|
Planning (2). Reddick v. Robinson
In Reddick v. Robinson (Ont CA, 2023) the Court of Appeal considered (and allowed an appeal from) an order denying an application for a declaration "that the respondents were restricted to pedestrian access only in using this strip of land for ingress to and egress from the shores of Lake Ontario", and confirming "their interpretation of the easement and defining the “shores of Lake Ontario” as only the land lying between the high and low water marks".
In this passage the court sets out the nature of zoning 'rights':[38] In any event, the permitted uses under the amended zoning are not determinative of the easement’s scope. Zoning does not in and of itself establish interests or rights in land: 2022177 Ontario Inc. v. Toronto Hanna Properties Ltd. (2005), 2005 CanLII 39320 (ON CA), 203 O.A.C. 220, at para. 35. ... . Loeb v. Toronto (City)
In Loeb v. Toronto (City) (Div Court, 2023) the Divisional Court considers an 'inadequate reasons' argument challenging (by JR) a decision of a committee of adjustment [under Planning Act s.45(8.1)]:Are the Committee’s Reasons Inadequate?
[35] The Applicants take the position that the Decision is “procedurally unfair” because it does not adequately explain the reasons for the decision. They submit that because the Decision does not comply with the requirements of s. 45(8.1) of the Planning Act, it is invalid and must be quashed.
[36] Subsection 45(8.1) of the Planning Act states as follows:The decision of the Committee, “whether granting or refusing an application, shall be in writing, shall be signed by the members who concur in the decision and shall,
(a) set out the reasons for the decision; and
(b) contain a brief explanation of the effect, if any, that the written and oral submissions mentioned in subsection (8.2) had on the decision. [37] Subsection 45(8.2) states that the above provision applies to any written submissions relating to the application that were made to the committee before its decision and any oral submissions that were made at the hearing.
[38] I disagree with the Applicants’ position that a decision that does not strictly comply with the requirements of s. 45(8.1) is invalid. To begin with, s. 45(8.1) does not provide such a consequence. By contrast, s. 45(8) of the Planning Act states that “[n]o decision of the committee on an application is valid unless it is concurred in by the majority of the members of the committee that heard that application.” Therefore, where the legislature has intended that the consequence of a failure to comply with the statutory requirements is that the decision is invalid, it has specifically stated that.
[39] Moreover, the relevant subsection of s. 45 of the Planning Act was amended in 2015 under the Smart Growth for Our Communities Act, 2015, S.O. 2015, C. 26, s. 29(3). The previous version of s. 45(8) of the Planning Act provided that no decision of the committee on an application was valid unless the majority of the members concurred and also required that the decision “shall be in writing and shall set out the reasons for the decision…[.]” Previously, a decision of the committee was invalid if the reasons were insufficient. In separating out subsections 45(8.1) and (8.2) from the previous version of s. 45(8), the legislature chose to limit invalidity to the sole basis in the current version of s. 45(8), that is, non-concurrence by a majority of the members of the committee.
[40] Moreover, this interpretation of s. 45(8.1) is consistent with the Supreme Court of Canada’s holding that where reasons are not provided or are deficient, the court should examine the decision in light of the record, the larger context, and other relevant constraints: Vavilov, at paras. 137-138.
[41] In Bacher v. GR (CAN) Investments, 2022 ONSC 2937 (Div. Ct.), at para. 23, this court held that the correct approach to assessing reasons, based on Vavilov, is to assess whether the tribunal’s reasons explain the decision to the parties, provide public accountability, and permit effective appellate review. In the context of a decision of a Committee of Adjustments, in Opara and Leslie, 2012 ONSC 2483 (Div. Ct.), at para. 13, this court held that the “four tests” do not have to be applied “entirely separately and formulaically” but that it is sufficient if the reasons make it clear that the decision-maker substantively applied the “four tests” after properly considering the appropriate factors and evidence.
[42] While the Applicants rely on this court’s decision in Masters v. Claremont Development Corporation, 2021 ONSC 3311 (Div. Ct.), in that case, this court declined to set aside a decision for the tribunal’s failure to provide adequate reasons and instead found that the decision was sufficiently supported by the record.
[43] In this case, while the Decision itself is brief, it is clear from the record that the Committee applied the four tests and considered the evidence before it. There was a significant amount of evidence before the Committee beyond the parties’ oral submissions, including surveys, architectural plans, a tree protection plan, and a table of other minor variances approved in the neighbourhood. The material from the previous application was also available to the Committee, and there was an overlap in the committee members from the previous hearing before the TLAB.
[44] At the hearing, the Committee members mentioned that the plan had been revised significantly to address the concerns raised by the previous application, that the proposal was not out of keeping with Forest Hill community, and that it addressed the neighbours’ submissions. The Committee was not persuaded by the Applicants’ submissions, which did not identify significant impacts. The Committee found that the proposal mitigated against such impacts, which would be further addressed by the conditions that the Committee imposed in its Decision.
[45] When read in the context of the record and the transcript of the hearing, I consider that the Decision addresses the four tests and provides sufficient reasons to explain the Decision to the parties, provide public accountability and permit effective appellate review. Accordingly, the reasons for the Decision are adequate. . Loeb v. Toronto (City)
In Loeb v. Toronto (City) (Div Court, 2023) the Divisional Court considered a JR challenging minor variances granted by a committee of adjustment, which normally flow on appeal to the Toronto Local Appeal Body (TLAB):Legislative Amendment
[15] In the meantime, while Ms. Yan’s application was pending, the More Homes Built Faster Act, 2022, S.O. 2022 c. 21 (the “More Homes Act”) came into force on November 28, 2022. The More Homes Act included an amendment to the Planning Act which removed the statutory right of appeal of third parties (for example, neighbouring property owners) to a minor variance decision of a local Committee of Adjustment. Under the amended provision, only the applicant, Minister or public body, or “specified person” as defined in the Act has a right of appeal to the tribunal: Planning Act, s. 45(12).
[16] In Toronto, appeals of minor variance applications are heard de novo by the TLAB. Appeals of decisions of the TLAB to this court are permitted, with leave, on a question of law: Planning Act, s. 8.1(10).
[17] As a result, while the Applicants would have previously had a right to appeal a decision of the Committee to the TLAB, as of November 2022, they no longer have a right of appeal. Although third parties no longer have a right of appeal to the TLAB, where a minor variance applicant or other specified person appeals, they are entitled to participate in the appeal. . D’Silva v. Algranti
In D’Silva v. Algranti (Ont CA, 2023) the Court of Appeal considered Planning Act s.50(21) ['Subdivision of land - Conveyance, etc., contrary to section not to create or convey interest in land']:[28] The Algrantis contend that the motion judge erred in concluding that the APS was not terminated on December 22, 2020. First, they say that the motion judge misinterpreted para. 15 of the APS, which reads “This Agreement shall be effective to create an interest in property only if the Seller complies with the subdivision control provisions of the Planning Act by completion and Seller covenants to proceed diligently at Seller’s expense to obtain any necessary consent by completion”. They argue that para. 15 means that the APS would be null and void if the Property could not be conveyed because of a Planning Act violation on the closing date. The Algrantis submit that this is consistent with s. 50(21) of the Planning Act, which provides in part:An agreement, conveyance, mortgage or charge made, or a power of appointment granted, assigned or exercised in contravention of this section or a predecessor thereof does not create or convey any interest in land ... ....
[32] First, I disagree with the contention that the motion judge erred in her interpretation of para. 15 of the APS, when she failed to hold that the APS was null and void when the Planning Act condition was not met on the completion date. The Algrantis only refer to the opening phrase of s. 50(21) of the Planning Act. Section 50(21) reads in full:An agreement, conveyance, mortgage or charge made, or a power of appointment granted, assigned or exercised in contravention of this section or a predecessor thereof does not create or convey any interest in land, but this section does not affect an agreement entered into subject to the express condition contained therein that such agreement is to be effective only if the provisions of this section are complied with. [Emphasis Added.] [33] The effect of para. 15, combined with para. 10 of the standard form APS, is that vendors are required to do what is required to obtain Planning Act approval. Section 50(21) remedies an agreement that would otherwise contravene the Planning Act where, as here, the agreement is subject to an express condition that it is to be effective only if the subdivision control provisions of the Planning Act are complied with: see Morgan Trust Company of Canada v. Falloncrest Financial Corporation, 2006 CanLII 38728, 218 OAC 71 (C.A.), at para. 20. . City of Toronto v. Ocean Club Residences Inc.
In City of Toronto v. Ocean Club Residences Inc. (Div Court, 2023) the Divisional Court describes the purpose of zoning laws:[7] Zoning By-laws play a foundational role in the use and development of land in Ontario, in this case, in the City of Toronto. Zoning by-laws implement the Official Plan which sets out the general policies applicable to land use in the municipality to which it applies. Zoning by-laws implement those policies. They dictate how land may be used, the types and dimensions of buildings that can be constructed, the uses to which they can be put and where they can be located.[11] Where the Official Plan allows for it, the municipality may pass a zoning by-law which, by the placing the symbol “H” as applicable to the land affected, may delay the development of the land for whatever land use is to be put there.[12] The City of Toronto Official Plan recognizes holding provisions as a tool that helps the municipalities create the necessary community infrastructure. There are instances where the intended use and zoning is known but development cannot take place until specific facilities are in place. The zoning by-law that imposes the holding provision (“places an “H” symbol over the zoning”) spells out the conditions that must be met before the “H” symbol is removed and the lands opened to be developed.[13] . Don Mills Residents Inc. v. Toronto (City)
In Don Mills Residents Inc. v. Toronto (City) (Ont CA, 2022) the Court of Appeal considered a planning appeal where a residents' group, relying on what they thought was a settlement with a developer, appealed an OMB decision to amend the 'agreement' without their consent. The case highlights the difference between a litigation settlement contract and a 'site plan agreement', the latter of which is an instrument a public policy planning:[22] I am not persuaded that the application judge made any reviewable error in finding that the minutes of settlement are not, in substance, a contract and do not generate the contractual obligations claimed by the appellant. As the application judge explained, the minutes of settlement must be understood within the context of the Planning Act. The legislative scheme governing land-use planning requires that municipalities exercise their powers in the public interest: Planning Act, s. 2. As this court held in Hi-Rise, land-use planning instruments made under the authority of the Planning Act can be revisable under the supervision of the OLT so as to best ensure that land is put to uses that serve the current and future needs of the community.
[23] In Hi-Rise, this court drew a distinction between ordinary commercial contracts and site plan agreements. Site plan agreements are a species of planning instrument for the purposes of the Planning Act, and accordingly are revisable in response to changed circumstances, irrespective of whether the site plan agreement expressly contemplates amendment. Hi-Rise held that ss. 17, 22, and 34 of the Planning Act, which set out the manner in which amendments can be made to official plans and zoning by-laws, apply to site plan agreements. The application judge reasoned that agreements that are functionally similar to a site plan agreement, such as the minutes of settlement at issue in this appeal, are similarly revisable under that scheme, and subject to appeal to the OLT.
[24] The appellant’s argument against this conclusion is, essentially, that site plan agreements are planning instruments that are creatures of statute, and the minutes of settlement are not. Evidence for this position is that the minutes were not placed before the OMB for approval.
[25] I do not find the appellant’s argument persuasive. The planning context of the minutes of settlement is significant. What constitutes a planning instrument is not defined exhaustively in the Planning Act. Land use planning is a complex process, and Hi-Rise does not purport to limit the instruments by which a municipality effects site plan control to site plan agreements. The minutes of settlement were the means of settling appeals before the OMB. Those appeals were part of the land use planning process and had an inescapably public dimension. The minutes were a single step in a process that was to be implemented through various other agreements to which the appellant would not be a party. The context was thus far removed from a paradigmatic bilateral commercial contract.
[26] The appellant’s second argument for why minutes of settlement among a municipality, a developer, and a residents’ association should not be considered the functional equivalent of a site plan agreement is because of the parties’ intentions. The parties intended the minutes to function as a private contract rather than a planning instrument, and the application judge erred by allowing the planning context to overwhelm the words of the minutes of settlement, which unambiguously manifest a private commercial agreement.
[27] The hurdle faced by the appellant is that the application judge interpreted the minutes differently. This interpretation is entitled to deference: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 52. Accordingly, the appellant would have to identify either a palpable and overriding error or an extricable error of law: Sattva, at para. 53. The appellant has not done so. A key finding by the application judge – to which the appellant does not have an effective answer – is that the minutes do not create any legal obligation on the respondent to build the recreation centre. That obligation was solely carried by CF. The application judge’s conclusion was that “[t]he minutes set out the framework for the Phase 2 redevelopment of the DMC site as requiring further agreements, such as the section 37 agreement, to implement the intent of the minutes. At most, the minutes outline a planning framework to be implemented via the execution of various planning instruments, such as the zoning by-law amendment and official plan amendment approved by the OMB, the section 37 agreement executed by the City and CF, and several other agreements yet to be executed … The minutes do not govern a contractual relationship between the City and the [appellant].” This finding is dispositive not only of this issue, but of the appeal as a whole. . Hummel Properties Inc. v. Niagara-on-the-Lake (Town)
In Hummel Properties Inc. v. Niagara-on-the-Lake (Town) (Ont CA, 2022) the Court of Appeal considered a Municipal Act, 2001 s.273 application to quash a by-law for illegality and bad faith. In these quotes the court stated some practical observations respecting planning and the activity of property development:(b) Sections 38 and 34 of the Planning Act
[20] Section 38 of the Planning Act authorizes a municipality to pass an interim control by-law:38 (1) Where the council of a local municipality has, by by-law or resolution, directed that a review or study be undertaken in respect of land use planning policies in the municipality or in any defined area or areas thereof, the council of the municipality may pass a by-law (hereinafter referred to as an interim control by-law) to be in effect for a period of time specified in the by-law, which period shall not exceed one year from the date of the passing thereof, prohibiting the use of land, buildings or structures within the municipality or within the defined area or areas thereof for, or except for, such purposes as are set out in the by-law. [Emphasis added.]
...
Prohibition
(7) Where an interim control by-law ceases to be in effect, the council of the municipality may not for a period of three years pass a further interim control by-law that applies to any lands to which the original interim control by-law applied. [21] The context within which s. 38 operates is set by s. 34, which is the first section in Part V and is the linchpin of land use controls. Subsection (1) provides:34 (1) Zoning by-laws may be passed by the councils of local municipalities:
Restricting use of land
1. For prohibiting the use of land, for or except for such purposes as may be set out in the by-law within the municipality or within any defined area or areas or abutting on any defined highway or part of a highway.
Restricting erecting, locating or using of buildings
2. For prohibiting the erecting, locating or using of buildings or structures for or except for such purposes as may be set out in the by-law within the municipality or within any defined area or areas or upon land abutting on any defined highway or part of a highway. [Emphasis added.] [22] The balance of the paragraphs in s. 34(1) and the next several subsections address details of various uses of land and buildings, including density, height and building envelopes. None address land division. Section 34 goes on to detail the process of obtaining a rezoning including public meetings, and the appeal rights of owners denied the zoning they seek or ratepayers disputing the planning merits of a rezoning.
(c) The Purpose of s. 38 of the Planning Act, and the Determination of Illegality
[23] The purpose of interim control by-laws under s. 38 of the Planning Act was described by this court in Equity Waste Management at paras. 49 and 50:Interim control by-laws reflect "the Legislature's belief that a balancing of interests between the municipality and individual land owners should be built into the planning process in order to protect against over-development contrary to the public interest": Pepino and Watt, "Interim Control By-Laws and the Ontario Municipal Board" (1988), Insight at p. 3. … A municipality must give notice of a zoning by-law before passing it, but does not have to give notice of an interim control by-law until after it has been passed, thus enabling the municipality to act quickly if necessary to freeze development. …
Interim control by-laws are, therefore, an important planning instrument for a municipality. They allow the municipality breathing space to rethink its land use policies by suspending development that may conflict with any new policy. [24] Typically, in the “cat and mouse game” of land development, an owner seeks to rely on current zoning to undertake development and to get a building permit. If the building permit is secured, the municipality is stuck. But if it can enact an interim control by-law under s. 38 in time, the building permit can be withheld. An example is Luxor Entertainment Corp. v. North York (City) (1996), 1996 CanLII 11766 (ON SC), 27 O.R. (3d) 259 (Gen. Div.). The applicant sought to develop a restaurant, club and entertainment facility in an existing building located adjacent to a residential area in North York. Several council members opposed but the proposal complied with all applicable requirements including zoning. The applicant brought an application for the issuance of the building permit. Before the scheduled hearing date, city council passed a site-specific interim control by-law prohibiting the applicant's proposed use. The applicant successfully applied for an order compelling the city to issue the building permit and to quash the by-law on the grounds that it was passed in bad faith and for an improper purpose.
[25] A “cat and mouse” example closer to land division is found in Pedwell v. Pelham (Town) (2003), 2003 CanLII 7488 (ON CA), 174 O.A.C. 147, leave to appeal refused, [2003] S.C.C.A. No. 335. The scheme involved the division of land into 25 one-acre lots by way of a testamentary devise. The estate solicitor sold 15 lots to a developer. The Town enacted an interim control by-law and did several other things to try to prevent the development. This court upheld the trial judge’s finding that the Town had acted in bad faith in enacting the by-law. At para. 40, Rosenberg J.A. quoted and accepted the trial judge’s reasoning:In the case at bar, there seems to be no question that all planning forces joined to attempt to thwart what they saw as a flagrant attempt to circumvent the Planning Act. Unfortunately for every one, at that time the Legislature in its wisdom had chosen to exempt testamentary devises from Planning Act controls. So there was nothing wrong with an individual working around the Planning Act in this fashion. There simply was no obligation to comply with the Planning Act and the Town knew this. Yet, two of its officials instructed the Chief Building Official to delay the processing of the applications for building permits. There is no authority for such delaying tactics. [26] If a by-law is enacted by a municipality for an improper purpose, that is, not for the statutory purpose for which the power was granted, the by-law is illegal and may be set aside by the court: see e.g. Grosvenor v. East Luther Grand Valley (Township), 2007 ONCA 55, 84 O.R. (3d) 346; wpd Sumac Ridge Wind Inc. v. Kawartha Lakes (City), 2016 ONCA 496, 132 O.R. (3d) 529; TRG-KFH. . 1386146 Ont. Inc. v. 2520650 Ont. Inc. et al.
In 1386146 Ont. Inc. v. 2520650 Ont. Inc. et al. (Div Court, 2022) the Divisional Court considered the appeal of an interlocutory order from the Local Planning Appeal Tribunal (LPAT) under the Aggregate Resources Act. In these quotes, the court considers the role of the LPAT and the entitlements of licenses issued under :The LPAT Act
[21] The Tribunal is governed by the LPAT Act which, inter alia, gives the Tribunal certain powers. In this regard, section 12 of the LPAT Act states:The Tribunal has authority to make orders or give directions as may be necessary or incidental to the exercise of the powers conferred upon the Tribunal under this Act or any other general or special Act. ....
The Tribunal and Appellate Review
[29] This court has held that the role of the Tribunal is one of balancing the factual and policy considerations underlying planning decisions. As was stated by Myers J. in My Rosedale Neighbourhood v. Dale Inc., 2019 ONSC 6631, 94 M.P.L.R. (5th) 151 (Div. Ct.) at para. 3:Under s.37(1) of the Local Planning Appeal Tribunal Act, 2017, SO 2017, c 23, Sch 1, an appeal from the tribunal's decision lies to this court only with leave which may be granted on a question of law alone. That is, the Legislature has assigned to the tribunal alone the task of balancing the factual and policy considerations underlying planning decisions. The task of this court is limited to ensuring that when the tribunal exercises its exclusive decision-making authority, it applies the proper legal principles. [Emphasis added.] [30] Inherent in such appellate review is the need to understand both the factual and policy underpinnings of a given decision. Without these underpinnings, an appellate court has no ability to adequately review a decision since the necessary preconditions for such a review are non-existent.
R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 28, 40 and 55.
|
