Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
Date:
2024-10-01
22 124797 S53 09 TLAB 22 124795 S45 09 TLAB 22 124796 S45 09 TLAB
Porco (Re), 2024 ONTLAB 265
MOTION DECISION AND ORDER
Issuance Date:
October 1, 2024
PROCEEDING COMMENCED UNDER Section 53, subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")
Appellant(s):
L. PORCO
Applicant(s):
L. PORCO
Property Address:
59R HEPBOURNE ST
COA File No.:
21 218602 STE 09 CO (B0094/21TEY) 21 218596 STE 09 MV (A1227/21TEY) 21 218600 STE 09 MV (A1228/21TEY)
TLAB Case File No.:
22 124795 S45 09 TLAB 22 124796 S45 09 TLAB 22 124797 S53 09 TLAB
Hearing Date(s):
September 24, 2024
Deadline Date for Closing Submissions/Undertakings:
Decision Delivered By:
TLAB Panel Member G. Swinkin
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Appellant
L. Porco
D. Bronskill
Party
City of Toronto
J. Dexter and D. Abimbola
INTRODUCTION AND CONTEXT
By a Decision issued on November 7, 2022, this panel of the Toronto Local Appeal Body (the “Tribunal”) allowed a consent appeal and two associated minor variance appeals with respect to the property municipally known as 59R Hepbourne Street (the “Property”).
A provisional consent was granted to divide the Property into two lots and the variances were approved to allow construction on those lots of two new dwellings.
The provisional consent was subject to 13 conditions and the statutory proviso that the conditions were to be satisfied within two years from the date of issuance of the Decision, failing which the provisional consent would expire.
The Decision quite explicitly acknowledges that the context of the Property is unique in that it fronts only on a public lane which is of a limited width.
One of the issues in the hearing concerned the matter of providing sanitary sewer and water supply servicing to the proposed new lots. Evidence was called in the hearing that satisfied the Tribunal that providing these services to the proposed lots was a mandatory statutory duty on the City and that such services could feasibly be provided.
In connection with the implementation of the provision of these services, the Tribunal imposed two discrete conditions, which were framed as requested by the City, Conditions 7 and 8.
Conditions 7 and 8 read as follows:
(7) That the applicant provide a Functional Servicing Report in respect of the development of the Property to the satisfaction of the Chief Engineer & Executive Director, Engineering and Construction Services (“ECS”) with respect to the technical requirements for the necessary water and sewer connections. The Functional Servicing Report shall demonstrate how the newly created lots are to be serviced by City water and sanitary infrastructure from the existing City infrastructure in the public road allowance, and how fire protection and refuse collection are to be provided.
(8) That upon City review of the Functional Servicing Report, should it be determined that upgrades to infrastructure are required to support the development of the Property, the applicant shall make satisfactory arrangements with the City to identify, secure, pay for and construct all works and improvements to municipal infrastructure as are recommended in the accepted Functional Servicing Report to the satisfaction of the Chief Engineer & Executive Director ECS.
Since the issuance of the Decision, there have been submissions by the Applicant to the City and various exchanges between the Applicant and the City relating to the satisfaction of these conditions, however a stalemate developed, which has led to this Motion by the Applicant.
In its prayer for relief, the Applicant’s Motion requests “A determination by TLAB that the conditions imposed pursuant to subsection 53(42) of the Planning Act have been fulfilled by the Applicant, including conditions (7) and (8) related to servicing (the “Servicing Conditions”), such that the Deputy Secretary-Treasurer can issue the certificate of consent”.
Although this has been crafted to look like an omnibus clearance of all of the conditions originally imposed, counsel for the Applicant confirmed that, for the purpose of this Motion, it is meant to be confined to Conditions 7 and 8.
THE LEGISLATIVE/REGULATORY FRAMEWORK
- TLAB Rule 17.3 - Motions
A Motion in a Proceeding shall be made by Notice of Motion, using Form 7.
SUMMARY OF EVIDENCE
The Notice of Motion was supported by the affidavits of Andrew Dales, the consulting planner who gave evidence on behalf of the Applicant at the original hearing, and Andrew Ip, the consulting engineer who gave evidence on behalf of the Applicant at the original hearing.
The City filed a Notice of Response supported by the affidavit of Amy Winterhalt, who is employed by the City as a Manager, Water Infrastructure Management, Toronto Water Division, and who has been working for Water Infrastructure Management for five years. In addition, the affidavit of Pat Scanga was filed. Mr. Scanga is a Manager with the City of Toronto in the Development Engineering Division in the North District of Toronto & East York and has been employed in that capacity since April 23, 2023.
Lastly, counsel for the Applicant filed a further responding affidavit sworn by Andrew Ip on September 20,2024
ISSUES AND ANALYSIS
There was a great deal of detail set forth in the material filed as it related to the matter of connecting the proposed lots on the Property to the trunk services located in the right-of-way for Hepbourne Street itself.
For the purpose of this disposition, the Tribunal will capsulize the position of the Parties.
Mr. Ip asserts that he has long experience in dealing with servicing residential properties and that his submitted Functional Servicing Report addressed the essential issues which would be addressed in the preliminary phase of this process, knowing that detailed drawings will follow in due course. He takes the position that it was entirely open for the City to accept his submission as demonstrating the feasibility of the proposed servicing on the understanding that further construction details would follow.
Mr. Ip says that the intent of the Servicing Conditions is not to secure all details of design but to ensure that an appropriate servicing solution can be implemented from existing City infrastructure, and he is very clearly of the view that his submission demonstrates just that.
Through the various resubmissions and exchanges between the Parties, the City has identified a multitude of what it deems deficiencies and omissions in the material submitted.
The City points out that there are bends in the sanitary laterals and at these bends there should be a maintenance hole as opposed to a simple cleanout fitting as proposed by Mr. Ip.
The City wishes to see confirmation from the other utility providers who have services in the lane right-of-way (apparently Bell and Enbridge) that they would assent to any relocation of their services. Mr. Ip concedes that they have not yet been consulted as, in his view, it is early in the process and the final detailed configuration of services has not been settled.
The City, based on what Ms. Winterhalt characterizes as its form and content (specifically the length of the laterals and the fact that they run longitudinally to the lane), takes the position that the standard guideline separations of services cannot be achieved in light of the limited width of this lane. Mr. Ip acknowledges that these separation widths will not be achieved here but he disputes that they are intended to apply to lateral connections as the guidelines have been designed for main services. He further goes on to observe that features can be employed to diminish the prospect of damage by techniques such as concrete encasement of the sanitary lateral pipes.
There has been no closure yet on whether current fire hydrant spacing is adequate to provide fire protection to the proposed dwellings. This is yet another point on which Mr. Ip says that that will be dealt with in due course with input from the Toronto Fire Service.
The City asserts that at the end of the day, they will become the owner of the lateral services in the lane and will be responsible for their maintenance and repair. And due to the extraordinary ‘form and content’ here this represents an assumption of risk which the City is reluctant to bear.
CONCLUSION
Having read all of the filed material here and having listened to counsel for the Parties in this hearing session, as well as the cross-examination of Mr. Ip on his affidavit (which occurred at the opening of the session), the panel has come to certain conclusions.
The panel believes in the integrity of Mr. Ip’s position that it is feasible to provide lateral sanitary sewer and water service to the two proposed lots.
However, it is patently obvious to the panel that the City is taking an extraordinarily strict approach to the administration of this matter and is very much disinclined to approve it.
Mr. Bronskill urged upon the Tribunal the value of adding to the housing stock of the City and assisting in that effort by accommodating his Motion request. But the Tribunal put to Mr. Bronskill the question whether it is in the public interest to authorize the creation of lots which, at this stage, do not have City clearance for servicing or any confirmation from the City that such clearance will be forthcoming.
Furthermore, in connection with the formal request by the Applicant, the Tribunal might here be persuaded to approach Condition 7 as simply requiring demonstration of conceptual feasibility and on that basis determining that the condition has been satisfied. But Condition 8 goes beyond concept and speaks to actual arrangements being in place to deal with the construction and financing of the servicing to be done. No evidence was called on that front as that stage has not yet arrived. The Tribunal would thus be hard pressed to confirm any satisfaction of that condition.
The Tribunal does have the authority under the Planning Act to modify or delete conditions but the Motion before the Tribunal does not request that and in the absence of prior notice to the City of any consideration of such actions, the City would suffer procedural prejudice.
The Tribunal recognizes that the failure to satisfy the consent conditions before November 7, 2024 will put an end to the proposal, and that is unfortunate as the Applicant marshalled a persuasive case to support it in the original hearing. However, servicing is essential to the establishment of the proposed uses and it is the City which has the control over that. It is not within the jurisdiction of this Tribunal to determine the nature and extent of the duty of the City under Section 69(1) of the City of Toronto Act, 2006.
As the requested relief, especially in view of the Tribunal’s limited authority, will not resolve the Applicant’s issue, the Tribunal will be dismissing the Applicant’s Motion.
On a closing note, and simply due to the fact that both Parties make reference to it in their Notices and that it may simplify decision making for both sides, this panel sees no basis for entertaining or granting an award of costs in connection with this Motion,
DECISION AND ORDER
- The Tribunal ORDERS THAT the Motion is dismissed.
G. Swinkin
Panel Member