Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 25, 2025
CASE NO(S).: OLT-22-004597
PROCEEDING COMMENCED UNDER section 17(36) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant/Appellant: 2606609 Ontario Inc.
Subject: Application to amend the Official Plan – Refusal or neglect to make a decision
Description: To permit expansion of existing Residential designation on the OP application to support the implementation of the OPA by allowing the proposed type and density of uses on the subject site
Reference Number: D35-009-2017
Property Address: 2 River Street and 50 Orchard Street
Municipality: City of Kingston
OLT Case No: OLT-22-004597
OLT Lead Case No: OLT-22-004597
OLT Case Name: 2606609 Ontario Inc. v. Kingston (City)
PROCEEDING COMMENCED UNDER section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the subdivision of the subject lands and to develop 4 separate four to eight storey buildings totaling 1,600 units
Reference Number: D35-009-2017
Property Address: 2 River Street and 50 Orchard Street
Municipality: City of Kingston
OLT Case No: OLT-22-004598
OLT Lead Case No: OLT-22-004597
PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: 2606609 Ontario Inc.
Request for: Request for Directions
PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: City of Kingston
Request for: Request for Directions
Heard: February 5, 2024 to March 7, 2024 and March 8, 2024, by Video Hearing
APPEARANCES:
Parties
Counsel
2606609 Ontario Inc.
R. Aburto J. King, J. Chen A. Mihailescu
City of Kingston
T. Fleming S. Putnam
No Clearcuts Kingston Inc.
R.D. Lindgren J.F. Castrilli
DECISION DELIVERED BY STEVEN COOKE AND ORDER OF THE TRIBUNAL
Link to the Order
INTRODUCTION
1The matter before the Tribunal involves a hearing on the merits of appeals against the City of Kingston (the “City” or “Kingston”) council’s refusal of two applications: the Official Plan Amendment (“OPA”) and the Zoning By-law Amendment (“ZBA”), submitted under sections 17(36) and 34(11) of the Planning Act (“Act”), respectively. The properties in question are located at 2 River Street and 50 Orchard Street, (referred to as the "Subject Lands") and are owned by 2606609 Ontario Inc. (the "Appellants").
2The OPA application aims to expand the existing "Residential" designation of the Subject Site, reduce the "Environmental Protection" designation to align with the newly adjusted boundary of the Provincially Significant Wetland, and expand the "Open Space" designation to include the 30-plus metres of Ribbon of Life open space parkland.
3The purpose of the ZBA application is to permit the proposed type and density of uses following the implementation of the OPA, with certain areas of the Subject Site being rezoned to include site-specific provisions.
4At the case management conference on March 10, 2023, the Tribunal granted party status to a community group known as No Clearcuts Kingston Inc. (referred to as "NCK").
LEGISLATION, PLANS, AND POLICIES
5The legislative and statutory framework and planning policies relevant to the OPA and ZBA appeals include the Act, the Provincial Policy Statements, 2020 ("PPS"), the Ontario Wetland Evaluation System ("OWES"), the City Official Plan ("COP") and Motion materials.
EXHIBITS LIST
6The Tribunal received the following documents and are now marked as exhibits to the hearing:
Exhibit 1a Joint Document Book Volume 1
Exhibit 1b Joint Document Book Volume 2
Exhibit 1c Joint Document Book Volume 3
Exhibit 1d Joint Document Book Volume 4
Exhibit 1e Joint Document Book Volume 5
Exhibit 1f Joint Document Book Volume 6
Exhibit 1g Joint Document Book Volume 7
Exhibit 1h Joint Document Book Volume 8
Exhibit 1i Joint Document Book Volume 9
Exhibit 1j Joint Document Book Volume 10
Exhibit 1k Joint Document Book Volume 11
Exhibit 1l Joint Document Book Volume 12
Exhibit 1m Joint Document Book Volume 13
Exhibit 1n Joint Document Book Volume 13
Exhibit 2 Supplemental Brief Documents
Exhibit 3 Brief of Grant Kauffman
Exhibit 4 Brief of Visual Evidence – Appellant
Exhibit 5 City’s Visual Evidence
Exhibit 6 Consolidated Brief of Participant Statements
Exhibit 7 Amended Brief of Appellant’s Witness Statements
Exhibit 8 Amended Brief of Appellant’s Will Say Statements
Exhibit 9 Brief of City Witness Statements
Exhibit 10 Brief of NCK Witness Statements
Exhibit 11 Brief of Reply Appellant’s Witness Statements
Exhibit 12 Brief of City Reply Witness Statements
Exhibit 13 Brief of NCK Reply Witness Statements
Exhibit 14 Motion of Appellant – Ian Semple Summons
Exhibit 15 Motion of the City
Exhibit 16 Responding Party to Motion – Appellant
Exhibit 17 Amended Issues List per Tribunal Order
Exhibit 18 City of Kingston Council Report 19-143
Exhibit 19 Zoning By-law 2022-62, Schedule 4 – Road Classification
Exhibit 20 2312 Princess Street Traffic Impact Study
Exhibit 21 James Bar CV
Exhibit 22 CRCA Floodplain Image
Exhibit 23 Paragraph 33 correction to Kevin Shipley Witness Statement
Exhibit 24 Reply Witness Statement of Jason Shaw
Exhibit 25 Compendium of Visuals – Mark Touw
Exhibit 26 North King’s Town Secondary Plan Cultural Heritage Study
Exhibit 27 Appellant Comparison Views of March 15, 2021
Exhibit 28 Appellant Model Views of March 15, 2021
Exhibit 29 XCG Proposed Remediations Approach
MOTIONS
Summons of Ian Semple
7A motion was presented by the Appellant pursuant to Rule 13.1 of the Ontario Land Tribunal Rules of Practice and Procedure, requesting that the Tribunal issue a summons for Ian Semple.
8The Appellant informed the Tribunal that Mr. Semple is the City's Director of Transportation Services and has been involved with the applications in this capacity.
9The Appellant argued that Mr. Semple's testimony is necessary due to the relevance of his evidence to the matter before the Tribunal, as well as its admissibility. Therefore, the Tribunal was requested to issue the summons.
10Hearing no objections or concerns from either the City or NCK, the Tribunal ruled in favour of issuing a summons for Mr. Semple to provide evidence on transportation matters before the Tribunal.
Additions to the Issues List
Motion of the City
11The City sought relief to amend the Procedural Order (“PO”) dated June 20, 2023, to add the following Official Plan (“OP”) policies to issue 5 of the Issues List:
2.2.7
2.3.8
2.6.2
2.6.3
2.6.5
2.6.6
3.3.6
3.3.B.1
3.3.B.4
3.8.2
3.9.21
3.9.22
4.1.1
4.6.16
4.6.18
4.6.25
4.6.38
4.6.47
6.1.10
6.1.14
7.3.6
7.3.7
8.3
9.5.9
12The City stated that the Tribunal approved an Issues List in the PO. Paragraph 11 of the PO allows either the City or the Appellant to update the Issues List after exchanging witness statements, either with consent or by filing a motion.
13The City sent its witness statements on November 8, 2023, but faced delays in responding to requests for changes due to unavailable witnesses, which it acknowledges as its responsibility.
14On January 23, 2024, the Appellant's raised objections about certain evidence and noted policies from the PPS and the COP that were not addressed.
15The City responded on January 29, 2024, expressing willingness to update the Issues List if necessary. On January 30, 2024, the Appellant requested a revised Issues List, which was provided. However, the Appellant then stated they would not agree to it, indicating that a motion would be needed.
16The City asserts that the proposed revised Issues List does not expand upon the previous Issues List.
17The additional policies that the City wishes to include do not introduce any new topics or issues that were not already outlined in the Issues List. Furthermore, all the policies have been referenced in the City’s witness statements, particularly in the land use planning evidence of Mr. Chown.
18The City believes that the Appellant will not suffer any prejudice from the inclusion of the additional policies. Counsel has indicated that the addition of these policies will not negatively impact the Appellant.
19The City maintains that the referenced policies do not introduce new issues but instead further clarify the issues and policies already presented in the Issues List. The Appellant has always been aware of the relevant issues to consider prior to the hearing that includes the potential of medium density policies.
20The City argues that the Appellant has had access to the City’s witness statements since November 8, 2023, and has had ample opportunity to respond to those statements since that time, that included evidence that clearly addresses the additional policies.
21Additionally, the City stated that the relief sought will not cause any delays or hinder the efficient resolution of this appeal. Rather, the requested amendment aims to enhance the specificity of the issues to be addressed at the hearing.
Response of the Appellant
22Counsel for the Appellant worked to revise the Issues List with the City in October, before witness statements were exchanged on November 8, 2023. The City’s witness statements included a report from Mr. Chown on an alternative development concept, which was not addressed by other experts or in the Issues List.
23The Tribunal was informed that the PO required meetings of expert witnesses to address certain issues, which took place on November 22, December 7, and 14, 2023. The Appellant asserted that despite ongoing attempts to collaborate on a revised Issues List in late fall and December, the City failed to respond or to pursue a consent amendment, as mandated.
24According to the Appellant, Reply witness statements exchanged on January 24, 2024, showed that most City experts did not address the new medium density development concept.
25The City provided a proposed revised Issues List on January 30, 2024, just days before the hearing, requesting to add over 57 sub-issues, including numerous policies from the PPS and the COP, without clarifying their relevance. The Appellant objected to this expansion of the hearing scope.
26On January 31, 2024, the City filed a Notice of Motion to reduce the request to 24 additional policies, but the motion record lacked clarity on specifics. Introducing these new issues with such short notice would require extensive consideration and could negatively impact the Appellant's ability to address them with its 12 witnesses.
27The Appellant contends that it would face prejudice from the City’s late request to add additional issues, citing a significant risk of ambush. The Appellant argues this situation does not constitute an exceptional circumstance warranting an exception to the PO under Rule 1.6, as such, an exception would not ensure fair and efficient proceedings.
28Citing the Tribunal decision in Homestead Land Holdings Limited v. Kingston (City), 2021 CanLII 112417 (ON LT) (“Homestead”), the Appellant states that the Tribunal made it clear that it is not responsible for evaluating alternative proposals.
29Concerns of ambush are further heightened by the testimony of the City’s planning witness, Mr. Chown, whose statement primarily addresses a different form of medium-density development not covered by other witnesses.
DISPOSITION OF THE TRIBUNAL
30The Tribunal reviewed two main aspects in this Motion. Firstly, it assessed whether the proposed additions of these COP policies to the issues list are fair and could have been anticipated by all parties involved. Secondly, it evaluated whether it is appropriate for the City to present evidence demonstrating how a medium-density development would be suitable for the Subject Lands.
31In reviewing the proposed addition of COP policies to the Issues List, it is essential to recognize that all planning experts had the opportunity to thoroughly examine and often discuss these additional policies. However, the Tribunal has unequivocally stated that the inclusion of these COP policies does not grant the City any leeway to pursue alternative development proposals.
32In the decision of the Tribunal on November 4, 2021, regarding Homestead, Vice Chair S. de Avellar Schiller and S. Braun decisively concluded that:
49These gaps in the alternative proposal are not pivotal to the Tribunal’s consideration in attaching no weight to this alternative proposal. What is pivotal is what is before the Tribunal to decide. There may well be other ways to implement an applicant’s program or a municipality’s ambition for its community. The Tribunal is not charged with deciding on the merits of alternative proposals. The Tribunal must consider and analyze the applicant’s proposal to determine if it meets the appropriate criteria, requirements, and tests.
33The Tribunal acknowledges that an alternative medium-density development could be suitable for the Subject Lands; however, the Appellant has put forth applications for an OPA and ZBA aimed at achieving higher density. In its oral decision regarding the City's motion, the Tribunal made it clear that the burden of proof lies with the Appellant to demonstrate that the higher density OPA and ZBA they are pursuing align with appropriate land use planning principles. The Tribunal will not entertain evidence of an alternative medium-density development concept requested by the City.
34The City’s motion to incorporate the requested COP policies into issue 5 of the Issues List was approved, with clear instructions that these policies may only be addressed in relation to the ongoing OPA and ZBA applications before the Tribunal.
WITNESSESS
35To facilitate the reader's understanding, the Tribunal qualified the following individuals to provide expert or will say statements (as noted with an asterisk (“*”)) in their respective fields. All expert witnesses were affirmed by the Tribunal and confirmed that they understood their responsibilities by signing the Tribunal Acknowledgment of Expert Duties form.
Called by the Appellant
Mark Touw Land Use Planning
Tim O'Brien Urban Design & Landscape Architecture
Valerie Minegla*, Parks Canada Environmental assessment and the Kingston Inner Harbour Clean-Up Project
Andrew Pruss Heritage Planning
Paul MacLatchy*, City of Kingston Environmental management, site assessment and contaminated site clean-up
Carl Wong Transportation Planning
Ian Semple*, City of Kingston Transportation planning and engineering, traffic
James Bar*, City of Kingston Land Use Planning
Mike Dakin*, CRCA Natural heritage, natural hazards, wetland compensation
Jason Shaw Hydrotechnical and flood storage
Caleb Coughlin Environmental assessment, Wetlands, and Wetland Compensation
Catherine Warren*, MNRF Conservation planning, natural heritage, wetland compensation
Rob Snetsinger Biology and ecology
Kevin Shipley Environmental engineering, environmental contamination, remediation and risk assessment
Called by the CITY
Murray Chown Land Use Planning
Robert West Ecology
Dr. Rebecca Rooney Wetland Ecology
Mark Brandt Heritage Planning, Architecture, and Urban Design
Jennifer Luong Traffic
Called by No Clearcuts Kingston Inc.
Grant Kauffman Ecological impact assessment
Chris Rancourt Hydrogeology/contaminated site assessment
Mark Dorfman Land Use Planning
Dr. Doug Hallett Environmental chemistry/toxicology
SUBJECT LANDS, AREA, AND PROPOSED APPLICATIONS CONTEXT
36At the outset of the hearing, Mark Touw was called by the Appellant to provide the Tribunal factual non-opinion evidence to make the Tribunal aware of the general area and the Subject Lands.
37The Tribunal was informed that the Subject Lands are a 12.18 hectare parcel, identified as a brownfield site in the OP within the urban area of the City, located along the shore of the Great Cataraqui River, north of Kingston’s downtown area. The Subject Lands are known for being a large and contaminated brownfield lands within the City. This includes the environmental impacts affecting the adjacent shoreline, the Great Cataraqui Marsh Provincially Significant Wetland ("PSW") to the north of the Subject Lands.
38The Subject Lands historically was used as a metal smelting operation from 1878 to 1916 and as a leather tannery from 1911 to 1973. These historical and prolonged industrial uses have resulted in extensive and severe contamination throughout the Subject Lands.
39The applications before the Tribunal seek approval for the redevelopment of the Subject Lands, which includes the proposed development of four buildings that will house between 1,500 and 1,670 residential units. Additionally, the project plans to incorporate approximately 3,600 square metres of commercial space, along with 6,000 square metres of additional commercial area. The development proposal also emphasizes the creation of new public parks, open spaces, streets, and private laneways.
40The approval of these applications is expected to help clean up a heavily polluted area. This plan supports the goals of both the City and Federal Government to address and remove contamination in the Kingston’s inner harbour.
41Mr. Touw noted that a portion of the northern area of the Subject Lands includes wetland classified as part of the PSW. However, only about 0.4 percent of the PSW, which spans 504 hectares, is located within the Subject Lands.
42Mr. Touw stated that the Subject Lands have been largely vacant for approximately 50 years. Most of the buildings have been demolished, although remnants remain on site. The Subject Lands currently are overgrown with invasive vegetation.
43The Tribunal was informed that numerous investigations have evaluated the levels of contamination in both soil and groundwater throughout the Subject Lands. Additionally, these assessments have included the sediments found in the Orchard Street Marsh, which is situated in the northern area of the Subject Lands.
44Mr. Touw indicated that the Subject Lands are presently zoned to allow a blend of single-family residences and apartment complexes by right. Back in 1985, a subdivision proposal was approved, envisioning the establishment of 790 housing units. However, the Tribunal learned that the remediation efforts aimed at redeveloping the Subject Lands, at that time, were not successful.
45The Subject Lands are identified as a brownfield in the City’s Community Improvement Plan (“CIP”). The Tribunal learned that the Appellant successfully obtained an OPA to identify it as a “Special Project Area” within the CIP. In 2021, the City approved this OPA along with a Brownfields Agreement that provides about $64 million in financial support for cleaning up and redeveloping the Subject Lands.
[PLANNING ACT](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)
Evidence of the Appellant
46Messrs. Touw and Bar provided evidence indicating that the applications evolved significantly from 2017 until they were presented to the Council in September 2022, addressing comments from peer reviewers and various commenting agencies.
47Mr. Bar explained that this was a multi-day process and that the principles of the proposed development were refined to gain the support of City staff. The Tribunal was informed that City staff also considered requesting a Ministerial Zoning Order for the PSW.
48Mr. Touw testified that the policies regarding intensification and the efficient use of municipal services were, in principle, met. He stated that the applications for the remediation and redevelopment of a long-vacant brownfield within the City’s urban boundary, as envisioned and supported by the PPS and the COP, represented sound land use planning.
49In Mr. Touw's testimony, he explained that the Council did not have enough evidence to support their reasons for denying the applications. For example, the Council claimed that the PPS includes “sixteen equal and fundamental principles” that should be balanced in any land use application.
50It was the expert opinion of Mr. Touw that the Council’s decision does not connect to any valid land use planning reasons backed by evidence. Therefore, he opined that the Tribunal should assign minimal to no weight to the Council’s decision, as outlined in section 2.1 of the Act.
51Mr. Touw stated that the City’s decision to deny the applications did not adequately consider the provincial interests outlined in Section 2 of the Act. He specifically referenced subsections of Section 2, The Minister, the council of a municipality, a local board, a planning board and the Tribunal, in carrying out their responsibilities under this Act, shall have regard to, among other matters, matters of provincial interest such as:
(a) the protection of ecological systems, including natural areas, features and functions;
52Mr. Touw testified that the proposed development of the Subject Lands includes comprehensive remediation initiatives, which involve sections of the existing PSW situated in the northern area. Due to considerable pollution from prior industrial operations on the site, a segment of the wetland is planned to be remediated mainly using a "capping" technique. This method aims to contain pollutants and prevent them from spreading. Some areas of the wetlands will be covered as part of the rehabilitation and redevelopment of the site. Overall, Mr. Touw stated that this cleanup is expected to benefit the wetland features.
(d) the conservation of features of significant architectural, cultural, historical, archaeological or scientific interest;
53Mr. Touw opined that there are no important architectural, cultural, historical, archaeological, or scientific features on the Subject Lands. However, he stated that there are three nearby areas, which are culturally or historically significant. One is the Rideau Canal, a Canadian Heritage River that is part of a National Heritage Site and a UNESCO World Heritage Site.
54It was the testimony of Mr. Touw that the proposed development plans aim to improve views of the Rideau Canal. The Tribunal was informed that the proposed development will change the shoreline because all existing vegetation must be removed to clean the Subject Lands. However, Mr. Touw stated that the plan includes restoring vegetation along the shoreline as part of the waterfront park.
(e) the supply, efficient use and conservation of energy and water;
55Mr. Touw informed the Tribunal that the proposed development will use renewable energy sources. This includes installing solar panels on rooftops and solar walls on some building façades. These features will help reduce the development's reliance on traditional energy sources. The plan also includes using energy-efficient electrical and water fixtures in the buildings. This will help conserve energy and water throughout the development.
(f) the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems;
56The proposed development is located in an urban area with good communication and transportation systems already in place. To support the third and fourth phases of the project, Mr. Touw stated that it will likely need to improve the road network. Upgrades to the municipal sanitary trunk along River Street to accommodate the proposed development. Additionally, new water, storm, and sanitary sewer systems must be installed throughout the area to effectively service the proposed development.
(g) the minimization of waste;
57The Tribunal was informed that the proposed development will include facilities for waste diversion and recycling.
(h) the orderly development of safe and healthy communities;
58Mr. Touw indicated that the proposed development is located on a designated brownfield site within the urban area of the City and is a suitable infill site that promotes orderly land development. Additionally, he stated that the remediation of the Subject Lands will create a safe and healthy community on land that is currently contaminated and vacant.
(j) the adequate provision of a full range of housing, including affordable housing;
59Mr. Touw accepts that the proposed development will contribute to the diversity of housing options in the area, including both rental and condominium units. He noted that there is a possibility of incorporating 100 subsidized affordable housing units as part of this development.
(l) the protection of the financial and economic well-being of the Province and its municipalities;
60The expert opinion of Mr. Touw, the proposed development will enhance the financial and economic prosperity of the Province and the City by increasing the tax base. Mr. Touw noted that despite its waterfront location, urban boundary placement, and proximity to downtown, the Subject Lands generates minimal tax revenue.
(n) the resolution of planning conflicts involving public and private interests;
61In the course of the planning process, Mr. Touw stated that numerous meetings have taken place with the City, various commenting agencies, and community members. The Appellant has conducted open house events, and given presentations at the Statutory Public Meeting. Due to these consultations, modifications have been made to the draft plan of subdivision and adjustments to the proposed development to improve the overall design of the Subject Lands.
(q) the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians;
62The Subject Lands are located within walking distance of many areas that residents find desirable. The density of the proposed development supports public transit and encourages pedestrian and non-motorized forms of transportation. Additionally, the development features pedestrian facilities throughout and includes the extension of the Kingston and Pembroke Trail (also known as “K&P Trail”) along the waterfront to Belle Park. The proposed development is mixed-use that provide everyday services and stores right on the site for residents and the local community at large.
(r) the promotion of built form that,
i. is well-designed,
ii. encourages a sense of place, and
iii. provides for public spaces that are of high quality, safe, accessible, attractive and vibrant;
63Mr. Touw described that the proposed development is well-designed and will foster a sense of community. It aims to serve as a focal point, blending the site's historical significance with new housing and shopping. The proposed development will keep the historical value of the Rideau Canal and Cataraqui River while enhancing waterfront access. Mr. Touw noted that it will also provide quality public spaces, including parks and pedestrian trails.
64Concerning item 2(r), Mr. O'Brien provided an urban design assessment, stating that the proposed built form is well-designed and will create a distinct sense of place. This development will be a noteworthy addition to the neighborhood, offering new housing and retail opportunities, enhancing recreational options, and improving connectivity.
65The design of the built form respects the character of nearby areas and the historical significance of the Rideau Canal and Cataraqui River. Additionally, he noted that the proposed development will enhance access to the waterfront and create high-quality, safe, accessible, attractive, and vibrant public spaces, including streetscapes, parks, trails, and naturalized areas.
(s) the mitigation of greenhouse gas emissions and adaptation to a changing climate.
66In the expert opinion of Mr. Touw, the compact design of the proposed development strives to promote a more sustainable community by minimizing land use. He stated that plans for solar panels on all buildings will help reduce demand on the hydroelectric system and lower greenhouse gas emissions.
67Mr. Touw informed the Tribunal that the location of the Subject Lands is in close proximity to the downtown core, along with the integration of mixed-use spaces, is designed to encourage residents to utilize public transit and non-motorized transportation options. This approach not only aims to decrease greenhouse gas emissions but also seeks to reduce reliance on personal vehicles.
68In the expert opinion of Mr. Touw, the proposed applications of an OPA and ZBA give regard to section 2 of the Act and represent good planning that is in the public interest.
69Mr. Pruss appeared before the Tribunal to provide evidence regarding Heritage Planning. In his testimony, he addressed whether the City’s refusal of the proposed OPAs and ZBAs considered matters of provincial interest as outlined in section 2 of the Act, specifically sections 2(d) and 2(r).
70Mr. Pruss testified that the Subject Lands are currently vacant and do not contain any significant architectural, cultural, historical, archaeological, or scientific features that require conservation. However, a conservation strategy for adjacent protected heritage properties, outlined in the 2020 Heritage Impact Statement (“2020 HIS”), is actively being implemented to preserve features of cultural and historical interest.
71Additionally, the Tribunal was informed that Mr. Pruss has reviewed witness statements from Messrs. Touw and O’Brien, which address the heritage implications of policy 2(r). This policy emphasizes the importance of promoting well-designed built forms that enhance a sense of place and provide public spaces that are high-quality, safe, accessible, attractive, and vibrant.
72Mr. Pruss concludes that the proposed OPAs and ZBAs is align with the provincial interests specified in section 2 of the Act, specifically subsections 2(d) and 2(r).
Evidence of the City
73In line with the provisions of the Act, Mr. Murray examines whether the City’s rejection of the proposed OPAs and ZBA took into consideration the matters of provincial interest as specified in section 2 of the Act. In his professional land use planning assessment, Mr. Murray concludes that the council’s decision to not adopt the proposed OPA did adequately reflect these considerations. Additionally, he opines that it would be premature to approve a ZBA at this stage.
74According to Mr. Brandt, an expert in Heritage Planning, Architecture, and Urban Design, the Tribunal should consider matters of provincial interest, which include:
d) the conservation of features of significant architectural, cultural, historical, archaeological or scientific interest;
r) the promotion of built form that, is well-designed, encourages a sense of place, and provides for public spaces that are of high quality, safe, accessible, attractive and vibrant;
75It is the opinion of Mr. Brandt that the proposed design does not sufficiently preserve the natural heritage features of the site, which are essential elements of the Rideau Canal. Additionally, he stated that the proposed design creates a sense of place that feels disconnected from its surroundings and does not relate well to the neighbouring area.
76While the proposed design has the potential to be attractive and vibrant, it falls short in terms of compatibility with the site. Concerns include projected changes to the shoreline, insufficient buffer zone vegetation along the river, and the likely destruction of PSW that are key characteristics of the Rideau Canal, a World Heritage Site. In Mr. Brandt's opinion, compromising these fundamental elements for the sake of creating a "well-designed place" is unacceptable.
Evidence of No Clearcuts Kingston Inc.
77Mr. Dorfman stated that the City Council, in their Notices of Refusal, considered section 2 of the Act and prioritized provincial interests such as housing and employment over ecological protection, energy conservation, public health, and climate adaptation. He believes there's no hierarchy among provincial interests; instead, there should be a balance between provincial and municipal/community interests, as outlined in the PPS and the COP.
78Mr. Murray informed the Tribunal that municipal planning plays a crucial role in shaping the character of a community, safeguarding its natural features, and fostering sustainable development practices. He emphasized that municipal planning is essential for balancing growth with environmental conservation and enhancing the overall quality of life for residents. The COP, which is developed through extensive community consultation and input, reflects the specific interests and needs of the community, ensuring that it aligns with the values and aspirations of its residents while providing a framework for future development.
79Upon reviewing relevant documents and expert opinions, Mr. Dorfman concluded that the potential environmental effects of the proposed development on the Subject Lands have not been comprehensively assessed. Historical reports reveal contamination from former industrial operations, with a significant Brownfield Community Improvement Plan approved for remediation costs.
80The Subject Lands contains a PSW and is contaminated, particularly along the Inner Harbour shore and in the soil. Invasive vegetation now covers areas of the property, which also features remnants from past operations. Groundwater contamination flows toward the river, with some black walnut and oak trees present in the southern part. Consultant studies suggest several remediation options for the non-wetland areas.
81In Mr. Dorfman's opinion, the Appellant has not addressed matters of provincial interest.
PROVINCIAL POLICY STATEMENT, 2020
Evidence of the Appellant
82According to Mr. Pruss, an expert in heritage, the proposed OPAs are consistent with policies 1.2.1(c), 1.7.1(e), 2.6.1, and 2.6.3 of the PPS. The conservation strategy outlined in the revised proposal, which addresses the adjacent Rideau Canal and nearby built heritage resources, is designed to effectively preserve the heritage value and attributes of these protected resources. The proposal is well-suited for maintaining the character-defining elements of the Rideau Canal. Additionally, he stated his opinion that there are no negative impacts on the architectural features of adjacent resources. Details regarding the design, layout, landscaping, and interpretation can be further refined in future phases of development.
Policy 1.1.1
83With regards to PPS policy 1.1.1, Mr. Touw testified that the proposed high-density, mixed-use development aims to efficiently utilize a large vacant parcel in Kingston, while remediating contaminated lands. This development will offer a mix of rental and condo apartments, enhancing the housing variety in an area that currently features mainly low-density residential and light industrial uses.
84A waterfront park, an extension of the K & P Trail, and a central plaza will be included to meet community needs. The Subject Lands are classified as a brownfield, and will be remedied following Ministry of the Environment, Conservation and Parks (“MECP”) standards, ensuring it is safe for residential and public use.
85Mr. Touw stated that the proposed development is located within existing municipal services, preventing the need for settlement area expansion. By utilizing compact forms, in his opinion it will lower land consumption and servicing costs, while supporting public transit.
86The Tribunal was informed by Mr. Touw that all public and private spaces will comply with accessibility standards, with a minimum of 15 percent of residential units designed as barrier-free. A serviceability report confirms that existing infrastructure can handle the proposed development, which will also enhance local biodiversity through remediation and reforestation with native species.
Policy 1.1.3
87Mr. Touw testified that the applications will improve the City by remediating a contaminated industrial site with a century of industrial use. The proposed development will feature mixed-use buildings and is well-positioned with existing infrastructure, adding public green spaces, protecting the PSW, and generating taxable development that supports the municipality long-term.
88The Subject Lands are within Kingston’s Urban Boundary and will feature high-density, mixed-use development, including commercial and residential spaces, efficiently utilizing currently vacant land. Municipal infrastructure will be extended to support this development.
89The proposed development aims to address negative impacts on air quality and climate change by promoting energy efficiency through the use of solar panels, energy-efficient materials, and facilities for electric vehicle charging and bicycle parking. Additionally, a linear waterfront park will connect to Belle Park, encouraging active transportation.
90Mr. Touw stated that the closest Kingston Transit route is approximately 350 metres away, but future adjustments may enhance access from the Subject Lands given the expected increase in density. The proposed development will include site-specific standards that promote the site's intensification and remediation, addressing health and safety risks posed by soil contamination.
91Designated as a brownfield site, in the opinion of Mr. Touw, the proposed development plans align with the City’s goal of achieving 40 percent of new residential development through intensification, prioritizing urban boundary development with available services, and supporting the COP's phasing policies.
Policy 1.4.3
92In the testimony of Mr. Touw, the proposed development contributes to enhance housing diversity in the area, offering both rental and condominium options, with a range of unit sizes and prices. The Appellant plans to provide up to 100 subsidized affordable housing units through the City's supportive housing program.
93The proposed development will provide residential apartments that meet the social, health, and economic needs of future residents, including alternatives for current residents wanting to age in place without single-family homes.
94Mr. Touw stated that the Subject Lands has adequate infrastructure and public services to support both the new development and existing residents. The project promotes efficient land use with mixed-use commercial units, parks, trails, and sidewalks to encourage active transportation. Connections to the K&P Trail and Waterfront Pathway are proposed, enhancing accessibility.
95While not currently on a transit route, the site is close to an existing Kingston transit stop, with potential adjustments for future accessibility due to the proposed densities.
96Site-specific development standards from the ZBA will enable the redevelopment of the land, addressing current contamination issues and eliminating health and safety risks.
Policy 1.5.1
97Mr. Touw informed the Tribunal that the proposed development includes public streets and spaces designed to encourage social interaction, featuring a central plaza park as a meeting point for residents and visitors. A linear waterfront park will enhance connectivity along the waterfront with an extension of the multi-use trail to Belle Island, promoting active transportation.
98He stated that the proposed development encompasses a 0.8-hectare waterfront park/open space with a re-naturalized shoreline and a multi-use pathway. A portion of this land will be dedicated to the City for public access to the shoreline, which is currently private.
99Mr. Touw stated that there are no provincial parks or conservation reserves nearby, though the northern area includes a PSW. The wetland will be modified during site remediation and is expected to improve the health of the wetland and Inner Harbour while preventing further contamination.
100Mr. O'Brien opined that the design of the streets and spaces aims to ensure safety and comfort for pedestrians, promote social interaction, and enhance connectivity. Public street Right-of-Ways are wide enough for sidewalks, with routes around each block and connections to existing pedestrian infrastructure.
101He stated that the proposed development includes diverse public open spaces, including a central park and a waterfront area that supports both passive and active recreation while preserving the natural setting. The waterfront will provide improved access to the shoreline and facilitate the extension of the K&P Trail, aligning with the City’s Waterfront Master Plan. The landscape strategy includes provisions for natural shoreline vegetation and viewing opportunities.
102If approved, the City will oversee the public realm's design, including sidewalks, paths, parks, and the implementation of the Waterfront Master Plan. In Mr. O'Brien's opinion, the proposed development is consistent with PPS policy 1.5.1.
Policy 2.1
103The Tribunal was informed that the proposed development includes a remediation plan for contaminated portions of the PSW, on the north side of the Subject Lands. Mr. Touw stated that the plan involves capping the contaminated areas to prevent further pollution, which is expected to improve the natural heritage system. The shoreline will also be restored with healthy vegetation. Coastal wetland compensation will be provided at a minimum 1:1 ratio to replace contaminated wetland with healthy wetland.
104The Subject Lands are located within Ecoregions 6E and 7E and are part of the City’s Natural Heritage System. Mr. Touw advised that an adjustment to the Environmental Protection Act boundary is necessary to align with the PSW remediation, which includes placing a clay cap over the most contaminated areas. This will also require modifications to the flood hazard lands and be reflected in official schedules.
105The PSW is highly contaminated, and capping is recommended to contain pollutants. An assessment by XCG Consulting Limited outlined four remediation options: Do Nothing, In-Situ Remediation, Ex-Situ Remediation, and Placement of Capping. Option 4 is preferred as it balances effectiveness and cost and is seen as essential to prevent contaminants from leaching into the PSW and Inner Harbour.
106Mr. Touw opined, capping will encapsulate harmful materials, preventing contact with sensitive receptors and further contamination, especially with the Inner Harbour cleanup planned by the Federal Government. A small area of the wetland, approximately 2,431 square metres for buildings and 1,428 square metres for driveways, will be capped. While developing in a PSW generally contradicts Provincial and City policies, the proposed filling is justified by the high contamination levels, offering a net benefit to overall wetland health. This capping will help contain toxic materials and support further remediation efforts.
107It is the expert land-use planning opinion of Mr. Touw that, considering the unique circumstances of the proposed development is facing and the backing of technical studies that the proposed approach aligns with the intent of the PPS and the COP regarding development on remediated lands that were previously part of a PSW.
Policy 2.2
108Mr. Touw explained that the proposed remediation of the Subject Lands, which includes a contaminated portion of a PSW, is expected to improve the quality of the adjacent waterbody without significantly affecting water quantity in the watershed. The Appellant's collaboration with federal government work in the Inner Harbour is anticipated to positively impact watershed health.
109Located along the shoreline of the Cataraqui River, the Subject Lands are a brownfield site previously affected by industrial use. Remediation efforts will enhance the ecological integrity of the watershed, including capping a portion of the wetland to prevent contamination from leaching into the PSW and river.
110Mr. Touw stated that the Subject Lands are situated in a Highly Vulnerable Aquifer but is distanced from surface water intake and wellhead protection areas, ensuring no negative impact on drinking water or water features. Stormwater management controls will be implemented to maintain water quality and promote conservation, achieving or exceeding pre-development standards. Additionally, he stated that the proposed development is not expected to affect environmental lake capacity.
Policy 2.6.3
111The Tribunal was informed that there are three culturally and historically significant properties near the Subject Lands: the Rideau Canal, a Canadian Heritage River and part of a UNESCO World Heritage Site; the Bailey Broom Factory; and the Woolen Mill, both designated under the Ontario Heritage Act. Mr. Touw said the proposed development may impact the Rideau Canal, but aspires to enhance views of it while featuring architecturally pleasing designs. Shoreline changes will occur due to the removal of existing vegetation for remediation, but restoration will follow with a waterfront park.
112Mr. Touw stated that a Heritage Impact Assessment ("HIA") states that the development won't negatively affect the river's cultural heritage values and will create new river views through an east-west street. It suggests preparing a second HIA during the Site Plan Control process to ensure these values are maintained or enhanced. A comprehensive landscape strategy will guide future approvals in consultation with the City and relevant agencies.
113Mr. Bar is a planner for the City that appeared under summons. He stated that for nearly five years, the proposed development has undergone extensive technical reviews by City’s staff and numerous external agencies, such as Utilities Kingston and the Cataraqui Creek Conservation Area (“CRCA”). These reviews confirmed that the proposed buildings are compatible with the surrounding area and cultural heritage resources, with appropriate mitigation measures to be implemented during redevelopment.
114Mr. Bar stated that the proposed development will facilitate the remediation of a legacy brownfield site, addressing contaminants and enhancing public access to the waterfront, including expansions to parkland and active transportation facilities, in line with the 2016 Waterfront Master Plan. Remediation efforts will significantly contribute to the federal government’s commitment to managing historical contaminants in the Inner Harbour.
115Since the Brownfields Community Improvement Plan was initiated in 2005, Mr. Bar noted that the remediation and redevelopment of the Subject Lands have been a priority for the City.
116In his testimony, Mr. Bar said that the proposed development aligns with the City's long-term strategy to offer future tax rebates for the removal of environmental hazards. It represents the largest remediation effort in the City and requires oversight from MECP. The approval of the Record of Site Condition will be necessary before any building permits can be issued.
117The Tribunal was informed by Mr. Bar that to support this initiative, the City has approved a brownfield benefits approach and entered into a Brownfield Agreement, with remediation costs estimated at about $66 million. The PPS and the COP prohibit development in PSWs, which are present in the northern and western portions of the Subject Lands, where significant contaminants are located.
Evidence of the City
118Mr. Murray gave evidence on whether the proposed OPA aligns with the policies set out in the PPS. Mr. Murray believes an OPA that keeps the existing significant wetland safe, protects important wildlife habitats, and prevents development in the mapped floodplain would be consistent with the PPS.
119Mr. Murray stated that the OPA suggested by City staff would allow development in the PSW, in areas recognized as significant wildlife habitat, and within the mapped floodplain. He also informed the Tribunal that an OPA that preserves the cultural heritage values of the Rideau Canal, a UNESCO World Heritage site, would be consistent with the PPS. The Amendment recommended by City’s staff does not sufficiently protect the Rideau Canal, a UNESCO World Heritage site. Therefore, it is the expert land use planning opinion of Mr. Murray that the proposed OPA and ZBA are not consistent with the PPS.
Policy 1.5.1
120Mr. Brandt discussed the PPS policy 1.5.1 (r), which promotes healthy and active communities through the support of provincial parks, conservation reserves, and other protected areas while minimizing negative impacts on these areas.
121He pointed out that the proposed design significantly encroaches on a PSW, which is essential to the heritage value of the Rideau Canal. This encroachment directly challenges the objective of maintaining these protected areas. In his opinion, it threatens to undermine the natural character that defines the UNESCO World Heritage Site. Mr. Brandt emphasized the importance of considering the far-reaching impacts on these areas when aiming to cultivate healthy and active communities. There is an excessive development footprint on the subject lands, making it difficult to minimize negative impacts. The proposed transitional massing design of six to eight storeys near natural areas is not adequately respected.
Policy 1.7.1
122Mr. Brandt opined that policy 1.7.1 (e) calls for consideration of a long-term economic prosperity, which should be supported by encouraging a sense of place, promoting well-designed built environments and cultural planning, and conserving features that define character, including built heritage resources and cultural heritage landscapes. Additionally, policy 1.7.1 (k) recognizes it is important to minimize negative impacts from climate change and to consider the ecological benefits provided by nature.
123The cultural heritage landscape surrounding the Subject Lands is significantly impacted, harming character-defining features of notable cultural heritage. In Mr. Brandt's opinion, the proposed design has not adequately considered changing climate factors and the natural ecological benefits they provide. The projected shoreline changes and wetland destruction resulting from this development directly contradict existing policy.
Policy 1.8.1
124Mr. Brandt informed the Tribunal that PPS policy 1.8.1 (g) states that planning authorities should promote energy conservation and efficiency, enhance air quality, reduce greenhouse gas emissions, and prepare for the impacts of climate change through land use and development patterns that maximize vegetation in settlement areas where feasible.
125In the opinion of Mr. Brandt, the proposed design removes all existing vegetation on the property and offers limited plans for reintroducing greenery after construction. This approach fails to maximize vegetation in settlement areas, diminishes the natural character, and does not align with sustainability goals. He noted it also neglects the preservation and enhancement of natural heritage, which is vital for addressing climate change. There is minimal preparation for climate change impacts.
Policy 2.6.3
126In policy 2.6.3, planning authorities shall not allow development or site alteration on lands adjacent to protected heritage properties, unless it has been evaluated and shown that the heritage attributes of the protected property will be preserved. Mr. Brandt states the proposed development, which includes buildings, construction, and remediation, has not proven that it will conserve the heritage attributes of the adjacent protected resources. The current design poses significant negative impacts on the character-defining attributes of the Rideau Canal World Heritage Site, particularly those related to associated wetlands and shorelines.
Policy 2.2.10
127In the COP, under policy 2.2.10, the City features waterfront lands along Lake Ontario, the Great Cataraqui River, the St. Lawrence River, and various local water bodies that support a range of passive and active land and water-based activities. Kingston’s Waterfront Master Plan (2016) envisions a fully connected waterfront system within the urban boundaries of the City, as well as a network of waterfront nodes in rural areas. Mr. Brandt stated that the City aims to continue supporting an integrated system of exceptionally designed and accessible waterfront spaces and connections to these areas, enhancing public access to the waterfront while preserving the integrity of the associated natural features and their ecological functions.
128However, Mr. Brandt opined that the proposed development, while it aims to create new access to the Rideau Canal, fails to adequately preserve these natural features and their ecological functions and services. In fact, he noted much of these natural elements will be largely eliminated by the proposed design, including a well-treed shoreline along the river and the fully functioning, natural wetlands associated with the Rideau Canal World Heritage Site.
Policy 2.3.10
129In policy 2.3.10 of the COP, the Rideau Canal system has been designated a World Heritage Site by UNESCO. Mr. Brandt testified that the City aims to protect and enhance this valuable natural and cultural heritage while sustainably developing the tourism potential associated with this recognition. In his opinion, the proposed development does not effectively safeguard or improve the cultural and natural heritage linked to the Rideau Canal UNESCO World Heritage Site. The current design eliminates crucial natural functions and ecological benefits, failing to support sustainable design strategies. The destruction of wetlands associated with the Rideau Canal and the removal of shoreline trees seriously impacts the character-defining elements of the Rideau Canal.
Policy 2.8.8
130In the COP, Policy 2.8.8 seeks that cultural heritage resources will be conserved, managed, and promoted for their contributions to the City’s unique identity, history, and sense of place. Mr. Brandt commented that this will be done in a manner that balances heritage concerns with environmental and accessibility issues. Care will be taken to avoid jeopardizing the existing UNESCO World Heritage Designation of the Rideau Canal, Fort Henry, and the Kingston Fortifications by collaborating with partners to implement the Rideau Corridor Landscape Strategy.
131It is the opinion of Mr. Brandt that the proposed development does not adequately protect the integrity of the Canal, as it lacks sufficient replacement trees along the shoreline and involves the destruction of wetlands that are directly associated with and are a character-defining element of the Rideau Canal.
Policy 3.9.2
132In the COP, policy 3.9.2, the establishment of a 30-metre naturalized buffer along the waterfront, commonly known as a "ribbon of life," is intended to enhance water quality, minimize soil erosion, provide habitat for plants and animals, create connectivity and wildlife corridors, and contribute to the overall health of shoreline ecosystems, particularly fish habitats. This buffer can also serve to screen views of development from the water and create natural spaces for passive recreation.
133However, Mr. Brandt believes that the buffer proposed by the proponent will not be effectively naturalized and will fail to provide the robust habitat that currently exists in the area. He argues that it will not contribute to the overall health of the shoreline ecosystems due to the chosen approach to contamination mitigation.
Policy 6.1.1
134Mr. Brandt presented to the Tribunal the COP policy 6.1.1, which states that the City will protect and promote the stewardship and restoration of the natural heritage system identified in schedules 7 and 8. This policy directs development away from natural heritage features and areas. Additionally, land use and development within the adjacent lands to these natural heritage features will be regulated by the City to safeguard the ecological function of the natural heritage system. Environmental Impact Assessments (“EIA”) may be necessary to demonstrate that development and changes in land use will not lead to negative impacts. In Mr. Brandt's opinion, the proposed development at this site poses significant negative impacts on the natural heritage systems.
Policy 6.1.8
135Mr. Brandt gave evidence that validation through field investigations is required for certain features. When the boundaries of these features are deemed inaccurate, an EIA will be necessary to confirm the limits and associated ecological functions of the features. In considering potential boundary adjustments, the City will consult with the CRCA and the Ministry of Natural Resources and Forestry (“MNRF”), as appropriate.
136Minor adjustments to the boundaries of natural heritage system features, specifically Natural Heritage 'A' Features and Areas, and Natural Heritage 'B' Features and Areas, may be permitted without amending this Plan. As outlined in section 3.10.6, the identification of new Natural Heritage 'A' Features and Areas, listed in section 6.1.2 of this Plan, will require an amendment to ensure these features are designated as Environmental Protection Areas. Additionally, a ZBA may be needed to implement the objectives of the OPA concerning boundary adjustments.
Evidence of No Clearcuts Kingston Inc.
137Mr. Dorfman’s emphasis is on the Significant Woodland and the PSW concerning the pertinent directions in the PPS.
138The provincial concern emphasizes that urban development should be concentrated in designated Settlement Areas, as stated in section 1.1.3. Additionally, a suitable variety and combination of housing options and densities must be provided, in accordance with section 1.4.3.
139The Province is also focused on promoting energy conservation, improving air quality, reducing greenhouse gas emissions, and preparing for the impacts of climate change, as outlined in section 1.8.1.
140Furthermore, the province prioritizes the safeguarding of natural heritage. This includes the protection of significant wetlands and significant coastal wetlands, where development and site alterations are strictly prohibited. The Provincial Significant Wetland located on the site qualifies as a Significant Coastal Wetland.
141Development and site alterations in significant woodlands are not allowed unless it can be demonstrated that there will be no negative effects on the natural features or their ecological functions. The protection, enhancement, or restoration of water quality and quantity through various mitigation measures is also a key concern. Sensitive surface water and groundwater features, along with their hydrologic functions, must be safeguarded if development or site alterations are to take place nearby.
142Moreover, significant cultural heritage resources and archaeological sites should be preserved. The Province insists that development should generally avoid areas that are hazardous and adjacent to shorelines. It is in the provincial interest for municipalities to prepare for the consequences of climate change, which may elevate risks associated with natural hazards. Lastly, sites with land or water contaminants must be evaluated and remediated as necessary before any use of the site, ensuring no negative impacts occur.
143Mr. Dorfman stated he depends on the expertise of the NCK, who summarize their views as follows: the woodland provides essential ecological functions and benefits, such as habitat and water retention. Not replacing the woodland fails to replicate these functions and benefits. The idea of attempting to replicate the woodland without fully understanding the potential adverse effects of its removal is unacceptable.
144Furthermore, the woodland and the provincially significant wetland are functionally interconnected as a single natural feature. The significant marsh in the wetland plays a crucial role in sequestering contaminants. However, a comprehensive hydrogeological investigation has not been conducted to assess site safety and suitability, particularly given the presence of fractured limestone bedrock.
145There are uncertainties regarding the future stability of these contaminants. Completely removing the woodland could likely lower the groundwater table and introduce uncertainties to the hydrogeological regime, potentially affecting the wetland if replaced volumes fill in for the woodland. Additionally, there is uncertainty surrounding the risks associated with unknown toxic contaminants.
146The ongoing migration of contaminants from the site to the river poses unknown and potentially harmful effects on the water ecosystem, including fish, Lake Ontario, and human health. The nearby wetland section of the river’s shoreline is severely contaminated by toxic substances originating from the subject property.
147Mr. Dorfman places emphasis on the Significant Woodland and the PSW in relation to the relevant guidelines outlined in the PPS.
148The provincial focus stresses that urban development should be limited to designated Settlement Areas, as indicated in policy 1.1.3. Additionally, a diverse range and combination of housing options and densities must be offered, in line with section 1.4.3.
149The province is also dedicated to encouraging energy conservation, enhancing air quality, decreasing greenhouse gas emissions, and preparing for the effects of climate change, as specified in policy 1.8.1.
150In the opinion of Mr. Dorfman, as long as the wetland is recognized as a PSW, the removal of part of the wetland is not an option that serves the provincial interest. There is insufficient evidence to suggest that the removal of the significant woodland adjacent to the wetland could be mitigated and allow for development. It is Mr. Dorfman's understanding that there is an ecological relationship between the wetland and the upland on the Subject Lands. There is no scientific or technical foundation for the removal of all or part of the wetland and the associated woodland.
151In Mr. Dorfman’s view, these environmental uncertainties warrant a precautionary approach and do not align with provincial interests as articulated in PPS at this time.
CITY OF KINGSTON OFFICIAL PLAN
Evidence of the Appellant
Policy 2.1.1
152In the opinion of Mr. Touw, the proposed development will achieve appropriate densities in an underdeveloped area close to downtown Kingston, promoting transit and active transportation. It includes a public central park and a linear waterfront park, enhancing public access along the Cataraqui River.
153The proposed development will utilize existing infrastructure efficiently, provide new public park lands, and support sustainable development through a mix of uses and improved connectivity. The Subject Lands, identified as a brownfield, will be rehabilitated according to MECP requirements, contributing to the revitalization of the Inner Harbour neighborhood.
154The Tribunal was informed that plans include a trail connection to Belle Island for continuous waterfront access and a landscape strategy to re-establish vegetation after necessary removal. The proposed development is designed to minimize land consumption, encourage non-motorized transport, and incorporate wood frame construction for lower carbon emissions. Mr. Touw stated that it will feature solar panels and Electric Vehicle Ready parking spaces, with at least 20 percent of residential spaces meeting this requirement.
155In his opinion, the mixed-use proposed development will comprise residential and commercial spaces, including a grocery store and restaurant, and is designed to meet the daily needs of residents.
156According to Mr. Snetsinger, PPS s.2.1.1 states that natural features and areas must be protected for the long term. However, since the Tannery began operating, these natural heritage features have not received adequate protection, resulting in contamination and site impacts that have degraded them over the past 100-plus years. Mr. Snetsinger expressed the opinion that the proposed development will help address and resolve some of these issues, contributing to compliance with this policy.
Policy 2.1.4
157The proposed development will incorporate various features that will be finalized during the site plan and building permit stages. Mr. Touw testified that the redevelopment of the Subject Lands will include a comprehensive landscaping program, as outlined by IBI Group.
158In the opinion of Mr. Touw, this project will focus on the remediation of a heavily impacted industrial site, aiming to reuse as much soil on-site as allowed by provincial regulations. The location is within walking or biking distance of Kingston’s Central Business District, supported by local transit, and will expand the multi-use pathway system. Secure bike storage will be available throughout the development. Extensive traffic analysis has been conducted by HDR Inc.
159Mr. Touw stated that as a mixed-use development with at least 3,600 square metres of commercial space, the project promotes walkability and access to local food sources, including a proposed food store in the second phase. While locally sourced aggregate and clean fill are common in Kingston construction, details will be finalized during construction.
160The proposed development can utilize existing municipal infrastructure effectively, with the developer responsible for any necessary upgrades. Currently, the site generates minimal tax revenue due to contamination; however, the redevelopment is expected to significantly increase tax revenue for the municipality, as assessed during the brownfields agreement approval.
161While no single development can meet all community needs, in the opinion of Mr. Touw, this project will provide diverse housing options, affordable units, new public waterfront park space, and pathways, all supporting active transportation and public transit.
162According to PPS s.2.1.4, development and site alteration are not permitted in a PSW. Mr. Snetsinger determined that the wetland qualifies as a PSW using the provincial wetland evaluation process. The proposed capping to mitigate wetland contamination is not expected to lower the wetland's evaluation score and may actually enhance the regional wetland features and functions.
163The Appellant proposes that development in the area currently designated as PSW could be allowed once the PSW boundary is adjusted following remediation and risk management measures, specifically the proposed capping. Mr. Snetsinger stated that this approach would ensure that no development occurs within the PSW itself. The majority of the capped area will be re-naturalized. Mr. Snetsinger noted that the purpose of the capping is to minimize the off-site migration of contaminants, thereby reducing impacts on adjacent wetland and fish habitats, which would provide an ecological benefit.
164Mr. Snetsinger testified that s.2.1.4 may conflict with s.3.2.2. of the PPS, which requires assessment and remediation of contaminated sites before use to avoid adverse effects. During prior consultations with the CRCA and MNRF, it was agreed that this conflict could be resolved if the CRCA issued a permit to fill the wetland as part of an approved remediation process. This will involve removing wetland vegetation, allowing for a re-evaluation of the wetland boundary.
165As a qualified wetland evaluator, Mr. Snetsinger believes that after vegetation removal and capping, the area will not meet the criteria for inclusion in the wetland boundary. Ecological Services will then update the wetland mapping under the amended OWES and submit it to the City for decision-making.
Policy 2.1.7
166The Tribunal heard from Mr. Snetsinger that PPS s.2.1.7 states that development and site alteration are not allowed in habitats of endangered or threatened species, unless they comply with provincial and federal regulations. Additionally, the Tribunal was informed no development is permitted within the critical habitat of these species, again unless it adheres to federal or provincial requirements.
Policy 2.1.8
167Mr. Snetsinger reviewed PPS s.2.1.8, which prohibits development and site alterations on lands next to natural heritage features unless an ecological evaluation shows no negative impacts on those features. All developments will impact the environment, meaning "negative impacts" refers to measurable harm rather than complete absence of effect.
168Negative impacts may include reduced water quality, permanent changes to fish habitats, and threats to the health of natural features. Even without new development, ongoing issues can still harm water quality and the integrity of adjacent natural features.
Policies 2.3
169The Subject Lands are within Kingston’s Urban Boundary, where existing municipal infrastructure is present. Upgrades to the sanitary trunk along River Street will occur as part of the proposed development.
170Adjacent to the Cataraqui River and the Rideau Canal system, an HIA found that the development will not negatively affect the Canal and will enhance river views from an east-west street.
171The opinion of Mr. Touw is that the proposed development contributes to promote active transportation and transit through increased density, supporting the K&P Trail and Waterfront Pathway.
172Significant natural heritage features, including a PSW and river shoreline, are present on the site. Remediation efforts will improve these features and the overall ecosystem.
173A waterfront park/open space, intended for municipal ownership, will be included in the initial phase, providing public access and a connection to Belle Island.
174Mr. Touw stated that designs will prioritize accessibility for individuals with disabilities, featuring barrier-free residential units and universally designed public areas.
Policies 2.4
175According to Mr. Touw, the proposed development is a compact urban project that effectively utilizes the subject lands with a mix of residential units. It will leverage existing municipal infrastructure and public facilities, incorporating solar panels to lower energy consumption. The planned densities encourage active transportation and public transit, minimizing reliance on private vehicles, and will not affect the City’s agricultural lands or natural resources.
176Additionally, he added, at least 20 percent of residential parking spaces will be Electric Vehicle Ready, as required by the draft Zoning By-law. The development aims to increase net urban density, proposing a maximum of 275 residential units per net hectare, surpassing the minimum requirement of 37.5 units. This initiative supports the City's goal of achieving 40 percent of new development through intensification. The subject lands are a vacant brownfield site with adequate servicing capacity, though the sanitary sewer along River Street will require upgrades during development.
Policies 2.7
177Mr. Touw informed the Tribunal, comprehensive technical studies, including Urban Design, Environmental Impact Statement, Noise, and Odour assessments, indicate that the development meets necessary policies. According to the Urban Design Study and Shadow Study, no significant shadowing impacts are anticipated for nearby sensitive land uses.
178Minimal risks of privacy loss due to building height differences exist; however, the design includes appropriate setbacks to mitigate intrusive overlook. Lighting is expected to conform to urban standards, and noise and odour assessments found no significant issues. The proposed development will not generate appreciable dust or vibration and is not expected to create discomforting wind speeds.
179A Transportation Impact Study (“TIS”) confirms that the existing street network can accommodate the project until Phase 3, requiring upgrades thereafter. The proposal includes land remediation, particularly of contaminated wetland areas, enhancing ecological health.
180Mr. Touw stated that the proposed development promotes public access to the waterfront, preserves the cultural heritage of the Rideau Canal, and offers outdoor amenities for residents, ensuring a safe environment. It will establish a new streetscape and retain significant views of the Rideau Canal while improving natural features.
181Overall, it is the opinion of Mr. Touw that the design features height transitions from four storeys adjacent to the Cataraqui River to a maximum of eight storeys in the eastern blocks, with most buildings at six storeys, ensuring compatibility with surrounding areas through established setbacks.
182From an urban design point of view, Mr. O'Brien stated that the shadow study by IBI Group architects (updated May 3, 2022) indicates that shadowing from the development will not have significant negative impacts on adjacent properties or open spaces. Shadows during the spring and fall equinoxes primarily extend westward in the morning and eastward in the late afternoon, with minimal impact on the PSW. Most sensitive lands remain shadow-free during the June solstice, ensuring ample sunlight in critical areas.
183While shadows lengthen in winter, especially during the December solstice due to low sun angles, this is often unavoidable in our northern climate. Existing buildings also cast significant shadows during this period.
184Environmental considerations are essential due to the site's past industrial use. Minimum 30-metre setbacks from the shoreline and the wetland boundary will ensure no buildings are within these areas.
185The Tribunal was informed that the building height is primarily six storeys, stepping down to four towards the waterfront, providing appropriate transitions in height and massing. Visual screening has been addressed through strategic landscaping, particularly to minimize visibility from the inner harbour.
186In the opinion of Mr. O'Brien, potential adverse effects like increased shadowing, noise, and light are deemed manageable. While there may be noise and light increases, they are anticipated to be within acceptable limits compared to existing conditions. Odours are not expected to be an issue due to the mixed-use nature of the development.
187Given the site's contamination, existing vegetation will be removed for remediation. Mr. O'Brien stated that the proposed development aspires to reintroduce trees and vegetation to support ecological communities and enhance the site’s overall quality.
Policies 6.1
188An EIA has been completed to evaluate natural heritage features on the Subject Lands, and it aims to prevent negative impacts. The remediation of the contaminated site and part of the wetland is expected to improve the natural heritage system.
189Mr. Touw stated that the Subject Lands include a Significant Woodland, and due to contamination, all existing trees must be removed. An amendment is requested to remove this designation. The peer-reviewed EIA supports the need for tree removal, as significant contamination requires substantial soil disturbance. The area's ecological functions have already been compromised by past industrial use, as documented in the Phase II Environmental Site Assessment.
190According to Mr. Touw, it is anticipated that remediation will not negatively impact Threatened or Endangered Species and will improve the area’s natural heritage. Mitigation measures for Species at Risk will be implemented as per regulations.
191The Subject Lands are adjacent to significant wetlands, fish habitats, and wildlife habitats, all affected by existing contamination. Comments from the CRCA, MECP, MNRF, and Parks Canada supported the EIA during the review process, leading to endorsement from City Staff.
192Field investigations revealed discrepancies in the boundary of the PSW. The remediation strategy includes altering this boundary to facilitate risk assessment. Ongoing consultations with relevant agencies have shaped the proposed approach.
193As part of remediation, the Tribunal was informed that all existing vegetation will be removed. Detailed landscaping plans will ensure new vegetation is introduced throughout the development. The Conceptual Landscape Strategy from 2022 outlines how to create new habitats within the 30 metres “ribbon of life” after cleanup.
194Setbacks from natural heritage features will be established based on the EIA and municipal recommendations. Additionally, a new lot is proposed for a linear waterfront park adjacent to the Cataraqui River, to be owned or managed by the City.
Policies 8.0
195In Mr. O’Brien’s professional opinion, the proposed development and applications align with relevant urban design guides, particularly COP Policy 8.2. The design enhances the waterfront's urban and landscape character by improving housing options, supporting alternative transportation, and increasing accessibility. The project's design is influenced by its proximity to the significant wetland and Cataraqui River, while respecting the area's established character centered around the historic Woolen Mill.
196Regarding Policy 8.4, Mr. O’Brien stated that the proposed development has the potential for universally accessible design, though specific details regarding access provisions are still being finalized. Current plans include enhanced streetscapes, barrier-free pathways, and future consideration for accessible parking and wayfinding.
197For Policy 8.5, Mr. O’Brien testified that the proposed development enhances the urban condition along Rideau and River Streets through well-defined built forms and streetscape improvements. The architectural design includes ground-floor retail and open spaces that promote pedestrian activity and comfort.
198In relation to Policy 8.6, he stated the proposed development features innovative design solutions to address parking needs without exceeding modest heights. This includes a “wrap” design around above-ground parking structures and a significant setback from the water to preserve natural functions. Landscape design emphasizes cultural and natural heritage elements, contributing to the overall aesthetic and ecological integrity of the area.
Heritage Planning
199Mr. Pruss testified from the opinion of a Heritage Planning view that the policies associated with the Kingston Culture Plan policy 2.8.9. that the proposed redevelopment of the Subject Lands offers opportunities to enhance and rejuvenate the North King's Town / Inner Harbour neighborhood by delivering exceptional architecture and landscaping that both complements and improves the existing landscape and community.
200In reviewing the City responsibilities regarding policy 2.3.10, Mr. Pruss opined that the proposed development has gone through several design revisions and incorporates feedback from the City of Kingston as well as the Peer Reviewer. The proposed conservation strategy is endorsed by City Heritage Services, whose staff evaluated the 2020 HIS and peer Review.
201Regarding the Waterfront Master Plan, Mr. Pruss informed the Tribunal that policy 3.9.25 has been given regard for by the proposed development and landscape plan align with the objectives of the Waterfront Master Plan and fulfill the goal of enhancing public access to the waterfront for Kingston residents. The development plan includes a dedication of waterfront parkland, a minimum 30-metre public space along the waterfront, and a multi-use trail along the waterfront. At this point, the suggested approach for restoring the shoreline and riparian buffer will be further refined in collaboration with the City of Kingston, incorporating a public involvement process.
202In the expert opinion of Mr. Pruss, the proposed OPAs and ZBA's are in conformity with the general intent and objectives of COP policies,
Evidence of the City
203Mr. Murray stated that the Subject Lands are a vacant brownfield located within the Urban Boundary. Both the PPS and the COP emphasize the importance of developing properties within the urban area rather than expanding the built-up area. Developing the Subject Site would be considered an example of intensification, allowing for better use of this vacant site and existing municipal services.
204The COP directs extensive intensification to be concentrated in Centres and Corridors, areas envisioned as mixed-use zones where significant increases in density and height are expected. However, he cited that the Subject Lands is not located within a Centre or Corridor. Rather, minor intensification that aligns with the character of the surrounding neighborhood is anticipated within Housing Districts. Housing Districts are intended to be stable areas that can support gradual change through gentle intensification and small redevelopment projects. The Subject Lands falls within a Housing District and is expected to accommodate minor intensification.
205The policies outlined in the PPS and the COP in the opinion of Mr. Murray support minor intensification on the Subject Lands, which would involve a moderate increase in height and density.
206The opinion of Mr. Murray is that the PPS clearly states that no development or site changes are allowed in a PSW. Development near these wetlands must prove that it will not harm the wetland or its environment, which supports a diverse ecosystem and manages pollutants from past industrial activities.
207He also noted that the COP also protects PSW and areas designated as Environmental Protection. The Environmental Protection designation usually links to certain natural features and restricts uses to open space, conservation, and flood protection. For this site, the Greater Cataraqui Marsh is identified as a PSW. Therefore, the policies do not allow development in these natural heritage areas.
208Additionally, the PPS prohibits development in floodplains unless there is a Special Policy Area or the use naturally requires floodway placement. The Subject Lands is not in a Special Policy Area, and residential projects are not permitted in the floodway.
209The COP prohibits development and site changes in the Regulatory Floodplain, except for uses that must be located there. Residential development is not allowed in the floodplain.
210The Subject Lands is situated within a Housing District as outlined in schedule 2 of the COP. Mr. Murray states that the COP anticipates that Housing Districts will maintain a relatively stable character. According to the COP, extensive intensification and high-density developments are expected to be primarily located in Centres and along Corridors. The Subject Site is not found within a Centre or Corridor. The COP policies also stipulate that high-density development should be situated on an Arterial or Collector Road. The Subject Site is not positioned on an Arterial or Collector Road. Therefore, in his opinion the Subject Land does not fulfill the criteria necessary for high-density development. The Subject Lands are not suitable for high-density development.
211Mr. Murray indicated that most new high-density residential projects are located in designated Centers or along Corridors. With a few exceptions, all proposed high-density developments are on or near Arterial or Collector Roads. The Subject Lands are not in a Center or along a Corridor and does not have access to any existing Arterial or Collector Road. The Subject Lands do not fit the current pattern of new high-density residential developments in the City, nor does it follow the guidelines for such development. Therefore, it is Mr. Murray’s opinion that the Subject Lands are not a suitable location for high-density residential projects.
212According to Mr. Murray, the existing Zoning regulations for the Subject Lands allow for up to 790 dwelling units on a 10.7hectares parcel. This translates to a density of roughly 73.8 units per hectare, which qualifies as medium-density development. The draft plan of subdivision for the Subject Lands proposed 99 townhouse lots along with three blocks designated for apartment buildings, a portion of which is situated on what is now acknowledged as a PSW. Since development or site alteration of a PPSW is not permissible, the zoning allowance for 790 dwelling units is restricted to the developable portion of the site, which is approximately 5.57 hectares. Based on a developable area of around 5.57 hectares, the 790 units would equate to a density of approximately 141.8 units per hectare, which would be classified as high-density according to the COP.
213The Subject Lands does not fulfill the criteria for high-density development as specified in the COP. Any proposed development on the Subject Lands in Mr. Murray’s opinion, should not exceed the number of units that is currently permitted “as of right”.
214The Subject Lands are located in a stable area characterized by a mixture of low-rise residential, commercial, and industrial uses. The neighborhood features a fine-grained pattern of residential properties that are predominantly ground-oriented, alongside some larger industrial structures. Most buildings in the neighborhood are one or two stories tall, with a few exceptions reaching up to three or four stories. A low-rise, ground-oriented development would best harmonize with the existing heights in the area and create a human-scale design that integrates well into the streetscape and fosters a comfortable pedestrian environment.
215Mr. Murray believes that development at the Subject Lands should maintain a predominantly low-rise built form and scale that respects the fine-grained urban fabric of the neighborhood. Development featuring building massing and heights that honor the neighborhood's scale and the Woolen Mill while safeguarding natural heritage features would be compatible with the existing surroundings.
216Mr. Murray stated that the proposed development on the Subject Site must take into account the effects on the Rideau Canal UNESCO World Heritage Site and the PSW to the north. The development should be considerate of perspectives from both the water and towards the water.
Evidence of No Clearcuts Kingston Inc.
217NCK emphasized PPS Policy 2.1.4, which prohibits any development or site changes in a PSW, including on the subject property. Mr. Dorfman highlighted that development is not allowed in significant wetlands and noted that the provincial significant wetland on the property is also a significant coastal wetland.
218Mr. Kauffman stated that the proposed redevelopment conflicts with policy 2.1, Natural Heritage, particularly policies 2.1.4(a) and (b) regarding PSWs and significant coastal wetlands.
219Mr. Dorfman gave an opinion that the Appellant's original and “alternative” plans suggest capping and converting the on-site PSW to urbanized meadowland. Although the “alternative” concept aims to relocate the Phase 4 building outside the PSW boundary, it still proposes development within that boundary, including a fire access road.
220Altering even 2 hectares of the PSW contradicts the “no means no” rule in Policy 2.1.4, which does not provide exceptions for brownfield remediation.
PROVINCIAL SIGNIFICANT WETLANDS
Evidence of the Appellant
221Mr. Snetsinger stated that the contamination of the Subject Lands, due to historical industrial use, is well-established. From 1909 to 1973, the Davis Tannery discharged wastewater into the wetland, which included harmful substances like trivalent chromium, copper, lead, zinc, arsenic, and salts. A lead smelter also operated nearby. This contamination has been documented in various reports, including the 2014 Environmental, Social, and Governance report that highlighted exceedances of safe levels for multiple contaminants in the river and sediments. The Subject Lands and the adjacent wetland are identified as key contamination sources.
222Since the 1980s, previous development attempts have highlighted ongoing contamination concerns. More recent studies, such as a Phase Two Environmental Site Assessment by XCG Consultants in 2019, confirmed significant exceedances of provincial contaminant standards.
223Mr. Snetsinger informed the Tribunal that an Ecological Services conducted an EIA for proposed development on the Subject Lands, emphasizing the necessity for contamination remediation. He noted that development plans depend on this remediation, which would involve the removal of natural heritage features and non-native plant species due to the site's limited ecological significance.
224In his testimony, Mr. Snetsinger shared some insights about the natural features of the Subject Lands. You can find more details, including images and references, in our EIA. To summarize, the upland areas and nearby wetlands are mostly home to non-native plant species, with quite a few being invasive and having low conservation values. Unfortunately, he noted the presence of these species, along with a history of contamination, improper filling, and some misuse by individuals, has really impacted the ecological potential of the Subject Lands.
225From the witness statement of Mr. Snetsinger, the following significant natural heritage features on or adjacent to the Subject Lands that have been identified in the EIA include:
a. Species at Risk: Species at Risk observed/known in association with the Subject Lands include the Little Brown Myotis (endangered bat), Tri-colored bat (endangered bat), American Eel (endangered fish), the Least Bittern (threatened bird), and the Chimney Swift (threatened bird).
b. Wetland: Portions of the proposed development intrude onto mapped PSW. The portions of the wetland to be capped, and where some development intrusion is proposed, are those containing the highest levels of contaminants. It is intended that the proposed capping will stay within the most contaminated wetland area that is dominated by a non-native invasive species with low biodiversity. The capping is not to intrude into the more valuable high interspersion areas of the wetland, where significant natural heritage wetland features are found, even though these areas are also contaminated. The total Greater Cataraqui Marsh PSW was measured at 504 hectares in the 1990 wetland evaluation. The area to be capped represents about 0.4% of the entire wetland, and the capped area that will be covered by development represents about 0.39 ha., equivalent to about 0.08% of the 504 ha. wetland.
c. Woodland: Portions of the woodland on the Subject Lands are considered to carry out a significant woodland function (i.e., shoreline buffering).
d. Fish Habitat: It is intended that the proposed development will be kept at least 30 meters away from fish habitat. The proposed development will not have a negative impact on the fish species identified.
e. Riparian Corridor: The 30-meter shoreline edge, also known as the “ribbon of life” in the Official Plan.
f. Wildlife Habitat: Significant ecoregion wildlife habitat categories of note are:
i. Turtle Wintering: in the adjacent river
ii. Waterfowl Stopover/Staging (aquatic): in the adjacent river.
iii. Turtle Nesting: in adjacent uplands.
iv. Rare Wildlife Species: Snapping Turtles using the adjacent river for feeding and overwintering and the adjacent uplands for nesting. Map Turtle using the adjacent river for feeding, sunning, and overwintering. Eastern Wood Pewee use the development property woodlands.
226Mr. Touw testified that remediation requirements are governed by the Environmental Protection Act, specifically Ontario Regulation (“O/Reg.”) 153. The premise that development is proposed in a PSW is incorrect. The remediation will involve capping wetland vegetation, and a qualified Ontario wetland evaluator confirms that this will allow for a re-evaluation of the wetland boundary.
227The proposed re-naturalization aligns with the PPS and a Provincially approved remediation plan. Off-site coastal wetland compensation at a minimum 1:1 ratio will be required as part of the CRCA permit, contributing to a net environmental benefit for the PSW and Inner Harbour.
228Of the 3.26 hectares in the Northern Open Space area, Mr. Touw stated only 2.15 hectares is wetland, with 2.02 hectares proposed to be capped. This leaves 1.1 hectares not classified as wetland, allowing for the 0.39 hectares needed for development. Placing the Phase 4 building on part of the capped wetland enables a well-designed site, accepted by the City and agencies. Remediating the contaminated wetlands is consistent with the PPS.
229With regards to the protection of ecological systems, Mr. Shipley testifies that the Subject Lands currently do not adequately protect ecological systems and pose significant hazards due to widespread contamination at levels hundreds or thousands of times above acceptable soil and sediment quality standards. Contaminants are located near the surface, increasing the risk of exposure for various ecological receptors, including plants and wildlife.
230As of now, a Risk Assessment ("RA") has not been completed. Mr. Shipley told the Tribunal that according to XCG's documentation, RAs will be required for environmental restoration in compliance with MECP regulations, prior to the redevelopment of the property. While some phases of development may meet generic standards without an RA, others will necessitate an approved RA and a hybrid remediation approach.
231The absence of an RA and a Preliminary Site Investigation means a thorough evaluation of the contaminants’ toxic effects on ecological and human receptors has not been conducted. However, he stated based on available information, an initial understanding of the risks posed by contamination can be developed.
232The MECP Rationale Document outlines that soil and groundwater quality standards are derived from component values intended to protect various receptors. Without an RA, comparisons between contaminant concentrations and these component values can provide preliminary insights into the potential risks.
233For example, Mr. Shipley explained that from the Phase Two Environmental Site Assessment indicates a chromium concentration of 65,000 microgram/gram (“μg/g”) in shallow soil, significantly exceeding the MECP standard of 160 μg/g for residential or parkland use. This concentration is over 400 times greater than the acceptable limit.
234A RA is not yet complete for the Subject Lands. However, based on my experience as a Qualified Person for Risk Assessment (“QPRA”) and various public documents, Mr. Shipley offered insights into the contamination risks.
235Using the approach from the Rationale Document, Mr. Shipley looked at the risks to human health related to contamination levels he evaluated earlier. While this initial method needs further detail from a complete RA, it provides a basic understanding of the contamination risk.
236Significant chromium exceedances include:
65,000 μg/g in the top 0.1 metre of soil, which exceeds the 160 μg/g standard set by the Ministry of the Environment, Conservation and Parks for residential use.
104,000 μg/g in the top 0.3 metres of sediment, which exceeds the 26 μg/g standard for sediment.
237These exceedances show severe contamination. The main health guideline for chromium at this site is 28,000 μg/g for direct contact, making the observed levels unacceptable.
238Mr. Shipley informed the Tribunal that naphthalene exceedances:
31.5 μg/g in the top 0.6 metres of soil, which exceeds the 0.6 μg/g standard for residential use.
1,620 μg/g from 2.4 to 3 metres, which exceeds the 0.09 μg/g standard.
239The health guideline for naphthalene is 360 μg/g for direct contact. Mr. Shipley stated that these findings highlight significant health risks for people due to contamination of the Subject Lands.
240In regard to Mitigation of Greenhouse Gas Emissions and Adaptation to a Changing Climate, Mr. Shipley reviewed with the Tribunal Table 1 in the XCG document “Updated Remediation Costing for Former Davis Tannery Property, Kingston, Ontario,” details the quantity of contaminated soil across eight areas of the Subject Lands and outlines management strategies for this soil. The total estimated quantity of contaminated soil is 1,024,477 tonnes. According to the table, 240,933 tonnes are designated for off-site disposal, and 116,867 tonnes are planned for on-site reuse, leaving an estimated 666,677 tonnes to remain in place under a clean cap.
241Mr. Shipley stated that the remediation plan strives to minimize excavation and off-site transport of contaminated soil, with only 24 percent slated for disposal, 11 percent for on-site reuse, and 65 percent remaining unexcavated. The focus is on managing the soil efficiently to ensure risks to human and ecological receptors meet acceptable thresholds, while prioritizing the preservation of soil on-site where feasible.
242With regards to the development and site alteration in a PSW, Mr. Shipley gave evidence that s.2.1.4 of the PPS prohibits development in significant wetlands within Ecoregions 5E, 6E, and 7E, which includes the Subject Lands. Environmental Protection Areas, as defined in the COP, must remain undisturbed, yet the presence of severely contaminated sediment in the PSW necessitates some remediation. This creates a conflict with policies requiring that contaminated sites must be assessed and remediated before any activity can occur.
243Mr. Shipley stated that the proposed capping of the contaminated PSW may contradict policy 2.1.4 of the PPS while not capping would violate policy 3.2.2. As such, achieving full compliance with these policies is unfeasible due to the sediment contamination.
244Restoring the PSW post-remediation will be challenging, especially since the final cap design will need a thickness of at least 1.05 metres to adequately protect ecological receptors. Observations suggest current water levels in the wetland are similar to those in the Great Cataraqui River, varying between 73.67 and 75.99 metres above sea level.
245With the intended cap elevation being 0.4 to 2.8 metres higher than the highest recorded water level, a gravity-fed restored wetland would be impossible unless fed actively by pumps, which may not be practical due to maintenance and power needs. Hence, the current remediation approach suggests using topsoil over most areas of the capped wetland.
246Mr. Coughlin provided an expert opinion on wetlands compensation, noting that the proposed development will involve capping and ultimately removing about 22,770 m² of PSW. This removal may lead to wetland compensation on another property at a specified ratio, as stated by the Cataraqui Region Conservation Authority (CRCA).
247In 2021, an assessment of the Subject Lands found that the proposed capping would have a nominal impact on flood storage in Lake Ontario. CRCA determined that wetlands compensation would benefit the local environment and the approval process, allowing for off-site compensation that meets certain ecological criteria, despite not needing to offset the minor flood storage loss.
248Mr. Coughlin opined that this aligns with the May 2018 proposal for a Wetland Offsetting Policy for Ontario, which was submitted to MNRF by the Wetland Conservation Strategy Advisory Panel that states:
The development of a wetland offsetting policy in Ontario could provide a tool for better land use decisions and help compensate for the loss of wetlands in the province, particularly in areas where wetland loss has been greatest. The result of an offsetting policy should be a net gain in both wetland area and function.
249In recent years, Mr. Coughlin stated that wetland offsetting has gained popularity as a tool for regulators and practitioners, supported by various Conservation Authorities with their own Wetland Offsetting Policies. Following this trend, the Appellant explored several wetland compensation projects within the City and surrounding areas under the CRCA’s jurisdiction.
250Mr. Coughlin informed the Tribunal that - in December 2021, the Appellant submitted a proposal for a wetland compensation project that involved creating 2.5 hectares of new wetlands and enhancing an existing PSW by about 11 hectares, aimed at improving habitats for species at risk.
251While CRCA acknowledged the proposal's ecological value, the wetland creation and expansion did not satisfy the criteria for compensating the loss of a coastal wetland under the Ontario Wetland Evaluation System Southern Manual. The Subject Lands’ wetland is classified as coastal due to its proximity to the Cataraqui River and the St. Lawrence River. CRCA advised the Owner to seek a compensation project closer to the site of the wetland loss, ideally within City limits, though locations within 50 kilometres may also be considered.
252Mr. Coughlin testified that the Appellant is looking for suitable compensation projects that meet specific size requirements and criteria to gain approval from the CRCA. While an acceptable project has not yet been found, several potential options have been reviewed internally, and others have been shared with the CRCA for feedback. The search is complicated by the requirement that the compensation must take place in a coastal wetland located in or near the City. To help find the best sites for wetland compensation, the Appellant hired Hatch to create a tool that uses weighted criteria to identify areas in the region as Preferred, Regionally Optimal, Regionally Suitable, and Potentially Suitable for compensation. These categories are defined as:
a. Preferred (Within the City Limits of Kingston) – All lands within 250 m of Lake Ontario, waterbodies or watercourses and all areas within 750 m of wetlands located within 2km of Lake Ontario Floodplain;
b. Regionally Optimal (Outside City Limits of Kingston but within approximately 50 km including Wolfe, Howe, Simcoe and Amherst islands) – All lands within 250 m of Lake Ontario and all areas within 750 m of PSW’s within 2 km of Lake Ontario Floodplain;
c. Regionally Suitable – All lands within 250 m of larger watercourses (e.g., Gananoque River, Millhaven Creek) provided there are no barriers (i.e., dams) and /or within 750 m of all non PSW wetlands within 2km of Lake Ontario Floodplain; and d. Potentially Suitable – All lands within 250 m of Cataraqui River downstream of the lock at Washburn Road and up to 2 km away from the Lake Ontario floodplain boundary and any lands within 750 m of any PSW situated along the banks of the Cataraqui Rive downstream of Lock at Washburn. A sliding scale was then developed to inform the overall area of the future wetland compensation with Preferred being 1:1, Regional Optimal 1:1.25, Regionally Suitable 1:1.5 and Potentially suitable 1:2.
253Mr. Coughlin informed the Tribunal that Hatch requested feedback from the CRCA on draft criteria on February 7, 2022. The CRCA provided comments on February 15 and confirmed their geographical preferences on February 16. On February 23, Hatch shared a draft Wetland Compensation Commitment Memo, and the CRCA sent more feedback on March 4, suggesting that the wetland compensation ratio should increase with distance from the loss site. Hatch revised the memo to include these comments and a sliding scale.
254The following list articulates the Appellants' comprehensive understanding of the critical wetland compensation commitments that are essential for the CRCA Section 28 Permit:
a. 22,770 m2 of coastal wetland compensation is requested;
b. Preferred compensation location is within the City of Kingston limits. However, other areas may be explored. Specifically areas identified as Regionally Optimal and Regionally Suitable. Areas identified as Potentially Suitable may be used as a contingency, if after a reasonable timeframe no other compensation Projects are identified by either the Owner or CRCA;
c. The amount of wetland compensation is anticipated to directly correspond to the final location chosen. Assuming the capping area remains 22,770 m², the range of wetland compensation sizes are expected to be:
i. Preferred - 22,770 m2,
ii. Regionally Optimal - 28,463 m2 (25% increase),
iii. Regionally Suitable - 34,155 m2 (50% Increase), or
iv. Potentially Suitable - 45,540 m2 (100% increase).
d. Exploration of suitable compensation properties has been on hold since approximately Spring 2022 pending the outcome of the subject Planning Act applications. It is anticipated the Owner would find and purchase (if needed) appropriate compensation lands prior to wetland capping.
e. It is anticipated that the Owner would design (to CRCA’s approval) and execute a suitable compensation Project within five (5) years of the wetland capping commencing. This would likely be achieved through targeted land acquisition to meet the wetland compensation commitment criteria, or could possibly be through the funding of a wetland Project, being contemplated by other reputable organizations (e.g. local naturalist club). In any case, once a potential property is located, a hydrology / hydrogeology type review would occur ensure enough water inputs are present or can be retained to ensure wetland plants can be established and maintained in the long term. Similarly, that enough soil is present to support wetland vegetation in the long term and ideally deep enough soils (e.g., avoid shallow bedrock areas) to create an open water component. Where relevant connection to the local surface water systems can be explored to promote colonization / use of the wetland by fish and wildlife. For example, a property with an existing pond or irrigation lagoon with minimal wetland attributes, could be shaped and with shoreline elevations lowered to create a shoreline wetland community and thus meet the commitment.
f. As part of CRCA’s approval of the wetland design, a suitable amount of wetland monitoring will be required; and
g. The Owner, to the extent reasonable will mimic the existing wetland type (i.e., predominantly marsh with open water and swamp components) to be lost and incorporate ways to enhance, diversify and increase wetland resilience where possible.
255Mr. Coughlin stated that wetland compensation will take place offsite to ensure that there is no net loss of wetlands within 50 kilometres of the capping area. Periodically, Conservation Authorities permit wetland loss or changes, especially when it results in net benefits. For example, in eastern Ontario, Hatch has observed Conservation Authorities and other organizations approve significant wetland loss when it leads to ecological benefits. One example involved removing harmful activities like dredging from a PSW in exchange for filling in a smaller wetland area within the same PSW. In another project, he said that Hatch helped replace 4.4 hectares of impacted wetland with grassland habitat suitable for species at risk. There have also been cases where changes to a PSW were allowed to make up for other sensitive ecological impacts, like the loss of fish habitat.
256Details about wetland compensation will be managed by the CRCA. Hatch has created a Wetland Compensation Commitment strategy for the Appellant, which outlines expectations related to the location, size, timing, type, and execution of the wetland compensation.
257The Tribunal was informed that the proposed compensation plan includes creating or enhancing a wetland of equal size at an offsite location approved by the CRCA.
258Ms. Warren informed the Tribunal that from 2018 to 2020 Ministry of Natural Resources and Forestry ("MNRF") staff engaged in multiple meetings with the Appellant. The discussions involved the applicant, their consulting team, and staff from various City departments, the CRCA, MMAH, and MECP, focusing on the Subject Lands, PSW characteristics, proposed development, contamination issues, and future paths.
259She indicated that MNRF participated mainly in consultations regarding the PSW assessment and boundary adjustments. Ms. Warren explained MNRF staff, trained in the Ontario Wetland Evaluation System (OWES), reviewed evaluations to qualify wetlands as PSWs and determine their boundaries. MNRF staff acknowledged that if a new OWES evaluation indicated changes, the boundaries could be adjusted.
260Ms. Warren articulated that MNRF reviewed environmental assessments from Ecological Services, addressing contamination on the Subject Lands, and related mapping provided by the applicant. While MNRF recognized the benefits of cleaning up the contamination, they noted difficulties in proving that contaminated areas were not part of the PSW, as the OWES does not consider contamination in determining PSW boundaries.
261Ms. Warren explained that MNRF staff sent a letter on October 29, 2020, stating that the OWES does not allow boundary adjustments for contaminated lands, though he supported remediation efforts. According to Ms. Warren, MNRF currently has no approval role for the Subject Lands, and since January 1, 2023, they no longer review updated OWES evaluations. Consequently, no OWES evaluation has been conducted to show that the contaminated lands are not part of the PSW.
262Mr. Dakin informed the Tribunal that the CRCA plays a key role in reviewing development applications, fulfilling its dual responsibilities as a technical advisor for Act applications and as a regulatory authority responsible for implementing O/Reg. 148/06, which governs the regulation of development, interference with wetlands, and alterations to the CRCA has been involved in reviewing the proposed development 3, particularly focusing on natural heritage, water quality, and natural hazards. Mr. Dakin noted that following 2023 legislative changes, the CRCA can only provide comments on natural hazards.
263Mr. Dakin stated the proposed development requires CRCA permitting under O. Reg. 148/06. The Appellant plans to submit permit applications alongside remediation plans to address on-site contamination from past industrial uses, with a focus on protecting the PSW.
264The CRCA is concerned about the impact on natural hazards and environmental resources, as well as ensuring effective stormwater management. He believes that private development is necessary for acceptable remediation outcomes on the Subject Lands.
265Mr. Dakin acknowledges that placing fill in floodplains, like the Cataraqui River, is allowed if there is enough flood storage to compensate at a 1:1 ratio. However, it can be hard to find such opportunities on-site. Additionally, remediation work does not significantly affect flood storage, so on-site compensation is not needed.
266According to the CRCA’s guidelines for O/Reg.148/06, you can place fill in regulatory floodplains if the project offers a net environmental benefit and does not harm flooding, erosion, pollution control, or coastal processes.
267CRCA staff note that the site is currently in poor condition due to invasive species and a lack of native plants. Although there were past concerns about placing fill in wetlands, talks with various stakeholders have shown that substantial cleanup is needed. Contaminants like chromium and mercury are threatening both the site and surrounding areas.
268Mr. Dakin believes remediation is crucial to stop ongoing contamination of the Cataraqui River. CRCA communications indicate that redevelopment may be the only effective way to address contamination both on-site and off-site.
269The CRCA cannot assess the proposed wetland capping method but has discussed the steps for environmental approvals. If the MECP approves the plan, the remediation strategy is likely to offer net environmental benefits. This means on-site wetland compensation is unnecessary.
Evidence of the City
270Mr. Murray highlighted the EIA by Oakridge Environmental Ltd. and the statement from Dr. Rebecca Rooney confirm that any removal of the PSW goes against the PPS. Despite contamination from the former tannery and lead smelter, the Greater Cataraqui Marsh is still vital for ecological functions and serves as a habitat for many species-at-risk. The assessment found five species-at-risk and identified wildlife habitats linked to the PSW, an unevaluated wetland, and a waterway. The Significant Woodland has seven wildlife habitats associated with it. Two Special Concern turtle species, the Snapping Turtle and Northern Map Turtle, use the shoreline and nearby wetland areas. Two endangered bat species, the Eastern Small-Footed Myotis and the Brown Myotis, were also detected. The Eastern Small-Footed Myotis might use the site for migration, while Little Brown Myotis may roost in the Manitoba Maple trees and forage in the wetland. The Provincially Significant Wetland also provides breeding ground for the Threatened species, Least Bittern.
271Mr. Murray stated that the EIA confirms that the PSW is a highly functioning system. Dr. Rebecca Rooney believes that if evaluated today, the Greater Cataraqui Marsh would still be considered a PSW.
272Moreover, the Greater Cataraqui Marsh plays an essential role in cleaning water and preventing erosion. It also protects the river from contaminants on the Davis Tannery lands by naturally trapping and treating these pollutants. Changing the wetland could disrupt these natural processes and worsen the pollution in the Great Cataraqui River. Construction might release fine materials into the waterways and disturb contaminated areas. Developing the wetland would destroy a vital ecosystem that supports many species, including Threatened birds and Special Concern turtles.
273Given the importance of the Greater Cataraqui Marsh in maintaining ecological balance and protecting the Great Cataraqui River from pollution, it is evident that this wetland deserves protection. It is the opinion of Mr. Murray that the policies of the COP do not allow development in these areas.
274Dr. Rooney appeared before the Tribunal to give expert testimony in wetland ecology. Dr. Rooney gave an in-depth review of the PSW existing ecology, but primarily focused on Issue 9 and 10 of the Issues List.
275In Dr. Rooney opinion the proposed removal of a portion of the PSW is inconsistent with the PPS. According to Section 2.1.4 of the PPS, development is not permitted in significant wetlands within Ecoregions 5E, 6E, and 7E, which includes the Greater Cataraqui Marsh located in Ecoregion 6E. The Greater Cataraqui Marsh qualifies as a coastal wetland and has been confirmed as a PSW through two evaluations. Dr. Rooney's expert opinion is that it would still be designated as a PSW if evaluated today, given its biodiversity and critical role in supporting species at risk. Recent assessments show that the wetland boundaries are expanding, indicating it is recovering from past disturbances. Developing on the Orchard Street Marsh would disrupt its essential ecosystem services, including water purification and flood mitigation.
276Dr. Rooney stated that the Appellant claim that the proposed development of a portion of the PSW is necessary for financially viable remediation ignores alternative funding sources for wetland restoration. It was her opinion disturbing the Orchard Street Marsh poses severe risks, including contaminant mobilization and threats to human and aquatic health. A rigorous remediation planning process is essential, with detailed hydrogeological modeling. The proposed remediation approach appears superficial, and further assessment of options is required. Given the ecological value of the Orchard Street Marsh and the history of wetland loss in the area, if remediation is necessary, the marsh should be restored rather than developed.
277Mr. West, an expert in ecology and biology, believes that the City Council was correct in rejecting the applications for the following reasons.
278The removal of, and encroachment into, Natural Heritage Features would result in impacts that do not conform to policies within the COP and the PPS. This includes concerns regarding endangered and threatened species, PSW, and significant wildlife habitats.
279Mr. West express concern there are significant encroachments into the Floodplain zone identified by the CRCA, posing safety and erosion risks for properties along the Cataraqui River. A cut-fill-balance scenario cannot recover lost flood volume, as it would require substantial removal within the river basin.
280Mr. West opined that the proposed capping and loss of woodland vegetation will lead to a 52 percent reduction of coastal wetland on-site, resulting in a largely barren property overlooking the river. He stated that substantial naturalization is not feasible due to concerns about the cap's integrity, meaning the shoreline will lack naturalized vegetation. This loss of vegetation buffer is expected to negatively affect the river post-development.
281Mr. West informed the Tribunal that the proposed development exceeds its capacity from an environmental standpoint. The capping mitigation is questionable, as woodland and wetland vegetation play crucial roles in managing on-site contamination through natural uptake and stabilization. The proposed cap is likely to simply mask contamination issues without providing protective benefits, as it lacks significant natural attenuation capacity.
282Mr. West believes the EIA by Ecological Services fails to adequately address the current conditions and natural capacity of the PSW and does not identify all wildlife, including Species at Risk, necessary for a comprehensive assessment.
283The wetland is critical for a threatened bird species that relies on it for nesting, with about 95 percent of the cattail marsh set to be displaced or capped in the development proposal. Additionally, the Snapping Turtle, listed as a Species of Special Concern, nests along the shoreline, and the proposed capping may disrupt its habitat.
284Mr. West stated that the woodland areas on the Tannery property likely serve as habitats for various bat species, including the endangered Little Brown Myotis, which has been detected on-site. The proposed development threatens to eliminate this woodland, leaving Belle Island Park as the only potential habitat for these bats. This action could violate the Endangered Species Act, which protects endangered species and their habitats.
285Similarly, he opined that the development encroachment affects the Least Bittern, also in violation of the Endangered Species Act's objectives to protect individual species and their environments.
Evidence of No Clearcuts Kingston Inc.
286Based on Dr. Hallett's experience and scientific knowledge, as well as a review of the XCG and CRA reports, it is his professional opinion that the Subject Lands contain elevated levels of various chemicals, metals, and other toxic substances that exceed provincial standards and have migrated over time into the wetland.
287Due to the size of the Subject Lands, XCG has taken and analyzed an insufficient number of soil samples. This undermines their ability to accurately identify on-site sources of contamination, assess risks appropriately, and effectively plan or prioritize remediation efforts.
288The on-site contamination consists of a mixture of organic chemicals that have dissolved into the known fuel and oil present at the property, facilitating the movement of these substances toward the wetland adjacent to the Cataraqui River. Some contaminants, such as lead and mercury, can be methylated by marsh bacteria, which contributes to their tendency to bioaccumulate in the wetland or aquatic environment.
289Since 1970, toxic chemicals have spread across the site and appear to have moved into the marsh. However, the extent to which these substances have entered the watercourse, contributed to higher sediment levels, or migrated into Lake Ontario and the St. Lawrence River has not been adequately studied or addressed to date. Key contaminants, such as PCBs and dioxins, were not properly sampled on-site and have been incorrectly dismissed by XCG as not being chemicals of concern at the subject property. Over time, contamination has infiltrated the wetland. Due to the size of the Subject Lands XCG has collected and analyzed an insufficient number of soil samples. This limitation undermines the ability to accurately identify on-site sources of contamination, assess associated risks, and effectively plan or prioritize remediation efforts.
290The contamination present at the site includes a mixture of organic chemicals that have dissolved into the known fuel and oil on the property. This mixture facilitates the movement of these substances toward the wetland adjacent to the Cataraqui River. Some contaminants, such as lead and mercury, can be methylated by marsh bacteria, which explains their tendency to bioaccumulate in the wetland or aquatic environment. Since 1970, toxic chemicals have spread across the site and seem to have migrated into the marsh.
291However, the extent to which these substances have entered the watercourse, contributed to elevated sediment levels, or affected Lake Ontario and the St. Lawrence River has not been adequately studied. Key contaminants, including PCBs and dioxins, were not properly sampled on-site and have been incorrectly dismissed by XCG as not being chemicals of concern at the subject property.
292For the technical and scientific reasons mentioned above, Dr. Hallett expressed the opinion that the XCG reports provide insufficient information, inadequate analysis, questionable methodology, and significant data gaps related to the nature, extent, and environmental fate of the toxic chemicals present at the property in question. Therefore, I conclude that these reports do not adequately demonstrate that the proposed redevelopment of the property can occur without creating serious environmental risks or causing significant adverse effects.
RIDEAU CANAL
293Susan Millar is a planner with Parks Canada, and Valeria Minegla is Manager of Environmental Service with Parks which is involved in the application process with the City.
294Ms. Millar stated that Parks Canada manages the Rideau Canal National Historical Site, recognized as a Canadian Heritage River and a UNESCO World Heritage Site. Their job is to preserve its cultural, natural, and scenic values for all Canadians. Ms. Millar explained that the Rideau Canal is a Parks Canada’s responsibility for environmental stewardship. This includes protecting the site, species, fish habitats, migratory birds, and safe boating.
295Ms. Millar testified that in a letter dated December 16, 2019, Parks Canada shared its general views on the proposed development. The agency mentioned its concerns about possible heritage, ecological, and visual impacts on the Rideau Canal. They noted that the Appellant's new designs showed improvement in addressing these issues.
296Ms. Minegla indicated that Parks Canada has confirmed it “endorses the mitigation strategies and design guidelines outlined in the Conservation Strategy. It is acknowledged that the detailed design of the buildings and landscape will be further developed during the site plan approval process for each phase and will be guided by the Conservation Strategy.”
297The Tribunal was informed by Ms. Minegla that Parks Canada reviewed, among other documents, the May 2, 2022 letter from XCG Consulting that details the MECP review process for the remediation plan. The Tribunal was told that Parks Canada recognizes that the MECP will “evaluate whether the remediation plan and risk management measures will sufficiently safeguard both human and ecological receptors in both the short and long term” and suggested that the plan should demonstrate its contribution to the site's ecological value, such as through a condition of the plan of subdivision approval. Mr. Minegla remarked that the XCG letter “confirms that the remediation plan will support the proposed landscape strategy and conceptual landscape plan, including the integration of large deciduous and coniferous trees.”
298Ms. Millar reviewed different communications from Parks Canada regarding the OPA and ZBA applications. The Tribunal learned that while Parks Canada has recommendations, it does not object to the approvals.
299Additionally, in a letter dated January 18, 2021, Parks Canada offered technical comments on the revised proposal. They acknowledged that significant progress had been made since 2019, recognizing the Appellant's efforts to enhance public spaces and minimize impacts on the natural, cultural, and scenic values of the Rideau Canal National Historic Site and UNESCO World Heritage Site through better building siting and design.
300The Tribunal was informed that Parks Canada made the following recommendations:
(a) Greater distance between the buildings and the water’s edge with water setbacks ranging from approximately 30 to 50 metres;
(b) Building heights reduced to 4 and 5 storeys on the east (water) side of the development;
(c) Stepping up/down of façades;
(d) Segmented building design to better define distinct sections;
(e) Vertical break in the buildings to create views and pedestrian access;
(f) A naturalized waterfront park and open space; and
(g) A public recreational pathway within this naturalized area.
TRANSPORTATION
Evidence of the Appellant
301Mr. Wong appeared before the Tribunal to as an expert in transportation planning. He indicated that the proposed development can be accommodated in its location with improvements to the transportation network. Access points on Rideau Street and River Street will manage traffic effectively, focusing primarily on Russell Street at Rideau Street, where a signalized intersection will enhance safety for vehicles and pedestrians. Minimal site traffic will use Cataraqui and River Streets, and the existing all-way stop at Cataraqui/Rideau will remain unchanged. River Street will connect to Rideau as a two-way stop for westbound movements.
302It is Mr. Wong's opinion that transit amenities will not be negatively affected. Existing services on Montreal Street can handle the anticipated transit trips from the development, which is approximately 430 metres from the nearest transit stop—at the upper limit of acceptable walking distance. The projected transit demand assumes a 10 percent transit mode split for new residential uses, consistent with findings from the North King’s Town study, which indicates a higher possible split of 15 percent. The current modal share according to the Kingston Moves Household Travel Survey shows an 8 percent transit share, with sustainable modes at 35 percent in the Urban Area.
303Mr. Wong informed the Tribunal that a sensitivity analysis suggests that a reduced overall vehicle trip estimate, based on a 10 percent scenario, may result in an additional 32 two-way trips per intersection but would not significantly impact the overall analysis. The proposed development is expected to integrate smoothly into the existing road network, minimizing any effects despite its proximity to local and arterial roads. Road classifications for Rideau Street vary across documents, but it is generally recognized as an arterial road according to the COP and Kingston’s Transportation Master Plan.
304Mr. Semple as the City Director of Transportation and Transit Service appeared under summons to give an overview of various City staff reports regarding this matter. A report on March 24, 2022, explained the proposed development and related policies. It found that the City’s transportation network can support the expected growth as outlined in the 2019 North King’s Town Transportation Plan.
305The Tribunal was informed that at the March meeting, the City Transportation staff confirmed that the network could accommodate the development. However, it was noted that there will need to be further technical reviews conducted to assess specific site connections and impacts.
306In the August 4, 2022, City staff report, it was confirmed again that the transportation network could handle the proposed growth, and it is feasible at a high level. However, details about site connections and improvements still need to be worked out and will be addressed during the Draft Plan of Subdivision process.
307Mr. Semple discussed the Wellington Street Extension. A study by Dillon Consulting, part of the North King's Town Transportation Plan, found that the southern part of the Wellington Street Extension, from Rideau Street to Bay Street, is not needed for future growth and can be taken out of the City's plans. Instead, transit options and active transportation will help reduce the need for cars in the area. The study also showed that the northern half of the proposed Wellington Street Extension would help address growth issues and meet transportation needs until 2034.
308Addressing Issue 11 regarding the proposed development's impact on the existing road network, specifically with respect to access, traffic safety, pedestrian facilities, transit amenities, and the expected increase in vehicle trips, Mr. Semple stated that the traffic assessment found that the city's transportation network can handle the planned growth for this development. This growth was included in the North King’s Town Transportation Plan Strategic Corridor Needs Analysis from 2019. However, it still needs to confirm the specific connections, impacts, and improvements needed for the roads around the proposed development. Mr. Semple explained that the City has identified these needs through reviewing the application packages submitted so far, and we noted any outstanding issues in the technical comments sent to the applicant. The City will include these items, along with the detailed street designs, as conditions in the Draft Plan of Subdivision process.
309In conclusion, Mr. Semple informed the Tribunal that a traffic study indicated the City's transportation network can accommodate the increased activity from the proposed development. This study was part of the 2019 North King’s Town Transportation Plan. Specific site connections and necessary improvements to the transportation network are still to be confirmed, with outstanding items noted in the review of the submitted application packages. Detailed street design will be included as conditions in the Draft Plan of Subdivision process.
Evidence of the City
310The Tribunal was informed by Mr. Murray that the Subject Lands are located along River Street and Orchard Street, both of which are Local Roads. Two other roads affected by development on the Subject Lands are Rideau Street and Cataraqui Street, which are also Local Roads. Local Roads handle low traffic volumes at low speeds, allow full access from properties, connect to Collector Roads, and have few parking restrictions. River Street, Orchard Street, Rideau Street, and Cataraqui Street fit the description of Local Roads in the COP.
311Montreal Street and Russell Street will also feel the impact of the proposed development. Mr. Murray stated that Russell Street is classified as a Local Road, while Montreal Street is an Arterial Road north of Rideau Street and a Collector Road south of Rideau Street.
312Mr. Murray noted that for the high-density proposed development by the Appellant, it is recommended to install traffic signals at numerous intersections due to expected high traffic volumes. Each intersection is predicted to experience delays. However, he stated that installing signals does not meet the Transportation Association of Canada’s guidelines, which require signals to be spaced at least 200 metres apart. Additionally, River Street, Rideau Street, and Russell Street may need widening, and property acquisition will be necessary for these upgrades to handle the traffic from the proposed development.
313The COP states according to Mr. Murray that high-density development should occur on Arterial Roads or Collector Roads. Since the Subject Lands is on Local Roads and does not have direct access to an Arterial Road or Collector Road, it does not meet the COP guidelines, making it an unsuitable location for high-density development.
314Mr. Murrey testified that the COP also says that road infrastructure must be adequate to support any development. Development can only proceed if the City confirms that enough roads are available or can be upgraded for the added traffic. The proposed development would generate a number of units and vehicle trips that far exceed what the existing or planned roads can handle, requiring upgrades to the road infrastructure.
315Moreover, there is no transit service within a 600-metre walking distance from the Subject Lands. In Mr. Murrays opinion this lack of service means the proposed high-density development would significantly change how the existing road network functions. Therefore, current road infrastructure cannot support such a development, and it is unsuitable for the Subject Lands.
316Ms. Luong informed the Tribunal that discussion revolved around whether the proposed changes to the OPAs and ZBAs align with the guidelines set by the PPS. Ms. Luong emphasizes support for public transportation and active travel options, such as walking and biking.
317Ms. Luong reviewed the TIS that examine the transportation system in the study area, including existing transit options and the layout of roads. However, she noted the planned OPAs and ZBAs would allow a high-density development that is situated more than 600 metres from the nearest transit stop. Ideally, any changes should ensure that the necessary infrastructure is in place to support this increased density.
318In Ms. Luong’s opinion, the proposed changes could also lead to modifications at intersections that would require acquiring land and moving utilities, which may affect local businesses. Additionally, she expressed that this development could significantly increase traffic on local roads making them busier and possibly creating safety issues for nearby residents. Due to these factors, it is her opinion that this development does not meet the standards set by the PPS.
319Similarly, when considering the COP, the issues remain the same informed Ms. Luong. The changes in question would again permit high-density developments that are far from transit stops and could overwhelm the current transportation system. This situation, along with necessary road changes and their effects on local businesses, raises further safety concerns.
320In the expert opinion of Ms. Luong, whether the proposed development would harm the current road network and transportation safety, the TIS indicates that there would be significant impacts. The proposed development would lead to more traffic, making local roads busier and increasing safety concerns for the people living in the area. Overall, she believes the planned changes seem to go against the community and City regulations.
FINDINGS OF THE TRIBUNAL
321In determining this matter, the Tribunal accepts and adopts majority of the contested evidence, and expert opinions provided by the Appellant. The Tribunal is persuaded by the evidence that the proposal promotes efficient development of land, accommodates a range of appropriate mixed uses, intensifies uses within the settlement area, and contributes to the range of housing options, and in particular, remediation of a brownfield as desired by the City.
322The Tribunal was not convinced by the Appellant's evidence regarding its jurisdiction over the "capping" of any portion of the PSW. The PPS clearly states that "development and site alterations shall not be permitted." Therefore, the Tribunal approves the Appellant's alternative requested relief:
i. An Order approving the proposed Official Plan Amendment attached at Attachment 1
ii. An Order approving the proposed Zoning By-law Amendment attached at Attachment 2.
323The Tribunal recognizes that the City of Kingston is steeped in history and boasts significant architectural heritage. It serves as an ideal starting point for the Rideau Canal's designation as a UNESCO World Heritage Site. The Rideau Canal system features a variety of landscapes, distinct characteristics, and different land uses. The Tribunal is confident that the proposed development will not adversely impact the significance of this designation.
324The Tribunal has considered the concerns raised by the Participants but was not persuaded that the concerns they have raised are either sustainable given the evidence offered in support of the planned development, or otherwise bears relevance to the land use planning merits of the proposal.
325The Tribunal finds that the proposal is primarily consistent with the policy direction established by the PPS, and as maintained by the COP. The Tribunal is further satisfied that the proposal has due regard for matters of Provincial interest, is consistent with the principles of good land use planning and is in the greater public interest. More significantly, the proposal furthers the goals and objectives of the Provincial planning regime to increase housing opportunities.
ORDER
326THE TRIBUNAL ORDERS THAT the appeal is allowed in part and Orders that the Official Plan for the City of Kingston is modified as follows, and as set out in Attachment 1 to this Order, The Tribunal Orders that the Official Plan is approved as modified.
327THE TRIBUNAL ORDERS THAT the appeal is allowed, and By-law No. 8499 is hereby amended as set out in Attachment 2 to this Order. The Tribunal authorizes the municipal clerk of City of Kingston to assign a number to this By-law for record keeping purposes.
“Steven Cooke”
Steven cooke
vice-chair
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.
Attachment 1
Attachment 2