Ontario Land Tribunal / Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 21, 2025

CASE NO(S).: OLT-22-002252 (Formerly PL200634) OLT-24-001210

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Damas Developments Inc. Subject: Proposed Official Plan Amendment No. 726 (OPA 726) Description: To amend the 1989 Official Plan to establish the Environmentally Significant Area boundary for the Meadowlily Woods Environmentally Significant Area Municipality: City of London OLT Case No.: OLT-22-002252 Legacy Case No.: PL200634 OLT Lead Case No.: OLT-22-002252 Legacy Lead Case No.: PL200634 OLT Case Name: Damas Development Inc. v. London (City)

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Damas Developments Inc. Subject: Proposed Official Plan Amendment No. 27 (LPA 27) Description: To amend The London Plan to establish the Environmentally Significant Area boundary for the Meadowlily Woods Environmentally Significant Area Municipality: City of London OLT Case No.: OLT-22-003786 Legacy Case No.: PL200635 OLT Lead Case No.: OLT-22-002252 Legacy Lead Case No.: PL200634 OLT Case Name: Damas Development Inc. v. London (City)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Damas Developments Inc. Subject: Zoning By-law Description: To amend Zoning By-law Z.-1 to establish the Environmentally Significant Area boundary for the Meadowlily Woods Environmentally Significant Area Municipality: City of London OLT Case No.: OLT-22-003787 Legacy Case No.: PL200636 OLT Lead Case No.: OLT-22-002252 Legacy Lead Case No.: PL200634 OLT Case Name: Damas Development Inc. v. London (City)

PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Damas Developments Inc. Subject: Proposed Official Plan Amendment No. 129 (OPA 129) Description: To establish the Environmentally Significant Area boundary for the Meadowlily Woods Environmentally Significant Area Municipality: City of London OLT Case No.: OLT-24-001210 OLT Lead Case No.: OLT-24-001210 OLT Case Name: Damas Development Inc. v. London (City)

Heard: January 20–23, 2025, by Video Hearing and Closing Submissions, January 28, 2025, in writing

APPEARANCES:

Parties

Counsel

Damas Developments Inc. ("Appellant")

Analee Baroudi

City of London ("City")

Aynsley Hovius Christina McCreery

DECISION DELIVERED BY W. DANIEL BEST AND INTERIM ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This Decision and Order relates to appeals brought pursuant to ss. 17(24) and 34(19) of the Planning Act, R.S.O. 1990, c. P.13 ("Act") resulting from the City's proposed Official Plan Amendments ("OPA 726", "LPA 27", "OPA 129", or collectively the "OPAs") and Zoning By-law Amendment Z.-1-202885 ("ZBA") to modify a boundary for the Meadowlily Woods Environmentally Significant Area ("Meadowlily ESA").

2The Appellant contends that the proposed modification of the Meadowlily ESA boundary through the proposed OPAs and ZBA will have an impact on the future development of the property municipally known as 129 Meadowlily Road South, in the City ("Subject Lands").

3There is no development application before the Tribunal to be considered in this Hearing.

4The Subject Lands are currently designated in the Neighborhood Place Type of The London Plan ("London Plan") and are zoned Holding Urban Reserve (h-2*UR1) in the Zoning By-law ("ZBL").

5The Tribunal notes that there are a number of technical terms and acronyms that were identified during the Hearing. The following provides a reference for the reader:

ACRONYM/TERM

DESCRIPTION

Community 1 or CUM1

Dry-Moist Old Field Meadow

Community 2 or CUW1

Mineral Cultural Woodland

Community 3 or FOD5-2

Dry-Fresh Sugar Maple-Beach Deciduous

Community 3a or CUW1

Mineral Cultural Woodland - black Walnut Dominant

Community 4 or CUT1

Mineral Cultural Thicket

6The area of dispute in this matter, that includes the lands adjacent to and a portion of the Subject Lands, will be identified as "Community 2" or "CUW1", as depicted in Figure 1 below:

• The black dotted line represents the boundary of the Subject Lands (crosses the yellow and pink dotted lines);
• The solid purple line represents the MTE (consulting firm of the Appellant) proposed Meadowlily ESA Line
• The dotted pink line represents the 2024 City proposed ESA Line; and
• The red shaded area represents the remaining area in dispute.

Figure 1

BACKGROUND

Preliminary Matters

7The original OLT-22-002252 (Formerly PL200634) appeals related to OPA 726, LPA 27, and the ZBA ("original appeals"). The Parties jointly advised that OPA 726 was an appeal of the 1989 Official Plan ("1989 OP"). Since the time of the original appeals, the 1989 OP has been repealed and the OPA 726 appeal has been withdrawn.

8LPA 27 was a proposed amendment to the City's London Plan. The effect of LPA 27 was to only modify the text of the London Plan and not the Meadowlily ESA on the maps by changing Policy 1719_10 from Meadowlily Woods Master Plan to Meadowlily Woods Environmentally Significant Area Conservation Master Plan ("CMP").

9OPA 129 modifies schedules to the London Plan by changing Map 1 – Place Types from Neighbourhood to Green Space, and from Green Space to Neighbourhood to align with the limits of the Meadowlily ESA, and Map 5 – Natural Heritage from a Potential Environmentally Significant Area and Neighbourhood to Environmentally Significant Area.

10On November 26, 2024, City Council passed OPA 129 and was appealed by the Appellant on December 4, 2024. This appeal was assigned Tribunal file OLT-24-001210.

11The Parties jointly agreed that OPA 129 is the key amendment to the proposed boundary changes to the Meadowlily ESA and that it should be heard together with the original appeals under Tribunal file OLT-22-002252 (Formerly PL200634).

12After considering the submissions of the Parties, the Tribunal agreed that, to offer the best opportunity for a fair, just, and expeditious resolution of the merits of the proceeding, the appeals would be heard together in accordance with s. 12 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6 and pursuant to Rule 16 of the Tribunal's Rules of Practice and Procedure.

13Based on the foregoing, the matters before the Tribunal in this proceeding are the proposed LPA 27 and OPA 129 to the London Plan and the ZBA. OPA 726, as described in paragraph [7], is withdrawn.

14The Parties requested that the Tribunal withhold its decision on LPA 27 of this appeal pending confirmation from the Parties that the CMP has been modified to reflect the ESA Line approved by the Tribunal.

15The Parties requested that, once the CMP is updated by way of an addendum, the Tribunal dismiss the appeal of LPA 27 and add the updated CMP to the London Plan.

Meadowlily Woods ESA and Subject Lands

16The Meadowlily ESA is located along the north side of the Thames River South Branch, between Highbury Avenue and the City's Pollution Control Plant, and on the south side of Thames River South Branch between Highbury Avenue and Hamilton Road. The Meadowlily ESA is irregular in shape and has an area of approximately 178.4 hectares ("ha").

17The appeal applies to a portion of the proposed Meadowlily ESA expansion east of Highbury Road, south of the Thames River, on the Subject Lands.

18The Subject Lands are irregularly shaped and located on the west side of Meadowlily Road South, approximately 275 metres ("m") north of Commissioners Road East. The lot area is approximately 2.47 ha, with a frontage of 116 m along Meadowlily Road South.

19The Subject Lands are currently undeveloped and are occupied by groundcover vegetation, including grasses, bushes, and shrubs.

DECISION

20The Tribunal allows the appeals of OPA 129 in part and the ZBA in part and approves the Appellant's proposed ESA Line. The Parties will submit a draft Order for consideration of the Tribunal, attaching the finalized instruments and maps for OPA 129 and the ZBA that will reflect the Tribunal-approved ESA Line.

21The Tribunal will withhold its decision on LPA 27 pending confirmation from the Parties that the CMP has been updated to reflect the Tribunal-approved ESA Line. Once the CMP is updated by way of an addendum, the Tribunal will dismiss the appeal of LPA 27 and the amended CMP will be added to the London Plan.

LEGISLATIVE FRAMEWORK

22When considering an appeal of applications to amend an Official Plan filed pursuant to s. 17 of the Act, and an application to amend a Zoning By-law filed pursuant to s. 34 of the Act, The Tribunal must have regard to matters of provincial interest as set out in s. 2 of the Act, and have regard for the decision of the City Council and the information considered by it pursuant to s. 2.1(1) of the Act.

23Section 3(5) of the Act requires that decisions of the Tribunal affecting planning matters be consistent with the Provincial Planning Statement ("PPS") in effect.

24The Tribunal must also be satisfied that the ZBA conforms with the official plans in effect, as potentially amended through the associated OPAs.

25Overall, the Tribunal must be satisfied that OPA and the ZBA represent good planning and are in the public interest.

26The City has also adopted several guidelines that it relies upon, including the 2007 Environmental Management Guidelines and 2021 Environmental Management Guidelines ("2007 EMGs"; "2021 EMGs"; collectively "EMGs"), the London Invasive Plant Management Strategy ("LIPMS"), and the CMP for the Meadowlily ESA.

ISSUES

27The Tribunal was advised by the Parties that all issues had been resolved except the issue of the boundary delineation of the Meadowlily ESA adjacent to, and incorporating, the Subject Lands. The following are the remaining issues presented by the Parties:

• Is the City's proposed ESA Line, adjacent to and including the Subject Lands, consistent with the PPS?
• Does the City's proposed ESA Line, adjacent to and including the Subject Lands, conform to Policies 1367–1371 of the London Plan?

28The Tribunal notes the remaining issues identified by the Parties. The Tribunal finds that the crux of the dispute is intrinsically linked to timing and process. The City's position is that the boundary of the Meadowlily ESA should be established first, and that the Appellant can apply for an amendment to the Meadowlily ESA boundary by way of a future development application. Conversely, the Appellant's position is that an amendment to the existing boundary of the Meadowlily ESA is premature and that a development application on the Subject Lands should proceed and be used to inform any boundary amendment for the Meadowlily ESA in the future.

SUBMISSIONS AND EVIDENCE

29The Tribunal heard detailed evidence from four witnesses, all of whom were qualified to provide opinion evidence in their field of expertise, as outlined below:

Called By

Name

Field of Expertise

City

Alison Curtis

Land Use Planning

City

Emily Williamson

Ecology

Appellant

Harry Froussios

Land Use Planning

Appellant

Dave Hayman

Ecology

30The marked Exhibits included legislation, policies, guidelines, witness statements, studies, reports, photographs, and maps. The witnesses and counsel directed the Tribunal to specific pages of relevance to the issue.

POSITION OF THE PARTIES

31The Appellant argued that the City's proposed ESA Line, and the associated OPAs and ZBA, are not consistent with the PPS and the London Plan, and do not represent good planning.

32The Appellant submitted that the MTE proposed ESA Line is in conformity with the Environmentally Sensitive Areas policies of the London Plan, based on the findings presented in the Subject Lands Status Report ("SLSR") and Environmental Impact Study ("EIS").

33The City argued that the City's ESA Line is consistent with the PPS as it allows for the development of lands, within the settlement area, while also protecting and conserving natural heritage features, which contributes to a mix of uses and efficient land use patterns. The City further argued that the required guidelines and criteria of the London Plan were used to assess the ESA Line and the lands adjacent that are recommended for inclusion.

Is the City's ESA Line Adjacent to and Including the Subject Lands Consistent with the PPS?

34Ms. Curtis stated that Chapter 2 of the PPS provides policy direction for building homes and sustaining strong and competitive communities.

35Ms. Curtis identified that Policy 2.1(6)(a) is applicable as it outlines that planning authorities should support the achievement of complete communities by accommodating an appropriate range and mix of land uses, housing options, transportation options, institutional uses, recreation, parks and open space, and other uses to meet long-term needs.

36Ms. Curtis opined that the provision of parks and open space would be achieved through the expansion of the Meadowlily ESA, thereby contributing to achieving a complete community.

37Ms. Curtis advised that the intent of Policy 2.3.1(1) is to use the City's land resources and municipal infrastructure effectively and efficiently by directing development to areas where there are existing services to support development, or where these services can be more readily provided. She continued that it also helps to protect agricultural lands and mitigate urban-rural interface issues.

38Ms. Curtis opined that the City's proposed ESA Line is consistent with Policy 2.3.1(1) as the development potential of the Subject Lands will be maintained while protecting and conserving natural heritage features and contributing to a mix of uses within the settlement area.

39Ms. Curtis advised that Policy 2.3.1(2)(a) states that land use patterns within settlement areas should be based on densities and a mix of land uses which effectively use land and resources. She continued that the protection and designation of natural heritage features contributes to a mix of uses in the settlement and area, as well as the efficient use of land and resources. The balance of the Subject Lands can still be reasonably developed at a scale and density that is consistent and compatible with the surrounding lands uses, while still allowing for the protection of the natural heritage features through delineation of the City's ESA Line.

40Ms. Curtis stated that Policies 2.3.1(1) and 2.3.1(2)(a) cannot be considered in isolation. She continued that the preamble of the PPS states that "it is more than a set of individual policies, it is to be read in its entirety and the relevant policies are to be applied to each situation."

41Ms. Curtis identified that Policy 4.1.1 states that natural features and areas shall be protected for the long term. She continued that Policy 4.1.1 establishes direction on the adoption of an ecosystem approach and the protection of resources that have been identified as significant, and municipalities are responsible for the identification and delineation of specific natural features.

42Ms. Curtis stated that the CMP has identified that the Meadowlily ESA includes habitats of endangered and threatened species; significant wetlands, woodlands, valley lands, wildlife habitat, areas of natural and scientific interest, and fish habitat.

43Ms. Curtis stated that the consulting ecologist of the City identified in their report that the lands west of Meadowlily Road South were of a sufficient size, and a species of Special Concern (Monarch Butterfly) was present, which satisfied two of the criteria for inclusion within the Meadowlily ESA and contributed to the overall biodiversity of the Meadowlily ESA. Ms. Curtis continued that the findings and recommendations of the CMP made it appropriate at that time to expand the Meadowlily ESA boundary, with future opportunities to refine and amend the boundary through site-specific assessments at the time of a planning application.

44Ms. Curtis identified that the PPS definitions of natural heritage features and areas and the natural heritage system speak of features and areas as plural, noting that natural heritage is more than just one feature or type of feature or area. She continued that it further speaks to the importance of the connectivity to support natural processes which maintain diversity.

45Ms. Curtis indicated that Policy 4.1.2 is also applicable in this matter as it states that the diversity and connectivity of natural features in an area, and the long-term ecological function and biodiversity of natural heritage systems, should be maintained, restored, or where possible, improved, recognizing linkages between and among natural heritage features and areas, surface water features, and ground water features. Ms. Curtis opined that the expansion of the Meadowlily ESA is consistent with Policy 4.1.2 as it improves ecological function and biodiversity.

46The City acknowledged the presence of black locust in their proposed Meadowlily ESA boundary and advised that removal and naturalization of the area will occur over time with the restoration of native plants.

47Ms. Williamson stated that over the last 70 years, a treed canopy and a cultural woodland community, with associated environmental function, has developed.

48Mr. Froussios stated that the Subject Lands are within a settlement area as defined by the PPS.

49Mr. Froussios advised that City's proposed ESA Line that encompasses a portion of the Subject Lands does not promote efficient development patterns and use of lands that are consistent with the intended future development of the Subject Lands, based on MTE's assessment of the presence of natural features.

50Mr. Froussios advised that City's proposed ESA Line is not consistent with the PPS as there are no natural features on the Subject Lands that require protection based on the SLSR.

51Mr. Froussios confirmed that he accepted the findings of MTE in the submitted SLSR, as outlined below:

• There are no Provincially Significant Wetlands located within 120m of the Subject Lands.
• Other than the woodland components of the Meadowlily ESA to the northwest and east, no Significant Woodlands are identified within 120m of the Subject Lands on Map 5 of the London Plan.
• There are no Significant Valleylands within or adjacent to the Subject Lands on Map 5 of the London Plan. The Thames River corridor approximately 650m to the north is designated a Significant Valleyland, but this is far outside the Study Area for this SLSR.
• There is no significant wildlife habitat within the Subject Lands. There is confirmed presence of Eastern Wood-pewee on adjacent lands to the northwest of the Subject Lands.
• There are no Areas of Scientific Interest ("ANSI") within or adjacent to the Subject Lands.
• There is no aquatic habitat within the Subject Lands.
• No floral or faunal species protected under the Endangered Species Act (2007) were identified within the Subject Lands during MTE 2020-2021 field surveys, nor during field investigations in 2013 for the Meadowlily Woods ESA Master Plan.
• A Preliminary Screening Request was submitted to MECP for project review under the Endangered Species Act (2007) in February 2022. A response was received January 26, 2023, and states that there are no known occurrences of endangered or threatened species in the Subject Lands or general area.

52Mr. Hayman referenced the definition of natural heritage features and areas in the PPS, emphasizing the importance and social values as a legacy of natural landscapes of an area [emphasis added].

53Mr. Hayman referenced a 1954 historic air photo of the Subject Lands and surrounding area, indicating farmland as the historical use. Mr. Hayman concluded that any features on the Subject Lands are not a "legacy of the natural landscape" of this area.

54Mr. Hayman acknowledged that there was no clear definition of a timeline that qualifies a feature as a "legacy". However, he notes that black locust did not originate naturally in this area and were not part of the original, native, natural landscapes in this area.

55Mr. Hayman stated that the area of the City's proposed ESA Line that is located on the Subject Lands should not be accepted, as the Subject Lands are:

• not part of a legacy natural landscape.
• not identified on Map 5 of the London Plan as a natural feature.
• dominated by a non-native species.

56Mr. Hayman stated that field investigations through SLSR and EIS concluded that the Subject Lands did not support any significant wildlife habitat, fish habitat, endangered Species Habitat, or any other features that would warrant further consideration under the PPS. Establishing the MTE proposed ESA Line would meet the intent of the Meadowlily ESA delineation by keeping features and functions that warrant retention in a natural state.

57Mr. Hayman identified that in 2020, MTE staff attended the Subject Lands to assess the vegetation communities and conditions. The on-site review determined that the cultural woodland that is in the Subject Lands is dominated by black locust and highlighted that the community required intensive management (removal and naturalization) to protect the forest communities to the north. The remainder of the Subject Lands is old field meadow.

58Mr. Hayman's concerns regarding the black locust is referenced by the Ontario Invasive Plant Council as follows:

Black locust aggressively invades dry and nutrient-poor sites and lowlands, outcompeting native plants and forming dense colonies which shade-out native flora.... The replacement of native communities by homogenous and low-diversity communities of pure black locust stands causes both plant richness loss and shifts in species composition.

59Mr. Hayman acknowledged that there are circumstances where, from an ecological perspective, you "include a non-native invasive species in a feature". However, he stated in this situation such circumstances do not exist.

60Mr. Hayman opined that the final ESA Line could be much further west with no effect on the Meadowlily ESA significance and provide a possible benefit to the Monarch Butterfly habitat by attracting the species up from the riverside meadows.

61Mr. Hayman opined that the original Meadowlily ESA boundary should be maintained. He continued that the City owned lands (immediately adjacent to Highbury Avenue) could be added as open space if the City so chose, but should not be considered part of the Meadowlily ESA, but rather a buffer to the Meadowlily ESA.

62Mr. Hayman opined that there was opportunity to provide for habitat enhancement needs, habitat creation interests, and protection of the sensitive features of what truly should be the Meadowlily ESA, without the broad expansion proposed by the City.

63Mr. Hayman opined that the inclusion of Community 2 does not meet the definition of Natural Heritage and Features in the PPS as it does not provide an environmental and social value and is not legacy of the natural landscape of the area.

64Mr. Hayman identified that MTE determined that Community 2 should not be added to the Meadowlily ESA boundary because it is a highly disturbed area dominated by non-native invasive species, it does not provide Species at Risk ("SAR") habitat, Significant Wildlife Habitat ("SWH"), or meet any of the criteria for inclusion in the Meadowlily ESA.

65Mr. Froussios accepted the opinions of Mr. Hayman regarding the PPS.

Does the City's ESA Line Adjacent to and Including the Subject Lands Conform with Policies 1367–1371 of the London Plan?

66Ms. Williamson provided an analysis of Policies 1367–1371 of the London Plan and provided the Tribunal with an overview of the in-force policies of the London Plan and the implementation of the EMGs.

67Ms. Williamson advised there was a three-step process for delineating natural feature areas (including ESAs) in both EMGs:

• Step 1. Identify the candidate ESA area based on the interface of naturalized vegetation and adjacent lands.
• Step 2. Establish Natural Heritage Features ("NHF") to delineate ELC vegetation polygons and assess the NHF based on field studies.
• Step 3. Delineate the ESA boundary based on the Boundary Delineation Guidelines in the EMGs.

68Ms. Williamson opined that, based on the guidance in both EMGs, it follows that natural heritage areas, in this case ESAs, are made up of natural heritage features that are delineated by Ecological Land Classification and that the EMGs do not permit separating an area into parts that can be treated individually as having less significance.

69Ms. Williamson reviewed the evolution of the Meadowlily ESA, which led to City Council approval of the proposed City Meadowlily ESA boundary. Ms. Williamson concluded that the City consultant ("NRSI") appropriately applied the 2007 EMGs' Boundary Delineation Guidelines, which conformed to the London Plan Policies of 1367–1371.

70Ms. Williamson outlined the London Plan Policies of 1367–1371, as follows:

Policy 1367 identifies ESAs as large areas that contain natural features and perform ecological functions that warrant their retention in a natural state. Environmentally significant areas are large features of the Natural Heritage System, often represented by a complex of wetlands, woodlands, significant wildlife habitat or valleylands. ESAs are delineated through the application of the EMGs and Provincial guidelines.

Policy 1369 permits lands adjacent to an ESA to be included within the ESA if warranted on the basis of a site-specific evaluation, including the application of the EMGs, in conjunction with certain studies including SLSRs In this case, the CMP.

Policy 1370 establishes that evaluation criteria will be used, together with more detailed criteria and application of the EMGs, to recognize ESAs in the London Plan.

Policy 1371 stipulates that natural heritage feature areas that clearly satisfy two or more of the listed seven criteria will be considered for recognition as ESAs.

71Ms. Williamson opined that the Meadowlily ESA meets all seven of the significance criteria noted in Policy 1371, when only two are required to justify ESA status. She continued that the Meadowlily ESA delineation met the intent of the Boundary Delineation Guidelines in the EMGs and applied a buffer to the feature delineation to clearly illustrate the developable limit.

72Ms. Williamson highlighted the following significance criteria and how they applied:

The area contains unusual landforms and/or rare to uncommon natural communities within the country, province or London Subwatershed.

The area contains high-quality natural landform-vegetation communities that are representative of typical pre-settlement conditions of the dominant physiographic units within the London Subwatershed region, and/or that have been classified as distinctive in the Province of Ontario.

The area, due to its large size, generally more than 40ha, provides habitat for species intolerant of disturbance or for species that require extensive blocks of suitable habitat.

The area, due to its hydrological characteristics, contributes significantly to the healthy maintenance (quality or quantity) of a natural system beyond its boundaries.

The area has a high biodiversity of biological communities and/or associated plants and animal species within the context of the London Subwatershed region.

The area serves an important wildlife habitat or linkage function.

The area provides significant habitat for rare, threatened or endangered indigenous species of plants or animals that are rare within the country, province or country.

73Ms. Williamson noted that the Appellant had been involved in the process to establish the Meadowlily ESA boundary, as identified in correspondence within the 2020 Staff Report ("Staff Report").

74Ms. Williamson advised that the CMP delineation was applied at a scale considering the entirety of the Meadowlily ESA. The Staff Report notes that ecological buffers will be required for any development on lands abutting the Meadowlily ESA.

75Ms. Williamson opined that refinements to the buffer are contemplated at a 5–10 m basis based on reduced or increased intensity of future site plan applications. She continued that a complete removal of Meadowlily ESA lands from the Subject Lands far exceeds a refinement, particularly without policy or guidelines to justify the removal from the land area base.

76Ms. Williamson indicated that none of the Boundary Delineation Guidelines speak to adding Natural Heritage features, which were already intended to be part of the initial candidate ESA area. She continued that by foregoing a delineation of the candidate area (Step 1) and proceeding to establish the Natural Heritage Feature (Step 2), the CUW1 was excluded from consideration as part of the Meadowlily ESA area based on the methodology of the Appellant.

77Ms. Williamson opined that the appropriate application of the EMGs' boundary delineation process, following Steps 1, 2, and 3, resulted in delineating the CUW1 within the Meadowlily ESA boundary. She further opined that the ESA boundary delineation process undertaken by the Appellant does not conform to the intent of the London Plan policies or abide by the Boundary Delineation Guidelines within the EMGs.

78Ms. Williamson acknowledged that the Meadowlily ESA would benefit from the management of the invasive species, however, this does not justify removal of the land area base of the Meadowlily ESA. She continued that, in accordance with the LIPMS, management of this area should be recommended as a mitigation measure for any future development to achieve no negative impact to the Natural Heritage System.

79Ms. Williamson summarized that there are nuances of natural heritage area and feature boundary delineation processes that have changed from the 2007 EMGs to the 2021 EMGs. She continued that the 2019 NRSI delineation accurately delineates the Meadowlily ESA based on the 2007 EMG and provides a more appropriate Meadowlily ESA delineation based on the updated 2021 EMGs' Boundary Delineation Guidelines.

80Ms. Williamson concluded that, within the current 2024 policy framework, the City's revised Meadowlily ESA boundary meets the intent of London Plan Policies 1367–1371 and represents sound ecological planning principles.

81Mr. Froussios provided a review of Policies 1367–1371. He summarized his findings as follows:

The City's Proposed ESA Line is not consistent with Policy 1367, as the Subject Lands do not contain natural features and perform ecological functions that warrant their retention in a natural state.

Regarding Policy 1368, the entirety of the Subject Lands are currently designated "Neighbourhoods" Place Type in Map 1 of the London Plan and are not identified as having any environmentally significant areas, or potential environmentally significant areas, on Map 5 of the London Plan.

In accordance with Policy 1369, consideration of the Subject Damas Lands for inclusion in the ESA is more appropriately undertaken through the site-specific development application that included both an SLSR and EIS in support of a proposed residential development.

There is no issue with Policy 1370.

Policy 1371 requires that candidate areas that clearly satisfy two or more of the seven listed criteria will be considered for recognition as environmentally significant areas. The Subject Lands do not exhibit or contain the characteristics or qualities described in policies 1371_1, 1371_2, or 1371_4. The Damas Lands do not provide habitat for species intolerant or disturbance or for species that require extensive blocks of suitable habitat (1371_3); do not contain a high biodiversity of biological communities and/or associated plant and animal species (1371_5); do not contain an important wildlife habitat or linkage function (1371_6); and do not provide significant habitat for rare, threatened or endangered species of plants or animals that are rare within the country, province or county (1371_7).

The Appellant's EIS concludes that no significant wildlife will be directly impacted by a proposed development on the Subject Lands.

82Mr. Froussios opined that the City's proposed ESA Line is not in conformity with the ESA policies of the London Plan. He continued that the City's proposed ESA Line, OPAs, and ZBA are not consistent with the PPS, the London Plan, and do not represent sound land use planning principles.

83Mr. Hayman noted that Policy 1367 in the London Plan stated that ESAs are large areas that contain natural features and perform ecological functions that warrant their retention in a natural state [emphasis added].

84Mr. Hayman stated that the MTE proposed ESA Line would meet the intent of the ESA delineation process by keeping features and functions that warrant retention in a natural state.

85Mr. Hayman advised that Policy 1371 in the London Plan, which guides ESA boundary delineation, states that if an area clearly satisfies two or more of the criteria outlined in the policy, it is to be considered for inclusion in an ESA.

86Mr. Hayman opined that none of the criteria exist on the Subject Lands and his findings are summarized below:

The Subject Lands contain no unusual landforms and/or rare to uncommon natural communities within the country, province or London subwatershed region.

The Subject Lands contain no high-quality natural landform-vegetation communities that are representative of typical pre-settlement conditions of the dominant physiographic units within the London subwatershed region, and/or that have been classified as distinctive in the Province of Ontario.

The Subject Lands do not provide habitat for species intolerant of disturbance or for species that require extensive blocks of suitable habitat.

The Subject Lands do not contribute significantly to the healthy maintenance (quality or quantity) of a natural system beyond its boundaries.

The Subject Lands do not have a high biodiversity of biological communities and/or associated plant and animal species within the context of the London subwatershed region.

The Subject Lands do no not serve an important wildlife habitat or linkage function.

The Subject Lands do not provide significant habitat for rare, threatened or endangered indigenous species of plants or animals that are rare within the country, province or county.

87Mr. Hayman opined that the exclusion of the invasive black locust dominated tree stand that extends onto the Subject Lands from the City's proposed ESA Line does not negatively impact the protection of the natural areas contained within the MTE proposed ESA Line based on the guiding principles of ESA consideration.

88Mr. Hayman identified that the MTE proposed ESA Line was developed based on the 2021 EMGs, which contains a similar process to the 2007 EMGs. Mr. Hayman advised that the MTE proposed ESA Line nearly matches the City's original ESA Line, which is the current boundary as indicated on Map 5 of the London Plan.

89Mr. Hayman referenced guiding principles 1 and 2 of the 2021 EMGs, which state the following:

1. The term "vegetation patch" refers to an area that contains natural vegetation, along with associated features and functions. Vegetation patches are considered as one unit and can be comprised of multiple "natural heritage features" inside the patch (e.g., woodland, wetland, etc.). The initial feature boundary will be drawn at the interface between naturalized vegetation and the adjacent lands, generally conforming to the patch outline [emphasis added].

2. The ecological boundary is determined based on ecological principles, refined through the application of these guidelines, and without regard for property lines. Boundary delineation guidelines shall not be used to separate a vegetation patch into specific parts that can be treated individually as having lesser or greater significance and / or contribution to ecological function.

90Mr. Hayman stated that the recommendation of removing Community 2 is based on sound ecological principles and the management of it is more appropriately reviewed through a development application of the Subject Lands.

91Mr. Hayman highlighted that, when applying guiding principles 4 and 5, the most recent map sources, current and historical aerial photographs, and ecological background studies/documents should be used to verify the initial Meadowlily ESA boundary. Mr. Hayman opined that Boundary Delineation Guidelines are designed to reflect the intent of the EMGs and that historical air photos should be considered to determine the initial Meadowlily ESA boundary of the vegetation patch to be reviewed. He further opined that the vegetation boundary of the Meadowlily ESA should be Communities 3 and 3a to the north.

92Mr. Hayman advised that Guideline 1 of the Boundary Delineation Guidelines highlighted in the 2021 EMGs identifies that SAR habitat and SWH must be included in the feature boundary [emphasis added].

93Mr. Hayman advised that, in accordance with Guideline 3 of the Boundary Delineation Guidelines, projections of naturalized vegetation less than 30 m wide that extend from the main body of the patch must be included within the boundary if the projection provides linkage within the landscape [emphasis added].

94Mr. Hayman indicated that the rationale for including the lands west of Meadowlily Road South (including the Subject Lands) in the Meadowlily ESA was highlighted in the CMP, as follows:

Lands West of Meadowlily Road South (Map 11B) are recommended for inclusion in the ESA boundary as they provide habitat for a variety of mammals and SAR (including Monarch) and contain groundwater seepage areas and therefore meet two of the necessary criteria for inclusion in the ESA. Criterion 3 is met as the combined size of forest patches within 40m of one another (across Meadowlily Road South) is much greater than 40ha. Additionally, Criterion 7 is met due to the presence of Monarch, a species of Special Concern, within the CUM1-1 vegetation communities in this area. Guideline 1 was applied to CUM1-1 by providing important habitat for Monarchs. Cultural vegetation communities were incorporated into the ESA to provide a mantel and to strengthen internal linkages, following Guideline 7. [emphasis added]

95Mr. Hayman stated that, in paragraph [91] above, the reference to the natural forest is the communities to the north of the Subject Lands and are not in dispute. He continued that the City expanded the boundary of the Meadowlily ESA to include the black locust tree stand and some cultural meadows for Monarch Butterfly habitat, and to provide a mantle and strengthen internal linkages.

96Mr. Hayman opined that, based on field work conducted on the Subject Lands by MTE, Monarch Butterfly habitat was not found to any great extent (although a few were seen flying overhead and abundant habitat was observed on adjacent lands), and Criterion 7 and Guideline 1 were misapplied by the City.

97Mr. Hayman identified that NRSI completed an EIS at 101 Meadowlily Road South after NRSI completed the CMP.

98Mr. Hayman highlighted that the City accepted the EIS for 101 Meadowlily Road South even though SWH was identified that included the Eastern Wood-Peewee coming from Community 3 and Monarch caterpillars on 101 Meadowlily Road South.

99Mr. Hayman advised that the treatment of the Monarch Butterfly habitat is different in each of the NRSI studies and indicated that the EIS for 101 Meadowlily Road South acknowledged that the breeding habitat is ubiquitous in London and suggests that the Meadowlily ESA boundary is at the woodland dripline. He continued that the EIS for 101 Meadowlily Road South stated that the proposed development impact demonstrated breeding habitat for Monarch Butterfly, but given the provided buffer, Monarch Butterfly breeding habitat can be sustained.

100Mr. Hayman opined that the proposed MTE ESA Line boundary is appropriate and conforms to the London Plan, meets the intent of the EMGs, and aligns with the conclusions and opinions of NRSI, the author of the ESA Master Plan and EIS for the property to the north at 101 Meadowlily Road South. It has also been agreed to in the Agreed Statement of Facts that the Meadowlily ESA boundary to the north is a buffer to the Meadowlily ESA and therefore a similar line should not be applied to the Subject Lands as an ESA boundary. Any buffers to the Meadowlily ESA boundary are more appropriately addressed in a development application to follow this Hearing and Decision.

101Mr. Froussios accepted the opinion of Mr. Hayman regarding conformity with Policies 1367–1371 of the London Plan.

Timing and Process

102Ms. Williamson stated that the EMGs are a City Council adopted Natural Heritage System guideline document under Policy 1719_3 of the London Plan. She continued that:

Guideline Documents are adopted by by-law and provide direction for the implementation of the policies of the Plan. The EMGs provide direction on environmental study requirements, natural feature evaluation, boundary delineation, ecological buffers, compensation, and monitoring.

As such, the policies recognize that the EMGs have status under the London Plan for the implementation of London Plan policies relating to the identification, delineation and protection of the natural heritage features and areas that form the City's Natural Heritage System.

103Ms. Williamson noted that the Appellant's EIS recommended that the Meadowlily ESA delineation should be removed from the Subject Lands as the CUW1 is dominated by invasive species and not considered a significant component of the Meadowlily ESA.

104Ms. Williamson stated that an EIS is the second phase of the environmental study process, which follows the review and confirmation of the SLSR by the City. She continued that the CMP could function as the SLSR component of the development application process as the Meadowlily ESA delineates the Meadowlily ESA boundary and establishes the associated significance of its features and functions.

105Ms. Williamson highlighted that the EMGs contain no guidelines that provide direction to remove Natural Heritage Feature components of the Meadowlily ESA based on invasive species presence.

106Ms. Williamson stated that a revised SLSR was submitted to the City that suggested re-delineation of the ESA Line boundary without sufficient rationale beyond invasive species dominance to justify the revision. She continued that information on how the removal of this Natural Heritage Feature component conformed to London Plan policies and application of the EMGs' Boundary Delineation Guidelines was not provided.

107Ms. Williamson opined that the Appellant's EIS established the significance of the patch components before identifying the candidate components of the patch. She continued that this does not follow the process outlined by the EMGs and removes land area from consideration for inclusion within the Natural Heritage System, with insufficient rationale, and based on Policy 1367, the area of the Meadowlily ESA shall be established prior to establishing the significance of the various components and applying the guidelines.

108The City determined that the SLSR excluded components of the Meadowlily ESA and matters to be addressed in an SLSR were not confirmed by the City prior to completing the balance of the EIS in accordance with London Plan Policy 1430.

109Specifically, the SLSR did not identify Community 2 as part of the Meadowlily ESA feature boundary as the City determined it was a woodland contiguous with the rest of the Meadowlily ESA feature.

110On October 16, 2020 and October 23, 2020, Mr. Froussios corresponded with the City to defer consideration of, and adjustment to, the Meadowlily ESA boundary as it related to two properties, one being the Subject Lands. He opined that it was premature and unjustified to adjust the Meadowlily ESA boundary, considering the work that was already underway to support the future development of the Subject Lands.

111Mr. Froussios identified that a more prudent approach would be to redesignate and rezone the affected areas of the Subject Lands as Environmental Review, thus allowing for a detailed review of the Subject Lands.

112Mr. Froussios opined that an approach as outlined above would allow a detailed review of the Subject Lands to be completed through the EIS process, which he stated was consistent with policies of the 1989 OP, the London Plan, and any necessary adjustments to the Meadowlily ESA boundary would then be completed as a part of official plan and zoning by-law amendment applications.

113Mr. Hayman agreed that any revisions to the Meadowlily ESA boundary were premature and should be established through an EIS prepared in support of a future development application relating to the Subject Lands.

FINDINGS AND ANALYSIS

114For the reasons outlined below, the Tribunal does not accept the City's proposed ESA Line boundary. The Tribunal finds that the Appellant's proposed ESA Line boundary addresses the relevant matters of provincial interest identified in s. 2 of the Act, is consistent with the PPS, conforms with the London Plan, and is representative of good land use planning.

115The Tribunal finds that the City proposed ESA Line boundary is not consistent with Policy 4.1 of the PPS as there are no natural features that require protection on the lands adjacent to, or including, the Subject Lands.

116The Tribunal finds that the City's proposed Meadowlily ESA does not conform with Policies 1367, 1368, 1369, and 1371 of the London Plan, as follows:

• Policy 1367 – as the Subject Lands do not contain natural features and perform ecological functions that warrant their retention in a natural state;
• Policy 1368 – as the Subject Lands are currently designated Neighbourhoods and are not identified as having any environmentally significant areas, or potential environmentally significant areas;
• Policy 1369 – as it would be more appropriate to determine the Subject lands for inclusion through a site-specific development application that included both a SLSR and EIS in support of a proposed residential development; and
• Policy 1371 – as the Subject Lands do not exhibit or contain the characteristics or qualities to be considered for recognition as an ESA.

117Both Parties focused planning evidence on the protection of ecological systems, including natural areas, features and functions, and the orderly development of safe and healthy communities.

118There is no dispute between the Parties that the Subject Lands are located in a settlement area.

119There is no dispute between the Parties on the appropriate sections of the PPS to be considered. The Parties focused their evidence on settlement areas, efficient use of land and resources, and natural features and areas to be protected for the long term.

120There is no dispute that the key policies to be considered for conformity with the London Plan are Policies 1367–1371.

121The Tribunal acknowledges the process of the City and the applicable policies and guidelines associated to implement decisions under the Act. However, in the course of a hearing, the Tribunal must take into account all of the evidence before it.

122The Tribunal found that the evidence provided by the Appellant was routinely more detailed. The Tribunal found that the City placed more emphasis on process and guidelines in their evidence, rather than refuting the Appellant's evidence.

123Through the evidence presented by the City, the importance of the guidelines, such as EMGs were emphasized. The Tribunal notes that the EMGs are not incorporated into the London Plan, but the Tribunal does have regard for the guidelines of the City. However, the Tribunal disagrees that they need to be rigidly applied. The Tribunal finds that the guidelines, particularly the EMGs, provide critical context to inform the Tribunal in adjudicating the matter before it.

124As identified in Tribute (Bloor Street West) Limited v Toronto (City), 2021 CanLII 51737 (ON LT), guidelines were created to assist with the implementation of official plan policy and provide specific direction. Guidelines are not official plan policy.

125Although there is no planning application before the Tribunal to be considered in this Hearing, the Appellant provided the EIS and SLSR supporting a development on the Subject Lands as evidence.

126The Tribunal finds that there is merit in the review of the EIS and SLSR submitted by the Appellant to inform the Tribunal's decision regarding the Meadowlily ESA in relation to the Subject Lands.

127The SLSR submitted identified and assessed the significance of the natural features of the Subject Lands and adjacent lands, including those owned by the City.

128The results of the Preliminary Screening Request on the Subject Lands conducted by the Ministry of the Environment, Conservation and Parks ("MECP") to assess potential impacts of a development on endangered and threatened SAR determined that:

Based on the ministry's review of the project documentation and information that has been provided, the conclusions that neither section 9 (species protection) nor section 10 (habitat protection) of the ESA 2007 will be contravened for endangered and threatened SAR - as long as the proposed mitigation measures are implemented - appear reasonable and valid. There are no known occurrences of endangered or threatened SAR at the project location or general area. Therefore, authorization under the ESA 2007 is not required for this project.

129The Tribunal found the conclusions of the MECP review significant.

130The EIS identified that a change of the Meadowlily ESA was required based on the application of the 2021 EMGs and biological surveys conducted by MTE in 2020 and 2021.

131The EIS concluded that, due to a lack of quality habitat and risk of aggressive invasive species to surrounding natural woodlands, Community 2 should be excluded from the Meadowlily ESA boundary.

132At the time of the submission of the SLSR and EIS, the City had not passed OPA 129 to implement the revised boundary of the Meadowlily ESA, and the other planning instruments were already under appeal. Discussions regarding the development of the Subject Lands had been ongoing between the Parties.

133In the Tribunal's view, there is merit in the approach described by Mr. Froussios. As an aside, The Tribunal is perplexed as to why the City did not accept the approach presented by Mr. Froussios, in paragraphs [110]–[112] above.

134The Tribunal finds that the Froussios approach was in conformity with policies of the 1989 OP and the London Plan and was more efficient. The Tribunal also finds that approach presented to the City provided a balance of public and private interests, while protecting natural heritage features on adjacent properties and providing an opportunity for future development on the Subject Lands.

135Overall, the Tribunal is persuaded by the evidence of the Appellant to assist the Tribunal in the determination of the appropriate boundary of the Meadowlily ESA adjacent to, and including, the Subject Lands.

INTERIM ORDER

136THE TRIBUNAL ORDERS THAT the appeals of Official Plan Amendment No. 129 and Zoning By-law Amendment Z.-1-202885 are allowed, in part, and approves the Appellant's proposed Meadowlily Woods Environmentally Significant Area Line.

137THE TRIBUNAL ORDERS THAT the Parties submit a draft Final Order for consideration of the Tribunal attaching the finalized instruments and maps for Official Plan Amendment No. 129 and Zoning By-law Amendment Z.-1-202885 that reflect the Tribunal-approved Meadowlily Woods Environmentally Significant Area Line.

138THE TRIBUNAL ORDERS THAT it will withhold its decision on Official Plan Amendment No. 27 pending confirmation from the Parties that the Meadowlily Woods Conservation Master Plan has been updated to reflect the Meadowlily Woods Environmentally Significant Area Line approved by the Tribunal. Once the CMP is updated by way of an addendum, the Tribunal will dismiss the appeal of Official Plan Amendment No. 27 and the amended Meadowlily Woods Conservation Master Plan will be added to the London Plan.

139The Member will remain seized for the implementation of this Order and remains available through the Case Coordinator for additional case management should the need arise.

"W. Daniel Best"

W. DANIEL BEST

MEMBER

Ontario Land Tribunal

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

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