Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 20, 2026

CASE NO(S).: OLT-24-000329

PROCEEDING COMMENCED UNDER subsection 41(12.0.1) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: Access Storage Inc.

Subject: Site Plan – Access Storage Inc.

Description: To permit the development of a self-storage facility

Reference Number: D07-12-22-0095

Property Address: 125 Colonnade Road South

Municipality: Ottawa

OLT Case No: OLT-24-000329

OLT Lead Case No: OLT-24-000329

OLT Case Name: Access Storage Inc. v Ottawa (City)

Heard: February 10 to 12, 2025, by Video Hearing; February 21, 28 and March 3, 2025, in Writing

APPEARANCES:

Parties

Counsel

Access Storage Inc.

Raj Kehar Narmada Gunawardana

City of Ottawa

Timothy Marc

DECISION DELIVERED BY S. Dixon AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

Background

1This Decision and Order results from an appeal by Access Storage Inc. (“Appellant”) pursuant to s. 41(12.0.1) of the Planning Act, R.S.O. 1990, c. P. 13, as amended (“Act”), concerning the City of Ottawa’s proposed conditions to the approval of a site plan control application to permit the construction of a self-storage facility on lands known as 125 Colonnade Road South (“Subject Lands”).

2The application conforms to the City Official Plan (“COP”) and Zoning By-law – only site plan approval and a subsequent building permit are required to facilitate the proposed development. The site plan application was approved by the City on May 10, 2023, subject to 21 conditions. The site plan is attached to this Decision as Attachment 1. The conditions, contained in the City’s Delegated Authority Report, are attached to this Decision as Attachment 2.

3Following approval, the City proposed to add another condition to the Site Plan Agreement pertaining to a sanitary sewer easement on the Subject Lands (“Condition 22”).

Disputed Conditions

4All 22 conditions were agreed to by the Appellant via email through the City’s “concurrence” process – a non-binding extra-statutory process intended to avoid disputes before and after site plan approval.

5Notwithstanding the Appellant’s prior concurrence, two conditions are now disputed and were the subject of this Hearing:

1. Condition 11, which requires the Appellant to convey an approximate 22 metre unencumbered road widening of Prince of Wales Drive across the 207 metre rear lot length of the Subject Lands, in accordance with the Prince of Wales Drive Widening Fisher Avenue to Woodroffe Avenue Environmental Study Report, 2011 (“Prince of Wales ESR” or “ESR”), at no cost to the City; and

2. Condition 22, which requires the conveyance of a nine metre easement centred on the West Rideau Collector Sanitary Sewer Trunk (“Sanitary Sewer”), which runs underneath the Subject Lands, at no cost to the City.

6Neither condition requires alteration to the proposed development.

Issues

Condition 11 – Road Widening

7The Appellant submits that the proposed road widening is actually a realignment of the existing road to accommodate the construction of a new service road on the other side of Prince of Wales Drive, opposite the Subject Lands. They submit that s. 41(7) of the Act does not permit the City to require the provision of lands at no cost for the realignment of an existing road or the construction of a new road as a condition of site plan approval. Rather, the Appellant submits that the Act only permits the gratuitous taking of land for the widening of a road and only where it is demonstrated to be reasonable, having regard to the nature of the proposed development.

8The City submits that the extent of the proposed road widening is described in the COP and therefore meets the legislative requirements of the Act that permit the City to require the provision of land for highway widenings that abut on the Subject Lands at no cost to the City. The City further submits that the Provincial Planning Statement, 2024 (“PPS”) requires planning authorities to plan for and protect transportation corridors, including for major goods movement.

Condition 22 – Sanitary Sewer Easement

9The Appellant submits that s. 41(7) of the Act does not permit the City to require the provision of a sanitary sewer easement at no cost for existing sanitary sewage facilities as a condition of site plan approval. They further submit that requiring the provision of a sanitary sewer easement on the Subject Lands is not reasonable given that the existing sewer does not serve the Subject Lands, is not needed to facilitate the proposed development, and would encumber future development potential of an employment area.

10The City submits that the Appellant was aware of the presence and location of the Sanitary Sewer and agreed to a proposed condition regarding the conveyance of the easement at no cost to the City. The City further submits that conveyance of the easement is in the public interest and a reasonable condition given that most of the Sanitary Sewer is within the proposed Prince of Wales Drive widening.

Witnesses

11The Tribunal heard from two witnesses who were qualified to provide independent expert opinion evidence in Land Use Planning:

1. The Appellant called Nick Wood, the Vice President of Development Planning at Corbett Land Solutions Inc. Mr. Wood is a Registered Professional Planner.

2. The City called Colette Gorni, a Planner II with the City’s Development Review team. Ms. Gorni is a Registered Professional Planner.

12The Tribunal also heard from two witnesses who provided evidence pertaining to transportation:

1. The Appellant called Peter Apasnore, a Transportation Project Manager with C.F. Crozier & Associates Inc. Mr. Apasnore is a Professional Engineer in Ontario and a Member of the Institute of Transportation Engineers. He was qualified by the Tribunal to provide expert opinion evidence pertaining to Transportation Engineering.

2. The City called Frank McKinney, a Program Manager with the Transportation Environmental Assessment Branch of the City’s Transportation Planning team. Mr. McKinney is a Professional Engineer in Ontario and a Member of the Institute of Transportation Engineers (among other related professional associations) and has over 38 years of experience pertaining to transportation planning and engineering. He was qualified by the Tribunal to provide expert opinion evidence pertaining to Transportation Planning.

Summary Finding

13The Tribunal finds that Condition 11 and Condition 22 are both authorised and reasonable conditions to the approval of a site plan control application pursuant to s. 41(7) of the Act for the following reasons.

ANALYSIS

Site and Area Context

14The Subject Lands comprise 3.47 hectares of land located within an industrial subdivision at the southwest corner of Colonnade Road and Prince of Wales Drive, west of the Rideau River. They are bounded by Colonnade Road to the north, Colonnade Road South to the west, Prince of Wales Drive to the east, and a shared CN/VIA Rail corridor to the south. The Subject Lands have one access point on Colonnade Road and two access points on Colonnade Road South. There are no existing or proposed access points from the Subject Lands to Prince of Wales Drive.

15The Subject Lands are currently occupied by a 5,000 square metre one-storey warehouse building, surface parking, and light landscaping. The proposed development will expand the existing structure with a two-storey extension that connects to a further three-storey extension. An additional one-storey building will be constructed at the southwest corner of the Subject Lands. Neither the proposed extension nor the additional building is impacted by the proposed Prince of Wales Drive widening or existing Sanitary Sewer.

16There are five large residential lots and a place of worship on the east side of Prince of Wales Drive, opposite the Subject Lands. Each lot backs onto the Rideau River and has direct vehicular access to Prince of Wales Drive. Similar uses extend further north and south along the east side of the road.

Legislative and Policy Basis for the Disputed Conditions

Planning Act

17Section 41(4) of the Act provides that no person shall undertake development in a designated site plan control area without the approval of:

1. Plans showing the location of all buildings and structures to be erected and showing the location of all facilities and works to be provided in conjunction therewith and of all facilities and works required under clause (7) (a), including facilities designed to have regard for accessibility for persons with disabilities.

2. Drawings showing plan, elevation and cross-section views for each building to be erected […]

18Section 41(7) of the Act provides that, as a condition to the approval of the plans and drawings referred to above, a municipality may require the owner of the land to provide, to the satisfaction of and at no expense to the municipality: (1) widenings of highways that abut on the land provided that, in accordance with s. 41(9), the highway to be widened and the extent of the proposed widening are shown on or described in an official plan; and (2) easements conveyed to the municipality for the construction, maintenance or improvement of sanitary sewage facilities of the municipality on the land:

Conditions to approval of plans

(7) As a condition to the approval of the plans and drawings referred to in subsection (4), a municipality may require the owner of the land to,

(a) provide to the satisfaction of and at no expense to the municipality any or all of the following:

1. Subject to the provisions of subsections (8) and (9), widenings of highways that abut on the land.

2. Easements conveyed to the municipality for the construction, maintenance or improvement of watercourses, ditches, land drainage works, sanitary sewage facilities and other public utilities of the municipality or local board thereof on the land.

3. Grading or alteration in elevation or contour of the land and provision for the disposal of storm, surface and waste water from the land and from any buildings or structures thereon;

(c) enter into one or more agreements with the municipality dealing with and ensuring the provision of any or all of the facilities, works or matters mentioned in clause (a) or (d) and the maintenance thereof as mentioned in clause (b) or with the provision and approval of the plans and drawings referred to in subsection (4);

Limitations on requirement to widen highway

(9) An owner may not be required by a municipality, under paragraph 1 of clause (7) (a) […] to provide a highway widening unless the highway to be widened is shown on or described in an official plan as a highway to be widened and the extent of the proposed widening is likewise shown or described.

Provincial Planning Statement, 2024

19Section 3.3 of the PPS sets out policies pertaining to Transportation and Infrastructure Corridors:

• Policy 3.3.1 requires that planning authorities “shall plan for and protect” corridors and rights-of-way for infrastructure, including transportation corridors, transportation facilities, and sewage and water systems, to meet current and projected needs;

• Policy 3.3.2 requires that major goods movement facilities and corridors “shall be protected for the long term”; and

• Policy 3.3.3 requires that planning authorities “shall not permit” development in planned corridors that could preclude or negatively affect the use of the corridor for the purposes for which it was identified.

20Policy 3.3.3 further stipulates that new development proposed on adjacent lands to existing or planned corridors should be compatible with, and supportive of, the long-term purposes of the corridor. Development or site alteration should be designed to avoid, minimise and/or mitigate negative impacts that would compromise or conflict with the planned function, capacity to accommodate future needs, and planned cost of implementation of the corridor.

City Official Plan

21The COP, which was approved by the Minister of Municipal Affairs and Housing on November 4, 2022, sets out policies pertaining to protection and investment in rights-of-way beginning at s. 4.1.7.

22Policy 4.1.7.4 of the COP states the following in relation to road widenings as a condition of site plan approval:

4. The City may acquire land for […] the widening of rights of way through conditions of approval for a […] site plan or a plan of condominium, as detailed in Schedule C16, and as identified in Environmental Assessments or approved road designs at no cost to the City. […]

23The above policy goes on to state:

This may involve equal or unequal road widenings, and the use of easements for streets, to fulfil the requirement for additional land for measures such as corner triangles and auxiliary lanes at intersections, active transportation facilities, transit corridors, transit stops, utilities and related infrastructure, railway crossings, intersections or roundabouts.

(p. 91, Exhibit 1)

24Similarly, implementation policy 11.6.5 of the COP states that the City may acquire land through the development review process for mobility or infrastructure needs, including road corridor widening, grade triangles for elevation of grade crossings for rail lines, multi-use paths, expansion of transit services, and underground infrastructure, among other matters.

25Schedule C4 of the COP designates Prince of Wales Drive as an arterial road. Schedule C16 of the COP describes arterial roads as major routes of the City’s transportation network, noting that vehicular access to adjacent properties is usually controlled to minimise turning movements to reduce conflicts between travel modes. It further describes arterials as accommodating a wide diversity of road functions serving a range of travel modes, designed to meet the needs of users through the provision of sidewalks, cycling facilities, bus stops and shelters, and other amenities where appropriate. Section 2 of Schedule 16 states the following in relation to the right-of-way widths that may be required by the City:

[…] The ROW distances indicate the width of land that the City has identified will be needed to accommodate the range of possible transportation and infrastructure facilities such as: roadway lanes for cars, truck, bicycles and/or transit vehicles; sidewalks and pathways; central or side boulevards for landscaping; public utilities, lighting; and spaces for street side amenities […]

(p. 149, Exhibit 1)

26Policy 2.1.1(a) of Schedule C16 states that, “Except as specifically indicated otherwise in Table 1 of this Annex, land for a road widening will be taken equally from both sides of a road, measured from the centreline in existence at the time [of] the widening […]” (p. 150, Exhibit 1).

27In turn, Table 1 – Road Right-of-Way Protection includes both general and specific right-of-way requirements. General right-of-way requirements fulfill road requirements based on city design standards and guidelines. The general right-of-way to be protected for arterial roads is listed as 37.5 metres “unless otherwise indicated in Table 1 or in a Local Plan or environmental assessment” (p. 155, Exhibit 1). Specific right-of-way requirements are provided “for various road segments based on previous plans, studies and identified requirements” (p. 155, Exhibit 1).

28The right-of-way to be protected for Prince of Wales Drive between Colonnade Road and Rideau Heights Lane (i.e., the segment abutting the Subject Lands) is a specific, rather than general, right-of-way requirement as identified in Table 1 and the Prince of Wales ESR. The right-of-way requirement for this section of Prince of Wales Drive is indicated in Table 1 as 32 to 58 metres, specifically noting that the widening of this segment, “Varies and [is] subject to [the] unequal widening requirements of the Prince of Wales Drive widening ESR” (p. 200, Exhibit 1).

29There are other instances in Table 1 that recognise unequal widenings (e.g., “widening only on west side”) for other segments of Prince of Wales Drive, and for other roads in the City unrelated to the Prince of Wales ESR.

Issue 1: Road Widening

The Need for the Unequal Widening

30The need to widen Prince of Wales Drive was recognised in 2011 by the Prince of Wales Drive (Fisher Avenue to Woodroffe Avenue) Environmental Assessment Study (“Prince of Wales EA” or “EA”), which led to the completion of the Prince of Wales ESR. The proposed widening extends along approximately 10.6 kilometres of Prince of Wales Drive and generally consists of an expansion from two lanes of traffic to four lanes with a median, plus additional facilities for transit and active transportation, to address capacity deficiencies. Certain sections of the widening have already been constructed while others have yet to be built.

31The Prince of Wales EA recognises that there are current corridor constraints, noting that the corridor lacks access control to numerous private properties and has, in some sections, no pedestrian or pathway facilities, with “great potential for conversion into a more functional urban transportation facility for all modes of travel and one which better represents its scenic route status” (p. 274, Exhibit 1).

32The proposed widening, divided into seven sections, mostly follows an equal widening on both sides of the road, measured from the current centreline of the right-of-way. However, the ESR recommends that all but one section utilise a “combination widening” containing both equal and unequal alignments. Section 5, the 1.3 kilometre section that abuts the Subject Lands, proposes a shift in alignment to the west beginning south of the CN/VIA Rail line and continuing along the entirety of the Subject Lands, across Colonnade Road, and extending at least one property north of Colonnade Road before shifting back to an approximate equal widening.

33Both the Prince of Wales EA and Prince of Wales ESR state that the westerly shift in Section 5 is introduced “to improve construction staging flexibility at the rail underpass and to enable the inclusion of an east side local service road north of the rail line” (p. 280, Exhibit 1 and p. 696, Exhibit 2).

34Section 7.3.3 of the Prince of Wales ESR further articulates the reasons for the preferred alignment, listing the following key reasons for the combination widening of Section 5:

• It impacts the least number of private property parcels.

• It avoids the steep slopes to the east.

• It provides staging flexibility at the CN/VIA Rail Bridge.

• It supports provision of an east side service road.

(p.684, Exhibit 2)

35The cross section prepared for the Prince of Wales ESR illustrates that the future right-of-way for Prince of Wales Drive will be approximately 40 metres, with the new service road having a right-of-way width of approximately 17.5 metres. Combined, this roughly equates to the upper protected right-of-way limit of 58 metres identified in Table 1 of Schedule C16 of the COP.

36In Mr. Apasnore’s opinion, the protected right-of-way of Prince of Wales Drive could be reduced to approximately 40 metres (which is more reflective of the general right-of-way requirements for arterial roads listed in Schedule 16C) without the inclusion of the service road.

37Notwithstanding his opinion in that regard, Mr. Apasnore recommended implementation of the City’s proposed widening as his first recommendation of the Appellant’s Transportation Impact Assessment (“TIA”), updated in October 2022 and submitted as part of the site plan application:

Recommendations

Based on the results of the TIA process, it is recommended that:

• The City pursue road widening along Prince of Wales Drive as identified in the Prince of Wales Drive Environmental Assessment, 2011 and the City of Ottawa Transportation Master Plan [2014] […]

(emphasis added, p. 413, Exhibit 1)

38The Appellant submits that the language of the EA and the 58 metre protection corridor support their position that the unequal widening at this section of Prince of Wales Drive results from the City’s desire to construct the service road. The service road must meet minimal functional requirements and City standards, thereby pushing Prince of Wales Drive onto the Appellant’s lands. The Appellant argues that removing the service road would permit an easterly shift in the alignment of Prince of Wales Drive, more consistent with its current centreline.

39Accordingly, it is the Appellant’s position that the proposed widening constitutes a realignment of Prince of Wales Drive to accommodate the construction of a new road. While the Act permits the conveyance of land for the purposes of a road widening as a condition of site plan approval, and the COP sets out that such a widening can be unequal, it is the Appellant’s position that neither document permits the conveyance of land at no cost to the City for the purposes of realigning an existing road or building a new road.

40The City’s position, as proffered by Mr. McKinney, is that the preferred alignment is the result of the EA process to address the long-term needs of the City – consistent with the requirements of the PPS, including the protection of goods movement along both Prince of Wales Drive (a designated trucking route) and the CN/VIA Rail corridor. To that end, Mr. McKinney proffered that the unequal widening adjacent to the Subject Lands is primarily a result of the need to expand the CN/VIA Rail overpass to accommodate the widened road.

CN/VIA Rail Overpass

41The existing CN/VIA Rail overpass bridge above Prince of Wales Drive (south of the Subject Lands) must be demolished and replaced by a two-span structure to accommodate the road widening from two lanes to four lanes. Through the EA process, which included meetings with CN Rail and VIA Rail, the City evaluated alternatives to reconstructing the rail overpass based on the following criteria:

• Minimise property impacts;

• Minimise potential to increase noise and vibration impacts;

• Limit permanent or temporary works over utilities;

• Provide good construction staging/access potential;

• Minimise disruption to rail service; and

• Minimise project cost.

42Mr. McKinney proffered that an additional City objective is to keep Prince of Wales Drive operational as much as possible during the demolition and reconstruction of the rail overpass. That, he proffered, is facilitated by expanding the overpass to either the east or the west rather than expanding it in both directions.

43Mr. McKinney further proffered that a westerly expansion of the rail overpass provides better opportunity and flexibility to CN/VIA Rail, avoiding steep slopes on the east side of Prince of Wales Drive that make construction of temporary and permanent structures more difficult. A westerly expansion can also be accommodated on mostly open, undeveloped land in an industrial area. Conversely, an easterly expansion will have a significant impact on several residential properties north and south of the rail line – several dwellings south of the rail line are located close to the rail corridor and Prince of Wales Drive, likely requiring the City to purchase those properties to accommodate an easterly expansion. Expanding the overpass to the west will also reduce noise and vibration effects on residents on the east side of Prince of Wales Drive.

44Widening the rail overpass to the west was therefore identified as the best alternative based on an analysis of geographic and other constraints utilising the evaluation criteria set out above. According to Mr. McKinney, the proposed service road is an opportunity borne from that conclusion that will enhance safety and efficiency along Prince of Wales Drive by minimising turning movements to reduce conflicts. While the benefits of the service road were factored into the overall EA decision-making process, the service road is not in and of itself the reason for the westerly alignment.

Service Road

45The Prince of Wales ESR recommends three service roads north of the CN/VIA Rail corridor, including the service road opposite the Subject Lands. Section 7.3.4 of the ESR notes that it will be difficult for some residents along Prince of Wales Drive to enter and exit their properties safely given the estimated future increase in traffic. The provision of service roads will allow for safe access for those properties.

46Mr. Apasnore agrees with the rationale for the service road. In his opinion, the service road is desirable, necessary, and a “good addition”. He proffered that the service road will improve safety and help with access management and traffic flow by consolidating access for the properties on the east side of Prince of Wales Drive into a single, signalised intersection at Colonnade Road. Mr. McKinney agrees – the service road is the safest alternative access for property owners on the east side of Prince of Wales Drive.

47Notwithstanding their concurrence in that regard, the transportation experts also agree that the service road opposite the Subject Lands is not, in the words of Mr. Apasnore, “a must have at all costs” – the widening of Prince of Wales Drive can occur without the service road. Indeed, it was demonstrated to the Tribunal that several residential properties along Prince of Wales Drive will not benefit from consolidated access via service roads and will maintain direct, right-in right-out access due to other constraints.

48That evidence supports Mr. McKinney’s opinion that, while the service road is part of the Prince of Wales EA (and a right-of-way has been protected in the COP to facilitate its construction), it is not part of the Prince of Wales Drive widening. To that end, the Tribunal was directed to s. 8.1 of the Prince of Wales ESR, which describes the recommended project design and states that the preferred roadway design elements for the widened Prince of Wales Drive include four general purpose traffic lanes, bicycle lanes or paved shoulders, a concrete sidewalk and/or multi-use asphalt pathway, and a divided median with median lighting. As noted by Mr. McKinney, service roads do not form part of the recommend design criteria for the future roadway.

49Accordingly, it is the City’s position that the proposed conveyance required by Condition 11 is for approximately 22 metres of land to be used for the widening of Prince of Wales Drive and not for the construction of a new road. In that regard, Mr. Wood agreed that the service road is not on the Subject Lands, and the proposed taking on the Subject Lands will form what will function and be used as the Prince of Wales Drive arterial road.

Findings

50Section 41(7) of the Act grants the City the authority to require the owner of land to provide, at no expense to the City, the widening of a highway that abuts on the land provided the widening and the extent thereof are shown on or described in the COP.

51Prince of Wales Drive abuts on the Subject Lands.

52The widening of Prince of Wales Drive and extent of the widening are described in the COP.

53It is not a legislative requirement that the highway to be widened be directly accessed by, nor to the direct benefit of, the land to which it abuts. Nor is it a legislative requirement that the widening be taken equally from both sides of the existing highway. Rather, the Act explicitly provides that the City may require the owner of land to provide widenings of highways that abut on the land “to the satisfaction of” the City, provided the extent of the widening is shown or described in an official plan.

54Such “satisfaction” does not suggest to the Tribunal that the City has free reign to demand any land taking without appropriate cause. However, it does indicate to the Tribunal that the Legislature has granted municipalities the authority to require the provision of various matters as a condition of site plan approval based on a municipality’s own assessment of need.

55With respect to Prince of Wales Drive, the City has assessed the need for its widening through appropriate study and has determined the required extent of the widening, on a segment-by-segment basis, to achieve desired outcomes and respond to unique constraints and opportunities along the corridor.

56The proposed widening is planned to occur along approximately 10.6 kilometres of the corridor. It is a reasonable conclusion that the extent of the widening requires a varied approach that protects for different right-of-way widths, in different configurations, to achieve the intended outcomes and ensure protection of the corridor over the long term. This varied approach is reflected in Schedule 16C of the COP, which identifies multiple segments of the proposed widening that are to occur in an unequal fashion.

57For the segment adjacent to the Subject Lands, the COP protects for a total right-of-way width of up to 58 metres to accommodate two separate components of the future transportation/major goods movement corridor to meet current and projected needs.

58First, the COP protects for an unequal widening of Prince of Wales Drive, to a total width of approximately 40 metres, in an unequal manner that responds to the concurrent need to expand the CN/VIA Rail overpass. The evidence before the Tribunal is that, in consideration of property impacts, slope stability, noise and vibration, and other constraints, the required overpass expansion is best accommodated to the west, thereby impeding the ability to widen Prince of Wales Drive in an equal manner adjacent to the Subject Lands. The Tribunal was not presented with any evidence to support the feasibility of expanding the CN/Via Rail bridge overpass in both directions or entirely to the east.

59Second, the COP protects for an additional right-of-way width of 18 metres to enable the construction of a new service road that will improve safety and assist with access management and traffic flow along the corridor.

60The Tribunal agrees with the Appellant’s position that s. 41(7) of the Act does not permit the City to require the provision of lands at no cost for the construction of a new road. However, the Tribunal does not find that the City’s request can be properly characterised in that way.

61The City is requiring the provision of approximately 22 metres of land from the Appellant for the purposes of widening Prince of Wales Drive from two lanes to four lanes to support the conversion of Prince of Wales Drive to a more functional urban transportation facility for all modes of travel. In accordance with the COP, Prince of Wales EA, and Prince of Wales ESR, that objective is best achieved in an unequal manner to account for constraints imposed by the CN/VIA Rail overpass expansion.

62The service road is not being conveyed by the Appellant. While the service road is part of the protected Prince of Wales Drive corridor and a key contributing reason for the preferred alternative identified through the EA process, it is a separate road that will require the acquisition of lands by the City through other means pursuant to the applicable legislation and processes to be determined at the time of acquisition.

63The Tribunal further notes that the proposed widening will enable protection of a significant portion of the Sanitary Sewer on the Subject Lands – an objective that is supported by both PPS and COP policies pertaining to infrastructure corridors and the use of rights-of-ways to accommodate utilities and infrastructure.

64The Tribunal therefore finds that Condition 11 as proposed by the City is an authorised condition to the approval of a site plan pursuant to s. 41(7) of the Act.

Issue 2: Sanitary Easement

Context

65A large, 1.675 metre sanitary sewer trunk runs beneath the eastern portion of the Subject Lands in a north-south direction, parallel to Prince of Wales Drive, before turning west and running along the southern boundary of the Subject Lands, parallel to the CN/VIA Rail corridor. The majority of the Sanitary Sewer (i.e., the north-south alignment) is within the proposed right-of-way for the widened Prince of Wales Drive. The east-west alignment of the Sanitary Sewer, including the westerly turn, is located beyond the proposed right-of-way.

66The Sanitary Sewer has existed since approximately 1980. According to Ms. Gorni, while the draft reference plan was being prepared following conditional site plan approval, the Parties realised that no registered easement exists in relation to the Sanitary Sewer on the Subject Lands. While it is unclear as to why no easement exists (i.e., whether there has never been an easement or if the original paper document has been lost), it is Ms. Gorni’s opinion that the current development proposal presents an ideal opportunity to remedy the situation now that a site plan agreement is being prepared. Accordingly, the City provided the Appellant with draft wording for Condition 22 on July 28, 2023, granting the City a nine metre unencumbered easement centred on the Sanitary Sewer for those portions of the sewer not otherwise captured by the proposed road widening. The City received concurrence on behalf of the Appellant on August 11, 2023.

Is the Proposed Condition Authorised by the Act?

67The Appellant agrees that there is authority in s. 41(7) to obtain an easement for the construction, maintenance or improvement of sanitary sewage facilities, but submits that such authority only exists where the sanitary sewage facility is required to service the site or proposed development related to the site plan application.

68The Appellant further submits that in the absence of an easement, the Sanitary Sewer has existed illegally on the Subject Lands and without proper compensation to the Appellant. It is the Appellant’s position that the City should obtain legal permission for the Sanitary Sewer through direct negotiations with the Appellant and/or through other means such as expropriation, and not by way of a condition pursuant to s. 41(7) of the Act.

Burdening of Land by the Proposed Easement

69The Appellant submits that Condition 22 results in the burdening of the Subject Lands by eliminating the potential to expand development onto lands encumbered by the proposed easement. To that end, Mr. Wood proffered that it may be feasible to realign the Sanitary Sewer or to build above it, greatly improving the development potential of the Subject Lands for additional employment uses.

70In response, Ms. Gorni proffered that the City must consider and address the presence of existing infrastructure before permitting any future development that might negatively impact same, even in the absence of an easement. In her opinion, a balance of policy objectives must be struck between protecting lands for infrastructure and protecting lands for future employment uses. The Subject Lands are significantly encumbered by existing infrastructure and, as agreed to by Mr. Wood, the most efficient function of the Sanitary Sewer is for it to continue to function in its current capacity.

Findings

71In consideration of the Appellant’s position that the authority to require a sanitary sewage easement only exists where the sanitary sewage facility is required to service the site or proposed development related to a site plan application, the Tribunal was not shown how this is a necessary inference. Rather, the Tribunal notes the following.

72Section 41(7) of the Act permits a municipality to impose a condition to the approval of the plans and drawings referred to in s. 41(4). Those plans, in turn, are required to show both the location of all facilities and works to be provided in conjunction with the buildings and structures to be erected, and the location of all facilities and works required under s. 41(7)(a) of the Act.

73In turn, clause 8 of s. 41(7)(a) of the Act grants the City with the authority to require the owner of land to provide, to the satisfaction of and at no expense to the municipality, easements conveyed to the municipality for the construction, maintenance or improvement of sanitary sewage facilities of the municipality on the land (see paragraph 0, above). By virtue of the word “or”, the construction of a municipal sewage facility is not a prerequisite to requiring an easement for a sanitary sewage facility on the land – an easement may be required by a municipality for the maintenance of a sanitary sewage facility that already exists.

74Unlike clause 9, which permits the City to require provision for the disposal of storm, surface and waste water from the land and from any buildings or structures thereon (see paragraph 0), clause 8 of s. 41(7)(a) of the Act permits the City to require an easement for the maintenance or improvement of a sanitary sewage facility on the land. It is not a prerequisite that the sanitary sewage be from the land, buildings, or structures – only that the sanitary sewage facility be on the land.

75Accordingly, the Tribunal does not agree with the Appellant’s assertion that, as a condition of site plan approval, easements conveyed to the municipality for the construction, maintenance or improvement of sanitary sewage facilities on the land are limited to only those facilities required to service the site or proposed development related to the application.

76The Tribunal is satisfied that the easement sought by the City is authorised by the Act as an easement to be conveyed to the City at no cost for the maintenance or improvement of a sanitary sewage facility of the municipality that is on the Subject Lands.

77In consideration of the Appellant’s submission that the lands encumbered by the proposed easement could otherwise be used for the expansion of uses in an employment area, the Tribunal notes that the PPS requires municipalities to plan for and protect corridors for infrastructure, which is defined by the PPS to include sewage and water systems. The Sanitary Sewer is therefore required to be protected by the City.

78While the Sanitary Sewer could theoretically be relocated or realigned, the PPS directs that planning authorities shall protect corridors for infrastructure, shall not permit development which could preclude or negatively affect the use of corridors for their intended purpose, and that new development should be compatible with and designed to avoid negative impacts on same. Compromising or conflicting with the planned function of the Sanitary Sewer runs counter to those directives.

79The Sanitary Sewer is a significant piece of existing public infrastructure that serves a broad public interest. Ensuring the City has access to said infrastructure will not preclude the current development application from advancing, which proposes to substantially increase the gross floor area of uses in an employment area. The Tribunal is satisfied that an appropriate balance of policy objectives has been struck and finds that the benefits of protecting the infrastructure corridor outweigh any theoretical additional development potential on the encumbered employment lands.

The Test of “Reasonableness”

80Secondary to the Appellant’s argument that the contested conditions are not authorised by the Act is their submission that, even if the Tribunal finds the contested conditions are authorised by the Act, that finding alone is not sufficient for the Tribunal to approve the conditions. Rather, it is the Appellant’s submission that the conditions must also be found to be reasonable by applying the four-part test established in Taylor v Guelph (City), 1998 O.M.B.D. No. 869 to determine whether the conditions are reasonable, relevant, necessary, and equitable (the “Taylor Test”).

81The Tribunal notes that both Parties made submissions as to how the Disputed Conditions in the case at hand meet the four-part Taylor Test. However, the Tribunal further notes that the Taylor Test stands apart from the case at hand in that the test is linked to the determination of reasonableness stipulated in s. 51(25) of the Act regarding conditions to the approval of a plan of subdivision. That section provides the Tribunal with the authority to impose conditions to the approval of a plan of subdivision that the Tribunal finds to be reasonable, having regard to the nature of the proposed development:

Conditions

(25) The approval authority may impose such conditions to the approval of a plan of subdivision as in the opinion of the approval authority are reasonable, having regard to the nature of the development proposed for the subdivision […]

(emphasis added)

82Accordingly, the legislative and determinative test for conditions to the approval of a plan of subdivision is one of reasonableness, and the Tribunal often utilises the four-part Taylor Test to assist in determining same. However, the language above is not found in s. 41 of the Act regarding site plan control.

83Although the Act explicitly requires conditions to a plan of subdivision to be reasonable in the opinion of the approval authority, having regard to the nature of the proposed development, that requirement is not reflected in s. 41(7) of the Act for conditions to the approval of a site plan application. Rather, s. 41(7)(a) explicitly grants the municipality with the legislative authority to require road widenings and sanitary sewage easements, among other matters, “to the satisfaction of and at no expense to the municipality”.

84To be clear, the Tribunal does not interpret the statutory differences between ss. 41(7) and 51(25) to imply that conditions to the approval of a site plan application may be unreasonable. Indeed, it is within the Tribunal’s jurisdiction pursuant to s. 41(12.1) of the Act to determine both the matter in issue and the requirements of a site plan, which necessitates a consideration of reasonableness where an appellant feels a municipality is being unreasonable (as is the case at hand). However, as it applies to conditions of site plan approval, the Tribunal agrees with the City’s submission that the Taylor Test cannot be considered in the abstract but must be considered in the statutory and policy context in which the condition is sought to be imposed.

85For example, the determinative test with respect to a municipality’s ability to impose a condition for a road widening at no cost to the municipality is whether the widening and its extent are shown or described in an official plan as set out in s. 41(9) of the Act. As further submitted by the City, the amount of vehicular traffic generated by the site in question, the presence or absence of accesses from the site to the road in question, or the specific use of the road that will be made by the site are not prerequisites or determinative with respect to a municipality’s ability to impose a condition for a road widening at no cost.

86Similar arguments hold true for sanitary sewage facilities. It is not a prerequisite of the Act nor determinative with respect to a municipality’s ability to impose a condition for an easement conveyed to the municipality that a sanitary sewage facility on the lands service or be utilised by the site in question, nor that the facility be subject or not subject to any other past or present agreement between the municipality and the property owner.

87The requested conveyances by the City for the Prince of Wales Drive widening and Sanitary Sewer easement on the Subject Lands are no doubt significant. However, both infrastructure corridors serve a broad community interest that warrants protection, and neither corridor inhibit the proposed development. The Sanitary Sewer has existed on the Subject Lands for over four decades. The widening has been determined to be necessary through the Prince of Wales EA, the Prince of Wales ESR, and the updated COP, which was ultimately confirmed by the Ministry of Municipal Affairs and Housing through its approval of the COP policies and schedules.

88The Tribunal therefore finds that, given the circumstances of this matter, the City has acted reasonably in seeking compliance with the Act, the PPS, and the COP by way of the Disputed Conditions. Both Condition 11 and Condition 22 reasonably respond to and contribute to the ongoing planning of the City to serve a broad range of community interests.

ORDER

89THE TRIBUNAL ORDERS THAT the appeal is allowed, in part, and the site plan prepared by Architecture 49, dated December 19, 2022, set out in Attachment 1 to this Order is hereby approved, subject to the conditions contained in Attachment 2 to this Order, which are to be further modified as follows:

1. Condition 1 is to be modified by adding the following sentence to the end of the condition:

For greater clarity, the date of site plan approval shall be the date of issuance of an Order of the Ontario Land Tribunal approving the site plan.

2. Condition 22 is to be added to the conditions set out in Attachment 2, to the satisfaction of the City of Ottawa, requiring that the owner shall grant to the City, at no cost to the City, an unencumbered nine metre easement for, and centred on, the existing West Rideau Collector Sanitary Sewer Trunk running through those parts of the subject site not otherwise subject to the unencumbered road widening described in Condition 11.

90The Tribunal may be spoken to in the event the Parties need assistance interpreting or implementing any of the above Orders.

“S. Dixon”

s. dixon

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.

ATTACHMENT 1