Caledon councillors unanimously voted Tuesday to extend the Town’s interim control bylaw on the aggregate industry (temporarily halting approvals for new projects) at the behest of the community which has banded together to fight the proposal for an 800-acre blasting quarry.
But while staff reiterated the bylaw extension is appealable to the Ontario Land Tribunal (OLT) under the Planning Act, they expressed confidence the Town would be in good position to win an appeal, a claim that runs contrary to decisions by the provincial tribunal under the PCs.
“If they’ve got 50 days to appeal it, I don’t think we’re going to have much work done,” Mayor Annette Groves said, referring to the Town’s efforts to update its aggregate policies after a study of the Top Ten Aggregate Producing Municipalities of Ontario (TAPMO), presented last year, showed Caledon was falling short of other cities. “I don’t know if it is a valid concern, but it doesn’t seem like we will have the work done that we need done by the time they can appeal.”
Steve Burke, manager of strategic policy planning at the Town, confirmed that Canadian Building Materials (CBM), the company pushing for a mega quarry, or any other interested party, could appeal the decision within 50 days of extension of the bylaw. But he also assured an anxious council that even if a company did appeal, it would take a significant amount of time to schedule a hearing, during which the Town could continue to work on updating its aggregate policies. He said the Town is prepared to fight its position in a hearing, which Ward 4 Councillor Nick DeBoer backed.
“I think the idea of supporting even an appeal would probably be successful on our point because we are continuing to do the work,” the councillor, who was chairing the meeting, stressed.
But the claim by staff, supported by some councillors, is misleading based on the outcomes of the overwhelming majority of decisions that have been made by the OLT in its short history.
An investigation undertaken by the Hamilton Spectator analyzed all rulings made by the OLT between January and mid-August of 2022. Of the 178 decisions, 172 were in favour of the applicant trying to push a project, with the municipality or public entity winning just six times.
The development lobby claims the lopsided outcomes reflect the selectivity of companies, who only appeal when they are confident they will win, often because elected officials go against the planning recommendations of staff who have the expertise.
“It is our goal to ensure their concerns are addressed to the best of our ability prior to any decisions having to be made about the Official Plan and Zoning Bylaw,” David Hanratty, director of land, resource and environment at Votorantim Cimentos North America, the parent company of CBM, previously told The Pointer.
The 97 percent success rate of developers and other private companies at the OLT has come under changes the Doug Ford PC government has made to various pieces of legislation that have eroded the control of municipalities, conservation authorities and the public over local planning decisions, while heavily favouring the private sector.
In 2021, Attorney General Doug Downey, tabled Bill 245, the Accelerating Access to Justice Act, which was later passed by the PC majority. The Act, Downey asserted when presenting it in the house, “improve[s] access to justice for people across Ontario, across the system, by modernizing processes and breaking down barriers in the province’s courts, tribunals, estates law, family law and child protection sectors”.
The Act consolidated the former Conservation Review Board, Environmental Review Tribunal (ERT), Local Planning Appeal Tribunal (LPAT) and Mining and Lands Tribunal, into the singular body of the OLT. While Downey claimed the amalgamation would make the appeal process more “efficient and effective” and help to lighten the burden of the backload of cases across Ontario, dozens of lawyers have opposed the Act for its erosion of previously protected public safeguards and its weakening of environmental protections.
Other implications of the Act include expanding the OLT’s powers to dismiss a proceeding, reduced participation rights by mandating written comments only for most participants (only parties can speak), and the mismatching of expertise — appointments from all of the previous bodies would still be represented on the OLT but they could be assigned to any case.
Prior to the amalgamation of the former appeal bodies, the government passed Bill 229 with Schedule 6 which began to chip away at environmental protections. This legislation amended the Conservation Authorities Act by allowing “a decision of a conservation authority to cancel a permit or to make another decision to be appealed by the permit holder to the Local Planning Appeal Tribunal (now the OLT).”
Ford did not stop there. As has been evident through the Auditor General and Integrity Commissioner reports into the Greenbelt land swaps, the PC government has been heavily favouring developers, using its suite of legislative changes to trigger, then defend land use actions that have caused widespread public backlash.
This is the backdrop causing many Caledon residents to worry about the future of the municipality, with companies angling to turn its fertile, water-filled lands into profit.
Bill 23, which shocked municipalities, environmental organizations, housing advocates and many other groups for its ambitious goal of building 1.5 million homes in less than eight years, also made changes to the OLT to allow for a more streamlined construction approval process. While the changes have yet to come into effect, they include increasing powers to order costs against the losing party in any OLT case, power to dismiss appeals for undue delay and power of the Attorney General to set service standards for scheduling of hearings.
Municipalities have said the province continues to remove their authority, and the authority of the public, to decide how local planning should be approached, to protect community values, the environment and the economic development interests best promoted by residents and companies who will continue to live, work and conduct business in their own backyard.
Prior to the provincial election in 2022, when Ford won a second term, a swath of municipalities called on the Ontario government to dissolve the OLT entirely. The movement, spearheaded by Aurora Mayor Tom Mrakas, resulted in over 60 municipalities across the province passing motions asking the government to dissolve the body, stating there should be no need to override municipal planning decisions. The calls came after years of OLT decisions that upset municipalities and their constituents, a trend that continues to this day.
In February 2020, the City of Guelph denied a controversial application for a massive 678-unit project, divided between highrise, lowrise and townhouses, on a vacant property in the City’s west end. The developer took the application to the LPAT (before it became the OLT) in 2021, which overruled the City’s decision and gave the development the go-ahead.
In 2022, former Caledon mayor Allan Thompson said he was “incredibly disappointed” by an OLT decision to allow an asphalt plant in Bolton despite two years of the Town fighting the proposal. The Town decided to appeal the decision but it was denied the opportunity to even get a hearing.
Earlier this year, the OLT ruled in favour of a developer proposing to build a 26-storey condo just north of Burlington’s city-centre. The highrise will replace small shops in the area. The City had initially rejected the application, asking for a more modest 17-storey development instead.
These examples are just a few of the hundreds of judgements handed down by the OLT, granting the ability to developers to essentially write their own rules, as was exposed in the Auditor General and Integrity Commissioner investigations into the Greenbelt land swaps.
CBM has given no indication it will appeal the decision to extend the Interim Control Bylaw — it has also yet to appeal the fact it has been over 120 days since it submitted its application to the Town, without any decision due to the bylaw which paused any decisions on aggregate applications for one year (a deadline that was about to expire before last week’s extension). Regardless, the aggregate operators are pushing ahead with securing the necessary licenses to build and operate the quarry.
In addition to receiving a zoning bylaw amendment and an Official Plan amendment from the Town, CBM must also apply to the Ministry of Natural Resources and Forestry (MNRF) for a Class A license that will allow for the extraction of more than 20,000 tonnes of aggregate annually. The company has begun the process of applying for this license and following proper processes is holding a public meeting where residents can share their concerns. The public meeting is scheduled for October 25 and there is a 60 day window for participants to submit comments or objections.
Regardless of how CBM moves forward with the other portions of its applications, the ICBL overrides the Clergy Principle which, under the Planning Act, states applications should be tested against the policies and laws in place at the time the application is submitted. However, when an ICBL is in place, any new policies or updated legislation that occurs in that time period, can be used to weigh the application.
Burke said the Town is working with regional government, hiring a consultant and meeting with the Aggregate Resources Community Working Group to create a plan for the quarry and gravel industry that will protect residents, Caledon’s interests, sensitive protected greenspaces, while allowing for needed economic activity to support a range of construction projects. Aggregate is used for everything from roads and highways, to highrises and everything else that requires concrete. He said staff are now moving into what he calls phase two, where the group will look at the new High Potential Mineral Aggregate Resource Areas, to map where quarries should be allowed and create policies and procedures to control future land use for these massive mining operations that currently dot the Caledon countryside.
“This is not a sprint, it’s a marathon,” Antonietta Minichillo, director of planning and chief planner at the Town, previously told the Caledon community.
But there is little surprise that the Town was unable to complete their ambitious goals within the one-year period, given six months in, barely any progress had been made.
“I do this for a living, organizing experts and producing studies, they take more than six months,” David Donnelley, a renowned environmental lawyer who is helping the community oppose the blasting quarry, stated in April. “It’s possible this will get done, but once those studies are completed, they have to be passed for public consultation, it has to go back to council, it has to have a staff recommendation that has to come up for a vote. We are on an incredibly short timeline here.”
While the stakes remain high, staff remain confident the aggregate industry review and mapping initiative is well underway so Caledon can create policies it can defend at the OLT, and use to deal with applications in the future.
“We are advancing as quickly as possible while making sure the working group has the time to provide their feedback,” Burke said Tuesday. “I don’t want to commit to any timeline but it doesn’t mean the ICBL will be in place the full year (after one has already been exhausted).”
Tuesday’s agenda also had a motion from Mayor Groves on minimum separation distances for pits and quarries but it was deferred to the planning and development committee meeting on October 17 in order to give the Aggregate Resources Community Working Group time to discuss the matter.
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Rachel Morgan, Local Journalism Initiative Reporter, The Pointer