Update: Jan. 9, 2020

As of Jan. 9, the Department of Planning, Building and Licensing has officially received the LPAT order formally rescinding the Aug. 9, 2019 decision and ordering a re-hearing of the case. A copy of the order can be found on the LPAT website by searching for case no. PL170714.

On Dec. 23, 2019, the Province’s Local Planning Appeal Tribunal (LPAT) indicated their intention to rescind a recent ruling relating to building proposals for a 19-storey building at 51-57 Queen St. (“Block 3”) and a 23-storey building at 18 Queen St. and 282 Ontario St. (“Block 5”), both part of the North Block. It is expected that an Order will be issued to this effect by the LPAT in the near future.

This Dec. 23 letter was issued in response to the “Section 35 Request for Review” that was submitted by Homestead Land Holdings, the company proposing to construct these buildings.

The planning proposal, supported through Minutes of Settlement approved by City Council, was appealed to the LPAT by the Frontenac Heritage Foundation and a hearing on the matter took place in February 2019. On Aug. 9, 2019, the Tribunal ordered 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. The Tribunal also 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 incompatible with the surrounding built context. (LPAT Case No. PL170714).

Under its governing statute, the LPAT “may review, rescind or vary any decision or order made by it in accordance with the rules.” This authority is further refined by the Rules of Practice and Procedure for the LPAT (the “LPAT Rules”), which allow for the review of a decision or order and a rehearing of the matter if warranted. Procedurally, a rehearing does not take the parties back to the outset of the planning process. It only brings the parties back to the initiation of the hearing before the LPAT.

A rehearing of a decision of the LPAT is a “rare and extraordinary remedy” which may only be granted if the request submitted raises a "convincing and compelling case" that one of the permitted reasons for review set out in the LPAT Rules has occurred. One basis for review arises when:

“…the request for review raises a convincing and compelling case that the Tribunal… made an error of law or fact such that the Tribunal would likely have reached a different decision…”

The Dec. 23 letter indicating the intention of the LPAT to order a new hearing and rescind the LPAT ruling of Aug. 9 was issued by Maria Hubbard, associate chair of the LPAT, who determined that there had been errors with the original ruling. More specifically, she outlined that there were errors in the Official Plan’s interpretation that could have otherwise led to a different outcome.

Associate Chair Hubbard also found there was insufficient regard for the Minutes of Settlement dated Sept. 4, 2018, which were entered into by Homestead and the City of Kingston, and insufficient consideration of the evidence provided by the City through the hearing.

Associate Chair Hubbard’s letter in response to the Request for Review outlined several key points related to the applicable planning policy under consideration. They include:

• The LPAT found that the initial analysis of the Official Plan (OP) was incorrect, specifically failing to consider the OP as a whole rather than in a specific interpretation;           
• The LPAT found that there are number of policy objectives that were not considered or balanced against the issue of height – specifically brownfield, infrastructure, housing supply, intensification and the North Block policies (specifically that this area is not a heritage designated area); and,
• The LPAT also determined that the hearing officer made an error of law when the subjective assessment made by the City that the development was compatible with surrounding development was not properly factored into the assessment of OP compatibility.

As a result, a new hearing of the application will be ordered, which will rescind the Aug. 9 LPAT decision. Dates for the re-hearing will be set once the parties to the appeal (the City, the Frontenac Heritage Foundation and Homestead Land Holdings) have held a case management conference in early 2020. An Information Report with greater detail on the Section 35 decision will be presented at Council on Jan. 21, 2019.

As always, staff are monitoring this case and will provide updates as more information is known. In the meantime, do not hesitate to contact the City if you have any questions.

Smart densification affects us all!

Situations like the North Block LPAT appeal illustrate the need for clear, consistent building policies. That’s why we’re looking for your ideas for mid-rise and tall building design!

Density by Design is the City’s consultation for a mid-rise and tall building design policy that will help clarify and guide the future development of buildings in Kingston to ensure compatibility with existing development.

Through consultation with community members and stakeholders, we’ve drafted an Issues and Options report, which residents can view online. You can also visit Get Involved Kingston to share your thoughts and participate in a Height Mapping exercise.

Questions? Don’t hesitate to reach out to the Planning Department or find us at the Climate Change Symposium on Jan. 16!

Density by Design will complement other work the City is doing to support intensification and will provide clear direction on the design of mid-rise and tall buildings in the City. It will result in the preparation of draft policies for inclusion in the Official Plan and we need your input to make sure these policies work for Kingston!