Tribunal decision on Tannery Lands soon?
A review of the planning arguments – # 1 – The wetlands issues
Tannery Lands - Supplementary Field Investigation, November 2023
Rob West, Oakridge Environmental, was qualified to give expert evidence as an ecologist and biologist at the Tannery hearing. He is also qualified to complete wetland evaluations using Ontario’s Wetland Evaluation System (OWES). Day 17 of this Substack covers his testimony.
This is the first in a series of posts highlighting key issues at the Tannery hearing as argued in the parties’ written submissions .
Summary
The Ontario Land Tribunal hearing on the application to develop the Tannery lands wrapped up on March 8, 2024 after 24 days of testimony.
Written arguments were submitted to the Tribunal as follows:
- Written submission of the Appellant, 2696609 Ontario Inc., represented by Roberto Aburto and Alice Mihailescu (Dentons Canada LLP) and Jennifer King and Jessica Chen (Gowling WLG (Canada) LLP, April 2, 2025, 60 pages plus appendices
- Written submission of the City of Kingston, represented by Tony Fleming and Spencer Putman, Cunningham, Swan LLP, April 23, 2024, 31 pages
- Written submission of No Clearcuts Kingston, represented by Joseph Castrilli and Richard Lindgren, Canadian Environmental Law Association, April 23, 2024, 30 pages
- Reply Submission of the Appellant, May 6, 2024, 15 pages
The applicant is asking for changes to the City’s Official Plan and Zoning By-law to allow for the development of 1,500 to 1,670 residential units, approximately 3,600 square metres of commercial space, and 6,000 square metres of “flex” commercial space whose function could be changed over time.
The parties signed an Agreed Statement of Facts on January 15, 2024. The parties agreed that the site is contaminated and classified as a “Brownfield” by the City, that it does not have frontage on an arterial or collector road, and that it is adjacent to the Rideau Canal UNESCO World Heritage Site, National Historic Site of Canada and Canadian Heritage River. They also all agreed that there are no noise or overlook issues with neighbours relating to the proposed development.
During the hearing witnesses for all three parties presented evidence on the planning issues.
This post covers two of the 11 issues that the Tribunal was asked to consider:
Issue 9 – Is the proposed removal of a portion of the Provincially Significant Wetland a remediation option that is consistent with the Provincial Policy Statement?
Issue 10 – If remediation of the Subject Lands requires removal of a portion of a Provincially Significant Wetland, is development of the Provincially Significant Wetland subject to remediation consistent with the Provincial Policy Statement? Should the Provincially Significant Wetland be restored after remediation?
PPS = Provincial Policy Statement
PSW = Provincially Significant Wetland
The Greater Cataraqui Marsh PSW runs for five kilometers from the 401 to the Inner Harbour. It covers 504 hectares with about 2.15 hectares of the PSW within the Tannery property.
The Appellant presented two possible plans for Phase 4 of the development. One had a portion of the fourth residential building on a portion of the PSW and another had a firelane within the wetland boundary. In both scenarios, the Appellant is proposing to fill the wetland with the majority of the filled area becoming green space.
The Appellant’s written submission has just over two pages on these two issues. It claims that “The Appellant does not propose removal of a portion of a PSW in these development applications. There will be no development or alteration in the PSW.” (paragraph 344) And that the Tribunal does not have “to determine if removal of a PSW is consistent with the PPS.” (para. 345)
The Appellant also submits that removal of the highly contaminated portion of the Greater Cataraqui Marsh PSW as part of what would have to be a provincial-government approved cleanup plan would be consistent with the PPS. How else could the contamination be managed?
The City argues that the PPS has “an absolute prohibition on altering or development within any portion of a PSW” (para. 15) and that the Tribunal has no authority to approve the Appellant’s OP and Zoning changes as they apply to the PSW.
It notes that both the City’s and No Clearcuts Kingston’s land use planners agreed that the “proposed development in Phase 4 is inconsistent with the PPS as it requires the destruction of the PSW and development and site alteration to the PSW.” (para 17) At the hearing, the land use planner for the Appellant agreed that “capping and filling the wetland would constitute ‘site alteration’ under the PPS.” (para. 18)
The City also notes that there is uncertainty about the downstream impact of contamination in the wetland portion of the site. Is it a source of contamination going into the Cataraqui River or is it stable where it is in the sediment? (para. 44)
The City argues that the Tribunal does not have the authority to remove part of a PSW and that any remediation work should restore the wetland as a wetland. (para. 136)
No Clearcuts Kingston’s submission agrees with the City that PPS section 2.1.4 contains an “absolute prohibition on development or site alteration anywhere with the Greater Cataraqui Marsh PSW” and that given the loss of wetlands throughout southwestern Ontario “it is imperative that planning authorities – including the Tribunal – fully protect all remaining PSWs by strict application” of the PPS policy. (para. 21)
The province’s Natural Heritage Reference Manual provides guidance to ensure consistency with the PPS saying that planning authorities will protect PSWs by not permitting development and site alteration in them. (para. 23)
While the appellant submits that the proposed development would only affect 0.4% of the 504 hectare PSW (para. 20), No Clearcuts Kingston argues that it is “immaterial that the remainder of the Greater Cataraqui Marsh would still be classified as a PSW if the wetlands on the subject property are destroyed in the manner proposed by the Appellant.” (para. 26)
The Appellant reply submission references the evidence of one of its witnesses that “leaving the contamination in the wetland untouched is inconsistent” with other PPS policies which support site remediation. (reply, para. 30)
Section 2.1.1, PPS. Now section 4.1.1.
“Natural features and areas shall be protected for the long term.”
Section 2.1.4, PPS . Now section 4.1.4.
“Development and site alteration shall not be permitted in:
(a) Significant wetlands in Ecoregion 5E, 6E, and 7E.”
The Tannery site is in Ecoregion 6E.
Section 3.2.2, PPS. Now section 5.3.2
“Sites with contaminants in land or water shall be assessed and remediated as necessary prior to any activity on the site associated with the proposed use such that there will be no adverse effects.”