Over the past week I have received many questions from residents, seeking to understand the recent decision from the Local Planning Appeal Tribunal (LPAT) regarding the lands referred to as Block 3 and Block 5 of the “the North Block.” These properties are just east of City Hall and west of the Leon’s Centre.  The initial hearing, for which the August 9 LPAT ruling was made, was originally held in February 2019.

Staff had presented settlement recommendations, reached by City staff and Homestead to City Council in closed session on August 7, 2018. Council approved the recommendations and Minutes of Settlement were entered into on September 4, 2018.

At just over 45 pages, the decision contains a lot of technical information and many people may understandably find it confusing. As a result, many community members want to understand this decision’s impact on the downtown and the city as a whole. The hearing was two weeks long and included hundreds of pages of technical analysis and evidence provided by a number of qualified professional and community participants. It is my hope that the following post will help to clarify some key findings of the recent LPAT decision and also include of path of how we can move forward as a smart, livable and leading city.

Can LPAT rulings set a legal precedent?

The first major question here is whether this decision sets a precedent. In other words, can this ruling guide future planning decisions through a municipal Council or a Provincial Tribunal like the LPAT (formerly the Ontario Municipal Board)? According to the Regional Planning Commissioners of Ontario, “a decision related to a particular building or site should not bind future decisions, even where the context is similar. If OMB decisions were bound by precedent, the accumulation of OMB decisions would soon entirely supersede municipally-led comprehensive planning” (RPCO, 2016). Consequently, all cases heard by the LPAT will be judged on their own merits and will not impact future rulings.

A former LPAT case concluded with a similar question on precedent. The following excerpt further explains the LPAT’s position:

It is submitted by some party to almost every hearing before this Board, that this decision will create an inappropriate precedent. On this issue the Board must note that one panel of this Board is not bound by the decision of another panel; each case which comes before the Board has a unique set of facts; each case must be decided on its merits, taking into account the policy regime in effect at the time of the application (Case No PL070056, 2008).

The LPAT’s ruling explained

The Tribunal found that the proposed Official Plan and the Zoning By-Law amendments for the North Block were consistent with the Provincial Policy Statement (PPS) and conformed to all applicable Official Plan policies, except Section 10A.4.7.

Section 10A.4.7 of the Official Plan allows for taller buildings within the Downtown and Harbour Area if:

• The building is compatible with the massing of surrounding buildings;
• It does not create unacceptable amounts of shadowing; and,
• It meets the land use compatibility policies of the Official Plan.

The Tribunal found that the proposed buildings “would create undue adverse effects that have not been sufficiently mitigated, specifically visual intrusion and architectural incompatibility.” In summary, the tribunal member found that the proposed height of Blocks 3 and 5 of the North Block were too tall for the surrounding built context.

A City never truly knows how effective or clear planning policy is until it is tested against actual land use proposals and, to a greater degree, argued before a land use tribunal. The recent decision by the LPAT for Block 3 and Block 5 of the North Block has reinforced some recurring challenges with the City’s current Official Plan: clarity and intent.

In the case of this recent tribunal decision, a lack of clarity in some key policies of the Official Plan policy led the tribunal member to make an interpretation of ‘visual intrusion’, which resulted in a decision that dismissed the appeal and settlement that had been reached by the applicant and City Council. More prescriptive Official Plan policies would be able to offer additional clarity on parameters such as “visual intrusion,” therein reducing the need for potentially subjective interpretations.  

What’s next for City Planning?

In many ways, this recent LPAT ruling confirmed that we’re moving in the right direction as a City. In addition to confirming that the revised building proposal was consistent with the Provincial Policy Statement  and all applicable policies of the Official Plan (with the exception of the one policy noted above), the Tribunal identified a number of positive points:

• The municipal art gallery, proposed as a community benefit, was deemed appropriate and in conformity with the Official Plan.
• The decision affirmed the City’s intention for the North Block to support and encourage redevelopment and intensification.
• The decision acknowledged the City’s careful approach toward North Block re-development through the investment of significant time and effort that led to the agreement.
• The decision also acknowledged that there must be circumstances where the criteria in Section 10A.4.7 of the Official Plan can be met which would permit heights above 25.5 metres (9 storeys).
• The decision asserted that viewing the outline of the City Hall dome with a building two blocks behind it would not necessarily conceal it.
• The Tribunal was not satisfied with opposing evidence that the proposed towers would undermine the City’s heritage or identity, or City Hall’s prominence.

If approved by the Tribunal, these applications would have added 400 new residential units in the core of the City in an area currently containing vacant land and surface parking lots, which aligns directly with the City’s goal of sustainable growth by densification within the urban core. In aspiring to be Canada’s most sustainable City and, in context of a declared climate change emergency, is it essential that we clarify the current Official Plan policy through the Density by Design project that the City has been undertaking alongside Brent Toderian for the past several months. This will require meaningful public engagement on the debate on new policies that will be incorporated into the Official Plan.

Please join the conversation on this important topic through the Get Involved platform or through public engagement events to follow late in September.

A copy of the decision is available on the LPAT website by searching for Case Number PL170714.