Permits were only issued because 11 buildings were constituent parts of integrated whole

Ontario civil | Municipal Law | Bylaws | Operation and effect

Applicant owned property in respondent township, and its predecessor negotiated redevelopment plans with township to develop property. Approved site plan agreement governed proposed construction of 43 residential units, office, and number of recreational amenities. Township issued demolition permit for removal of buildings on property, which applicant completed, applicant was granted building permits for first 11 condominium units, and construction had commenced. Independent of events, township discovered that some of polices contained in earlier official plan amendment had not been carried forward into comprehensive amendment to township's official plan, and township passed interim control bylaw which purported to restrict permitted use of land within designated area to use lawfully existing on date of enactment. Prior to interim bylaw passing, applicant filed applications for 15 additional building permits, but respondent chief building official refused to issue building permits because of interim bylaw. Applicant applied for order declaring that its property was not affected by township's interim bylaw, but application judge dismissed application. Applicant appealed. Appeal allowed. Application judge failed to consider effect of fact that chief building official had issued building permits for 11 units of development and that those units were already being built. Application judge erred in not finding that applicant's property was exempt under s. 34(9)(b) of Planning Act. Applicant's development had various different elements, those elements were all integrally related to development as whole and they could not reasonably be treated in isolation. Eleven buildings for which applicant had building permits were properly regarded as constituent elements of integrated whole. Site plan agreement specified design and location of each of constituent elements, including 43 units, and township had given applicant permission to proceed with construction of integrated whole. Township would not have issued permits to build 11 buildings on stand-alone basis, and permits were only issued because 11 buildings were constituent parts of integrated whole. Applicant could not have altered its plan and built only 11 buildings without placing itself in breach of site plan agreement. Township advanced no planning justification for interim control bylaw. Applicant's property and development were declared not affected by interim bylaw.

TRG-KFH (Lakeside) Inc. v. Muskoka Lakes (Township) (2019), 2019 CarswellOnt 8675, 2019 ONCA 443, Robert J. Sharpe J.A., L.B. Roberts J.A., and I.V.B. Nordheimer J.A. (Ont. C.A.).

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