OLT Week 4 Recap: Community Voice & Closing Arguments
This week offered the community groups their turn to provide evidence opposing the development and concluded the hearing with closing arguments.
Monday March 25th, 2024
The week started with Millcroft Against Bad Development (MABD)’s witness Allan Ramsay, a Registered Professional Planner, providing his evidence regarding the planning reasons that make the proposed development incompatible and also contrary to the official plan of the City. Mr. Ramsay was employed by the City of Burlington at the time that the 1997 Official Plan continued the designation of Major Parks and Open Space of the Millcroft Golf Course. Although the Official Plan Amendment 117 was not carried forward in that official plan, Mr. Ramsay provided evidence that the City did not in any way contemplate other designations for the Millcroft Greenspace other than open space. The newly proposed Official Plan of 2020 also continues to designate the Millcroft Golf Course greenspace as Major Parks and Open Space providing continuity in the original intent of OPA 117. Mr. Ramsay, who has vast experience as a witness at the OLT was cross-examined through the balance of Monday and Tuesday as the lawyers for Millcroft Greens attempted to find breaks in Mr. Ramsay’s case against the developer.
Tuesday March 26th, 2024
Mr. Michael Frind, Hydrogeologist and P. Eng., was qualified as a witness on behalf of Millcroft Greenspace Alliance (MGA). Mr. Frind has 20 years’ experience in geoscience and related environmental and water resources engineering realms. He has worked on over 30 projects that required stormwater management expertise in the context of groundwater-surface-water interactions in the context of climate change including flooding pursuant to land use changes. Mr. Frind’s projects have included clients such as the Ontario Ministry of the Environment where he reviewed water takings (Permit to Take Water) sustainability in the context of climate change and modelling or reviews of modelling in the context of climate change for Oxford County, Region of Waterloo, Town of Dorchester, Melancthon Township and BC Ministry of Forests.
Wednesday March 27th, 2024
Mr. Michael Frind provided his evidence with respect to the proposed development application as it relates to stormwater. Mr. Frind provided background information on the original engineering and design of the golf course to serve as a low-impact development technique or green infrastructure as stated in OPA 117 to remain in perpetuity. Using studies dating back to the 1977 Dillon Engineering Report as well as other engineering reports from the early 1980s, the plan for the design and grading of the golf course lands as well as the on-line pond were established. Mr. Frind also described the 2014 Burlington Flood event and the impact that it had in the Appleby Creek Watershed. He spoke about the Amec Foster Wheeler Report which showed that the golf course acted as designed as a floodplain for the neighbourhood. Mr. Frind expressed his concern for the modelling technique used by the developer which considers limited data inputs and a model that is outdated. The modelling used by the developer focusses on riverine flooding which accounts for only 3% of flooding in Ontario. This is the same modelling that Conservation Halton used in it’s East Burlington Creek Study.
Mr. Frind spoke addressed Public Safety Canada and its report “Adapting to Rising Flood Risk, A Report by Canada’s Task Force on Flood Insurance and Relocation,” (August 2022) and the Auditor General of Ontario’s Report “Climate Change Adaptation: Reducing Urban Flood Risk”, (November 2022) that relied on more comprehensive modelling that considers surface and sub-surface components to assess the potential impacts on flooding probability. Mr. Frind suggested that this type of comprehensive modelling is required for the area of proposed development considering its history of flooding and the interaction of the existing neighbourhood with the proposed development. In Mr. Frind’s opinion, the modelling completed by Urbantech does not properly consider future precipitation inputs nor the proper surface, sub-surface interactions.
Mr. Frind recommended three-dimensional, fully integrated, high-resolution, whole-watershed modelling, extensive fieldwork to determine existing homes foundation drainage systems and a complete revision of precipitation inputs to include the latest science on acceleration of climate change in the interest of public safety.
Thursday March 27th, 2024
The final day of the hearing featured the closing arguments of the Developer, the City, and the two community groups.
Millcroft Greens started closing arguments with their legal opinion. In their presentation, they quoted comments from a former OLT Chair, Member Chapman, in the Abingdon Meat Packers case:
“I would like to make a couple of general statements about the way the Board reaches its decisions. We can't make decisions with our hearts, because once you do that, you make bad decisions. We do not make decisions arbitrarily because to do that, you need the wisdom of Solomon and very few people have that. What we do is get the facts which are obtained from the evidence or any reasonable inference that can be drawn from that evidence and then apply the law of the land, including approved government policy. Whatever decision we arrive at doing that is the one we are obliged to give. “
Millcroft Greens objected to privately owned recreational space being treated the same as a publicly owned park. They believe that approving the proposed development serves the purpose of housing, preserving the golf course and improving the local character and natural environment.
Millcroft Greens lawyers highlighted previous tribunal cases where former golf courses were approved for development. They also argued that it is onerous for a private land owner to be prevented from developing their land in perpetuity.
The City of Burlington was next up with their lawyer, Isaac Tang, making the closing argument.
The City spoke about how the proposed amendments disproportionately impact the Millcroft Community:
373 mature trees to be removed
43% of the lands in areas A-D would be transformed into impermeable surfaces
Direct impact to 115 adjacent homes
Permanent removal of valuable open space lands despite the original designation of OPA 117
The impacts from the development proposal are expected – the development proposed has not demonstrated that the merits outweigh the impacts.
The Proposed Amendments Do Not Satisfy the Applicable Policy Framework
Golf Course Conversions Relied Upon by Millcroft Are Not Comparable
The Dangers of Setting a Negative Precedent for Major Parks and Open Space Lands.
The City provided context to the prior OLT cases where golf courses had been approved for development. In all cases but one, the golf courses had been inactive for years and/or in receivership with the exception of Kanata which presented an overall subdivision approach to its application.
In sum, the City respectfully requests that the Tribunal dismiss the appeal in its entirety, subject to the alternative submissions made in argument should the Tribunal find otherwise for Areas A-D and Area E. Based on the evidence before the Tribunal, the Proposed Amendments do not meet the necessary statutory tests, including conformity with the Growth Plan and consistency with the Provincial Policy Statement (PPS) 2020, does not represent good planning and is not in the public interest.
Millcroft Greenspace Alliance (MGA) presented their closing submission next with Mr. David Donnelly, an experienced Environmental lawyer, presenting the legal case to request relief. His comments included:
Case law shows the onus is on the Applicant to prove their case, that it meets the tests of the Planning Act, the Provincial Policy Statement (“PPS”) and Official Plans. The evidence in this case does not demonstrate the significant loss of open space, flood attenuation and trees, plus the introduction of new impermeable surfaces, will protect public health and safety.
OPA 117 is good engineering, whatever its current status. The golf course, its fairways, greens and ponds serve an important purpose. In the PPS “How to Read the PPS” states: “The PPS supports a comprehensive, integrated and long- term approach to planning, and recognizes linkages among policy areas.
All the parties seem to agree that the hydrogeology investigation and proposed SWM engineering MAY mitigate RIVERINE flooding in the future; where we part is that my client’s expert has studied URBAN FLOODING (by far the bigger threat, by a factor of 97% or more). With respect, Millcroft Greens does not address this important issue, their onus has not been met.
Further, the Applications do not have sufficient regard for matters of Provincial Interest enumerated in Section 2 of the Planning Act, specifically section (o) the protection of public health and safety and section 51(24) of the Planning Act which describes the criteria for a draft plan of subdivision to include regard for health, safety and welfare of present and future inhabitants.
The Applications are not consistent with the Provincial Policy Statement and do not conform with the A Place to Grow, Growth Plan for the Greater Golden Horseshoe, the Region of Halton Official Plan and the City of Burlington Official Plan (1997). Further the Applications do not have sufficient regard to the City of Burlington Official Plan (2020) that is under appeal.
The Applications do not represent good land use planning, are not in the public interest and should not be approved.
Part III of the Provincial Policy Statement, entitled, “How to Read the Provincial Policy Statement,” states:
The provincial policy-led planning system recognizes and addresses the complex inter-relationships among environmental, economic and social factors in land use planning. The Provincial Policy Statement supports a comprehensive, integrated and long-term approach to planning, and recognizes linkages among policy areas.
Policies affecting a changing climate are found in Section 1.8.1 of the PPS: 1.8.1 Energy Conservation, Air Quality and Climate Change
Planning authorities shall support energy conservation and efficiency, improved air quality, reduced greenhouse gas emissions, and preparing for the impacts of a changing climate through land use and development patterns which:
f) promote design and orientation which maximizes energy efficiency and conservation, and considers the mitigating effects of vegetation and green infrastructure; and
g) maximize vegetation within settlement areas, where feasible
Policies affecting a changing climate are found in Section 1.8.1 of the PPS: Section 1.2.1 of the Growth Plan sets out policies for managing growth:
A Place to Grow, Growth Plan, Section 2.2.1 Managing Growth Applying the policies of this Plan will support the achievement of complete communities that:
f) mitigate and adapt to the impacts of a changing climate, improve resilience and reduce greenhouse gas emissions, and contribute to environmental sustainability; and
g) integrate green infrastructure and appropriate low impact development.
Legal Cases that support the Tribunal’s decision to grant relief from the appeal include:
Nelson Aggregates, which held that:
Nelson has not made sufficient provision for the protection of these unique ecologic and environmentally sensitive areas in the event that Nelson’s projections are wrong.
James Dyck Construction Ltd. Vs Caledon:
The Board finds that this means that a proponent of development has the onus of demonstrating no negative impact. Objectors to a development need not demonstrate that there will be negative impact.
The Dyck case also speaks to the precautionary principle, which requires that decisions to approve long-term or even permanent impacts on the landscape must not be made without a high degree of certainty that the impacts will be mitigated. It is important to err on the side of caution, when environmental integrity is threatened.
In this case, the Ontario Municipal Board (“OMB”, predecessor to the OLT) found that there had to be a high degree of certainty about the efficacy of mitigation from the quarry which could have negative impacts on the natural features and functions on the lands around the subject property in order to approve the application. In the present case, a number of experts have raised concerns about the insufficiency of proposed mitigation for the ecological features on the site, and how much is left to later on or site plan phase, arguably not a high degree of certainty and insufficient to constitute good planning.
To read the full closing argument by MGA, click here.
Millcroft Against Bad Development was last to present.
Mr. Kirk Robinson spoke on behalf of members with a community view of the proposed development.
Mr. Robinson raised the following points:
City wide opposition
The golf course lands are intended:
To provide “Major Parks and Open Space” for the community in perpetuity
To act as a flood management system for stormwater events
To provide a home for abundant wildlife
Millcroft Greens rebutted in a particularly defensive way with disparaging comments about lawyers and the cases that they presented and the lack of legal basis for the statement by MABD.
With that, the hearing ended with the OLT Chair thanking everyone for their patience as they prepare their decision over the next three- to six-months.
