Further to my update from Saturday March 7th, I am following up today to provide answers to some frequently asked questions that have been asked by the community. I hope that by consolidating these questions and answers in one place, it will ensure clear communication with our community and help you understand what has transpired, and what we expect to transpire in the coming months, particularly given the added delays caused by COVID-19.
I appreciate that City Planning processes can be complex, and the added complexity of an appeal to the Local Planning Appeal Tribunal (LPAT), as well as our legal challenge at the Ontario Superior Court further complicate this issue.
On the Appeal:
- What exactly is ClubLink appealing?
ClubLink, has appealed for non-decisions on its applications. Specifically, the Planning Act specifies 90-days for a decision on zoning by-law amendment applications, and 120-days for a decision on a plan of subdivision. It is important to note that these timelines are very rarely met in cities across the province, let alone on an application as complex as this application.
Please see ClubLink’s full LPAT application here.
- What and who is the Local Planning Appeal Tribunal (LPAT)?
LPAT is a Provincial adjudicative body that hears cases on a wide range of municipal planning, financial, and land matters. It receives its general powers from the Local Planning Appeal Tribunal Act and the Statutory Powers Procedure Act (SPPA). The Provincial government appoints its members, chairs, and vice-chairs. Hearings are held by the tribunal throughout the Province.
- What is the Councillor’s view of ClubLink’s move to appeal?
I am very disappointed and frustrated that ClubLink, Minto, and Richcraft have decided to move forward with an appeal at this point in the process. The city is not in a position to move forward with the application, as there are 250 technical comments identified that ClubLink has not yet responded to. Given this, the ball has been in ClubLink’s court since December 19, 2019, yet despite this, they have opted to file an appeal. This is not what community builders who are invested in their communities do.
- When does the city have to submit documentation/response to LPAT? What is included in this documentation? How comprehensive is this?
The city originally had to submit their document, referred to as “record”, by March 25th. The record contains documents and correspondence on the file as of the date of the appeal. It is a filing requirement. Further documentation will be presented at a later date.
Given the current state of emergency, LPAT has reduced operations and is not scheduling anything new until after the Province lifts the current emergency regulations.
- Why can ClubLink proceed with this appeal when it has not responded to the city’s 250+ technical comments?
Pursuant to subsections 34(11) and 51(34) of the Planning Act, ClubLink, can appeal to LPAT. According to the Act, By-Law Amendments and Plan of Subdivisions can be appealed after 90 days or 120 days of the application being deemed complete. This is regardless of where in the submission process the applicant might be. In practice, responsible community builders work with the community and city staff to improve upon their application and provide enough time for city staff and Council to make an informed decision. At this time, ClubLink has not responded to the technical comments or submitted any new information to address any of the concerns that city staff and our community have identified.
- Is the city in a position to make a decision on the applications?
The city is not in a position to make a decision on the ClubLink applications. In update number 18, I shared that there were 200+ technical comments submitted by the city to the applicant. The city has also hired an outside expert to examine the geomorphological study and the city has not been provided with this information. In practice, responsible community builders work with the community and city staff to reach a position where a decision can be made with all relevant information.
- Is there a way to get an injunction to stop ClubLink from further testing on the property until the decision is in the courts?
Unfortunately, the city would not have any basis to successfully seek a court order to prohibit ClubLink from testing on their own property.
- Does LPAT have an obligation to be transparent with the community in the way they arrive at a decision?
LPAT decisions are made on the basis of the evidence, policy, and submissions before them. In the event these matters do proceed to a hearing, a written decision setting forth the basis of any findings and conclusions arrived at by the Tribunal will be issued and available to the community.
- Does Clublink have any legal ground to appeal to LPAT? If so, why and how?
Pursuant to subsections 34(11) and 51(34) of the Planning Act, ClubLink can appeal to LPAT. According to the Act, Zoning By-Law Amendments and Plans of Subdivisions can be appealed after 90 days or 120 days of the application being deemed complete. They can do so by submitting an appeal document and a cheque to LPAT. You can read ClubLink’s letter to LPAT here.
- What gives LPAT the right to overturn, interfere with what is happening with Ottawa Planning?
The Planning Act provides the Tribunal with the authority to hear appeals with respect to subdivisions and zoning by-law applications.
- If LPAT approves their appeal, does ClubLink still have to abide by Ottawa laws and the 250+ issues that need to be addressed? Why hasn’t the city denied the ClubLink application, given they have not responded to the 250 outstanding questions to date?
An applicant is afforded time to seek to address issues that have been raised within the context of the review of the application. Although the Planning Act provides that a subdivision may be appealed to the Tribunal, if a decision is not made within 120 days, there is no maximum time that is specified that can be utilized for the review of the application.
The applicant will have to abide by any applicable laws or by-laws.
- Is a decision of LPAT subject to review?
A rehearing can be sought from the Tribunal where a serious error of fact, law, or natural justice was made by the Tribunal. An appeal of the Tribunal lies on a question of law to Divisional Court where permission from that Court has been obtained to bring forward the appeal.
- What does delegated authority mean and why did the Councillor pull delegated authority on the application? How does this impact the LPAT process?
ClubLink submitted a zoning by-law amendment application and a subdivision application. Zoning by-law applications must first receive committee and Council approval. Plans of subdivision applications can be approved by city staff. As you know, the city had submitted 250 technical comments to ClubLink. Unfortunately, they have not provided new information. It was the inaction from the developers to address the many concerns that city staff, technical agencies, and our community had that made me decide to remove delegated authority from city staff on the ClubLink applications, meaning that the decision would rest with Planning Committee. I took this necessary action to ensure all possible measures that I could use were leveraged to stand up for our community and have our concerns heard. However, ClubLink has decided to rush this through, and has taken the decision away from City Council and has instead asked a Tribunal to issue a decision.
- Will the applications go before Planning Committee before the LPAT hearing date?
There will be a report going to Planning Committee before an LPAT hearing on the merits of the zoning by-law application and plan of subdivision occurs. The report going to Planning Committee will outline the facts of the application, and ask Committee to approve instructions for our legal team to proceed at LPAT.
- Can anyone in the community present information in anyway at the LPAT hearing? Can residents have status at LPAT?
When the notice of case management conference comes out, a person can seek participant or party status. There is a form that residents will have to fill out and then the Tribunal will decide at the conference if the status will be granted. Participant status only permits one to file written material for the hearing. Party status, which is more difficult to obtain, allows the presentation of oral evidence and the questioning of witnesses.
- In your opinion, would any resident be given party status or would this be reserved for community associations like the Kanata Greenspace Protection Coalition?
A community association can only have party status if it is incorporated. The chances of getting such status will be greater if they retain a planner. It is unlikely that individuals will be granted party status.
- What is next with respect to our court date with the Ontario Superior Court?
Given the current emergency measures in place due to COVID-19, the Superior Court is not scheduling in person hearings. The city’s legal team approached ClubLink to see if they’d be willing to proceed on the basis of submissions by videoing. ClubLink was not willing to do so. Therefore, we must wait until the courts reopen to get our court date scheduled and heard.