COURT FILE NO.: 1406
DATE: 20041223
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
B E T W E E N:
GAILE McGREGOR
Self represented
Applicant
- and -
THE CORPORATION OF THE CITY OF LONDON, THE UPPER THAMES RIVER CONSERVATION AUTHORITY and RIVAL DEVELOPMENTS INC.
Geoffrey Belch, counsel for the City of London
Timothy Price, counsel for the Upper Thames Conservation Authority
Barry Card, counsel for Rival Developments Inc.
Respondents
APPLICATION UNDER SECTION 2(1)
OF THE JUDICIAL REVIEW PROCEDURES ACT,
HEARD January 8 and 9, 2004
London, Ontario
WILSON J.
[1] I have had the benefit of reading the decision of O’Driscoll, J. I agree in the final analysis with his conclusion that this judicial review application of the decision of London’s City Council granting site plan approval for one Beauford Street should be dismissed. However, I respectfully take a different view as to the appropriate legal test for admissability of the fresh evidence presented by the applicant, as well as the consequences that flow.
[2] In a decision dated December 12, 2002 the Ontario Municipal Board (the Board) granted a zoning change, which had been vigourously opposed by the City of London, the applicant and others. Undertakings and representations were made by the developer, Rival, which underpinned the Board’s decision. These undertakings and representations were not couched by the Board as conditions of the zoning change. For reasons to be outlined, I conclude that the admissable fresh evidence raises the important issue of the enforcibility of representations and undertakings made by the developer, Rival, to the Board.
[3] Counsel for Rival suggests that the various undertakings made by Rival underpinning the Board’s decision are not enforcible, as they are not couched as legally binding conditions imposed by the Board for the zoning change. Rival asserts that in the site plan approval stage, the City is free to ignore any undertaking or representation made by Rival to the Board, as long as the City follows the zoning requirements of the relevant governing law.
[4] I disagree with Rival’s submissions, but I am satisfied that the concerns raised by the applicant and the undertakings given by Rival will be enforced by the City as conditions of the site plan approval agreement, and prior to the issuance of any building permit.
[5] As in my view the applicant has raised important issues, I differ with respect to the assessment of costs imposed by O’Driscoll, J.
BACKGROUND FACTS RELEVANT TO THE FRESH EVIDENCE
[6] The proposed development has been highly controversial from the outset. The site- one Beaufort Street- is located adjacent to the Thames River in the City of London. Rival proposed a zoning change to permit a 27-unit condominium complex.
[7] The City initially opposed the proposed development in the 11-day hearing before the Ontario Municipal Board (the Board). The City sought that the site remain open space. The proposed development was premature without an adequate environmental impact study.
[8] The site is very close to the flood plains of the river. It includes two natural hazard designations including a flood line, and the 100 year erosion limit. As is clear from the first two of the list of issues considered by the Board, the proposed development is on hazardous lands near a river corridor:
1)The extent to which development is permitted and appropriate in hazardous lands and the establishment of the development envelop.
2)The potential for the proposed development to impact natural heritage features, including the Thames River corridor function and on-site impacts arising from fill, grading, and storm water management.
[9] A proposed site plan was submitted by Rival to the Board and was commented on by the various environmental and planning experts for the City and Rival ( the Original Site Plan).
[10] The Board approved the request for a zoning change for the site over the objections of the City and their experts. The Board relied upon representations and undertakings made by Rival's experts and representatives commenting upon the Original Site Plan presented to the Board.
[11] Due to the proximity of the proposed development to the Thames River and its flood plain, Rival agreed to deed to the City a parcel of land adjacent to the river with a minimum thirty metre corridor from the edge of the proposed development. According to Rival’s experts, the vegetation and trees within the building envelope would be largely protected.
[12] After the Board decision, Rival amended the site plan to take advantage of the maximum density permitted by the zoning change (the Revised Site Plan).
[13] Within the re-zoned land, the Revised Site Plan presented to and approved by London’s City Council in a vote of 10 to 8 increased building coverage from the Original Site Plan by 13%. The pavement increased by 45% and the graded area contemplated by the development increased by 25%.
[14] All trees and vegetation would be stripped in the Revised Site Plan.
[15] The fresh evidence questions whether the thirty metre corridor will be respected in the Revised Site Plan.
[16] These modifications are permitted by the zoning change granted by the Board.
[17] The Planning Committee of London’s City Council met on July 28, 2003 and refused to approve the site plan approval in a 4 – 2 vote, notwithstanding the recommendation of the General Manager of Planning, that the site plan should be approved.
[18] On August 5, 2003 London’s City Council in a 10-8 vote, refused to accept the recommendation of the Planning Committee, and accepted the recommendation of the General Manager of Planning . The site plan was approved.
[19] The report of the General Manager of Planning confirms that the dedication of the minimum 30 meter corridor will be respected by the developer:
The developer will also be dedicating the open space corridor the the city. The dedication provides for the 30m minimum separation from the river.
THE PROPOSED FRESH EVIDENCE
[20] The applicant seeks to introduce four affidavits at this judicial review application by way of fresh evidence. She seeks to introduce affidavits of three experts, as well as her own affidavit.
[21] I note that the issue of the admissability of the fresh evidence was not argued at the hearing. The case was argued on its merits, considering the fresh evidence as admissable. The issue of the applicant attempting to split her case was raised in passing in the City’s factum.
[22] Different tests for admissibility apply to the fresh affidavit expert evidence that the applicant seeks to introduce, contrasted with the applicant’s affidavit.
ADMISSABILITY OF FRESH EXPERT EVIDENCE
[23] It appears that the site plan approval process was rushed, giving little time to concerned citizens such as the applicant to consider the proposed revised site plan. The applicant received notice of a meeting on July 14, 2003 for a public meeting to be held on July 28, 2003. It was not possible to view the proposed site plan before July 25, 2003.
[24] The applicant’s expert reports were provided to the City in September 2003 after the approval of the Revised Site Plan by London’s City Council on August 5, 2003.
[25] The applicant seeks to introduce affidavit evidence of various experts, including
[26] Dr. W.M. Church, Dr. C.M. Pearce and Dr. Peter Ashmore, all sworn September 3, 2003. These affidavits comment upon the Revised Site Plan, but also discuss issues already decided by the Board.
[27] None of these affidavits was before London’s City Council on August 5, 2003.
[28] With respect to the three affidavits of the experts that the applicant seeks to introduce, different principles as to admissability apply. The test for the admission of fresh evidence in the review of an administrative decision has been recently analyzed by the Ontario Court of Appeal in Ontario Federation of Anglers and Hunters v. Ontario (Ministry of Natural Resources), [2002] O.J. No 1445 (C.A.). The Court applied the test enunciated by the Supreme Court of Canada for admitting fresh evidence in a trial outlined in R. v. Palmer, [1980] 1 S.C.R. 759. The following principles apply:
(1) The evidence should generally not be admitted, if by due diligence it could have been adduced at the trial. This principle is less stringently applied in criminal, compared to civil cases.
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible, in that it is reasonably capable of belief, and
(4) It must be such that if believed, it could reasonably, when taken with the other evidence adduced at the trial, be expected to have affected the result.
[29] The City takes the position in their factum that these affidavits are not properly admissable, as the applicant is seeking to divide her case, and retry the Board decision.
[30] Aspects of the affidavits appear, as suggested by the City, to be an attempt by the applicant to split her case, and reargue matters considered by the Board, rather than the site plan approval by London’s City Council.
[31] I conclude that aspects of the affidavits dealing with the proposed development in general terms already canvassed by the Board are not admissable in this judicial review hearing, as it is an attempt by the applicant to split her case.
[32] However, other aspects of the affidavits comment specifically upon the Revised Site Plan submitted by Rival, and raise issues that could not have been considered by the Board.
[33] The applicant meets the test that the affidavits commenting upon the Revised Site Plan could not have been available prior to the meeting of London’s City Council on August 5, 2003. The first opportunity the applicant had to review the revised site plan was on July 25, 2003 prior to the public hearing on July 28, 2003. Obviously in such a short time frame, it would be nearly impossible for the applicant to obtain affidavits of the experts commenting upon the Revised Site Plan.The affidavits of the experts were prepared and submitted to the City promptly on September 3, 2003.
[34] I conclude that the affidavits of the experts are admissable when they comment specifically upon the Revised Site Plan. These aspects of the affidavits meet the four-pronged legal test outlined in Ontario Federation of Anglers and Hunters. The applicant acted with due diligence, the credentials of the experts have not been challenged, and the comments upon the Revised Site Plan are relevant. The reports may have changed the close result if London’s City Council had the benefit of these submissions.
[35] The affidavits of Dr. Church and Dr. Pearce raise potentially troubling issues. In their view, the Revised Site Plan approved by London’s City Council does not respect the minimum thirty metre corridor.
[36] Dr. Church states:
Exhibit 4 shows the horizontal width of the buffer zone between the disturbance/grading boundary and lines representing the toe and slope of the future stable slope on the river side of the development. Only at one point does the width of the buffer zone separating the disturbance/grading boundary and the line representing the tow of the future stable slope reach 30 metres.
[37] As well he raises concerns about the flood line and the one hundred year erosion limit.
[38] The affidavit of Dr. Pearce states:
- Comparing the latest site plan with the site plan submitted to the OMB, it is apparent that the developer’s plans have undergone considerable modification over the last year. The most important of these changes from the standpoint of environmental impact are the following:
a) The grading zone has been substantially expanded such that it now encroaches significantly on the riparian buffer;
b) The proposed buildings are bigger and will be in much closer proximity to the borders of the development envelope; and
c) The amount of vegetation to be removed to accommodate the development has gone from what was being called a moderate amount (according to evidence offered during the OMB hearing) to all vegetation above or proximal to the 100-year floodline.
- …The reduced buffer width is clearly unacceptable, having now shrunk below even the minimalist 30 m. …Other questions remain unexamined. How wide will the remaining buffer actually be, allowing for additional depredation around the perimeter of the fill zone? How much of the wooded patch will be left standing? …How will the acceleration of the runoff that will certainly result from the combination of grade change and devevetation affect the ecology of the buffer zone?
[39] It is clear that the Board understood that there would be a minimum thirty metre corridor between the edge of the development and the Thames river- presumably measured in conservation terms from the top of bank. These representations although discussed in the reasons, were not made specific conditions by the Board in its decision.
[40] The relevant extracts from the Board decision confirming the undertaking and representations made that there would be a minimum 30 meter buffer or corrider and that vegetation would be protected are found at pages 16 and 27 of the Board decision.
From page 16
Moreover, even if the site contains a significant woodland, the evidence of Mr. Leonard, the landscape architect, was that only a small number of trees and vegetation will be removed within the development envelop given that the vegetated riparian corridor varies, at 10 metres in width at the north end of the site to 120 metres in width at the south end of the site. Regardless of the amount of vegetation on the site, at least 30 metres between the development and the edge of the river will remain untouched as it is outside the development envelop. Further protection for existing vegetation will form part of the detailed site plan and UTRCA permitting function.
From page 27
In arriving at its decision to modify and approve the Plan and amend the By-law, the Board also relies on Rival's intention to convey surplus lands to the City, which will ensure there is a 30-metre corridor along the bank of the Thames River that will remain in the Open Space designation and continue to be accessible to the public. This portion of the Thames River is not currently part of a walking or bike trail, as the property operated as a commercial enterprise until 1983 and has remained in private ownership.
[emphasis added]
[41] It is also clear that the General Manager of Planning understood that the minimum 30m corridor would be respected and enforced. His report, which was accepted by London’s City Council states “The developer will also be dedicating the open space corridor to the city. The dedication provides for the 30m minimum separation from the river”. With respect to vegetation within the building envelope the General Manager of Planning confirms that “Due to the extent of the filling on the site, it is not practical to preserve any trees within the area of lands to be developed”.
ADMISSABILITY OF THE APPLICANT’S AFFIDAVIT
[42] The affidavit of the applicant is in support of her position that the principles of natural justice were not respected by London’s City Council decision to approve the site plan.
[43] An affidavit may be admissable if the administrative tribunal makes a determination upon an essential issue without any evidentiary basis. Second, affidavit material may be admissable if the administrative tribunal has breached the rules of natural justice see: Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 29 O.R. (2d) 513 (Ont. C.A.); leave to appeal to S.C.C. refused: 35 N.R. 85, and Ontario Public Service Employees Union v. Ontario (1984), 45 O.R. (2d) 70 (Div. Ct.).
[44] I conclude that the affidavit of the applicant is not admissable, as it does not satisfy one of the two alternative requirements set out in Keeprite.
[45] First, the record confirms that London’s City Council made their decision based upon evidence including various submissions. The first potential ground for admissibility of the applicant’s affidavit therefore does not apply. Although the time frames imposed by the City were short, there is no statutory obligation to convene a meeting, or hold a public hearing before considering a site plan application. See Planning Act, R.S.O. 1990, c. P13, section 41. In these circumstances, there can be no breach of natural justice. I conclude therefore that the applicant’s affidavit is therefore not admissable in this judicial review application.
CONCLUSIONS WITH RESPECT TO JUDICIAL REVIEW
[46] The test for judicial review of a decision of the municipality acting within its jurisdiction is whether the decision is patently unreasonable, see: Namaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, [2000] 1 S.C.R. 342.
[47] Although not couched as a legally binding condition in the reasons of the Board, Rival provided various undertakings concerning the vegetation and a protective corridor that impact on the environmental integrity of the proposed building project on hazardous, environmentally sensitve lands. It is clear that these undertakings and the expert evidence submitted by Rival to the Board was accepted as a fundamental premise underpinning the Board’s decision to allow the change in the zoning.
[48] In my view it would be patently unreasonable for London’s City Council to not strictly enforce Rival’s undertaking made to the Board with respect to the minimal environmental protections underpinning the Board decision with respect to the proposed project. If these minimal protections are not to be strictly enforced, given that the project is to be built on hazardous lands, then it is encumbant upon the City to specifically consider the environmental impact of any proposed change in the Revised Site Plan, by way of credible additional study.
[49] It appears clear that the General Manager of Planning anticipated that the minimum 30 metre corridor would be respected.
[50] The Thames Conservation Authority, the City and Rival chose not to respond to the fresh affidavit material filed by the applicant commenting on the Revised Site Plan.
[51] Counsel for the City was unable to confirm during argument whether the Revised Site Plan respected the minimum thirty metre corridor.
[52] It is the City's position that the Revised Site Plan "substantially" conformed with the Original Site Plan considered by the Board.
[53] The City’s factum at paragraph 9 deals with the issue of the undertaking and the protective corridor.:
Consistent with evidence before the Board, a condition will be inserted into the site plan agreement that a 30 metre buffer be deeded to the City as a condition of the site plan approval.
[54] According to the City, the site plan approval stage is not when the undertakings of Rival will be enforced. The City confirms that the undertakings given by Rival will be enforced, not as part of the site plan approval process, but rather when the site plan agreement is entered into between the City and Rival, and prior to issuing a building permit.
[55] According to the City, Rival will be required to satisfy several conditions underpining the Board decision, including the minimum thirty metre corridor prior to the issuance of a building permit. Unless these conditions are respected, no building permit will issue.
[56] For these reasons, I conclude that the application for judicial review must be dismissed. The valid concerns raised by the applicant will be enforced by the City in the site plan agreement, and prior to the issuance of a building permit.
COSTS
[57] The applicant raised many issues, and aspects of her argument seek to reargue matters determined by the Board. However, the applicant has also raised important issues with respect to the undertakings and representations made by Rival to the Board with respect to the Revised Site Plan.
[58] The City has been less than vigilant in ensuring that these conditions are respected. Counsel for the City filed no responding expert report, and was unable to comment as to whether the thirty meter corridor was respected in the Revised Site Plan. The City chose not to file any materials, including a factum until the day of the application. Counsel for Rival took the extreme view that they were not bound by their prior undertakings or representations made to the Board.
[59] The applicant is self represented. She is tenacious. Her approach is at times scattered, and difficult to follow. The applicant is an ajoining landowner, so she has a direct personal interest in the outcome of these proceedings. It appears that all concerned except the applicant are tired of the battle with respect to one Beaufort and want closure, perhaps at any cost. As outlined in the reasons of O’Driscoll, J. the battle has at times become unfortunately personal.
[60] In the hearing before us, the applicant as a self represented litigant was polite, well prepared and accepted direction from the Court with respect to the issues to be addressed.
[61] Even though the applicant has a personal stake in the outcome of this judicial review application, in my view the issues raised by the applicant in the proposed development affect public interest, from both an esthetic environmental perspective, as well as potentially a public safety perspective. If the minimal environmental protections underpinning the Board decision are not respected, the very integrity of the project built on hazardous lands may be compromised.
[62] The applicant clearly is viewed as a nuisance by the respondents. However she appears to be the lone watchdog left to ensure minimal environmental concerns are respected.
[63] For these reasons, I would not award any costs for any party to this application.
WILSON J.
Released: