the streetscape, restricting sufficient space for appropriate landscaping provisions, and increasing vehicular activity thereby increasing the risk of pedestrian-vehicular conflicts.

127Significantly, it is not any commercial development that raises these issues with respect to maintaining the character of the Village Core. Rather, it is specifically the DTSF in this instance that presents these additional concerns which are incompatible with the character of the Village Core within Caledon East. The Applicant’s proposed commercial uses, absent the DTSF would still maintain the appropriate balance between the planning policies seeking to focus the growth of commercial development while maintaining the small-town traditional character of the area.

Cultural Heritage Conservation Issues

128Outside of the OHA and the issues surrounding a demolition permit application, which is not currently before the Tribunal, there are cultural heritage issues that were raised under the planning application framework. Given the findings of the Tribunal set out within this Decision, and particularly that the Proposed Development fails on the issues related to the height of the noise wall, the loss of all vegetation, the deficiencies in the landscaped design, the site circulation and pedestrian safety issues, and conformity with the CESP, it is not necessary for the Tribunal to further consider the cultural heritage conservation issues in this case. Indeed, the Tribunal finds rendering a decision on the cultural heritage conservation issues in this case increasingly problematic given there are separate applications under the OHA filed by the Applicant for demolition permits that have not yet been concluded. While those applications fall under a different legislative scheme under the OHA, separate and apart from the current planning framework in these Appeals, there is significant overlap in the issues and the ultimate outcome of the OHA permit decisions which are not yet known and give rise to additional concerns for potential inconsistent decisions to arise, which the Tribunal endeavours to avoid.

SUMMARY OF DISPOSITION

129Having weighed all the documentary and oral evidence, the legal submissions from counsel, and the Participant statements, and for the reasons set out in this Decision, the Tribunal finds that the Proposed Development fails to have regard to the Act, fails to be consistent with the PPS, fails conformity with the ROP 1996, the ROP 2022, the OP and CESP, and is not good planning nor in the public interest.

ORDER

130THE TRIBUNAL ORDERS THAT:

(a) The Appeals are dismissed;

(b) The requested amendments to the Official Plan for the Town of Caledon are refused;

(c) The requested amendments to Zoning By-law No. 2006-50 are refused; and

(d) The site plans prepared by Dhillon Consulting, dated January 2022, and by Weston Consulting, dated November 14, 2024, are not approved.

“N. Eisazadeh”

n. eisazadeh

MEMBER

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

Footnotes

1. 1Planning Act, R.S.O. 1990, c. P.13, as amended.
2. 2Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended.
3. 3Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6.
4. 4Kimvar Enterprises Inc. v. Simcoe (County), 2007 CarswellOnt 8320 (O.M.B.)
5. 5Camarro Development Inc. v. Burlington (City), 2024 CarswellOnt 7353 (O.L.T.)
6. 6Originally stated to be a total height of 3.9 m by Ms. Sheeba Paul within her Noise Feasibility Study Report, but corrected to 4.4 m on her cross-examination upon closer examination of the landscape cross-sections depicting existing grade of 292 m above sea level – the corrected height of 4.4 m is used throughout this Decision.
7. 7Corrected from the 1.5 m retaining wall height cited in Ms. Paul’s Witness Statement on account of her correction of the total 3.9 m noise barrier height to 4.4 m total height.