HomeMy WebLinkAboutPD-114-95J
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
DNOPAGPA REPORT
Meeting: General Purpose and Administration Committee File # Lo L
Date: Monday, October 23, 1995 Res. #r �� J
Report #:
Subject
PD- 114 -95 PLN 2.2.7.7, PLN 2.2.7.11
File #-
ONTARIO MUNICIPAL BOARD HEARING
DURHAM REGIONAL OFFICIAL PLAN
REFERRAL NO. 16 (MOSPORT) AND
SYSTEMS)
By-law #
REFERRAL NO. 36 (LAIDLAW WASTE
FILES: PLN 2.2.7., PLN 2.2.7.11
Recommendations.
It is respectfully recommended that the General Purpose and
Administration Committee recommend to Council the following:
1. THAT Report PD- 114 -95 be received for information.
1. PURPOSE
1.1 The purpose of this report is to advise Council of the status
of the Ontario Municipal Board Hearing process in respect of
Referral No. 16 (Mosport Park Ltd.) and Referral No. 36
(Laidlaw Waste Systems) to the Durham Regional Official Plan.
2. REFERRAL NO. 16 - MOSPORT PARK
2.1 Mosport Park referred those lands identified as Regional Node
"J ". Their referral centered on their request for additional
uses within the Node. The Regional plan recognized only the
uses existing on the date of adoption of the Plan. Any new
uses would therefore require the approval of an amendment to
the Durham Official Plan. It is staff's understanding that
negotiations are ongoing with respect to the uses permitted.
It is noted a hearing date before the Board has been scheduled
for February 26, 1996.
3. REFERRAL NO. 36 - LAIDLAW WASTE SYSTEMS
3.1 Laidlaw has referred a broad range of policies in the Regional
Plan related to regional structure and waste management. They
have also referred the designation of their existing landfill
site on Schedule A5 of the Plan, the Agricultural and Major
531
REPORT NO.: PD- 114 -95 PAGE 2
Open Space policies as they relate to the use of their land,
and the policy regarding legal non - conforming uses.
3.2 Two pre- hearing conferences before the Ontario Municipal Board
to deal specifically with Referral No. 36 were held on August
281 1995 and September 26, 1995. These pre- hearing
conferences were intended to identify, refine and possibly
reduce the scope of the issues to be addressed at the main
hearing in respect of Referral No. 36. The Board also granted
participant status to the Committee of Clarke Constituents.
A copy of the Board's decision of September 26, 1995 is
attached.
3.3 The Board noted the dual nature of Laidlaw's referral and
concluded that the hearing should take place in two parts. The
first part would deal with evidence related to the Regional
Plan's general policies - specifically, Sections 2.3.8 through
to 2.3.17, and Section 2.3.22 (g). No evidence specific to
Laidlaw's site would be heard. This phase of the hearing is
scheduled to run from December 11, 1995 to December 19, 1995,
with a further one and one -half days scheduled for early
January 1996, if needed.
3.4 Laidlaw advised the Board that they had intended their
referral request to the Ministry of Municipal Affairs to
include Section 2.3.7, which provides a definition of 'waste'
and 'waste disposal site'. The Board found that this Section
had not been referred by the Ministry to the Board. However,
the Board also noted that if Laidlaw chose to submit an
official plan amendment application to change Section 2.3.7,
such application could be joined with the Phase 1 hearing if
expedited by the Region and the Ministry of Municipal Affairs.
To date, Laidlaw has not submitted an official plan amendment
application on this issue.
3.5 Counsel for the Municipality advised the Board that the
Municipality of Clarington supports all the Regional Plan
532
REPORT NO.: PD- 114 -95 PAGE 3
policies to be considered in the Phase 1 hearing, save and
except for Section 2.3.22 (g). This section states that area
municipal official plans shall include policies and
designations pertaining to former and active waste domestic
and industrial waste disposal sites. The Municipality intends
to present evidence that the wording of this section does not
accurately reflect the intent of Modification 17 to the Plan
(Section 2.3.12), which requires area municipal official plans
to identify all active and former waste disposal sites for
information purposes only.
3.6 The Board indicated, if it found at the end of the Phase 1
hearing that there is no fundamental deficiency in the way the
Plan deals with waste management, Phase 2 of the hearing would
likely not be needed. It is anticipated that a Phase 2
hearing, if required, would not proceed prior to the middle to
end of March 1996. It is also anticipated that a further pre -
hearing conference would be held regarding Phase 2 in order to
scope the issues, and determine the timing and length of that
portion of the hearing.
4. CONCLUSION
4.1 Staff will continue to keep Council apprised of developments
related to these two referrals to the Durham Regional Official
Plan.
Respectfully submitted,
Franklin Wu, M.C.I.P., R.P.P.
Director of Planning
and Development
JAS *LDT *FW *df
16 October 1995
Reviewed by,
`W.H. Stockwell
Chief Administrative
Officer
533
Attachment No. 1
OB # FOLIO #
ORDER ISSUE DATE
0940147
r
OCT 1995
!j I Ontario
Ontario Municipal Board
os ! - Fouo a ommisslon des affalres municipales de I'Ontario
At the request of the following party, the Minister
of Municipal Affairs has referred to the Ontario
Municipal Board under subsection 17(l 1) of the
Planning Act, R.S.O. 1990, c P 13, portions of the
Official Plan for the Regional Municipality of
Durham (1991) as they apply to the specific
policies or land use designations within the Plan
Ministry File No. 18 -OP -0012
Referral No. 36 - OMB File No. 0 940147
Laidlaw Waste Systems (Durham) Limited
re. Major Open Space System and Permanent
Agricultural Reserve designations and related
policies for Waste Management Sites
COUNSEL:
W T. Barlow for Laidlaw Waste Systems (Durham) Limited
D C Hefferon for
K. I. MacGregor for
Municipality of Clarington
Region of Durham
MEMORANDUM OF ORAL DECISION AND REASONS FOR DECISIONS
given orally by M. MELLING on September 26th, 1995 and ORDER OF
THE BOARD
This was the second pre - hearing conference concerning Referral No. 36 of the
Durham Region Official Plan ( "the Plan ")'. The referral was requested by Laidlaw Waste
Systems (Durham) Limited ( "Laidlaw"), which is opposed in this matter by the Regional
' The Decision and Order of the Board arising out of the first pre- hearing conference is
unreported, and was issued on September 8th, 1995: DB# 108, Folio# 292; OB# 1995 -5,
Folio No. 319.
534
- 3 - 0940147
specified, the referral letter names "sections 2.3 6 to 2 3 9, inclusive "' We
received no evidence about why s. 2 3.5 was not mentioned in the first
referral request.
3. The Plan was forwarded to the Minister for approval and, as is not unusual
in the case of a large -scale official plan revision, the Minister provided
extensive post - circulation comments, which included a number of proposed
modifications'. These are dated March 25th, 1993.
4. Regional staff then prepared what is often called a "convenience copy" or
(as in this case) an "office consolidation ", which incorporated the Minister's
modifications8. In virtue of the proposed modifications, s. 2 3.5 was
renumbered to s. 2.3.7.
5. On November 23rd, 1993, counsel for Laidlaw wrote to the Minister to
"clarify" Laidlaw's earlier referral request, and to "request referral of those
policies, as amended, namely, s. 2.3.7 to 2.314 inclusive..." (our'emphasis)
Attached to that letter was a document entitled "Extracts from proposed
Durham Region Official Plan as amended to October 1993" (our emphasis).
In that document, s. 2.3.5 is renumbered to s. 2 3 7.
6. By what was apparently a coincidence, the Minister's Approval Certificate for
the Plan was issued the very next day, November 24th, 19939. It provides
that*
6 Exhibit 14.
7 Exhibit 15, Appendix "A ".
8 The relevant portions of the final version of this document, dated February 1 oth, 1994,
were provided as Exhibit 18.
9 Exhibit 16.
536
- 5 - 0940147
of the Plan as adopted by the Region, a completely different provision which all parties
agree is before us.
Subsection 17(6) of the Act says that, upon meeting specified preconditions, the
municipal council "may by by -law adopt the plan and submit it to the Minister for approval"
(our emphasis). Subsection 17(9) then says that the Minister may "approve, or, after
consultation with council, refuse to approve the plan or, if modifications appear
desirable... after consultation with the council, make the modifications to the plan and
approve the plan as modified" (our emphasis). For those provisions not approved,
modified or deferred under s. 17(10), s.17(11) provides that the Minister "may refer the
Ian or any part of the plan to the Municipal Board..." (our emphasis).
It is clear to us that, in using the phrase "the plan ", s 17(6), s. 17(9) and s. 17(l 1)
mean the same thing: "the plan adopted by by -law", not "the plan adopted by by -law, as
modified by the Minister ". Otherwise the last half of s. 17(9) would have to be read to
mean that the Minister may "make the modifications to the plan as modified and approve
the plan as modified as modified ". It is also clear that "making modifications to" and
"approving" the plan are separate steps, taken in that order. The Minister's post -
circulation comments and proposed modifications do not amend the plan, nor do they
approve it, either in amended or unamended form. There is no change to the plan adopted
by by -law until the Minister's Approval Certificate issues
What that means in this case is that s 2.3.5 was still s. 2.3.5 on both occasions
when Laidlaw made referral requests specifying s.2.3.7. Regrettably, as a result of relying
upon the numbering in an "office consolidation" of the Plan, counsel for Laidlaw did not
request referral of former s. 2.3.5 to the Board. And, whether advertently or inadvertently,
the Minister did what Laidlaw requested and did not do what Laidlaw did not request.
538
- 7 - 0940147
DOES s. 20.4.4 BELONG IN PHASE ONE OR PHASE TWO?
The division of the hearing into two phases was effected by an Order issued after
our first pre - hearing conference on the Laidlaw referral and explained in the accompanying
reasons for decision ". Our goal was to separate general from site - specific issues, and
assign them respectively to Phase One and Two.
At the second pre- hearing conference the parties sought a ruling on whether
evidence regarding s 20.4.4 should or could be called in Phase One or Phase Two
Laidlaw urged us to assign this issue to Phase One, arguing that because of the particular
nature of the disputed policy, it should be dealt with in the general policy context The
Region and the Municipality took the position that s. 20.4.4 was a Phase Two matter, since
the Minister's Approval Certificate provides for referral of "...Sections 12, 14 and 20 4 4 as
they relate to the lands subject of this referral." We ruled in favour of the Region and the
Municipality.
We find that we are constrained in our jurisdiction to consider s. 244.4 by the
clearly expressed intention of the Minister's referral. Section 20.4.4 is, in our opinion,
approved and in force for all lands except those affected by the Laidlaw referral We have
no power to consider approving, rejecting or modifying it as it applies in the more general
context
We asked counsel for Laidlaw whether, if-his client was not permitted to address
s 20 4.4 in Phase One, and in addition was ultimately unsuccessful in that part of the
hearing, there would be any issues arising out of s. 20.4.4 that could not be addressed in
Phase Two. He very fairly indicated that his client's s. 20.4.4 issues could be addressed
in Phase Two, even in those circumstances. On the other hand, counsel for the Region
cautioned that if s. 20.4.4 were "on the table" at Phase One, her client could not avoid
adducing site - specific evidence.
11 Cited at note 1.
f
INE
0940147
5. the hearing of Phase One is scheduled for December 11 th, 12th, 13th, 14th,
15th, 18th and 19th, 1995, and for January 2nd (at 2:00 p.m ) and 3rd, 1996,
in the Council Chambers, Regional Municipality of Durham, Whitby, and
6 the order of proceedings at the hearing of Phase One will be:
a. the case for the Region,
b. the case for the Municipality;
C the case for Laidlaw; and
d reply by the Region
The evidence of participants will be scheduled based on whether they
support or oppose the referred policies
So orders the Board.
"W. E. King"
W. E KING
542
Ontario Municipal Board
Commission des affaires municipales de I'Ontano
SCHEDULE "A"
ISSUES
1 Section 2 3 8:
i) Should this section be deleted from the plan?
If not:
0940147
ii) Are the exemptions from Section 2.3 8 appropriate or what modifications to
this section are appropriate?
iii) Should an official plan amendment be required if the permitted capacity of
a waste disposal site is to be increased?
iv) Should 2.3 8 be modified to address the differentiation made under Section
2.3.8 between the Regional Corporation and other proponents?
2. Sections 2.3.9, 2.3.10, 2.3 11, 2.3.12:
i) Is it appropriate for these sections to address matters which may also be
addressed under Provincial legislation and regulations?
ii) In any event, are the policies therein appropriate and expressed with
sufficient certainty?
iii) Section 2.3.12 - Should the first sentence of this section be deleted and
substituted with an identification of waste disposal sites in the Durham
Regional Official Plan?
iv) Is the role of the area municipal official plan specified in Section 2 3.12
appropriate?
v) Section 2.3.10 - Should the matters required to be addressed in supporting
documentation for an application for a waste disposal site be more
specifically defined in Section 2.3.10?
vi) Section 2.3.11 - Does the Regional Municipality have the authority to provide
for the selection and retaining of a qualified consultant to review a
proponent's report at the expense of the proponent?
543