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PLANNING AND DEVELOPMENT - Interim controls

Friday, July 05, 2019 @ 6:23 AM  


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Appeal by the developer from an order of the application judge dismissing its application for an order declaring that its property was not affected by the Township’s Interim Control By-Law. The appellant was developing a large parcel of land it owned in a resort town. The site plan agreement with the Township was for the construction of 43 residential units, an office, and several recreational amenities. With the approval of the Township, the appellant demolished the existing buildings, completed substantial servicing work and received 11 building permits for the construction of 11 of the proposed 43 units that formed the core of the development. In 2018, the Township enacted the interim bylaw which purported to restrict the permitted use of land within the designated area to the use lawfully existing on the date of its enactment and specified that existing use could only be permitted if it was conducted entirely within a building in existence on the date of its enactment. After enactment of the bylaw, the appellant was unable to obtain further building permits to complete the development of the property. The application judge rejected the contention that the bylaw was passed in bad faith and found that the use of the property on the date of enactment was akin to that of vacant land being developed for the first time and thus was not exempted from the bylaw.

HELD: Appeal allowed. The property and its development were not affected by the bylaw by operation of ss. 38(8) and 34(9)(b) of the Planning Act. The 11 buildings for which the appellant obtained building permits were properly regarded as constituent elements of an integrated whole. The site plan agreement specified the design and location of each of those constituent elements including the 43 units. The respondent gave the appellant permission to proceed with the construction of that integrated whole. There was nothing in the record to suggest that there were any legitimate and existing planning concerns regarding this development proceeding on the property as agreed.

TRG-KFH (Lakeside) Inc. v. Muskoka Lakes (Township), [2019] O.J. No. 2873, Ontario Court of Appeal, R.J. Sharpe, L.B. Roberts and I.V.B. Nordheimer JJ.A., May 28, 2019. Digest No. TLD-July12019010