HomeMy WebLinkAbout77-12
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THE CORPORATION OF THE
TO~rn OF NEWCASTLE
By-Law No. 77-12
Being a By-law to amend former Township of Darlington
By-Law No. 2111 (as amended)
The Council of The Corporation of the Town of Newcastle enacts as follows:
1. Section 13 of By-Law No. 2111 be amended by adding thereto Subsection (0),
as follows:-
(0) (i)
Definitions
For the purposes of this subsection,
(a) "DWELLING, LINK TOWNHOUSE" shall mean one of a group of three
or more dwelling units, divid:d vertically, and linked together in
such a manner that the private garage of one unit forms the only
common wall on at least one side of the unit.
(b) II DWELLING , SEMI DETACHED" shall mean a building divided
vertically into two dwelling units each of which has an independent
entrance.
(c) "DWELL NG, STREET TOWNHOUSE" shall mean one of a group of
three or re attached dwelling units, divided vertically, each of
which an independent entrance and fronts onto a public street.
(d) "LOT" means a lot on a registered plan of subdivision.
(ii)
Notwithstanding any provisions of this By-law to the contrary, part
of lot 31, Concession 3 of the former Township of Darlington, as shown
on Schedule A hereto, may be used in accordance with the provisions
of this sub-section.
(iii)
Permitted Uses
(a) RESIDENTIAL (RSl, RS2, RS3 and RS4) ZONES:
No persons shall, within any First, Second, Third or Fourth Density
Special Residential Zone use any lot or erect, alter or use any
building, or structure except for the following uses:
(i) public uses as defined in Section 4 (a) of this by-law and
(ii) single-family dwellings, semi-detached dwellings, link town-
house dwelling, street townhouse dwelling.
(b) GREENBELT (G) ZONE
No person shall, within any Greenbelt Zone use any lot or erect,
alter or use any building or structure except as otherwise
provided in this By-law.
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By-Law No. 77-12
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(c) INSTITUTIONAL (I) ZONE:
No person shall, within any Institutional Zone, use any lot or
erect, alter or use any building or structure except for the
following uses:
(i) schools, community centres, day nurseries, placeS of
worship.
(iv) Area Requirements
No person shall within any First, Second. Third or Fourth Density
Special Residential (RSl, RS2, RS3 or RS4) Zone erect or use any
building or structure ,except in accordance with the following
zone requirements table:
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ZONE REQUIREMENTS TABLE
MINIMUM
MIN. (2) MIN. (2) MAX. LOT MINIMUM YARDS (ft. ) DWELLING MAXIMUM
PERMITTEJ LOT AREA LOT FRONTAGE COVERAGE FRONT INT . EXT. UNIT FLOOR HEIGHT
ZONE USE (1) LOT TYPE (sq. ft.) (ft) % (2) SIDE(4) SIDE REAR AREA (Sq. ft.) (Ft.)
RSI Single-Family J.dterioI 4,000 40 40 20 4 35 950 35
Dwellings Corner 5,000 50 20
RS2 Semi-Detached InteriOl 6,000 60 45 20 4 35 900 35
Dwellings lorn.ar 7,000 70 20
RS3 Link Townhouse Ii.terior(3) 2,200 25 50 20 25 900 35
Dwellings COLler 3,600 40 15
RS4 Street Townhouse Ip'terior (3) 1,800 20 SO 20 25 900 35
l'f) Dwellings Corner 3,000 35 IS
(I) A residential use permit,el in a lower density zone shall be permitted in any higher zones subject to compliance with the
area requirements set out in the zone in which it is specifically permitted, for example, single-family dwellings shall
be permitt0d in any RSl, =52, RS3, and RS4 zones; conversely street townhouse dwellings shall be permitted only in a
RS4 Zone.
(2) Vfuere temporary turning circles are necessary lot area, lot frontage and front yards shall be calculated from the
ultimate abutting road ~llowances rather than from the perimeter of the temporary turning circle.
(3) There shall be no more tp~ lC attached link or street townhouses in one continuous row. All end interior units of such
rows shall have an addit~onal 5 ft. frontage which shall form the side yard allowance of such end unit.
(4) On any lot where an attached Irivate garage or carport is not provided, the minimum interior side yard shall be 15 feet.
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Notwithstanding the prov1s10ns of Section 4 (h) of this By-law
on a corner lot within the triangular space formed by the street
lines for a distance of 30' from their point of intersection
no hedg2 or fence shall be planted, maintained, or erected,
so as to exceed a height of 3~ feet above the elevation of the
centre line of the abutting streets.
(vi) No person shall erect more than one dwelling on any lot.
READ a first and second time this 11th day of March,
READ a third and final time this 11th day of March,
G. B. Rickard
Mayor
J. M. McIlro
Town Clerk
SEAL
G. B.
Mayor
J. M. l1cIlro
Town Clerk
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NASH ROAD
SCHEDULE A
TO lOWN OF NEWC~TLE BY-LAW N! 77 '/v
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MARCH IE
FEET
Part of lot 3/
Concession 3
Former Township of Darlington
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Form R-6
Ontario
Municipal
Board
r Mr. S.K. Jain
Regional Solicitor
Regional Municipality of Durham
605 Rossland Rd. East
WHITBY Ontario
UN 5S6
L
416/965-1908
180 Dundas St. W.
Toronto Ontario
M5G 1 E5
June 28, 1978
IfErcm:llYIEJPJ
JUt S 1978
RES/ONAl SOUCq"
Quote File Number
--..1L17J-?T1-_
R 771274
Dear Sir:
.
Enclosed is documentation as follows:
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Copy of Decision Dated
Copy of Decision dated
(Signed Duplicate Original to follow)
[] Duplicate Original of Decision dated
W Board I s Order made June 12, 1978
[] Appointment for Hearing
Yours truly,
:jj
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C. Saruyama
Supervisor
Planning Administration
Enclosure
P. S. The Board's fee paid Jure 28/78
1ft
RECEIVED
JUL 10 1918
TOWN OF ft",',' :",'\STlE
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Co;r;;t'e8J?Oudence,#11
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Ontario Municipal Board
IN '!lIE MA'l"l'ER OF section 35 of
'lb. Plr:rd~ACt. (&.8.0. 1970,
c. :349 ,
-and-
1W '.l'HE MAT'J.'m OF an application
by The Corporation of the 1'o1m
of' Newcastle for approval of its
Restricted Area By-law 77-12
BEFORE:
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Monday. the 12th day
of June, 1978
A. I.. McCRAE.
Vice-Chairnaan
-and-
w. L. BLAIR.
Member
THIS APPLICA'i'ICtl hav:1.ng cOIle on for public hearing on
the 6th day of' September, 1977 at the Town of Newcastle
and atter the hea:r1ng o,f the application the 13oa:rd having
reserved its decision until this day,
1'HE BOARD <nDEBS that By-la.w 77-12 is hereby approved.
AND THE BOARD ORDmS tha.t the Board be re1m.bu:rsed. in the
amount of $4,015.:36 payable to the 'l'reasurer ot cnta.rlo.
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SECRETARY
ENTERED
o. B. fio....B2Z:::.K......
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folio "0.....2..................4...
JUN 2 9 '97B
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Ontario Municipal Board
IN THE MATTER OF Section 35 of
The Planning Act (R.S.O. 1970,
c. 349),
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IN THE MATTER OF an application
by The Corporation of the Town
of Newcastle for approval of
its Restricted Area By-law 77-12
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IN THE MATTER OF an application
by The Corporation of the Town
of Newcastle for approval of its
Restricted Area By-law 77-13
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IN THE MATTER OF Section 44 of
The Planning Act (R.S.O. 1970,
c. 349),
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IN THE MATTER OF a reference to
this Board by the Honourable
John R. Rhodes, Minister of Housing,
of an application by Courtice Heights
Developments for approval of a
proposed plan of subdivision of
lands comprising part Lots 31 and 32,
Concession II, formerly in the
Township of Darlington, now in the
Town of Newcastle, Minister's File
IBT-76027
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IN THE MATTER OF a reference to this
Board by the Honourable John R. Rhodes,
Minister of Housing, of an application
by Courtice Heights Developments for
approval of a proposed plan of subdivision
of lands comprising part Lot 31,
Concession III, formerly in the Township
of Darlington, now in the Town of Newcastle,
Minister's File l8T-76048
C 0 U N S E L :
D.J.D. Sims and
John R. Willms
for The Corporation of the
Town of Newcastle
R.K. Webb, Q.C.
H.J. Couch and
R.M. Holland
I.J. Lord and
R.R. MacDougall
for Courtice Heights Developments
for the City of Oshawa
for Progeny Developments Limited
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C 0 U N S E L :
(continued)
T.L. Clarke
S.K. Jain
for Gatehouse Holdings Limited
Tonno and Roth Construction
Ltd. and Arlam Developments
for The Regional Municipality
of Durham
.
I. Gleiberman
J.D. Mann
for Northumberland and Newcastle
Board of Education
M.H. Chusid
for Southforth Developments
Limited and Taunton Courtice
Developments Ltd.
DECISION OF THE BOARD delivered by WeL. BLAIR
The Board had before it, on referral by the Honourable
Minister of Housing, two applications for two plans of
subdivision by Courtice Heights 'Develqpment$, and two by-laws
of the Town of Newcastle zoning the lands for the use
~ intended.
These subdivisions are in the heart of the Courtice area -
the southerly subdivision, lBT-76027, comprises approximately
117 acres, and is located just south of Highway No.2,
between Prestonvale Road on the west and Trulls Road on the
east - the northerly subdivision, lBT-76048,comprising
approximately 45 acres lies north of Nash Road, west of
Trulls Road.
The south plan provides for 759 dwelling units, comprising
321 single family detached units, 202 semi-detached units,
154 link townhouses and 82 street townhouses. The north plan
provides for 292 units, comprising 137 single family detached
4It. units, 136 semi-detached units and 19 link townhouses.
Courtice is a community 1frith a population of about
2,000 people, with only the minimum in the way of municipal
services. Many of the present residents moved to Courtice
to get away from City living to raise their families in a
semi-rural setting. The residents have their own wells for
water supply and their own septic tank systems. Recent
planning studies that have been done, project the future
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population of the Courtice area from 20,000 to 46,000. The
two subdivisions before the Board, on the basis of 3.5 persons
per unit, project a population of 3,679. The Board is
satisfied that the factor of 3.5 used to determine the
population projection is appropriate.
The Ontario Housing Ministry has entered into an
agreement with the Region of Durham.and the Town of Newcastle
to assist the construction of housing in the financing of
water and sewage works to provide serviced lots. This
assistance comes in the form of interest free loans through
the Ontario Housing Action Program (O.H.A.P.). An amount
of close to $40,000,000.00 has been allocated to the Region
of Durham to assist the housing program. The Town of
4It Newcastle has already been advanced approximately $250,000
by the Province to get the program under way in that municipality
There was a time limit put on the availability of the
balance of these provincial funds but that time has been
extended until such time as the Board renders it decision
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in these matters. The referrals by the Minister and the
applications by the Town came on together for hearing on
September 6, 1977. Despite requests for an adjournment,
from some of those opposing the applications because of
alleged insufficiency of time to adequately prepare their
case, the hearing proceeded, with several long adjournments,
finally terminating on May 5, 1978, after sitting on 38
different days.
Opposition to the applications before the Board, came
from three main sources, the City of Oshawa, which is the
adjacent municipality to the west, Progeny Developments
Limited, owner of lands in the north east part of Oshawa,some
2t miles distant, as the crow flies, from the subject lands,
and the Courtice Citizens Association.
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Oshawa's opposition is based on several factors that the
Board will deal with. Oshawa is concerned about the lack of
environmental studies for the Courtice area, especially as they
would relate to storm water management and the downstream effects
of the Farewell Creek when the run-off is increased as the
result of development in Courtice. Farewell Creek empties
into Lake Ontario within the Oshawa city limits.
Storm water management was the topic for many days of
the hearing. Qualified engineers, appearing on both sides of
this issue in many days of examination and cross-examination dealt
with the problem of storm water drainage - storm run-off, storm
water pipes, retention and siltation ponds, and effects on the
downstream portion of Farewell Creek, resulting from run-off in
the spring of the year and rain storms of varying degrees of
intensity. While the Board recognizes that much attention has
been given already to potential storm water problems, the Board
also recognizes that final approval for storm water management
schemes must be given by Central Lake Ontario Conservation
Authority (CLOCA) who work in concert with the Ministry of
Natural Resources, and the Ministry of the Environment.
Furthermore, the schemes for storm water management presented
to the Board were conceptual in nature, and the final design is
to be worked out and forwarded to the applicable agencies for
approval, after draft approval is granted. The Board is satisfied
that additional run-off into Farewell Creek can be accommodated ~dth
appropriate erosion control measures. The matter of acquiring
lands outside the subdivisions to implement a storm water
management scheme is the responsibility of the Town of Newcastle.
The City of Oshawa has provided some of the "soft" services
enjoyed by the Courtice residents over the years, such as parks
and recreation facilities and library services, on a nominal
fee for service basis. Oshawa is concerned that they
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~ may be asked to provide these same services for additional
residents at additional cost to their own taxpayers. Evidence
was given at the hearing that the increased population in the
Courtice area would generate the need as well as much of the
financial resources to enable those kinds of facilities to
be built in Courtice and so relieve Oshawa of this concern.
Oshawa contends that Newcastle does not have the
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administrative capacity to handle large development projects
especially when compared to Oshawa's experience in this field.
The Board is satisfied that although Newcastle is relying on
planning consultants to supplement the work of a modest
planning staff, it is already taking steps to augment its
staff to better enable it to deal with the development that
appears to be inevitable in Newcastle. The lack of statutory
secondary plans in Newcastle and apparent piecemeal planning,
seemed to be a source of irritation to Oshawa. Although
formal secondary plans as such were not in fact done, there
were several planning studies done. These studies although
not formally,adopted, served a useful role in the planning
process in Newcastle. The Planning Director for Newcastle
indicated to the Board that secondary plans are envisaged in
the Regional Official Plan but no date has been set to begin
working on the one for the Courtice area. The Board realizes
that while having secondary plans in place is desirable, and
should be encouraged, nevertheless since planning is an
ongoing process, applications must be considered from time to
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time in the absence of such secondary plans.
Oshawa, as the largest constituent municipality in the
Region of Durham, expressed concern about the possibility of
the Region having to pick up large "front-end" costs in
supplying trunk sewers and watermains to the Courtice Heights
development without any guarantee that those costs would be
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recovered by reason of the extensive development necessary
to justify those large initial costs. This apprehension
appears to exist because Oshawa is not satisfied that there
is a housing need in Newcastle, by reason of the apparent
abundance of serviced housing lots in Oshawa. Although the
applicant did not spell out the need for housing as such,
in the Courtice area, nevertheless the Board is satisfied
that the recent agreements entered into between the Ministry
of Housing, the Regional Municipality of Durham and the Town
of Newcastle as, well as other municipalities in Durham, to
say nothing of the developers who are spending their own funds,
within the subdivision and by lot levies for services outside,
are such that, with proper phasing of both construction of
~ homes and provision of services, there should be a minimum
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of cost to the Region.
The Board heard evidence as to financial impact with the
subject subdivisions presumed either partially or completely
built. Both sides through witnesses competent in this field
led extensive evidence in this regard and much of it had to be
of a theorectical nature. The financial impact of housing,
commercial and industrial growth, for instance, in Oshawa was
likened to such probable costs that could arise in the semi-
rural Town of Newcastle. The fact is, however, that Oshawa is
a thoroughly modern urban city with all modern amenities
associated with city living in place. On the other hand,
outside of the initial costs of servicing, it will probably
be many years before such demands are made on Courtice,
sufficient to adversely financially impact Newcastle. One
would be naive indeed to suggest for one moment that there will
not be certain costs associated with the urbanization process
in Courtice. However, it should be borne in mind that these
services, with their initial high costs, will eventually be
serving a much larger population and there may well be certain
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advantages to their installation now when one considers
how those costs might escalate in the years ahead based upon
our knowledge of what has already transpired over the last
period of years.
Statements were made on numerous occasions during
the course of the hearing that the housing being proposed
for the Courtice area was not the result of Government "policy"
but rather it was only a Government "program", and that being
so, the Board need not give as much weight to the O.H.A.P.
arrangements referred to earlier, as it might if it resulted
from Government "policy". No real explanation \'las given to
. the Board as to the difference between "policy" and "program".
In any event, the Board will determine these applications on
their merits. The Board is satisfied that as the result
of agreement~s between the Pro'vincial Government and the
Region of Durham and the Town of Newcastle for interest free
loans, the local residents will not suffer unduly, in a
financial sense, from the proposed development, nor should
the Region.
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Progeny Developments Limited, who were represented by
counsel, did not spell out their concerns about the two
subdivisions, at least as they related to their own lands.
It could be assumed that residential development of any kind
in the Court ice area could be a factor in delaying development
of the Progeny lands, although it was intimated at the hearing
by counsel for Oshawa that development of Progeny lands is
quite some time off. Many of the concerns expressed by
Progeny are really concerns of the Courtice Citizens Association
and will be dealt with later. Views of Progeny regarding
conformity or otherwise to the Darlington Official Plan ~dll
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also be dealt with later. The Board notes with interest that
Progeny called no witnesses.
The Courtice Citizens Association was represented at
all sessions of the hearing. Mr. J. Russell DeCoe, Prestonvale
Road, was present at almost all sessions and was the main
spokesman for the Courtice Citizens Association, although
Mrs. Ann Cowman, a one time Councillor in Newcastle, acted
as agent for the ratepayers.
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The Courtice Task Force was established to assess
potential problems that could arise from development in the
Courtice area and to attempt to minimize their interruption
of the life-style of the present Courtice residents.
Membership on the Task Force was comprised of two representatives
of the Courtice Citizens Association and four members of the
Newcastle Planning Advisory Committee, who were the Mayor and
three Newcastle Councillors. Mrs. Cowman served on the Task torce
and Mr. DeCoe acted as an alternate on occasions. Several'meetings
were held to consider the future of Courtice and recommendations
were made to the Newcastle Council and the Region of Durham
Council. Many of these recommendations were endorsed by the
respective Councils.
Most of the ratepayers who gave evidence told the Board
that they recognized that development of some kind was inevitable
in the Courtice area. However, they are all ~pprehensive
about future costs, especially if they involve services they
. feel they don't need e.g. water and sanitary sewers. Even
when trunk sanitary sewers and water mains are installed on
a street, it is Regional policy not to compel the existing
residents to connect, nor have them pay frontage charges if they
don't connect. So if existing well water and septic systems
continue to function adequately, there will be no additional
charge. The matter of possible fluctuation of the water table
as it relates to wells is obviously one of the main concerns
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~ of the Courtice residents. Here again, the Region, who has
the responsibility for water and sewers, has a policy whereby
it takes full responsibility for maintaining the water table
at an appropriate level or make alternative arrangements to
ensure an ongoing supply of good water.
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The adverse effects of increased traffic are always a
worrisome matter to residents. The proposed street layouts
in both plans do make use of the grid pattern of existing
roads. The south plan provides access and egress to Highway
No.2, Prestonvale Road and Trulls Road. The north plan would
have access and egress to Nash Road and Trulls Road. It is
obvious that the existing roads will be more heavily travelled
and will have to be greatly improved, reconstructed with a
stronger base, and widened. Prestonvale Road is a "forced
road" and currently in need of major repairs. George West,
a resident on Prestonvale Road advocated a new north-south
arterial road leading south from the south subdivision. This
new road would divert traffic from Prestonvale Road and Trulls
Road. Traffic evidence indicated that this new arterial road
was not needed to service the plans before the Board. Evidence
was also adduced that the roads in the Courtice area are in
need of improvements now, apart from any consideration of
additional traffic generated from new development.
Concern was expressed regarding the effects of
development on trees, vegetation and Wildlife. . For many.'
. years, the residents have been enjoying treks into the
bush to enjoy nature in its many forms and are reluctant
to see these amenities interrupted by urbanization. While
it is always regrettable when idldlife habitats are
interrupted, nevertheless, unless the community '~shes to
preserve these areas by acquiring them for the enjoyment
of the whole community, there comes a time when private
individuals cannot continue to nurture and protect them
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for the general public to use and enjoy. The Conservation
Authority and the Ministry of the Environment will be involved in
preserving as much of the vegetation, trees, etc. as possible.
The concerns expressed by David Osmond, an authority in the field,
dealing with the sensitivity of various parts of the subject
applications, can in the opinion of the Board, be resolved to the
greatest extent possible by the jurisdictions referred to above.
The types of housing and the mix planned for the sub-
divisions has caused the present residents to be upset
because of apparent unfamiliarity with other than single-family
detached and semi-detached residences. Townhouses, to many, are
deemed to be nothing more than potential slums and "firetraps".
. All the homes planned in both subdivisions will be single-family,
individually owned, not rented. Therefore, pride of ownership
and all that that implies should be compatible vdth what is in
Courtice today.
From the very outset of the hearing there was considerable
controversy regarding the conformity of what is being sought with
the provisions of the Darlington Official Plan entered as Exhibit
2 and approved by the Ontario Municipal Board in 1959. Extensive
evidence was heard on all aspects of the Official Plan, but in the
final analysis the question of conformity or non-conformity is
one which this Board must decide.
Section (2) subsection 3 of the Darlington Official Plan
~ states as follows:
"(3) The urban residential development area is provided
in that portion of the Planning Area known as
Courtice where it is felt that it is in the interests
of the residents, both present and future, to be
served by urban sewerage and water supply facilities."
There is little doubt that the Official Plan intended that
there be urban residential development in the Courtice area or
envelope and that municipal services would be provided for present
as well as future residents.
Further sections and subsections should be commented upon
as follows:
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"Section 2(5) - Because of the lack of
supporting industrial assessment, no
provision is made for the development of
low cost or multiple family residential
accommodation (other than dwelling units
over stores in cormnercial areas)."
It should be noted that the townhouses, street town-
houses, semi-detached, and link townhouses are neither low
cost nor multiple family residential. Each will be located
on its own freehold lot.
Section 3, subsection (2):
" In Urban Residential areas the predominant
land use shall be single family detached
residential and other uses permitted shall
include those which are compatible with the
basic residential use such as schools,
churches, parks, institutional, public
utilities, and neighbourhood commercial
providing that such uses do not contribute
to the devaluation of the residential areas
and are in keeping with the standards of the
permitted residential development. "
Exhibits 18 and 19, the two plans of subdivision
indicate to the Board, when considered in the light of the
evidence, pro and con, adduced during the hearing, that the
predominant land use is single-family detached residential
if any reasonable weight is to be given to the spirit of the
Official Plan. Because some may construe the text of a plan
in such divergent ways and argue so forcefully for the
acceptance of their views, the Board is of the opinion that
it was for the resolution of such situation that Section 35(2$)
of The Planning Act may be employed when the tribunal satisfies
itself as to the propriety of so doing. Certainly a plan
nearly 20 years in existence could not foresee the similarity
of single family detached residences cost wise, or otherwise
with present day semi-detached residences, and townhouses
all on their own individual freehold lands, and in fact being
individual private single-family homes albeit not detached.
The density of population proposed by the development
is such that it does not offend the provisions of the plan
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particularly when the word "approximately" is used in dealing
with density in Section 3, subsection 2 of Exhibit 2 (the
Darlingto~ Official Plan).
Those in opposition contend that there is also lack
of conformity due to the fact that the subject lands are not
being developed in accordance with the staging requirements of
Schedule "B" to the Official Plan. The north subdivision lies
within stage 3, and the south within stages 2 and 4. If the
"Golden Rule" is employed in interpreting Section 3, subsection
9, bottom paragraph of page 9, no staging would be required
until a treatment plant is established in the Courtice area.
This, on the evidence, will never come to be as with the
. advent of Regional Government the service it would provide
will now come from Oshawa. However, it must be said that even
if this interpretation is not taken and the Board places no
great reliance upon it, the subject lands lie almost adjacent
to designated stage 1 lands and their proceeding first does
no real violence to the intent of the Plan particularly since
the municipal services proposed are to service a much larger
area.
The concern voiced by the City of Oshawa and counsel for
.
a developer owning lands in Oshawa,located as previously stated
some distance from the subject area,as to the necessity of
detailed community studies being undertaken prior to any
development in Courtice can not be supported on the facts. The
planning evidence adduced clearly indicates that studies were
conducted by several planning consultants for the municipality
and that the Regional Government was well aware of them and
indeed certain of them were sent to the Region for input to the
Regional Official Plan. The M.M. Dillon study while not
extensive in scope was adopted by the Newcastle council on
November 29, 1976, but only to the extent that stages I1A"
and "B" were accepted as general and modifiable development
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~ schemes by which positive development proposals should be
judged. This limited area roughly coincides ~dth the two
subject subdivision proposals.
The Board is in agreement with the statement made
during the course of the hearing that the Courtice area has
been "studied to death". While the studies commissioned did
not result in a statutory secondary plan, they have been
considered by the municipality, and it also should be
remembered that this was during a state of flux with the
Official Plan for the Region pending. Certain of the studies
were to some degree in conflict with it.
The land use planner for the applicant of the first.
~ insta.nce addressed himself to the commercial aspect of the
Courtice area pointing out that there was already a limited
range of convenience services on Highway 2 to serve new residents,
with a modern shopping centre at Bowmanville; and, of course,
Oshawa. Both the Regional and the Darlington Official Plan
show a proposed commercial centre located in the Courtice
envelope, capable of serving the whole community. It could
be constructed in phases during the next 3 to 5 years.
However, no consideration has really been given at this time to
the commercial needs. of the subdivision. The above referred to
planner saw no reason planning wise as to why the two subdivisions
could not proceed at this time based on studies already done.
~
In dealing with the reference by the Minister of a draft
plan of subdivision, the Board, based on the decided cases,
stands in the shoes of the Minister able to exercise the powers
he possesses were the plan of subdivision not referred. Section
33(4) of The Planning Act makes clear a large number of those
matters that regard shall be had to. It is interesting to
note that in the legislation the 'l'J'ord "regard" is used and
The Shorter Oxford English Dictionary defines the word thusly:
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to look at, gaze upon, observe, to take notice
of, bestow attention or notice upon; to take
or show interest in; to give heed to; to
take care or, etc.
The Board has indeed considered the ramifications of
the section and finds none of its requirements therein
incapable of resolution or militating against the applications.
In the Board's opinion its function is to determine whether
the matters referred to in Section 33(4) of The Planning Act
are or can be adequately met when considering draft approval.
If such is not possible then, of course, final ministerial
approval for registration will not be granted. Section 33(14)
of The Planning Act states as follows:
.
Upon presentation by the person desiring to
subdivide, the Minister may, if satisfied that the
plan is in conformity with the approved draft plan
and that the conditions of approval have been or
\~ll be fulfilled, approve the plan of subdivision
and thereupon the plan of subdivision may be
tendered for registration."
The underlining is the Board's.
"
It is because there is that kind of control over this
process that the Board can, as it did occasionally, indicate
to counsel that it had heard sufficiently on certain aspects
once the deficiency had been noted. The implementation of the
remedial measures demanded lies within the jurisdiction of those
. governmental bodies, both Provincial and Municipal charged
vnth that responsibility.
Although it was intimated by counsel in opposition that
the Regional Government had not acted properly in passing the
two by-laws providing the monies for the required servicing in
the Courtice area it is noted that the by-laws, Exhibits 12 and
13, were approved by the Ontario Municipal Board some time ago
and no effort up until the present has been made to test their
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validity by those in opposition.
The Regional Government
has not seen fit to move for their repeal, and indeed, is
supporting the applications now before the Board.
Counsel for Progeny Developments urged the Board,
should it grant the applications, to consider imposing
additional criteria regarding storm water management all
of \~ich is part of the record. The Board is satisfied that
the approving authorities possess all the powers necessary to
bring about what is required in this situation. He also
desires that another condition be added to ensure that any
and all costs incurred by the Town in acquiring the necessary
lands outside the subdivision will be underwritten by the
developer.
.
The Board accepts the position taken by counsel for
the developer that the changes proposed by counsel for
Progeny concerning additional storm water criteria, are
redundant, and could well serve to restrict the Central Lake
Conservation Authority and the Ministry of Natural Resources
in their consideration of this very important matter. To
assent to the third proposal regarding land acquisition, is
tantamount to dictating to the Town Council how it should
proceed with something well within its jurisdiction particularly
since so many matters are yet to be finally resolved.
Counsel, for Oshawa would have the Board impose as a
condition should it give draft plan approval,that natural
tit drainage courses be used in the drainage of these subdivisions
including the use of Robinson Creek. He also stated that
the conditions concerning the financial aspect in the
proposed conditions should be changed to compel the
developer to pay all "front end" costs of servicing and then
be reimbursed if, as and when, the sums for the levies to
be collected for that purpose are recovered by the Town or
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the Region as the case may be.
The Board accepts the evidence on the flood water
management adduced by the applicants and sees no good
reason to direct a course that may make more difficult the
task of eventually finalizing the problem. As to the
financial condition proposed, the Board does not agree
that it should usurp the power of the municipality in this
regard, nor should the usual method of dealing with this
kind of detail be varied in the case of this one individual
development company.
While passing on the above matters, the Board is
not unmindful of the fact that it has been requested by
counsel in opposition in certain instances to actually
interfere vnth the policies of elected councils even though
.
said counsel possess no authority to represent or speak
on behalf of either the To~n or the Region, or indeed the
Conservation Authority.
After a full and proper consideration of the evidence
adduced and the argument made, this Board is of the opinion
that the two proposed subdivisions l8T-76027, and,18T-76048
should be, and are hereby given draft approval subject to
the conditions outlined and numbered in Exhibits No. 63
and No. 64. The two restricted area By-laws No. 77-12 and
77-13 are also approved. While originally intending to
withold this decision until the matter of costs raised by
Mr. Webb is decided, the Board, recognizing the benefit to
all parties of an early decision, decided otherwise.
The City of Oshawa at whose request the reporter
was retained will reimburse the Board for the costs of
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reporting these proceedings and Mr. Webb vdll take out
an appointment with the Board for a hearing date' to dispose of
the balance of costs.
DATED at Toronto this 12th day of June , 1978.
A.,t. McCRAE
VICE CHAIRMAN
W. L. , BLAIR
MEMBER