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Home My WebLink AboutWD-1-90 TOWN OF NEWCASTLE REPORT r Fi le # 7 Res. -- _ �' By-Law # MEET I INO: GENERAL PURPOSE AND ADMINISTRATION MEETING DATE: JANUARY 8, 1990 REPORT #: WD-1-90 FILE #: aB,ECT: AGREEMENT BETWEEN THE TOWN OF NEWCASTLE AND THE OWNER OF 760148 ONTARIO INCORPORATED RE: LAND DIVISION APPLICATIONS LD 321/89 AND LD 322/89 RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report WD-1-89 be received; and 2 . THAT the Mayor and Clerk by authorized, forthwith, to execute an agreement with 760148 Ontario Incorporated under Subsection 52 (2) as a condition of granting of a severance under Consent Applications LD 321/89 and LD 322/89 that the owner will not alter the grade, vegetation or trees or develop for any purpose either or both of Parts 1 and 2 (as illustrated on Attachment No.2) , until a lot grading plan has been provided, satisfactory to the Director of Public Works and has been approved by the Director of Public Works and until implementation arrangements satisfactory to the Director of Public Works and appropriately secured in the opinion of the Treasurer have been made by the owner. Also, the agreement is to be binding on the owner, his heirs, executors and assigns and is to be registered on the title to Parts 1 and 2, at the expense of the owner. . . .2 i REPORT NO. : WD-1-90 PAGE 2 1.0 ATTACHMENTS No. 1: Location Plan No. 2 : Drawing showing the Final Effect of Consent Applications LD 321/89 and LD 322/89 . No. 3: Letter dated December 22, 1989, from Mr. Woodley to Mr. Hefferon. No. 4: Letter dated December 27, 1989, from Mr. Hefferon to Mr. j Woodley. I 2 .0 BACKGROUND i i 2 . 1 By approval of Report PD-197-88, Council adopted a policy that applicants for land severances be required to submit, for the approval of the Director of Public Works, a lot grading and drainage plan, prepared by an Engineer or Surveyor in accordance with the Town's standards prior to final clearance for consent by the Town. 2 .2 On Monday, July 10, 1989, the Durham Land Division Committee heard and approved Consent Applications LD 321/89 and LD 322/89 . 2 . 3 Consent Application LD 321/89 was a consent to sever a 746 .46 m2 vacant residential lot and to retain a 1447 . 12 m2 parcel of land supporting a dwelling. 2 .4 Consent Application LD 322/89 was a consent to sever 2 PP a 730 .26 m vacant residential lot and to retain a 716 . 86 m2 parcel of land supporting a dwelling. 2 .5 The result of these two applications was to create 3 severed parcels of land which are illustrated on Attachment No. 2 . I 2 .6 The applicant intends to sell the house which is located on Part 3 and to sell and/or build 2 link houses on each of Part 1 and Part 2 . . . .3 U0 i i REPORT NO. WD-1-90 PAGE 3 3.0 PROBLEM 3 . 1 The problem is that Parts 1 and 2 are low lying land with respect to Nash Road and the ditches on Nash Road and the applicant has not been able to provide a satisfactory lot grading plan. Also, the applicant has entered into an agreement of Purchase and Sale for the house located on Part 3 . i i i I 4 .0 REVIEW AND COMMENT I i I 4. 1 At the request of the applicant, Mr. Ray Abbott, a meeting was held on Thursday, December 22, 1989, with Mr. Abbott and his solicitor and i engineer. Our solicitor, Mr. Dennis Hefferon was also present. i 4.2 At the meeting, it was agreed that the Town would assist the applicant to make it possible for him to sell the house located on Part 3 and deal with the lot grading plan for Parts 1 and 2 at a later date. 4 . 3 By letter dated December 22, 1989, addressed to Mr. Dennis Hefferon, Mr. Woodley confirmed his understanding of the agreement reached at the meeting (Attachment No.3) . By letter dated December 27, 1989 . Mr. Hefferon replied and confirmed the approach the Town would take to make it possible for Mr. Abbott to sell the house on Part 3 and deal with the lot grading on Parts 1 and 2 at a later date. i i I I . . .4 i i i 1 n n °7 I U i 'I REPORT NO. : WD-1-90 PAGE 4 I 5A RECOMMENDATIONS 5. 1 In accordance with our solicitors advice, it is recommended that the Mayor and Clerk by authorized, forthwith, to execute an agreement with 760148 Ontario Incorporated under Subsection 52 (2) of the Planning Act as a condition of granting severances under Consent Applications LD 321/89 and LD 322/89, that the owner will not alter the grade, vegetation or trees or develop for any purpose either or both of Parts 1 and 2 (as illustrated on Attachment No.2) , until a lot grading plan has been provided, satisfactory to the Director of Public Works and has been approved by the Director of Public Works and until implementation arrangements satisfactory to the Director of Public Works and appropriately secured, in the opinion of the Treasurer, have been made by the owner. Also, the agreement is to be binding on the owner, his heirs, executors and assigns and is to be registered on the title to Parts 1 and 2, at the expense of the owner. i Respectfully submitted, Recommended for presentation to the Committee, �Z ------------------------- --------¢- =------------------ Walter A. Evans, P.Eng. , Lawrence A. otseff, Director of Public Works . Chief Administrative Officer. WAE*llv January 3, 1990 Attachments I i i I i I 1004 i III J I ri —� GLENVIEW ,5G Q>VE Li R0. 3 � c �f' Q 0 EY I z t i. i�✓� WESTMOR TREET I 1 SU BJ ACT SIT E j y = A T1 t I! I � i I I I I I 1 I � ' e I i I 1 I � i r _ O sl til� U ATTACHMEJT NO , 1 WD-1-90 I I I i i LOT 20 LOT 21 INST. N' 122103 INST. N' 114949 N 70' 17 00" E(PL) 52 5 .99B. (HST. N❑993) N 72' 3T 10" E 8 18.00 _.r_ 17.63 _ � 17.46 B b(N) O I _ 4 L 0 T 2 g �N 1 p INST, N' 0 N 13995 m M m M CONCESSION 3 3 M PART I 3 PART 2 M PART 3 AREA=0,069 ho M AREA=0.068 ho •N AREA=0.066 ho AG Q, 0. 17 Ac, N �D ZD Z 2 STOREY FRAME DWELLING z N' 1 o 1 O N wl PAR�lh (V sus w AREA=0 z e(�esl � - 18.00 N ,? 18.00 � 005 --_-- I 0 M e MI 00` E 53.23 1.) N A S H ROAD I I I , ATTACH-MENT N0 .2 WD-1-90 L - 1 n In i Pelephanr iQ/.5/,1)(.O7! j N��r v�/ir -(/ax Une !!16)Jil•L�l�f v CoarCIORW(CM00tj /4161 4J4,Lxi5 �j� �^ f•cx (flS;diQ,J4lr_� �J Rurph 5. ,long � Dunold�'. JoH4,1 Jayne E. Hughr, 2nd Floev, 38 Rwxlond Road l'es't, Oshawo. Onoric L1 G 2V, 22 December 1989 TO FAX NO. 623-5717 Town of Newcastle , 40 Temperance Street , BOWMANVILL� , Ontario , L1C 3A6 Attentions. - 'fir, De nip Hof f. r n& pear sire ; RE ; Raymond ABBOTT - Land Division Commission Files !,D 321/89 and LD 322/89 , Nash Road fart Lot 29 ,= 3 Further to the meeting hold Friday, December 22 , 1989 we would like to outline a proposal which would overcome the initial problem of Mr, Abbott being able to deal with the existing house which is under contract to be sold . The registered owner which ra presently Mr , Abbott' s Company, 760:48 Ontario Inc . , would sign an Agreement to be registered on title in a form satisfactory to you whereby they and their successors in title acknowledge and agree that no application for building permit/s will be made to the Corporation of The Town of Newcastle for the vacant lots being created by the above severanoes located to the immediate west of the existing house until such time as the Town has approved a lot drainage/grading plan for the prop6rty , If you are satisfied that an Agreement of Chia nature may be properly entered into would you plaaae confirm to the Director of f Public WorXs in order that he may make his report and bring the matter bac:' to committee early January hopefully ao that a reCOmmB�d&t:on may be made to Council mid -January . When responding to the Director of public Works would you alto kindly req,,:avt him to discuas matters with Planning and r®quest Planning to isaue a letter to Land Diviu on Committee changing the condition to reflect registration of such an agresmwnt . ATTACHMENT d0 , 3 i 2 Land matter before o before the Committee at its mid- January sitting. Your assistance is appreciated and We look forward to hearing from you. Yourk truly, JONE I' & JONES , Per; RICMA1f P100ULEY, RJW,,�*b oopy to Mr, Raymond Abbott Direotor of public Works Planning Doyartment I i i nn �' 5 I SHIBLEY, RIGHTOti & N1CC UTCHEO\ INARRISTER�; r. 50LICITORG RIG�AaD C.SH19�EV,q,- RVPEgT �'.FIGH'ON,Q.E. JA"ES v:.McCJTC:—QN,q T 41x1 363.8381 ,IAPOLD H.CLLIOTT,O.:y .'��NNIg C.HLFF[A.^.N JOHN U,eOGART,J.C. UGH N M.JUDSON.O.C. DONALD K.ROBIN60N,O C. CHa'S'OPHCR 570Y RICHARD C,ANKA C.C. BARRY S.WORTZMA N.C,C LC9uE E.MASON TCL[COPICR ;4'.®}3ee-t7t7 M ICh4AEL GORDOr DCi WINDI6CHMANN JOHN P, BELL MICHAEL FITZPATRICK,C.C. GKORGC CORN PETER H.SMITH BRIAN M.CAM"ELL V,R066 MORRISON R,JOHN PITCHER GEORGC A.ROBERTSON ALAN L.•ROMSTEtN MICHAEL C.SIRLEY RETeR C.WILLIAMS RICHARD A.15.OCVCNNEY MICHAEL L.PATE RSON J.PAUL WEARING PAUL C.McINN16 SCRNARD McQARVA BOX 32-AOI MAY STREET PCTER Q.NEIL60N CLIFFORD 1.COLE JONATHAN H.FLAP,OEgA CHARLES BIMCO THOMAS A.GTEFANIK SAR3ARA R.C.DO*ICRTY TonoNTo, CA.,gA i& R.MCCRCPY-WILLIAMB WILLIAM L.NORTHCOTE JAMCS RO%%ITER CAROL A.STREET HELPER M.TRAVAS90:3 PETER M.WHALEN H5H 27A PETER V.RAYTEK J,JAY RUDOLPH SANDRA C.SWYSTVN BRIAN W,CHU CYNTHIA J.QUNN MARTIN J.HENOCRSON , ANITA T.RAIN NICHOLAS T.MACOS WARREN S.RAPOPORT PICHARD E.COL£6 CHRISTOPHER B.LOBS MERLE M.NUDELMAN 75UITE 1800 MARTIN PETERS ALEXANDER P.TORQOV SCAN M.FORAN PHILIP P.HEALEY R.PETER A.MACDONALD DONALD A.Ma NCILL SHEILA M,OUIQLEY ROBERT M.STCWART STEVCN L.WE6FICLO THE SIMPSON TOWER TIMOTHY J.HILL J.PAUL R.HOWARD WADE D.JAMIE$ON LEONARD 0.RODNEE11 NETANUS T.RUTHERFORD SANDRA C.DAWC LINDA J.GOOCL JANIS E.INGRAM CHRISTINE M.BILVE PSI DEB COUNSEL December MARTIN L-O•GRICN,O.C. December 27, 1989 VIA TELECOPI$R Mr. Richard P. Woodley Jones & Jones Barristers & solicitors 2nd Floor 58 Rossland Road West Oshawa, Ontario L1G 2V5 Dear Mr. Woodley: Rey Raymond Abbott, Nash Road, Part Lot 29 , Conce Sion 2 I acknowledge receipt of your letter to me dated December 22 , 1989 . I want to confirm my view expressed at our meeting on December 22 , 1989 that a simple agreement between your client and the Town in the form set out in your letter to me of December 22, 1989 j would not be enforceable by the Town against a successor in title of your client whether or not the agreement was registered on title. This point was clearly decided in the decision of the Ontario Court of Appeal in Regina v. York, ex oarte 125 Varsity Ad. Ltd. (1960) O.R. 238 which dealt with a factual situation which was closely analogous to the situation that would be presented if your suggestion_ was to be accepted. I ! The crucial difference in the present legal context between that which existed at the time of the YorX decision and which now obtains is that what now is subsection 52 (2) of the Planning Act, 1983 has been added to the Planning Act. Absent such a provision and the making and registration against title of an agreement pursuant to it, the type of simple agreement that you proposed at our meeting would not be enforceable against successors in title of your client whether or not they took title with notice of the agreement. For this reason, .I indicated that a simple agreement between your client and the Town dealing with the grading issue even if registered against title would LEI ATTACHMENT NO A i SHIHLEY. PJGHTON MCCUI'CHEO\ 2 i not be acceptable to the Town. I did indicate at our meeting on December 22 , 1989 that if the relevant decision of they Durham Land Division Committee granting a i consent to divide was amended by the Committee to make the consent conditional on your client entering into an agreement with the Town dealing with the grading issue in accordance with our discussion on December 22 , 1989 , and if the Town Council was to amend its previous resolution on the matter to substitute the making of an agreement to deal with grading issue for Mr. Evans ' prior approval of a grading plan before the consent would become final pursuant to the amended decision of the Land Division Committee, and if the resulting agreement was expressed to bind successors in title of your client and was registered on title, the legal problem presented by the Y2zk case could be avoided having regard to the provisions of subsection 52 (2) of the Planning Act, 1983 . of course, whether as a matter of policy it would be appropriate in effect to defer dealing with the grading issue in this way, is a matter for the Town to determine on Mr. Walter Evans ' advice. I am sending a copy of this letter to Mr. Evans, for his information. I am also sending him a copy of your letter to me dated December 22 , 1989 . Yours truly, 6HIBLEY, HTON & McCUTCHEON Per: �y j Dennis Hefferori, DH/ka cc: Mr. Walter Evans I Mr. Lawrence Kotseff 1010