PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended Applicant and Appellant: Jeff and Patricia Avery Subject: Request to amend the Official Plan Refusal

of application by City of Sault Ste. Marie Existing Designation: Rural Area Proposed Designation: Estate Residential with a Special Exemption to

permit a boat launch, boat lift and boat storage facility, and Environmental Management

Purpose: To permit the development of a 91-lot plan of subdivision

Property Address/Description: 179 and 227 Pointe aux Pins Drive Municipality: City of Sault Ste. Marie Approval Authority File No.: A-10-13-Z.OP OMB Case No.: PL130890 OMB File No.: PL130890 PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended Applicant and Appellant: Jeff and Patricia Avery Subject: Amendment to Zoning By-law No. Refusal of

application by City of Sault Ste. Marie Existing Zoning: RA Proposed Zoning: R1, EM3 Purpose: To permit the development of a 91-lot plan of

subdivision Property Address/Description: 179 and 227 Pointe aux Pins Drive Municipality: City of Sault Ste. Marie OMB Case No.: PL130890 OMB File No.: PL130891

Ontario Municipal Board Commission des affaires municipales de lOntario

ISSUE DATE: February 27, 2015 CASE NO(S).: PL130890

2 PL130890 PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

APPEARANCES: Parties Counsel*/Representative City of Sault Ste. Marie (the City) N. Kenny* 1704604 Ontario Ltd., Jeff Avery and Patricia Avery (the Applicants)

O. Rosa*/P. Cassan*/T. Harmar*

Pointes Protection Association (PPA)

H. Scott*

Klaas Oswald Self-represented

Applicant and Appellant: Jeff and Patricia Avery Subject: Proposed Plan of Subdivision - Refusal of

application by City of Sault Ste. Marie Purpose: To permit the development of a 91-lot plan of

subdivision Property Address/Description: 179 and 227 Pointe aux Pins Drive Municipality: City of Sault Ste. Marie Municipal File No.: 57T-13-502 OMB Case No.: PL130890 OMB File No.: PL130892

Applicant and Appellant: Jeff and Patricia Avery Subject: Proposed Plan of Condominium - Refusal of

application by City of Sault Ste. Marie Property Address/Description: 179 and 227 Pointe aux Pins Drive Municipality: City of Sault Ste. Marie Municipal File No.: 57T-13-502 OMB Case No.: PL130890 OMB File No.: PL130893

Heard: November 18, 2014 to December 5, 2014 in

Sault Ste. Marie, Ontario

3 PL130890 Participants John Campbell Richard Craftchick DECISION DELIVERED BY BLAIR S. TAYLOR AND ORDER OF THE BOARD

INTRODUCTION

[1] The Applicants had applied to the City for an Official Plan Amendment (OPA), a

Zoning By-law Amendment (ZBA), a draft plan of subdivision and a draft plan of

condominium for the lands known municipally as 179 Pointe aux Pins Drive and 227

Pointe aux Pins Drive, and two lots on Pointe Louise Drive being Lot 18 and Lot 19,

hereinafter called the Subject Lands.

[2] The Subject Lands were assembled over a period of time beginning in 1984

based on a vision of Mr. Avery to create a unique waterfront community in Sault Ste.

Marie. The genesis for this was his experience in Florida where he observed a

residential community with lagoon access to the Gulf of Mexico. The Averys currently

reside near the Subject Lands, and have resided there for some 30 or 35 years.

[3] The Subject Lands are located generally in the Pointe Louise area. The Pointe

Louise area is several kilometres from the existing urban settlement area as shown on

Exhibit 28, is located in close proximity to the Sault Ste. Marie Airport and the Subject

Lands are located inland from residences and seasonal homes that have located over a

number of years along the St. Marys River shoreline.

[4] It is estimated that there are about 200 seasonal/permanent residential homes in

the Pointe Louise area.

4 PL130890 [5] The Subject Lands include the existing Alagash Canal which was described to

the Board as being developed in or about 60 years ago with about 25 lots with rear

access to that man-made canal. The Board was advised that at one point in time the

canal had two accesses to the St. Marys River: one on the west side which is now

closed in and the second which is through an existing culvert under a City owned road

known as Alagash Drive.

[6] The proposal by the Applicants is to seek the approval of the City to close up and

stop a portion of Alagash Drive over the culvert that extends the Alagash Canal into

the St. Marys River, to provide new access to the existing homes on Pointe Louise

Drive via a new road through the Subject Lands and crossing over the existing Alagash

Canal onto Lots 18 and 19 as shown on Exhibit 19, to widen the area where the

existing culvert is, to a width of approximately 30 metres, to enable the construction of a

new two kilometre canal into the Subject Lands, to create 91 residential lots with

frontage to a street and rear access to either the new proposed canal or a refurbished

(existing) Alagash Canal, with a dedicated boat launch facility being Block 107 and a

dedicated boat storage area being Block 106 on Exhibit 19.

[7] The Applicants applications to the City were recommended for approval by Staff

but denied by City Council. The Applicants appealed to the Ontario Municipal Board

(the Board). The Board heard this matter over the course of some 13 days in the City

of Sault Ste. Marie.

DECISION

[8] For the reasons set out below the Board finds that the development application

does not have appropriate regard for matters of provincial interest, is not consistent

with the Provincial Policy Statement, is contrary to the Official Plan of the City of Sault

Ste. Marie, does not have appropriate regard for the provisions of s. 51(24) of the

Planning Act as they relate to the draft plan of subdivision and the draft plan of

condominium, that the proposed zoning would be contrary to the Official Plan and the

5 PL130890 proposed development application in its entirety does not represent good planning.

Thus the Board dismisses the appeals in their entirety.

BACKGROUND AND CONTEXT

[9] The Applicants, having assembled the Subject Lands, originally came to the City

in 2004 with their development proposal. The City, noting that the Subject Lands were

found within a coastal wetland and within the Great Lakes Flood Line, recommended

that the Applicants first seek the approval of the Sault Ste. Marie Region Conservation

Authority (Conservation Authority). The Applicants followed the advice of the City and

made application to the Conservation Authority whose approval was originally denied.

They then appealed to the Mining and Lands Commissioner, then settled between the

Applicants and the Conservation Authority, then the subject of a judicial review

application by the PPA, which was resolved through Minutes of Settlement and the

appeal dismissed with prejudice.

[10] Thereafter the Applicants applied to the City for the OPA, the ZBA, the plan of

subdivision and the draft plan of subdivision and the draft plan of condominium to

include the waterway (canal, the walkway, and the trail). Notwithstanding a positive

report by the Planning Department, City Council denied all the applications and the

Appellants appealed to the Board.

[11] During the course of the hearing, the Board heard and deliberated on four

separate motions. The Board gave oral decisions for three of the motions, and

reserved on the fourth. The Board will now set out below its rulings on the motions.

MOTION 1: PREMATURITY

[12] It is common ground among all the parties, that notwithstanding the applications

before this Board, for the development application to be implemented it requires the

City to stop up and close a portion of Alagash Drive where the existing Alagash Canal

would exit to the St. Marys River, so as to enable the removal of the existing culvert

6 PL130890 and the widening of the Alagash Canal to a width of about 30 metres, which would

allow boat passage to the St. Marys River.

[13] While the Applicants claim to own the lands underneath the road, the Appellants

acknowledge that in order to proceed, approval must be obtained from the City to stop

up and close that portion of Alagash Drive to enable the widening of the canal to the St.

Marys River. (In order to provide the necessary access to the existing seasonal and

permanent residences on Pointe Louise Drive, the development application includes a

new crossing over the Alagash Canal onto Lots 18 and 19 which are owned by the

Applicants.)

[14] It is common ground that the issue of the closure of a portion of Alagash Drive is

not a Planning Act matter; it is not the subject of an appeal to the Board, and approval

lies within the sole discretion of the Council of the City.

[15] It is also common ground that the closure of that portion of Alagash Drive and the

expanded access to St. Marys River is vital to the Applicants vision to create a 91 lot

subdivision with water access ultimately to the St. Marys River. While the Applicants

filed their development application and request to the City to close that portion of

Alagash Drive, the City denied the development applications and did not deal with the

request to close the road.

[16] This raised the issue as to whether the hearing of the appeals on the

development applications was premature in light of the absence of approval for the vital

component of the Applicants development application.

[17] The Applicants argued that the Board should proceed and the absence of the

approval of the road closure was not fatal to the Board proceeding to hear the merits of

the planning applications. Counsel for the Applicants cited the Ontario Municipal Board

case of Kimvar Enterprises Inc. vs. Simcoe (County) 2007 Carswell Ont. 8320, 58

OMBR 426 (Kimvar) at paragraph 58 where the Board stated that:

7 PL130890

The necessity for approvals under legislation other than the Planning Act which guides the Board is not a basis upon which to find the project is premature. The Board is statutorily required to deal with any appeals that are made and come to a determination as to whether among other things the instruments represent good planning. The Board has indicated on a number of occasions that it has an obligation to hear an appeal and the fact that a different, but related, approval might be required should not deter the Board from proceeding with its mandate

[18] The City in its view indicated that procedurally the Applicants had two choices:

firstly to go back to Council and to get a decision, or secondly, to proceed on the merits

and have the Board apply the appropriate conditions, if an approval were to be granted.

[19] The PPA takes the position that the applications are premature, that the

connection to the St. Marys waterway is a huge component of the development

application, and that it was premature to proceed at this point. The basis for the

prematurity arises out of s. 51(24)(b) (whether the proposed subdivision is premature

and the public interest) and with regard to the issue of prematurity, since the proposed

draft plan of subdivision intends to include a portion of Alagash Drive and since s.

51(16) of the Planning Act limits draft plan applications to the owner of lands or the

owners agent duly authorized and since there has been no authorization by the City

that the draft plan of subdivision was clearly premature.

[20] Mr. Oswald concurs with the PPA that it would be premature to deal with this

matter in light of the outstanding road closure issue.

[21] The Board provided an oral decision on the issue of prematurity. The land use

planning report in support of the development application notes that the proposal is to

establish a 91-lot subdivision that would form a lifestyles community on some 98.77

hectares (ha). The lifestyles community will include a canal about 40 metres wide that

can accommodate boats up to 12 metres in length. The development is proposed to be

promoted as a lifestyles community for recreational, retirement and country estate

housing with direct water access for boating and fishing enthusiasts. As the Subject

Lands are inland from the St. Marys River the proposed development requires the

removal of a City owned bridge/culvert and the stopping up and closing of parts of

8 PL130890 Alagash Drive. Such a by-law falls within the exclusive jurisdiction of City Council. It is

not appealable to this Board. The Board is advised by the Applicants that they seek to

proceed and if approved by the Board, ask that the stopping up of the road be added as

a condition of approval. The PPA and Mr. Oswald oppose that and submit that it is

premature to proceed on a three week hearing with such a fundamental issue not

resolved. Counsel for the City submits that it is open to the Board to proceed on the

land use planning matters, but that the road closure is a matter for City Council alone.

[22] The Board has considered Kimvar supra, and concurs with the submission by the

City that the hearing will proceed. The Board has the jurisdiction to come to a

determination as to whether, among other things the proposed instruments represent

good planning.

[23] However the Board wishes to be very clear that in no way will the Board interfere

with the jurisdiction of City Council and that the Applicants in so proceeding do so in

recognition that it is at their own risk.

[24] Thus the Board carried on with the hearing of the matters on the merits.

MOTION 2: PROVINCIAL POLICY STATEMENT 2005 OR 2014?

[25] The Applicants brought a motion with regard to the 2005 Provincial Policy

Statement (2005 PPS) and the 2014 Provincial Policy Statement (2014 PPS). It was

the Applicants position that, while the 2014 PPS came into effect on April 20, 2014,

from the outset the development applications of the Applicants have been considered

under the 2005 PPS and that based on procedural fairness and the principles of natural

justice, the Board has a discretion to consider the 2014 PPS but it is the 2005 PPS

which is determinative. The Citys position was that the 2005 PPS was in place at the

time of Councils consideration of the development applications and that Council made

a decision under the 2005 PPS regime.

[26] The PPA referred the Board to s. 3.1 of the Planning Act which states the

9 PL130890 following: Policy Statements the Minister, or the Minister together with any other

Minister of the Crown may from time to time issue policy statements that have been

approved by the Lieutenant Governor in Council on matters relating to municipal

planning that in the opinion of the Minister are of provincial interest. Ms. Scott then

took the Board to s. 4.1 of the 2014 PPS which states clearly that:

This provincial policy statement applies to all decisions in respect to the exercise of any authority that affects a planning matter made on or after April 30, 2014.

[27] Finally counsel took the Board to Exhibit 3, Volume 2, Tab 15 which is the like

experts List of Agreed Facts for planning witnesses, which, in paragraph 1 states that

the provincial and municipal documents applicable to this hearing are (b) 2014

Provincial Policy Statement. Therefore the PPA was of the view that it was the 2014

PPS that applied and all of the expert planners had agreed that the 2014 PPS was the

applicable Provincial Policy Statement.

[28] Mr. Oswald stated that the Province of Ontario had taken a plain language

approach to the 2014 PPS. He said it was abundantly clear that s. 4.1 expressed in

clear language, and on a definitive basis, that the policy statement applied to all

decisions that affected a planning matter made after April 30, 2014. He stated that if

the Province of Ontario had wished a transition period they could have easily done so

(as the Province had done in the 2005 PPS which states in s. 4.1 that the 2005 PPS

applies to all applications, matters or proceedings commenced after March 1, 2005).

He stated that the Province was clearly fully aware of the Clergy Principle (Clergy

Properties Ltd. v. Mississauga (City) [1996] 34 O.M.B.R. 277) and the Kalmoni case

(Kalmoni Establishments Inc. v. Milton (Town), [1995] O.M.B.D. No. 1247; 32 O.M.B.R.

474) and that s. 4.1 of the 2014 PPS had been written with that in mind and that the

clear language of s. 4.1 should be implemented.

[29] The Board reserved on the PPS motion and gave its oral decision on November

18, 2014.

10 PL130890 [30] The motion was brought on behalf of the Applicants seeking the Boards ruling

with respect to the application of the 2005 PPS and not the 2014 PPS.

[31] These are some of the essential facts:

i) The Applicants initial application was filed in 2007;

ii) The Applicants and the City agreed that the Applicants should first seek

the approval of the Conservation Authority;

iii) The Conservation Authority decision was made in December 2012;

iv) The PPA sought a judicial review;

v) Minutes of Settlement were entered into;

vi) The judicial review application was dismissed with prejudice December 17,

2013;

vii) The Applicants then resubmitted their development applications to the

City;

viii) A public information meeting was held on June 24, 2013;

ix) The City Council decision was made on July 15, 2013 denying the

application.

x) The Applicants appealed the development applications to the Board.

[32] The Applicants argue that at all times it was the 2005 PPS to which reference

was made, that pursuant to the Clergy Principle their application should be evaluated

based on the laws and policies as they existed on the date of the application. To do

11 PL130890 otherwise they submit will be contrary to the rules of natural justice and also the

Kalmoni Principle (that an applicant not be put to a new standard imposed after the

date of the application which would have the effect of defeating the application). In

support of these submissions the Applicants had provided a Book of Authorities.

[33] Counsel on behalf of the City submits that the applications were processed and

reviewed under the 2005 PPS and City Council made its decision pursuant to the 2005

PPS.

[34] Counsel on behalf of the PPA submits that it is the 2014 PPS that is to be

applied. She referred to the wording of s. 3.1 of the Planning Act which provides the

statutory authority for the issuance of (provincial) policy statements from time to time

and then to s. 3.5(a) of the Planning Act which states: a decision of the council of a

municipality, a local board, a planning board, a minister of the Crown and a ministry,

board, commissioner or agency of the government including the municipal board, in

respect of the exercise of any authority that affects a planning matter, (a) shall be

consistent with the policy statements issued under subsection 1 that are in effect on the

date of the decision. The PPA submits that it is the 2014 PPS that the Board must

consider.

[35] Mr. Oswald took the Board to s. 4.1 of the 2014 PPS and the clear wording that

this provincial policy statement applies to all decisions in respect of the exercise of any

authority that affects a planning matter made on or after April 30, 2014. Mr. Oswald

also referenced what is not in the 2014 PPS. He points to the absence of any transition

provision in the text. This he submits is a deliberate choice the Province of Ontario

made. Had it deemed it appropriate to include a transition provision the Province would

have included one. Thus he says it is abundantly clear that it is the 2014 PPS that

applies.

[36] The Board was provided with only one Book of Authorities which it has reviewed.

The Board could find no case therein that was on all fours with the issue of the

12 PL130890 application of the 2014 PPS.

[37] The Board notes that a number of the cases citing the Clergy Principle arise

from circumstances where there is an in force and of effect official plan and also a

recently adopted official plan or amendment usually under appeal.

[38] This is not the case here. Here the Board has an updated Provincial Policy

Statement, and not a mere official plan.

[39] The Board has also considered the Applicants submissions on the Kalmoni

Principle, again that case dealt with an official plan amendment.

[40] Here the Province of Ontario has issued an amended Provincial Policy

Statement. This is not a mere amendment to a municipal official plan. It is a policy

directive by the Province of Ontario that applies to the entire province. The Board has

reviewed s. 3(5)(a) of the Planning Act which states: A decision of including the

Municipal Board, in respect of the exercise of any authority that affects a planning matter, a) shall be consistent with the policy statements issued under subsection (1) that are in effect on the date of the decision. (emphasis added)

[41] The Board notes that s. 3(5)(a) does not say that are in effect on the date of

the application. The legislation is clear and unambiguous in its reference to the date of

the decision.

[42] The Board finds that it is the 2014 PPS that is to be applied to all decisions

affecting a planning matter after April 30, 2014.

[43] Finally the Board acknowledges the agreed statement of facts by all the land use

planners (including the Applicants), and they agree that it is the 2014 PPS that is to be

applicable in this matter.

[44] Based on this ruling, the Board carried on with the hearing to test the

13 PL130890 development application against the 2014 PPS.

MOTION 3: PPA Expert Witness 1

[45] On Friday, November 28 the PPA sought to qualify Frank Breen as a hydro

geologist. Mr. Breen has a Bachelor of Science in Geology and a Master of Science in

Contaminate Hydrogeology from the University of Waterloo. He is the principal of

Breen Geo Science Management Inc. and an adjunct professor at the Lake Superior

State University. In 2010 Mr. Breen was retained by the Conservation Authority to

conduct a peer review of the Applicants reports to the Conservation Authority. He

prepared a 2011 report to the Conservation Authority.

[46] Once the Conservation Authority had issued its permit he was asked by the PPA

to work for that association but declined. He did however subsequently speak to the

Algoma Health Unit and he did subsequently make a personal delegation to City

Council.

[47] The Applicants challenged the qualification of Mr. Breen as an expert due to his

lack of independence, lack of objectivity and that he in fact had become an advocate

crusading against the proposed development.

[48] The Applicants filed a Factum (Exhibit 48(A)) and a Book of Authorities (Exhibit

48(B)) in support of the Motion that Mr. Breen (and also Mr. Usher: see Motion 4

below) not be qualified as an expert to give opinion evidence to the Board. In support

of this position the Applicants point to Rule 21.01 of the Ontario Municipal Board Rules

of Practice and Procedure which states: It is the duty of every expert engaged by or

on behalf of a party who is to provide opinion evidence at a proceeding under these

Rules to acknowledge either prior to (by executing the Acknowledgement Form

attached to the Rules) or at the proceeding that they are to a) provide opinion evidence

that is fair, objective and nonpartisan; b) provide opinion evidence that is related only to

the matters that are within the experts area of expertise; and c) to provide such

additional assistance as the Board may reasonably require to determine a matter at

14 PL130890 issue; d) these duties prevail or any obligation owed by the expert to the party by whom

or on whose behalf he or she is engaged.

[49] The Applicants counsel argues that Mr. Breen on account of the actions he has

taken cannot provide opinion evidence that is fair, objective and nonpartisan. The

Applicants counsel points to the following:

Mr. Breen was originally retained by the Conservation Authority;

He provided a report to the Conservation Authority in 2011;

Following the settlement between the Conservation Authority and the

Appellants he later swore an affidavit in a judicial review proceeding

commenced by the PPA against the settlement in which he stated: Any

strong criticism of the past technical work by the Appellants professional

consultants is intentional since it is my opinion based on the information

presented that the intended litigation brought against the Sault Ste. Marie

Conservation Authority is baseless and without merit.

Following the Minutes of Settlement and dismissal with prejudice of the PPA

judicial review, Mr. Breen went to the Algoma Health Unit and presented them

with the report that he had done for the Conservation Authority;

Subsequently he appeared of his own volition before the City Council at its

regular council meeting which was then considering the Applicants

development application;

He made a power point presentation to Council. The transcript from that

presentation is found in Exhibit 3, Volume 8, Tab 121. In his submission to

Council he raised the issue of acute toxic risk and stated the following:

And I am not trying to use inflammatory language. I am using the

15 PL130890

language of the science, okay. An acute toxic risk means that if you have a one-time exposure at a concentration that is too much for you, you get sick. Its a one-time exposure. So lets look at a scenario where its a hot August day. Weve got 91 homes, everyones got their families over, everyones using their wells. Those wells are creating strong downward gradiants, due to all the pumping, and we get an E-Coli outbreak, in one well and people could get sick. Again, Im not trying to be inflammatory

[50] The Board reserved on the motion of Friday, November 28, 2014 over the

weekend and reviewed the submissions and the materials provided by counsel and

gave an oral decision on Monday, December 1, 2014.

[51] Mr. Breen is presented to the Board for qualification as an expert witness in the

field of hydrogeology.

Background and Context

i) Mr. Breen has a Masters of Science from the University of Waterloo

specializing in Contaminate Hydro Geology;

ii) He is the president of Breen Geo Science Management Inc., a company

incorporated under the laws of the State of Michigan and he resides in

Michigan;

iii) In 2010 he was retained by the Conservation Authority to complete an

independent review of the Applicants application and supporting studies to

the Conservation Authority;

iv) He did a report to his client in December 2011;

v) The report was critical of the development application and supporting

studies. Inter alia the report called for a hydro geological study to be

carried out by a reputable firm and advised that the study work by Dr.

Davies, a coastal engineer was technically incorrect;

16 PL130890

vi) In December 2012 the Conservation Authority notwithstanding Mr. Breens

report issued a development permit to the Applicants;

vii) In January 2013 Mr. Breen wrote to the Conservation Authority general

manager outlining inter alia his outstanding concerns; (See Exhibit 44)

viii) In June 2013 Mr. Breen of his own volition and without any permission by

the Conservation Authority contacted the Algoma Health Unit and

arranged to meet with them at which time he presented to the Health Unit

the report he made to the Conservation Authority. Mr. Breen stated that

he never sought permission of the Conservation Authority as he believes

the report was in the public domain as it was on several websites;

ix) The Algoma Health Unit subsequently sent a letter to the City raising the

Breen concerns with the proposed development;

x) Following a meeting with the Applicants consultants, the Algoma Health

Unit sent a further letter advising the City it had no objections to the

proposed development;

xi) In July 2013 Mr. Breen of his own volition attended the statutory public

meeting for the development application in front of City Council. There he

made a power point presentation a transcript of which may be found at

Exhibit 3, Volume 8, Tab 121. At this time his same concerns were raised;

and

xii) Exhibit 47 is an email from the Association of Professional Geo Sciences

of Ontario advising that Mr. Breen is a practicing member of the

Association since February 3, 2014.

[52] In matters before this Board and in matters before the courts the qualification of a

witness as an expert witness is a very important decision, as experts, because of their

17 PL130890 academic training and experience may be allowed to give opinion evidence to the

Board. The Board has codified its requirements for a witness to be qualified as an

expert based on duties the Board expects of someone who seeks to be qualified as an

expert. Those duties are found in Rule 21.01. The Board finds that Mr. Breen has

engaged in a course of conduct through his self-generated meeting with the Algoma

Health Unit and subsequently his self-generated attendance and presentation to City

Council that is indicative of one who is an advocate for a certain position.

[53] The case law is abundantly clear that a person can be an expert witness or an

advocate but not both. It is clear to the Board that Mr. Breen has effectively through his

course of conduct crossed the line from expert witness to advocate and to this Board

it is clear he has lost the requisite objectivity that is required of an expert witness.

[54] Moreover Mr. Breen is a hydrogeologist and not a coastal engineer and the

Board is further concerned that he has gone beyond his area of expertise in the

opinions that he has expressed in his report.

[55] Thus the Board will not qualify Mr. Breen as an expert witness.

[56] Following this ruling, the PPA chose not to call Mr. Breen as a witness.

MOTION 4: PPA EXPERT WITNESS 2

[57] The PPA called Anthony Usher and sought to qualify Mr. Usher as an expert in

land use planning. As with the challenge of Mr. Breen, the Applicants counsel

challenged Mr. Ushers qualification. The challenge is largely laid out in Exhibit 48(A)

(the Factum) of the Applicants.

[58] Mr. Usher is a very experienced land use planner with a Bachelor of Arts in

Geography and History from 1971, a Masters in Geography in 1973 and an MBA in

Natural Resources and Economics in 1979.

18 PL130890 [59] From 1972 to 1978 he was with the Ontario Ministry of Natural Resources

followed by five years with Hough, Stansbury and Michalski, and from 1983 to date the

principal of Anthony Usher Planning Consultant. He is a member of the Canadian

Institute of Planners, a Registered Professional Planner for Ontario and a past

president of the Ontario Professional Planners Institute.

[60] The counsel for the Applicants alleges that Mr. Usher attended the initial Board

pre-hearing held on March 11, 2014 as a representative of the PPA and he remained

the representative of the PPA until he provided notice by email dated September 3,

2014 that he would be ceasing to be the PPAs representative and that Helen Scott

would be assuming that role. The counsel for the Applicants points out that the experts

witness statements were in fact due the following day, being September 4, 2014.

[61] The Applicants submit that Mr. Usher was heavily engaged in setting the

procedural elements for this matter frequently corresponding with Applicants counsel in

respect of all the details advocated for the removal of the Applicants then issue 3 (that

the issues surrounding the wetland were res judicata), that Mr. Usher, while not

physically attending the motion for directions heard on August 19, 2014, made written

submissions to the Board following the conclusion of the telephone conference call.

Counsel for the Applicants point out that in respect of the motion for directions, that

Member Makuch considered Mr. Ushers conduct as the PPAs representative and in

his September 12, 2014 decision provided the following:

[19] The Board notes that Anthony Usher appeared as representative for the Pointes Protection Association at the first two prehearing conferences convened in this matter. He was not present at this prehearing conference but made written submissions to the Board following the conclusion of such in response to the submission of some case citations by counsel for the Applicants/Appellants. The Board wishes to remind the parties that if they intend to call professional witnesses to provide opinion evidence to the Board, that evidence is to be independent and impartial. The Board raises this issue at this time given that Mr. Usher appears to be playing a very active role as an advocate in the prehearing process thus far.

[20] The Board cautions Mr. Usher to carefully review the Boards Acknowledgement of Experts Duty form if he wishes to appear

19 PL130890

before the Board as a professional witness to provide opinion evidence. The Board also reminds Mr. Usher that he should at the very least acquaint himself with the bylaws published by the Law Society of Upper Canada which appear on its website and which address the subject of whom may appear as a representative before a tribunal such as the Ontario Municipal Board.

[62] In the Applicants questioning of Mr. Edouard Landry, a land use planner from the

Ministry of Municipal Affairs and Housing (the MMAH) in Sudbury who appeared by

summons issued by the Board at the request of the PPA, it was learned that Mr. Landry

had been contacted directly by Mr. Usher. The original author of the comments by the

MMAH was no longer with the Ministry and Mr. Usher contacted Mr. Landry, a team

leader at MMAH, to see if he agreed with the comments that had been expressed, and

whether he would agree to appear as a witness at the forthcoming Board hearing.

Thus counsel for the Applicants submits that there is ample evidence through the

course of his involvement as the PPA representative that Mr. Usher was acting as an

advocate for his client in respect of procedural matters, making after the fact

submissions in respect of case citations, and in contacting the MMAH to arrange for a

friendly witness to come and give evidence with regard to the MMAH comments via

summons.

[63] The Board notes with interest that the response to the challenge of Mr. Ushers

qualification as an expert witness comes not from counsel, but rather in the form of an

eight-page letter dated November 14, 2014 by Mr. Usher to Ms. Scott with some 49

pages of attachments, plus the attachment of a number of other Board cases (See

Exhibit 58 A, B, and C).

[64] In his letter submission, Mr. Usher indicated that it was always the intent that he

would represent the PPA for the time being and should the matter proceed to a full

hearing the PPA would retain counsel or otherwise ensure that it is appropriately

represented (see Mr. Ushers November 6, 2013 email to the Board). For the August

19, 2014 pre-hearing conference before Member Makuch, Mr. Usher advised the Board

that he would not be attending and that Peter Gagnon, the president of the PPA would

represent the PPA at that time. Following the August 19 pre-hearing the Applicants

20 PL130890 submitted authorities on August 21 and thereafter Mr. Usher sent in his comments. He

states that: In my submission I do not argue the merits of the issue in question, I

confine my comments to a planning not legal perspective as to how these authorities

might bear on the Boards decision as to whether to retain, vary or delete the issue and

I do not advocate or recommend any conclusion to the Board. Mr. Usher concludes

his comments by saying that: Throughout his retainer he has never sought to

advocate on behalf of the PPA and never sought to argue the merits of the case,

instead he sought to act solely as a representative in a way that planners regularly

represent clients and confined his dealings with the Board to procedural matters.

[65] Having heard the arguments of the parties, the Board reserved its decision on

the qualification of Mr. Usher as an expert, and heard his evidence in full.

[66] The Board will now provide its decision as to the qualification of Mr. Usher as an

expert.

[67] While Mr. Usher portrays himself as one who has never sought to advocate on

behalf of the PPA and sought instead to only act as a representative of the PPA in the

way that planners regularly represent their clients and to confine his dealings with the

Board to procedural matters, the Board does not agree.

[68] In that regard the Board has examined Mr. Ushers email to the Board dated

August 21, 2014 in which he states: As the current representative of PPA I trust I

will be permitted to make some brief comments on the authorities that Mr. Wishart and

Mr. Oswald have submitted. Further he states: I am providing these comments

from a planning, not legal perspective as to how these authorities might bear on the

Boards decision as to whether to retain, vary or delete PPAs issue #4 which is Mr.

Usher then goes on to review the six decisions that had been submitted by Mr. Wishart

and he makes observations. Those observations highlight specific provisions in

each of the six cases to which Mr. Usher submits the following: To the extent the

above decisions lean towards the Board not having the jurisdiction to put itself in the

21 PL130890 place of the MNR and identifying a wetland as a PSW, they also lean towards the

Board having the jurisdiction to look behind the merits of the identification and

whether the PSW should become part of the applicable official plans/zoning by-laws.

Finally Mr. Usher concludes his email with the following:

I note as information only, that if its issue #4 is retained, PPA is considering calling an expert witness who is a qualified wetland evaluator (as the applicant did in the Smith case) who will take issue with aspects of the MNRs evaluation.

[69] At this point, Mr. Usher is the sole representative of the PPA, Ms. Scott not

having yet been retained. Thus it is clear that Mr. Usher in his role as representative

was considering other expert witnesses that would be needed to be retained and to

give evidence to bolster his clients case.

[70] Having considered the content of the submissions by Mr. Usher, this panel of the

Board is not at all surprised by the admonition that Mr. Makuch gave to Mr. Usher in the

September 12, 2014 pre-hearing decision.

[71] While those submissions went to the inclusion of a PPA issue on the procedural

orders issue list, the actions of Mr. Usher go beyond procedural matters.

[72] It is clear from the evidence of Mr. Landry that in fact he was recruited by Mr.

Usher in order to come forward as a friendly witness in this Board hearing.

[73] From the Boards perspective it is clear that Mr. Usher has gone beyond the

way that planners regularly represent clients and entered into the fray as an advocate

actively seeking out witnesses that Mr. Usher believed would be of assistance to his

clients case. Thus the Board will not qualify Mr. Usher as an expert entitled to give

opinion evidence in land use matters; rather the Board will assign the appropriate

weight to Mr. Ushers evidence, as a fact witness and not as an expert.

22 PL130890 THE HEARING

[74] During the hearing the Board heard evidence from the following witnesses in

support of the development applications:

John Campbell (Participant) Richard Craftchick (Participant) Jeff Avery (Applicant) Christine Washburn (Biologist) Carl Jorgensen (Biologist) Jordan Black (Geotechnical Engineer) Donald McConnell (Citys Director of Planning) Anthony Disano (resident) Bill Wierzbicki (land use planner) Michael Davies (Coastal Engineer) Peter Richards (Hydro Geologist) Brian Grant (Hydro Geologist) John MacDonald (Engineer) Sharon Payette (resident) Irene Palumbo (resident) Mark Mageran (resident) Dr. Patricia Avery (Applicant)

[75] The Board heard from the following witnesses called by those in opposition to the

development applications:

Peter Gagnon (President of the PPA) Edouard Landry (M.M.A.H. Land Use Planner) Anthony Usher (fact witness) Susan Meades (Botanist/Ecologist) Michael Ripley (St. Marys River Binational Public Advisory Council) Ken McIlwrick (resident)

[76] Finally the Board would note that the City did not call any expert witnesses other

than Chris Bean (City G.I.S. Coordinator to confirm Exhibit 51A. The Board also

summoned Marjorie Hall, the District Planner for M.N.R.F.

[77] Having now dealt with all the motions, the Board will consider the merits of the

matters of the appeals.

23 PL130890 PHYSICAL CONTEXT

[78] The Subject Lands are located inland from the rest of the water front

development that has occurred in the Pointe Louise area. The Subject Lands are

several kilometres from the existing urban settlement area of the City but relatively

proximate to the municipal airport.

OFFICIAL PLAN

[79] The Board will now review the Citys Official Plan policies as they relate to the

proposed development on the Subject Lands.

[80] The Official Plan designates the Subject Lands in Schedule C as being Rural

Area with two large portions of the Subject Lands designated in Schedule A as being

Evaluated Wetland. Exhibit 51(A) entitled Drainage and Elevation Overview was

prepared by the staff of the City. Exhibit 51(A) provides two calculations that were

done by the City: for the Wetlands area in the northwest corner of the Subject Lands

the area calculation is shown as 5.54 ha; and in the southerly portion of the Subject

Lands the Wetlands area is shown as being 43.0 ha, for a total wetland area of 48.54

ha (See Attachment 1 to this decision).

[81] Exhibit 51(A) also shows the Great Lakes Flood Line as outlined in the Official

Plan which would encompass most of the Subject Lands.

[82] The text of the Citys Official Plan indicates that it is a 1996 version that came

into force on September 17, 1996. Section 2.2 under the heading Provincial Policy

states that amendments to provincial policy or to the Planning Act or other applicable

legislation or regulations may require amendments to the Official Plan.

[83] Part 5 of the Official Plan Physical Development Natural Environment states

that the City shall promote the stewardship of the communitys natural resources and

features to ensure an environment that is ecologically sound, that recognizes the

24 PL130890 importance of healthy diverse ecosystems and is responsive to the health, safety and

well-being of the present and future residents.

[84] Section H.3 states that if an Environmental Impact Study (EIS) concludes that the

overall impact upon the natural heritage feature or area, or ecological function is

negative (i.e. detrimental), the development application shall not be approved. Under s.

3.6 Fish Habitat the policies include F1.1 to protect all fish habitat from harmful

disruption, alteration or destruction by not permitting development which could result in

damage to these areas, and F1.2 to encourage the restoration, enhancement and

creation of fish habitat.

[85] Under Part 6 Physical Development Build Environment, s. 2.3 deals with the

anticipated urban form and land use designations for the community which are outlined

on Schedule C. Under the subtitle Urban Growth and Settlement the Official Plan

makes this statement:

Based on recent trends the population of the community is expected to peak in the year 2001 at 84,000 persons. As a result of the aging population and the changing nature of employment, housing construction will never again experience the dynamic growth of the past 30 years. Thus all future residential growth within the City can be accommodated on lands already committed to development within the existing settlement area. Lands designated Residential have been reduced from that shown in the 1968 Official Plan to reflect the reduced need for residential land over the life time of this Plan. (Emphasis added.)

[86] With regard to Rural Residential growth the Official Plan stated:

Further development of unserviced lots in the Rural areas is not required to meet the growth needs of the community and development will be limited to existing lots of record. No new estate residential plans of subdivision will be permitted. Residential use should only be permitted as an accessory to the economic development of a natural resource located in the Rural Area which meets the health standards and has no impact on the environment. (Emphasis added.)

[87] Section 4.5 of Part 5 Physical Development Natural Environment deals with

wetlands. The Official Plan provides:

25 PL130890

Wetlands are important to the maintenance of a strong sustainable natural environment. They provide useful environmental functions such as wildlife habitat, water quality enhancement and flood control. The City has approximately 2,200 hectares of lands considered as wetlands. These wetlands include fens, swamps, bogs and marshes.

[88] As the wetlands in this particular case are not classified as being provincially

significant wetlands, the following policies are relevant:

W3 Permitted uses in wetland areas that are not Provincially Significant include passive or low intensity recreational uses, fish and wildlife management and forestry provided that such land uses maintain and enhance the natural functions and area of the wetland. (Emphasis added) W4 Applications for development and conformity with Schedule C in, or adjacent to wetland areas, may be approved by Council, if accompanied by an Environmental Impact Study (EIS). (Amended by OPA No 3) W5 Development shall only be permitted in wetlands that are not Provincially Significant where there is: i) No loss of wetland functions ii) No encouragement for future development that will impair

wetland functions

iii) No conflict with site specific wetland management practices. W6 The loss of any wetland areas to development shall be made up by the creation and/or dedication of other wetland areas.

[89] Section 2.36 has the Official Plan policies as they relate to the Rural Area.

However, since coming into force and effect in 1996, they have been amended twice.

[90] The first amendment to s. 2.36 of the Official Plan came by By-law 2009-182

approved in 2009 and it brought in the following Official Plan text:

2.36 Rural Area Introduction Rural land uses include agriculture, forestry, extractive uses such as mining, quarry and aggregate removal, golf courses, riding academies, kennels, cemeteries, approved land fill sites, limited residential development, churches and schools. (Emphasis added)

26 PL130890

As it is the intent of this Plan to direct the majority of residential growth within the existing Urban Settlement Area generally not more than ten (10%) per cent of new residential development should occur in the Rural Area. The Rural Area is all of the area of the municipality outside the Urban Settlement Area. The Urban Settlement boundary is identified on Land Use Schedule C.

[91] Of particular importance to this hearing is Policy RA-11 which states

the following:

Unless otherwise noted in this section, new un-serviced estate residential plans of subdivision are not permitted in the Rural Area. The further development of lots in areas zoned Rural Area shall be limited to the creation of one new lot, plus the remnant or retained parcel. This limit shall be applied from the day of the adoption of Official Plan Amendment 167. (Emphasis added)

[92] As noted above the City amended s. 2.36 of the Official Plan for the Rural Area

by Amendment No. 203 which modified Policy RA-11 by increasing the number of lots

from one to two. The policy now reads as follows: Unless otherwise noted in this

section, new unserviced estate residential plans of subdivision are not permitted in the

Rural Area. The further development of lots in areas zoned Rural Area shall be

limited to the creation of two new lots, plus the remnant or retained parcel. This limit

shall be applied from the day of the adoption of the Official Plan Amendment 203.

ZONING

[93] The Subject Lands are zoned Rural Area in the Citys Zoning By-law. The

development proposal is to rezone the Subject Lands to Estate Residential (R1) with a

special exemption to permit an addition to single detached residences, a boat launch, a

boat lift and boat storage facility, and to rezone a portion of the Subject Lands to

Environmental Management (EM).

27 PL130890 SAULT STE. MARIE REGION CONSERVATION AUTHORITY

[94] As noted above the City had required the Applicants to proceed through the

Conservation Authority regulatory process prior to the filing and processing of a

development application with the City.

[95] That process took several years with the end result being an unconditional

approval by the Conservation Authority, and Minutes of Settlement between the PPA

and the Conservation Authority and 1704604 Ontario Ltd. dated September 17, 2013

which resolved that the PPAs application for judicial review would be dismissed on a

without costs basis but with prejudice.

[96] In support of the development application to the Conservation Authority, the

Applicants had submitted the Pointe Estates Subdivision Scoped Environmental Impact

Study for Development in a Wetland revised as of November 27, 2008. This report

included the following from s. 5.2 Long Term Impacts and Mitigation:

The potential long term impacts on the existing wetland associated with the development of this subdivision include Direct loss or alteration of fish habitat during the creation of the

new canal overtop of the existing creek and during the dredging of the Alagash and boat canal in the St. Marys River,

Direct loss of vegetation due to removal of site vegetation during

development, Direct loss of physical wetland due to replacement with proposed

subdivision (fill for lots and roads, canal, etc.), Loss of hydrologic function related to the quantity of water that

enters and is stored in or leaves a wetland, including such factors as reduction of flow velocity and the influence of wetlands on atmospheric processes,

Impact on water quality as wetlands function to trap sediment,

control pollution and treat water as it flows through the wetland, Direct loss of wildlife habitat due to removal of site vegetation, Loss of wetland habitat (physical environment in which plants

and animals live) that provide food, water and shelter for fish, birds and mammals and serves as breeding grounds and

28 PL130890

nurseries for many species

[97] Following this list of potential long term impacts is a list of potential mitigation

measures which concludes with the following statement:

Cold Water Consulting Ltd. has addressed all concerns relative to phosphorous loading, stagnant water in the canal, flooding and hydraulic functions of the wetland (Pointe Estates Hydrogeological and Hydrologic Analysis, September 2008). Based on this information and the mitigation methods outlined above a portion of the potential long term impact can be managed through the mitigation methods outlined. There will however be some long term residual impact due to development. Specifically there will be a direct loss of wetland, vegetation and associated wildlife habitat due to the site development. These residual impacts must be balanced against the benefits of a new water front development in the City of Sault Ste. Marie that will offer housing and recreational opportunities as well as an increased tax base. (Emphasis added)

[98] The development proposal of the Applicants was evaluated by the staff of the

Conservation Authority which issued a report dated April 6, 2010 entitled Proposed

Pointe Estate Subdivision Assessment. It provides the following recommendation:

The Sault Ste. Marie Conservation Authority must assess the consequences of permitting this development in relation to the impacts it will cause under its mandate as provided by Ontario Regulation No. 176/06 and whether these consequences are acceptable to the CA Board and the intent of the Regulation. On the basis of the above surficial assessment of this proposed development, it is recommended that the application be denied based on the following:

a) The mandate of the Conservation Authority is to conserve, protect, maintain and rehabilitate the natural environment in lands under its jurisdiction. This application is counter to that mandate;

b) The application has failed the test of Conservation of Land in respect to the proposed destruction of a wetland. The presence of the wetland, its functions and the associated habitat and biodiversity features of this area are considered important natural features that in their current state provide the hydrological and ecological functions important to this watershed;

c) The wetland located on the site of the proposed development is significant to the local area in that it has a significant flood attenuation function and water quality improvement benefits for the immediate area and the Great Lakes System;

29 PL130890

d) Although the wetland is not a Provincially Significant Wetland it is the fifth highest rated wetland in the Sault Ste. Marie area, it is in close proximity to Lake Superior/St. Marys River coast, and it ranks fifth in land mass that it covers;

e) The Sault Ste. Marie Conservation Authority does not assess the economic implications of this type of proposed development but can say that in the past, the value of wetlands from an economic view point has been understated and that more recently their value is being appreciated for their function in treating water, flood attenuation, erosion control and biological life support. Provincial and international directives and policies specifically require countries to commit to the protection of wetlands. A wetland cannot be created to replicate the 60+ functions of an existing wetland which all go towards promoting a cleaner environment and healthier community. Regardless of size every wetland has a significant associated value;

f) The implications to water resources by this development have not been fully assessed and considering the background information on these impacts it is unlikely that the Board can expect that the developer will scientifically negate these concerns at this time. Mitigative measures proposed by the Applicant rely on considerable voluntary agreement by the homeowners and significant financial outlays by them to maintain some of the solutions;

g) The comments from agencies, Sault Ste. Marie Conservation Authority staff and the neighbouring public indicate many concerns that this development has not or likely cannot address;

h) If the wetland is destroyed the hydrologic function will cease.

(See Exhibit 6, Tab 30.)

[99] Exhibit 3, Volume 6, Tab 38 contains the resolution of the Board of the

Conservation Authority with regard to this matter dated as of December 13, 2012:

Resolved that the Sault Ste. Marie Conservation Authority Board approves the application of Jeff and Dr. Patricia Avery (1704604 Ontario Ld.) under Regulation 176/06 for a proposed 91-lot residential subdivision (to be known as Pointe Estates) to be located on (and in the vicinity of) vacant properties at Civic #179 and 227 Pointe aux Pins Drive.

[100] Thus the Conservation Authority approval came without any conditions of

approval.

CITY STAFF REPORT

[101] With the approval of the Board of Directors of the Conservation Authority in hand,

30 PL130890 the development applications proceeded at the City.

[102] By report dated July 15, 2013, the Citys Director of Planning Mr. McConnell

made his recommendations to Council with regard to the proposed development for the

Subject Land. The report notes that the Applicants are requesting two approvals: a)

for the Official Plan Amendment Rezoning, Draft Plan of Subdivision and Draft Plan of

Condominium for a 91-lot single detached real estate subdivision; and b) that approval

of the development application would require the closing of a portion of Alagash Drive

and the construction of a new road access at 248 Pointe Louise Drive and that the

closure of the road was the subject of a separate application which appeared

elsewhere on the Council Agenda.

[103] The City staff had duly circulated and processed the development applications

and the Staff Report attached as Appendices responses from the MMAH, the Algoma

Public Health Unit, the Sault Ste. Marie Airport Development Corporation, the

Conservation Authority, internal departments at the City, the school board, and also

from the St. Marys River Binational Public Advisory Council, the PPA and various

members of the public at large.

[104] The McConnell report paid particular attention to the comments provided by the

MMAH dated June 3, 2013.

[105] The MMAH letter makes specific reference to matters of provincial interest

outlined in s. 2 of the Planning Act and also to s. 3 of the Planning Act as it relates to

the Provincial Policy Statement.

[106] With regard to the Provincial Policy Statement, the MMAH encouraged the City to

review the provisions of PPS 2005, s. 1.1.4 specifically ss, (a) relating to limited

residential development. Further the MMAH letter stated that the proposed

development application and supporting materials must be reviewed for its consistency

with regard to s. 2.0 Wise Use and Management of Resources of the PPS 2005. The

MMAH letter indicated that:

31 PL130890

We note that the proposed OPA to allow the development of 91 lots by plan of subdivision is not in keeping with the policy direction of the Citys Official Plan. The Official Plan states that all future residential growth within the City can be accommodated on lands already committed to development within the existing Settlement Area (Section 2.3) and identifies that no new estate residential plans of subdivision will be permitted within the City of Sault Ste. Marie Rural Area designation (Section 2.3). (Emphasis added)

[107] The McConnell report dealt directly with each of the comments from the MMAH.

[108] By way of background, the McConnell report outlined the Point Louise shoreline

area was developed in the 1940s and 1950s. Subsequently in the 1960s a 25-lot

subdivision was created on the north side of Alagash Drive and Pointe Louise backing

onto the existing man-made canal.

[109] The McConnell report then laid out the development proposal for the 91-lot

subdivision with each lot having direct access onto both a municipally owned road and

a canal with boating access to Lake Superior. The canal would be a key feature of the

subdivision being over two kilometres long and about 35-40 metres wide. Additionally,

the development proposal sought to widen the mouth of the existing Alagash Canal,

through the removal of the existing culvert.

[110] The proposed lots would range in size from 0.5 ha to 0.95 ha. Access to the

Subject Lands would be proposed from Dagleesh Drive and a new road would connect

Pointe Louis Drive to Pointe aux Pins Drive. The McConnell report then considered the

Citys Official Plan. It noted that the Subject property is designated Rural Area. It

noted that when the Citys Official Plan was approved in 1996 the creation of new rural

residential lots was prohibited. It noted in 2009 the City Council had approved Official

Plan Amendment No. 167 which allowed the approval of one new lot for each existing

Rural Area lot without the need for an official plan amendment. New un-serviced estate

residential plans of subdivision were not permitted and therefore if approval were

granted by the City for this application, that this would require an official plan

amendment (thus exempting the Subject Lands from the otherwise applicable policies

of the Official Plan). The McConnell report then stated that the City Councils decision

32 PL130890 must be consistent with the Provincial Policy Statement and that the MMAH has

provided its commenting letter with regard to the development applications and has in

fact specifically highlighted a number of provisions of the Provincial Policy Statement.

The McConnell report then specifically itemized each of the comments received from

the MMAH and provided comments as they related to those policy sections highlighted

by the MMAH.

[111] Having considered the Provincial Policy Statement policies, the McConnell report

concludes with the following comments:

This application was reviewed with regard to the Provincial Policy Statement which sets out the provincial requirements for land use planning in Ontario. Given that there is a demand for this type of development which cannot be accommodated within the Citys Urban Area and that all technical requirements have been met, this request conforms to the policies and intent of the Provincial Policy Statement. It should be noted that approval of this application would not result in the loss of lands that are set aside for future Urban or Rural development purposes, will not result in the extension of municipal services or create conflicts with existing agriculture or other Rural land uses. The wetland on this Property is not provincially significant. Although there will be a net loss of wetland, there will be a significant increase in fish habitat. Technical studies indicate that the development will not create any water or sewage quality concerns. This application also requires approval from the Conservation Authority, Department of Fisheries and Oceans, Ministry of the Environment, Ministry of Natural Resources and Algoma Health Unit. The conservation Authority granted approval for a construction of the subdivision (roads, canals, etc.) on December 13, 2012. This approval is currently the subject of a judicial review which will be heard in October. A separate approval will be required for each lot that is regulated by Ontario Regs. 176/06 prior to the issuance of a building permit. The development was approved by the Conservation Authority without conditions. City Staff is recommending that municipal approval be subject to a detailed development plan to be prepared by a qualified engineer describing the construction techniques to be used and advising of compliance of all applicable regulations. This plan will integrate the recommendations of the various studies submitted in support of this application to ensure that construction is on a best practice basis. This plan should also determine an appropriate water monitoring program to be followed by a condominium association.

[112] Following this summation, the McConnell report included the recommendation for

33 PL130890 approval of the 91-lot rural estate subdivision with some 12 conditions of approval.

CITY COUNCIL

[113] The matter came before City Council on July 15, 2013 at which time City Council

following public deputations , considered the matter and denied the applications.

Subsequently the Applicants appealed all matters (save and except the municipal road

closing) to the Board.

MATTERS OF PROVINCIAL INTEREST

[114] Section 2 of the Planning Act sets out matters of provincial interest that the

Minister, the Council of the municipality and the Board shall have regard to.

Specifically s. 2 sets out the following: a) the protection of ecological systems,

including natural areas, features and functions; c) the conservation and management of

natural resources and the mineral resource base; l) the protection of the financial and

economic well-being of the province and its municipalities; and v) the appropriate

location of growth and development.

[115] The Applicants propose that it would not be possible to create such a unique

lifestyles community within the existing Urban Settlement Area of the City. The

Applicants submit that there is a demand for such a lifestyles community, that the

coastal wetlands are not significant coastal wetlands, that there is an existing

settlement in the immediate vicinity of the Subject Lands, that the approval of the

development applications would result in an economic benefit to the community of over

$100 million, that there would be a benefit that would arise from the widening and

refurbishing of the existing Alagash Canal, that there would be a significant benefit that

would arise from the removal of the culvert at the mouth of the Alagash Canal, and that

the provision of Block 100 as an Environmental Management Area with a proposed

fishery spawning area would result in a net fisheries benefit, and all with the use of

existing infrastructure that is already in place including: roads, water, hydro, gas,

garbage pickup, emergency services, etc.

34 PL130890 [116] The City, the PPA, and Mr. Oswald disagree. They submit that the approval of

the proposed development would result in the destruction of approximately 77% of the

48.54 ha of coastal wetland, that these coastal wetlands fall within the St. Marys River

Area of Concern identified in 1985 by the International Joint Commission as part of the

Great Lakes Water Quality Agreement signed by the United States of America and

Canada to protect and enhance the water quality of the Great Lakes and to promote the

ecological health of the Great Lakes Basin. Additionally they submit that the

appropriate location for a 91-lot high end lifestyles community and condominium is not

on 48.54 ha of coastal wetland, which is located several kilometres from the existing

Urban Settlement Area of the City.

PROVINCIAL POLICY STATEMENT 2014

[117] There are a number of provisions in the 2014 PPS that were brought to the

attention of the Board by a number of the parties. First and foremost by the Applicants

and by Mr. McConnell, the Director of Planning for the City, was the introduction of

geographic scale of policies found within Part 3 of the Provincial Policy Statement. It

states the following:

The Provincial Policy Statement recognizes the diversity of Ontario and that local context is important. Policies are outcome-oriented, and some policies provide flexibility and implementation provided that provincial interests are upheld. While the Provincial Policy Statement is to be read as a whole, not all policies will be applicable to every site, feature or area. The Provincial Policy Statement applies at a range of geographic scales. Some of the policies refer to specific areas or features and can only be applied where these features or areas exist. Other policies refer to planning objectives that need to be considered in the context of the municipality or planning area as a whole, and are not necessarily applicable to a specific site or development proposal.

[118] The Applicants and the Citys Director of Planning Mr. McConnell submit that

Exhibit 20 An Introduction to the Provincial Policy Statement 2014: Northern Ontario

Draft for Discussion provides insight to the changes to the 2014 PPS. At page 1 under

Context the draft for discussion states: the Provincial Policy Statement 2014 has

35 PL130890 been revised to better reflect, among other things, the needs and unique circumstances

of Northern Ontario, many areas of which are rural.

[119] The Applicants and Mr. McConnell specifically refer to Policy 1.1.5.2 which

provides the following: On rural lands located in municipalities, permitted uses are: a)

the management or use of resources; b) resource based recreational uses (including

recreational dwellings); c) limited residential development; d) home occupations and

home industries; e) cemeteries and f) other rural land uses.

[120] In Exhibit 20, (the draft for discussion) page 23 speaks specifically to the term

limited residential development. It points out that limited residential development is

not defined in the Provincial Policy Statement and that limited residential development

may be permitted if it meets the criteria set out by the other rural lands policies. Exhibit

20 states that one standard definition of limited residential development may not be

meaningful or appropriate for all Ontario communities and that individual communities

should identify how much development is limited within the context of local conditions

and sets out some considerations which include: i) population; ii) character; iii) land

use patterns and density; iv) proximity of settlement areas; v) type and availability of

infrastructure and public service facilities; vi) presence of natural resources; and vii)

presence of natural features and areas.

[121] The Applicants and Mr. McConnell submit that the geographic scale of policies

means that all provisions of the Provincial Policy Statement are not necessary or

applicable to a specific site or development application. With regard to limited

residential development Mr. McConnell admitted that a 91-lot subdivision is a big

subdivision for the City. He stated that demand for lots in the City over the last ten

years is usually about 100 units per year of which 30 are in the Rural Area. Here for

the 91-lot subdivision, it is proposed that the absorption rate would be between 7 to 12

units per year or about 9 on average and that if the development application were

approved it would put the 9 new units per year in the Rural Area into one area that

already has over 200 dwellings. He stated that Point Louise is a residential area now

36 PL130890 although it does not meet the 2014 PPS definition of a Rural Settlement Area but it

would be an expansion of that existing community. Therefore he was of the view that

this was limited residential development.

[122] With regard to the issue of wetlands, Mr. McConnell stated that there were 1,567

hectares of wetlands within the municipal boundaries of the City, that in his calculation

there would be the loss of about 40% of the wetlands on the Subject Lands, which

would result in a net loss of about 1% of the Citys total.

[123] Mr. McConnell testified that the 2014 PPS recognizes the diversity of

communities in Ontario and that while Southern Ontario had paved over at least

90% of its wetlands, in Northern Ontario, which is bigger than the whole country of

France, if you looked at this property and the City as a whole it was less than 1% of the

total wetlands and although there was some loss and some negative impact that there

would be a substantial gain of fisheries habitat, was the overall result negative? I dont

think so.

[124] Mr. Oswald has a different starting position with regard to the 2014 PPS. His

submissions took the Board to a new provision of the 2014 PPS (s. 4.13) which states

the following:

Within the Great Lakes St. Lawrence River Basin, there may be circumstances where planning authorities should consider agreements related to the protection or restoration of the Great Lakes St. Lawrence River Basin. Examples of these agreements include Great Lakes Agreements between Ontario and Canada, between Ontario and Quebec, and Great Lakes States of the United States of America and between Canada and the United States of America.

[125] He submitted that the wetlands on the Subject Lands fall within the definition of

coastal wetlands found within the 2014 PPS and more specifically he referenced the

Board to Section 2: Wise Use and Management of Resources in the 2014 PPS which

now includes in its introduction the following:

Ontarios long-term prosperity, environmental health and social wellbeing

37 PL130890

depend on conserving bio-diversity protecting the health of the Great Lakes.

[126] Mr. Oswald argued that although the Subject Lands were not found to be a

Provincially Significant Wetland or a Significant Coastal Wetland, the PPS 2014 states

in 2.1.5 the following:

Development and site alteration shall not be permitted in: f) coastal wetlands in eco regions 5e), 6e) and 7e) that are not subject to Policy 2.1.4(b) unless it has been demonstrated that there will be no negative impacts on the natural features or their ecological functions. (Emphasis added)

[127] In that regard he pointed to Exhibit 51A/B (appended hereto as Attachment 1)

and outlined the significant destruction of approximately 37.2 ha of coastal wetlands,

and that this could only be regarded as a negative impact.

[128] Counsel for the PPA submits that the Applicants and Mr. McConnell have it

wrong with regard to the application of 2.1.5 of the Provincial Policy Statement. She

states that all the parties agree that the Subject Lands are found within Eco Region 5E.

As such there are no Northern Ontario special needs or unique circumstances

which are applicable here. She submits that the policy section is abundantly clear that

coastal wetlands shall not have development or site alteration unless it has been

demonstrated that there will be no negative impacts on the natural features or their

ecological functions. In this regard she too pointed to Exhibit 51A and 51B prepared by

Peter Gagnon, the President of the PPA. Exhibit 51A is the background document

prepared by the City over which is Exhibit 51B being the draft plan of subdivision as laid

out on Exhibit 19 (See Attachment 1).

[129] The evidence of Mr. Gagnon, as a former forester, is that he used what the

Board will refer to as old school technology to examine the impact of the proposed

development on the Subject Lands on the existing wetland. He did an area calculation

based on a dot/grid methodology on a block by block basis and concluded that 37.2 ha

of the existing 48.5 ha of coastal wetland would be destroyed by the proposed

development. He testified that this would be 77% of the wetland on the Subject Lands.

38 PL130890 [130] Thus counsel for the PPA submitted that s. 2.1.5 of the Natural Heritage Policy

could not be met by this application as it would appear that about 77% of the coastal

wetland on the Subject Lands would be destroyed due to development.

FINDINGS

[131] As noted above, during the course of this hearing, the Board heard evidence

from over 20 witnesses: some lay and some expert. After reviewing the evidence and

considering the submissions of counsel, the Board has undertaken an independent

assessment of all of the oral evidence, and an independent assessment of all of the

studies, reports, and other written and electronic documents that form the record of the

hearing.

[132] The Board has juxtaposed all that evidence against s. 2 of the Planning Act, the

2014 Provincial Policy Statement, the Citys Official Plan, the Citys Zoning By-law, and

s. 51(24) of the Planning Act.

[133] Having done so, the Board has found that the development applications do not

have the appropriate regard for s. 2 of the Planning Act, are not consistent with the

Provincial Policy Statement, do not conform to the Official Plan, and do not represent

good planning. In reaching this decision the Board has preferred the evidence of the

respondents, and particularly that of Peter Gagnon. Notwithstanding all the resources

available to the Applicants and the City Planning Department, Mr. Gagnon did what no

land use planner called by the Applicants did: he took the Citys Drainage and Elevation

Overview (Exhibit 51A) depicting the extent of the wetlands on the Subject Lands and

created a transparent overlay of the draft plan of subdivision. With this overlay he alone

was able to calculate the loss of wetlands from the proposed development. .

[134] The Board has had the opportunity to hear, test, and review all of the evidence

that it heard. That review and testing, when applied particularly to the settlement and

wetland policies of the Provincial Policy Statement, and the Citys Official Plan, reveals

as Attachment 1 to this decision illustrates, that there will be a substantial loss of

39 PL130890 approximately 77% of the coastal wetland. Thus the Board acknowledges that it has

preferred the lay evidence of Peter Gagnon over the opinion evidence of the Applicants

land use planner and that of Mr. McConnell.

[135] The Board, as set out below, finds that result to simply not have appropriate

regard for the provincial interests set out in s. 2 of the Planning Act, be inconsistent with

the PPS, be contrary to the Official Plan, and not represent good planning.

S. 2 PLANNING ACT

[136] The Board pursuant to s. 2.1 of the Planning Act is required to have regard to

both the decision of municipal council and the information and materials that were

before it at the time it made its decision. The Board has considered both City Councils

decision and the information and materials that were before it at the time it made its

decision and has made the following findings.

[137] The Board finds that the development applications as put forward do not have

appropriate regard to the protection of ecological systems including natural areas

features and functions pursuant to s. 2(a) of the Planning Act nor do the development

applications provide for the appropriate location of growth and development being

located several kilometres beyond the existing Urban Settlement Area boundary and

substantively within the existing coastal wetland, contrary to s. 2(a) and (p) of the

Planning Act.

PROVINCIAL POLICY STATEMENT

[138] With regard to the 2014 PPS, s. 3(5) of the Planning Act requires that the

exercise of any authority that affects a planning matter shall be consistent with the

Provincial Policy Statement. The Board finds that, although the 2014 PPS was clearly

revised to provide specific considerations for Northern Ontario communities, with

regard to coastal wetlands on the Subject Lands, those coastal wetlands are within Eco

Region 5E, and that is not a Northern Ontario issue. It is a Province of Ontario issue,

40 PL130890 and one that is the subject of the International Joint Commission. The Provincial Policy

Statement specifically provides that development and site alterations shall not be

permitted in coastal wetlands in Eco Region 5E unless it has been demonstrated that

there will be no negative impacts on the natural features or their ecological functions.

[139] The Board finds that coastal wetlands are within Eco Region 5E and the Board

finds that approval of the proposed development applications would result in the

destruction of approximately 37.2 ha (or about 77%) of the coastal wetlands on the

Subject Lands. The Board uses the word approximately for two reasons: first it would

appear from Exhibit 65 that there are some uplands included within the wetland

complex without any explanation, and secondly based on the dot/grid methodology.

[140] While the Applicants attempted to discount that loss of wetland by indicating only

some portions of the wetlands areas would be subject to fill, that would appear to the

Board to be inconsistent with the other provisions of the reports of the Applicants where

it is noted that the top of the canal bank will be set 1.5 metres above the 100-year

return period water level of 184.4 metres (see Exhibit 3, Volume 3, Tab 24, page 82 at

the top) which if contrasted to Exhibit 19 (being the Draft Plan of Subdivision) the

topographic notations show that none of the existing Subject Lands currently exceed

185.9 metres.

[141] Counsel for the Applicants called a civil engineer in reply evidence: the gist of

which was that the loss of wetland as proposed by the President of the PPA was

overstated and that in his opinion the loss of wetland would only be between 10 to 20

ha, and not the 37.2 ha as calculated by Mr. Gagnon. The Board ascribes little weight

to this evidence as in cross-examination by Mr. Oswald the witness admitted that he did

not take into account the fact that the top of the canal bank would be set at 1.5 metres

above the 100-year return period water level of 184.4 metres.

OFFICIAL PLAN

[142] With regard to the Official Plan, the Board finds that the proposed Official Plan

41 PL130890 Amendment is contrary to the Citys Official Plan as it is located outside the existing

Urban Settlement boundary. It is also contrary to s. 2.3.6 Rural Area Policy RA-11

which states that new un-serviced estate residential plans of subdivision are not

permitted in the Rural Area. The Board finds that the establishment of a 91-lot estate

residential (lifestyles) plan of subdivision does not constitute limited residential

development as in the ordinary course the City would expect 100 new lots a year, and

as Mr. McConnell stated, a 91-lot plan of subdivision is a big development in the City.

[143] The Board finds that the proposed development is also contrary to the Wetlands

Policies of the Official Plan including: W3 Permitted Uses in wetlands that are not

Provincially Significant include passive or low intensity recreational uses, fish and

wildlife management and forestry provided that such land uses maintain and enhance

the natural functions and area of the wetland.

[144] A 91-lot residential plan of subdivision is not in the Boards opinion a passive or

low intensity recreational use.

[145] Policy W5 states that development shall only be permitted in wetlands that are

not Provincially Significant where there is i) no loss of wetland functions; ii) no

encouragement for future development that will impair wetland functions; iii) no conflict

with specific wetland management practices. The Board finds that there will be a

considerable amount of coastal wetland destroyed by the proposed development,

which is contrary to this policy provision.

[146] Policy W6 states that the loss of any wetland areas shall be made up by the

creation and/or dedication of other wetland areas. The evidence before the Board is

that there will be the loss of approximately 77% of the wetland. While the development

applications, if approved, would provide for some form of enhanced fisheries habitat

due to the refurbishment of the existing Alagash Canal and a fish spawning area, that

does not trump the destruction of a significant portion of a coastal wetland that is of

interest both to the Province of Ontario, the Government of Canada and through the

42 PL130890 International Joint Commission, the United States of America.

DRAFT PLAN OF SUBDIVISION AND DRAFT PLAN OF CONDOMINIUM

[147] The Board is required pursuant to s. 51(24) to have regard to the criteria laid out

in s. 51(24) of the Planning Act.

[148] The Board has done so and the Board finds that:

a) the development applications do not have appropriate regard for the effective

development on matters of provincial interest as is referred to in s. 2 of the

Planning Act;

b) that the proposed development is not in the public interest as it relates to the

loss of coastal wetland;

c) that the plan does not conform to the official plan;

d) that the suitability of the lands for which it is