COURT FILE NO.: 72750/04
Newmarket
DATE: 20050913
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: 1300488 Ontario Ltd. Respondent
-and-
The Corporation of the Township of Ramara Appellant
HEARD: September 12, 2005
BEFORE: Lane, Meehan and Matlow JJ.
COUNSEL: Michael M. Miller, for the Appellant Peter Pickfield, for the Respondent
E N D O R S E M E N T
[1] In January, 2000, the respondent company applied to the appellant Township for amendments to the Official Plan and to the zoning by-law to permit the operation on the site of a small specialty stone quarry. The appellant refused to grant these amendments unless the respondent agreed to rebuild the access road, an existing Township road, to the current Township standard. The respondent appealed to the Ontario Municipal Board, which, by decision of July 3, 2003, found that the limited additional traffic load from the proposed quarry did not justify the imposition of so costly a condition. The Board approved the Official Plan amendment. It also approved the by-law amendment, but withheld the order to give the parties an opportunity to negotiate a road agreement.
[2] The appellant continued to require full reconstruction of the road and so the parties failed to reach an agreement and returned to the Board. The Board made a second order of February 13, 2004, setting out six principles agreed to by the respondent and by the Mayor of the appellant, which were to form the basis of the road agreement and sent the parties away to make an agreement. The Council of the appellant did not accept the Mayor’s position and did not alter its original position and so the parties returned a third time to the Board.
[3] By its order of August 9, 2004, the Board reviewed the previous findings as to the need for some improvement to the road in anticipation of increased traffic, noted that the parties had failed to agree as to the level of maintenance and the capital contributions to be made and that the parties had now requested the Board to make findings on these issues. The Board found that the existing road was a class 6 road, the lowest but one of the levels of maintenance, that it was a dead-end, and was likely to so remain, and that the additional traffic from the quarry was unlikely to exceed one additional truck trip daily. It was not reasonable to impose large capital road expenditure and maintenance costs on the respondent company in such a case. After this reconsideration of the previous testimony and findings, the Board held that the roads program recommended by the respondent’s expert was “adequate, safe and appropriate for this 1.7 km portion along Concession Road D and E to the dead-end of the existing road.” The Board therefore directed that the zoning by-law amendment order be issued without further delay, amending the by-law to permit the quarry use on the affected lands.
[4] From that Order, the Township brings this appeal. Under section 96 of the Ontario Municipal Board Act, R.S.O. 1990 c. O.28, the appeal is brought with leave (which has been granted) upon a question of law. The standard of review on such an appeal is either correctness or reasonableness, the former if it is a question of law of general application; the latter if the question engages the Board’s special expertise: London (City) v. Ayerswood Development Corp. [2002] O.J. No. 400 (Div. Ct.) aff’d 2002 3225 (ON CA), [2002] O.J.No.4859 (C.A.). The central legal issue raised before us is the meaning of a clause in an Official Plan, enacted under the Planning Act, and also the meaning of certain sections of that Act. The Planning Act is an act which the Board deals with daily, as it does with Official Plans. These are matters as to which the Board has considerable expertise, relative to the Court, notwithstanding the Court’s own experience in statutory and other interpretation generally. On the whole, we conclude that reasonableness is the appropriate standard on which to review these decisions.
[5] Section 5.12 (h) of the Township of Ramara Official Plan provides:
h. Development Agreement:
A development agreement may be entered into between the operator of the extractive industry and the Township. Such an agreement shall be entered into prior to the rezoning of the land for the extractive operation to ensure that provisions are made for the following:
i. Rehabilitation (text omitted)
ii. Buffer planting and screening (text omitted)
iii. Water supply and disposal (text omitted)
iv. Truck routes and hours of operation
Provisions for the designation and maintenance of routes to be used by gravel trucks; hours of operation and blasting times.
[6] The appellant submits that the effect of this section is to require the respondent to enter into an agreement as to the designation and maintenance of the “haul routes” prior to receiving approval of a zoning by-law to permit extractive uses. It relies on the “plain meaning”. The Board found that the “direction of the Official Plan in regard to a Roads Agreement is discretionary and not mandatory prior to the finalization of the Zoning By-law.” It did not explain exactly why it found the section discretionary.
[7] In support of this finding, counsel for the respondent submitted that the whole section is governed by the opening sentence, which says that a development agreement “may” be entered into. The subsequent use of “shall” in the second sentence is subject to the discretionary nature of the whole section, and refers specifically to the timing of such an agreement, if entered into. The respondent further submitted that even if the second sentence requires such an agreement, it is only an agreement with respect to the four specific subjects set out in subsections i., ii, iii and iv. The only reference to an agreement for the maintenance of the road used for haulage is “designation and maintenance”, and the appellant’s demands for reconstruction go far beyond any reasonable reading of “maintenance”.
[8] In our view, the subsection is more narrowly drawn than that. It specifically refers to an agreement for “the designation and maintenance of routes to be used by gravel trucks” (emphasis added) and the evidence is that there is no gravel extraction carried on or to be carried on at this site. There is thus no mandatory requirement for any prior agreement as to the maintenance of the access road in question.
[9] We are satisfied that the Board’s reasons illustrate that it carefully considered the matters to which the Planning Act requires it to “have regard”, particularly subsections 2(f) and 2(l). Section 2(f) requires the Board to have regard to the needs of the transportation system and it did so in each of its three decisions. It also considered, as required by 2(l), the financial position of the Township in its decisions. On balance, it concluded that the evidence showed that the potential financial liability of the Township from this application was limited; that the proposed condition did not bear a direct relation to the predictable impact of the quarry traffic; that the respondent’s proposal for maintenance was adequate, safe and appropriate; that other roads not up to the township standard carried greater loads of traffic than this road would carry; and that it was unreasonable to cause the quarry to bear the cost of a reconstruction of the road.
[10] During the submissions, an issue arose as to whether an Official Plan could properly contain a provision such as section 5(12)(h), making a development agreement mandatory prior to a rezoning. However, as noted, on the facts of this case the issue does not arise for decision.
[11] In the result, the appeal is dismissed with costs. If the parties cannot agree on costs they may make written submissions within 30 days of the release of these reasons.
September 13, 2005
Lane, J.
Meehan J.
Matlow J