Tribunal favours developers on Garner Marsh

The extreme pro-developer bias of the Ontario Land Tribunal established by a Hamilton Spectator investigation was on display in last week’s OLT’s procedural decision on the future of the Garner Marsh. On September 29 the OLT clearly took the side of the developers, despite the combined opposition of the city, the Hamilton Conservation Authority and Environmental Defence.

Developers funded by AIMCo and represented by One Properties Inc want to destroy a headwaters wetland of Ancaster Creek to facilitate their plans to construct multiple warehouses on Garner Road near the Highway 6 interchange with the 403. They are appealing a June 2021 decision by the Hamilton Conservation Authority to refuse their plan to “replace” the marsh and part of Ancaster Creek with a constructed pond.

In 2018 a previous owner of 140 Garner Road East made a development application to the city that left the marsh in place, but never responded to questions from planning staff. One Properties has now adopted this earlier proposal and appealed it to the OLT by claiming the city failed to respond in time.

The developers want the OLT to review the marsh destruction and the earlier development application in a single 15-day hearing next spring. The city, Conservation Authority and Environmental Defence contend there should be two separate hearings with the fate of the marsh being determined first.

The OLT procedural order issued last week decided “that the appeals shall be heard together … in one phase” but not formally consolidated.

Both the Conservation Authority and Environmental Defence are focused on protecting the marsh, but may now have to spend far more on lawyers, expert witnesses and staff time to be part of a combined hearing.

Ironically, this decision would not have been possible before the Ford government ‘reformed’ Ontario’s hearing boards in June 2021. Prior to those changes, appeals of Conservation Authority decisions would be heard by a separate tribunal.

But the Progressive Conservative government combined that board with several others including the Ontario Municipal Board and the Environmental Review Tribunal. In the process it also removed several hearing officers with environmental experience and/or credentials.

The new OLT has 40 hearing officers. The Hamilton Spectator’s investigative reporter Steve Buist found that in the first eight months of this year, its decisions have been “massively skewed in favour of developers over municipalities or community groups that might be opposed to a project”.

Buist reviewed 178 decisions by the OLT and 172 (97 percent) were decided in favour of developers. As the Spectator noted in a subsequent editorial this simply reflects the wishes of the provincial Progressive Conservative government. In the words of the folk song by Guelph city councillor James Gordon – “the system ain’t broke, it was made that way”.

The OLT decision adopts the language of the developers that their appeal “involves the relocation of a local wetland” rather than its destruction and “replacement”. It also accepts without comment “the failure of the city to render a decision within the statutory time frame of 120 days”.

The OLT decision acknowledges “the two appeals involve the application of different laws” and a combined process will include “planning and development matters” that are not part of the Conservation Authority’s mandate. The latter argued, along with Environmental Defence, that preserving the marsh could scuttle the other appeal and therefore needs to be decided first.

But the two OLT hearing officers pointed to the developers claim “that it may be possible to modify [their] original development proposal to maintain or reshape the wetlands in a manner that would allow it to proceed” even if they lost the appeal of the permit denial by the Conservation Authority. “Based on this”, the hearing officers decided that “the environmental matters” need not be decided first.

The OLT has scheduled another gathering on October 26 because the four parties “have been unsuccessful” in agreeing in an issues list. That meeting may determine the actual hearing dates in the spring of next year which the OLT believes will occupy three full weeks.