BRIEF: OLT Procedural Order for 442, 450, 454, and 462 Wilson Street East, Ancaster – TPR Hamilton | Hamilton's Civic Affairs News Site

January 31, 2023
On December 5, 2022, the Ontario Land Tribunal issued the procedural order for file OLT-22-004156, 442, 450, 454, and 462 Wilson Street East, Ancaster.
I’ve copied and pasted from the PDF I received by email.
SCHEDULE 1
PROCEDURAL ORDER
The Tribunal orders that:
1. The Tribunal may vary or add to this Order at any time either on request or as it sees fit. It may amend this Order by an oral ruling or by another written Order.
Organization of the Hearing
2. The video hearing will commence on Wednesday September 13, 2023 at 10:00am
3. The parties’ initial estimation for the length of the hearing is Twelve (12) days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlement on issues where possible.
4. The parties and participants (see the Attachment 1 for the meaning of these terms) are listed in Attachment 2 to this Order.
5. The issues are set out in the Issues List attached as Attachment 3. Except for scoping or removing issues, there will be no changes to this list unless the Tribunal permits it. A party who asks for changes may have costs awarded against it.
6. The order of evidence shall be as listed in Attachment 4 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence-in-chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on consent or by Order of the Tribunal.
7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address and email address and the phone number as soon as possible.
8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.
Requirements Before the Hearing
9. If the Applicant/Appellant intends to seek approval of a revised proposal at the hearing (different than initially applied for with the municipality), the Applicant/Appellant shall provide details of the revised proposal, including revised plans and drawings, draft official plan and zoning by-law amendments, and supporting materials to the other parties on or before Monday March 13, 2023 unless otherwise agreed to by the parties. If the Applicant/Appellant provides a revised proposal, the other parties shall have the right to
4 OLT-22-004156
revise their Issues Lists. Subject to reasonable notice to the other parties, revisions to the proposal which seek to settle or narrow issues, after this date, are also permitted.
10. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal, the other parties and to the City Clerk a list of the witnesses and the order in which they will be called. This list must be delivered by Friday April 14, 2023, and in accordance with paragraph 23 below. For expert witnesses, a party is to include a copy of the curriculum vitae and the area of expertise in which the witness is proposed to be qualified. Any challenges to the qualifications of a witness to give opinion evidence in the area of expertise proposed should be made by motion in accordance with the Tribunal’s Rules and notice of same must be served on the other Parties on or before Thursday April 20, 2023.
11. Expert witnesses in the same field shall have a meeting on or before Friday May 12, 2023, and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting each group of witnesses in the same field shall prepare and file a Statement of Agreed Facts and Issues identifying areas of agreement, dispute and the Issues that will be addressed at the hearing. All documents exchanged and discussions held between expert witnesses are on a without prejudice basis, with the exception of the Statement of Agreed Facts and Issues which becomes part of the record when it has been signed by the experts. The Statement(s) of Agreed Facts and Issues will be filed with the OLT case co-ordinator on or before Friday June 2, 2023.
12. An expert witness shall prepare an Expert Witness Statement that shall include: an acknowledgement of expert’s duty form, the area(s) of expertise, any reports prepared by the expert, and any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 14 below. Instead of an Expert Witness Statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.
13. Expert witnesses who are under summons but not paid to produce a report do not have to file an Expert Witness Statement; but the party calling them must file a brief outline of the expert’s evidence and his or her area of expertise, as in item 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 14 below.
14. On or before Friday July 14 2023, the parties shall provide copies of their Witness and/or Expert Witness Statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 23 below.
15. On or before Friday July 14 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 23 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
16. On or before Friday August 11 2023, the parties shall provide copies of Reply Witness Statements, if any, to the other parties and the OLT case-co-ordinator and in accordance with paragraph 23 below.
17. On or before Friday September 1 2023, the parties shall provide copies of their visual evidence1 to all of the other parties and the OLT case co-ordinator and in accordance with paragraph 23 below. If a model is proposed to be used the Tribunal must be notified before the hearing. All parties must have a reasonable opportunity to view it before the hearing.
18. The parties shall cooperate to prepare a Joint Document Book which shall be shared with the OLT case co-ordinator on or before Friday August 25 2023. The Document Book will be electronic in format and include page numbering and electronic tabs. Any party wishing to have a hard copy will be responsible for printing its own copy. If the Tribunal wishes a hard copy, then the parties will share equally in the cost of printing it. Within 10 days of the exchange of Witness Statements the Applicant/Appellant will prepare a draft Index of the Joint Document Book (based on the Witness Statements filed) and will share it with the other parties for comment. Following the exchange of Reply Witness Statements the parties will work together to finalize the Index. While the Applicant/Appellant will prepare the full Joint Document Book, each parties is required to send the Applicant/Appellant those document which are unique to their Witness Statements and which the Applicant/Appellant would thus not otherwise have in its possession.
19. Any documents which may be used by a party in cross examination of an opposing party’s witness may be password protected and only become accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing. Any such documents shall be provided to the Tribunal and all other parties in advance of their intended use.
20. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.
21. A party who provides the written evidence of a witness to the other parties must have that witness attend the hearing to give oral evidence, unless the Tribunal and the parties are notified at least 7 days before the hearing that the written evidence is not part of their record.
22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Friday September 8, 2023 with a proposed schedule for the hearing that identifies, as a minimum, the parties par Friday September 8, 2023ticipating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.
23. All filings shall be electronic and in hard copy. Electronic copies may be filed by email, an electronic filing sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.
24. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.
25. A summary of the various filing dates is contained in Attachment 5.
FOOTNOTE: 1 Visual evidence should be of a general nature, such as air photos, enlarged versions of maps already in the public realm. The Visual Evidence exchange date is not an opportunity to provide substantive new evidence late (i.e. effectively a late Witness Statement). For example, the NEC’s issues, in particular, deal with visual impact of the proposed development on the Niagara Escarpment and, accordingly, the Witness Statements and reports filed in respect of those issues must be adequate to respond to those issues; new evidence or a response to the Issues cannot be left to the Visual Evidence exchange date. This direction binds all parties respecting all issues.
ATTACHMENT 3
ISSUES LIST
City of Hamilton Issues – see Note 3
Planning
1. Is the development proposal consistent with the Provincial Policy Statement (2020) (“PPS”) in terms of infrastructure, including but not limited to policies 1.1.1 c), 1.1.3.2 b), 1.1.3.4
2. Does the development proposal conform to A Place to Grow: Growth Plan for the Greater Golden Horseshoe (2019, as amended) in terms of existing and planned sanitary servicing capacity? Including but not limited to policies 2.2.1.2 a) and 3.2.1.1?
3. Does the development proposal conform to the Niagara Escarpment Plan (2017) in terms of height, setbacks, screening, and visual impact, including but not limited to policy 1.7.5.1, and Urban Hamilton Official Plan (“UHOP”) Volume 1 policies C.1.1.1 and C.1.1.6?
4. Does the development proposal comply with the urban structure policies of the UHOP for Community Nodes in terms of height, density, built form, design, shadow impacts, and the appropriate application of step backs and angular planes, including but not limited to UHOP Volume 1 policies E.2.3.3.7, E.2.3.3.9, and E.2.3.3.12?
JVR note: The issue above is no longer applicable due to OPA 167 decision. The OPA 167 decision permits additional density and height in Community Nodes, provided the applicant has demonstrated there are no adverse shadow impacts to neighbouring residential uses, provided the buildings are progressively stepped back from residential areas and provided the buildings are progressively stepped back from the street where necessary. A portion of this project is outside of a “Community Node” on Schedule E, however the Ancaster Wilson Street Secondary Plan Appendix ‘A’ clearly identifies the site as being within a “Community Node Area”.
5. Does the development proposal comply with the Mixed Use – Medium Density Designation of the UHOP, in terms of design, including but not limited to Volume 1 policy E.4.6.9?
6. Does the development proposal provide for a compatible integration with the surrounding area in terms of scale, form, and character and meet the residential intensification tests of the UHOP, in terms of establishing a relationship that maintains, enhances, and builds upon the existing neighbourhood character and contributes to maintaining and achieving an appropriate range and mix of dwelling types and tenures, including but not limited to UHOP Volume 1 policy B.2.4.1.4? Specifically, does the proposal address matters such as:
a. Building height;
b. Residential density;
c. Massing;
d. Privacy;
e. Overlook;
f. Setbacks; and,
g. Compatibility with and enhancement of the character of the existing neighbourhood?
7. Does the development proposal comply with the Ancaster Wilson Street Secondary Plan in terms of intensification and infill development, cultural heritage, urban design, height, massing, scale, density, setbacks, and parking for the Ancaster Community Node and the Village Core Area of the Mixed Use – Medium Density Designation, Pedestrian Focus Streets, including but not limited to UHOP Volume 2 policies B.2.8.6.1, B.2.8.8.4, B.2.8.8.5, B.2.8.12.1, and B.2.8.13.1.
8. Does the cumulative effect of the proposed zoning modifications, including increased height and density, modified built form (reduction in window/door percentage, increased first floor height), and reduced setbacks, respect and maintain or enhance the existing character of the area?
9. Are the proposed site specific performance standards compatible and in keeping with the intent of Hamilton Zoning By-law No. 05-200?
10. What is the appropriate form and content of the proposed zoning by-law amendment?
11. Is a holding provision appropriate for the proposed development, and if so, what are the appropriate provisions to include?
12. Does the proposed development represent good land use planning and is it in the public interest?
Engineering
13. Does the proposed development support the existing infrastructure including but not limited to UHOP Volume 1 policy C.5.3.11 and C.5.3.15?
14. Has the proponent demonstrated that the proposed development does not negatively impact the existing infrastructure in accordance with Policies B.2.4.1.4 f) and B.2.4.2.2 j)?
15. Does the proposal satisfy all requirements and comments identified by Development Approvals including but not limited to grading, stormwater management and servicing and compliance with UHOP policies C.4.0 and C.5.0?
16. Is there sufficient sanitary sewer capacity for the proposal?
17. Is there sufficient water service capacity for the proposal?
18. Does the functional servicing report submitted by the applicant adequately address issues 13-17?
Transportation
19. Does the proposed development conform with the UHOP Volume 1 policies and Schedule C-2 relating to dedication of right-of-way and daylight triangles?
20. Would the proposed development result in a functional road network to safely support the anticipated traffic associated with the development proposal by preventing or satisfactorily mitigating adverse impacts, including but not limited to access, road infrastructure improvements, traffic calming, signalization, site layout, pedestrian facilities, transit amenities, and commercial vehicle maneuverability?
Niagara Escarpment Commission Issues
21. Pursuant to s.2 of the Niagara Escarpment Planning and Development Act, is the proposed development consistent with the Purpose of the Act to provide for the maintenance of the Niagara Escarpment and land in its vicinity substantially as a continuous natural environment, and to ensure that only such development occurs as is compatible with that natural environment?
22. Pursuant to s.8 of the Niagara Escarpment Planning and Development Act, is the proposed development consistent with the Objectives of the Niagara Escarpment Plan (2017) to:
(a) to protect unique ecologic and historic areas;
…
(e) to ensure that all new development is compatible with the purpose of this Act as expressed in section 2;
(f) to provide for adequate public access to the Niagara Escarpment; and
(g) to support municipalities within the Niagara Escarpment Planning Area in their exercise of the planning functions conferred upon them by the Planning Act.
23. Pursuant to s.3(5)(b) of the Planning Act, is the proposed development consistent with the Niagara Escarpment Plan (2017) including:
(a) Its Purpose to provide for the maintenance of the Niagara Escarpment as a continuous natural environment, and to ensure only such development occurs as is compatible with that natural environment (page 7).
(b) Its Objectives that include ensuring that all new development is compatible with the purpose of the Plan (#5), and providing adequate public access to the Niagara Escarpment (#6) (page 7).
(c) Land Use Policy 1.7.1 – Urban Area Objective – To minimize the impact and prevent further encroachment of urban growth on the Escarpment environment.
(d) Land Use Policy 1.7.5.1 – Urban Area Development Objectives – That all development shall be of an urban design compatible with the scenic resources of the Escarpment. Where appropriate, provision for maximum heights, adequate setbacks and screening are required to minimize the visual impact of urban development.
(e) Development Criteria 2.2.1 – General Development Criteria – That the Escarpment environment shall be protected, restored and where possible enhanced for the long term having regard to single, multiple or successive developments that have occurred or are likely to occur.
(f) Development Criteria 2.13.1 – Scenic Resources and Landform Conservation – That development shall ensure the protection of the scenic resources of the Escarpment.
(g) Development Criteria 2.13.2 and 2.13.3 – Scenic Resources and Landform Conservation – That a visual impact assessment be completed that establishes a baseline for existing conditions, identifies proposed physical changes, assesses the impact of proposed changes on the scenic resources of the Escarpment, and proposes measures to minimize any visual impacts.
(h) Development Criteria 2.13.4 – Scenic Resources and Landform Conservation – That appropriate siting and design measures shall be used to minimize the impact of development on the scenic resources of the Escarpment, including but not limited to establishing appropriate setbacks and maximum building heights, and changing the orientation and height of built form to reduce visibility and skylining.
James and Nancy McLeod Issues
24. Does approval of the Official Plan and Zoning By-law Amendment applications have regard to matters of provincial interest in section 2 of the Planning Act including the matters set out in sections 2(h), 2(n), 2(p) and 2(r) therein?
25. Are the Official Plan and Zoning By-law Amendment applications consistent with the Provincial Policy Statement, 2020 in particular, but not limited to the following policy sections:
– Policy Sections 1.1.1, 1.1.3.2, 1.1.3.3 and 1.1.3.4 (Settlement Areas);
– Policy Section 1.6.6 (Sewage, Water and Stormwater);
– Policy Section 1.6.7.2 (Transportation Systems);
– Policy Sections 2.6.1 and 2.6.3 (Cultural Heritage); and
– Policy Section 4.6 (Implementation and Interpretation)?
26. Are the proposed Official Plan and Zoning By-law Amendment applications in conformity with A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019, in particular, but not limited to the following policy sections:
– Policy Section 1.2 and 1.2.1 (Vision and Guiding Principles);
– Policy Section 2.2.1 (Managing Growth);
– Policy Section 2.2.2(3) (Delineated Built ) Up Areas); and
– Policy Section 3.2.1(2) (Integrated Planning);
– Policy Section 3.2.2(1), 3.2.2(3) (Transportation – General);
– Policy Section 3.2.6(2) (Water and Wastewater Systems)
– Policy 3.2.7(2) (Stormwater Management);
– Policy Section 4.2.7 (Cultural Heritage);
– Policy 5.2.5.8 (Implementation and Interpretation)?
27. Is the proposed Zoning By-law Amendment in conformity with the Urban Hamilton Official Plan (Volume 1), in particular, but not limited to the following policy sections:
– Policy Sections B.2.4.1.4, B.2.4.2.1and Policy B.2.4.2.2 (Residential Intensification);
– Policy Sections B.3.3.1 (Urban Design Goals), Policy B.3.3.2.3 and B.3.3.2.6 (Principles), B.3.3.3 (Built Form); B.3.3.5 (Vistas);
– Policy Section B.3.4.1, 3.4.2, 3.4.3, 3.4.5 (Cultural Heritage Resources);
– Policy Sections C.1.1 and C.1.1.6 (Niagara Escarpment Plan);
– Policy Sections C.4.2.4, 4.5.2, (integrated Transportation Network)
– Policy Sections E.1.0 (Goals);
– Policy Sections E.2.1 (Urban Structure Principles);
– Policy Sections E.2.3.3 (Community Nodes)
– Policy Sections E.4.2 (Commercial and Mixed Use Designation-General Policies);
– Policy E.4.6 (Mixed Use – Medium Density)?
28. Is the proposed Zoning By-law Amendment in conformity with the Ancaster Wilson Street Secondary Plan of the Urban Hamilton Official Plan (Volume 2), in particular, but not limited to the following policy sections:
– Policy B.2.8.3 (Development Concept);
– Policy B.2.8.4 (Principles);
– Policy B.2.8.7.2 (General Residential);
– Policy B.2.8.8.4 (Mixed Use – Medium Density Designation);
– Policy B.2.8.8.5 (Pedestrian Focus Streets);
– Policy B.2.8.12.1 (Urban Design);
– Policy B.2.8.12.2 (Gateways); and
– Policy B.2.8.13.1 (Cultural Heritage)?
29. Does the proposed Official Plan and Zoning By-law Amendment applications have regard for OPA 167 to the Urban Hamilton Official Plan (Volume 1) and the Ancaster Wilson Street Secondary Plan of the Urban Hamilton Official Plan (Volume 2) adopted by the City of Hamilton on June 8, 2022 and approved with modifications by the Minister of Municipal Affairs and Housing on November 4, 2022, in particular, but not limited to the following policy.sections: [See Note 3]
30. Does the proposed Low Density Residential 3 designation as set out in proposed Official Plan Amendment authorize an appropriate level of density and intensification for the subject lands and are the uses permitted in the proposed Low Density Residential 3 designation appropriate for the Subject Lands?
31. Does the proposed development provide for an appropriate streetscape along Wilson Street and Rousseaux Street?
32. Does the proposed development provide for appropriate transition to the adjacent low-rise residential development on the adjacent lands?
33. Will the proposed development result in undue, adverse impacts particularly relating to privacy, overlook, noise and lighting?
34. Will the proposed driveway access from Rousseau Street result in traffic safety issues and will the location of the driveway access impact the operation of the Rousseaux Street/Wilson Street Intersection?
35. Should either an alternative or supplementary driveway access be provided from Wilson Street?
36. Will the proposed development result in an unacceptable increase in traffic infiltration to local roadways?
37. Does the proposed development result in an unacceptable increase in traffic volume on the Rousseaux Street and Wilson Street?
38. Is there sufficient capacity in the Rousseaux Street and Wilson Street sanitary sewers to accommodate the proposed development and will there be downstream impacts?
39. Does the proposed Zoning By-law Amendment sufficiently regulate matters of built form including lot size, height, density, massing, scale, setbacks, lot coverage and landscaping having regard for the site, adjacent property and the character of the surrounding lands?
40. Will the proposed development result in adverse visual impacts?
41. Does the proposed development maintain and enhance the established character of the area?
42. Does the proposed development represent good land use planning and is it in the public interest?
Note 1: Where two or more parties raise the same technical issue, they can co-ordinate and rely upon a qualified independent expert but must call expert evidence in support of that technical issue. Where a single party alone raises a technical issue then that party must call technical evidence in support of that issue from a qualified independent expert.
Note 2: The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.
Note 3: The parties will provide any updates to their Issues List by January 27, 2023 which result from the Minister’s approval of OPA 167 to the Urban Hamilton Official Plan (Volume 1).
ATTACHMENT 4
ORDER OF EVIDENCE
1. 2691893 Ontario Inc.
2. James and Nancy McLeod*
3. Niagara Escarpment Commission*
4. City of Hamilton
5. 2691893 Ontario Inc. (in reply)
* Subject to input from the Tribunal and Parties one or both of these parties could potentially present its case after the City of Hamilton.