Anthony Usher, a licenced planner, testified on behalf of the Pointes Protection Association on Tuesday. His examination in chief trickled over into Wednesday morning and his cross examination should be completed sometime Thursday morning.
Without skipping a beat, and without retort, when the OMB advised him during yesterday’s lunch break that he was in a ‘cone of silence’ and not to speak to anyone, Usher replied, “It shall be my pleasure to be there.”
Over the course of his marathon testimony Usher has appeared smooth and unrattled, and particularly so, during the cross examination conducted by the appellant’s lawyer, Orlando Rosa. Rosa, a formidable inquisitor, has been tasked with procuring evidence that will demonstrate that the Pointe Louise wetland will not bear negative impacts on the natural features or on theirecological functions as per the 2014 Provincial Policy Statement policy.
On the first day of the Pointes OMB Hearing the Chairman ruled that even though the developer had made his applications and reports during the 2005 PPS regime that it would be the current 2014 PPS that will ultimately guide the final decision made by the Board.
The 2014 PPS (2.1.5 f), in part, states that development is not permitted in ‘coastal wetlands’ (the Pointe Louise wetland is a coastal wetland) located in Ecoregion 5E (the Algoma District is within the 5E catchment)- with the clarification (2.1.8) unless “it has been demonstrated that there will be no negative impacts on the natural features or on their ecological functions.”
Rosa/Usher: On the interpretation of planning policy in section 18.104.22.168.
Rosa: You do not agree in regard to whether or not that the geographic scale of policies- you say it doesn’t extend to the application of 22.214.171.124?
Usher: I read that section as saying the PPs recognizes geographic diversity. It’s inherent because we have a lot of polices in the PPS in which geographic diversity is inherent –of which wetlands is a wonderful example. I think where Mr. McConnell and I differ is that he is then reading it to say that ‘on top of the flexibility that is in the policies you should interpret the policies more flexibly based on geography’.
R: And that’s where the two of you differ.
U: I think so. In a nutshell.
R: It would appear that the PPS 2014 even allows appropriate growth and development on rural lands where the community doesn’t have a settlement area.
U: That’s right.
R: Alright. And so- if I look at the bottom of page 20 it just states once again about a settlement area being a focused area of growth however it seems to indicate, and correct me if I’m wrong, that the 2014 PPS provides flexibility to allow growth and development on rural lands.
U: That’s correct- developments related to the management and for use of natural resources, resource based recreational usage and limited amount of residential development may be appropriate…
U: Which takes us back to 126.96.36.199…
R: Alright but I want to finish with this if I can and again in listening to Mr. McConnell it’s not unreasonable for him to suggest that – have regard to what’s in this document, the introduction to PPS 2014, it’s not unreasonable for him to come to the conclusion that this particular development fell within that part of the PPS which is limited residential development as under 188.8.131.52. Am I wrong?
U: Well I don’t want to say that Mr. McConnell is an unreasonable person but I don’t agree with his interpretation. I understand in the sense that I heard the words and I know what his train of thought is and I don’t agree with it.
R: I suggest to you sir, that there appears to be rational in coming to that conclusion based on the reading of the guide. Do you agree with me?
U: I have some problems with that.
Last week Marjorie Hall, District Planner for the Ministry of Natural Resources and Forestry, appeared before the Board. Through her testimony it was identified that the guiding document to be used in interpreting the 2014 PPS would be the Natural Heritage Reference Manual. It is important to note that the Manual was authored under the regime of the 2005 PPS and as such the language in the manual bears reflection of that regime. In qualifying the point Hall stated to the OMB, “At the time the Natural Heritage Reference Manual was written the  PPS only had reference to ‘significant natural features’ in those sections- that’s why the term ‘significance’ is incorporated throughout section 13 of the Natural Heritage Reference Manual. However, given the addition of ‘coastal wetlands’ as an area of provincial interest and defined as… (inaudible)… the content of section 13 is the MNR best available recommendation…(trails off, inaudible).”
To which the Chairman replied, “Ok. I understand that. I presume at some point in time the PPS 2014 only came into effect in April 2014, so I presume at some point the Ministry is going to work through this reference manual and get a new reference manual. I’m guessing. We’re working with this because it is the best available documentation at this present time.”
Rosa/Usher: Rosa initiates this section of questioning based in regards to interpretation of the Natural Heritage Reference Manual.
R: There is no document that you can point me to that would lead this Board to interpret this document- the Natural Heritage Reference Manual, any different than the way it is stated on the written page. Am I wrong? Is there a transitional document which says you shall not or you need to interpret this document in a different way than it appears?
U: There is no specific document that says that.
R: Alright. I would suggest to you that the province must have intended by virtue of the fact that it hasn’t updated this manual and by the fact that this reference manual is still used to interpret the 2014 PPS, that the words in 13.2 ought to be interpreted- or at least be given the meaning upon a plain reading of that section?
U: I appreciate what you’re saying Mr. Rosa.
R: You don’t agree with me?
U: No I don’t agree with you because I think the province has stated clearly that the want this manual to be continued to be used. They know that coastal wetlands have been added to the PPS. They did not immediately rewrite this manual because that is the way of the province. They also, this has a whole new policy on wild land fire, there’s a commitment about providing guidelines for it –the guidelines aren’t in it yet.
U: These things take time. It would have been great to ask this question of Ms. Hall but I find it very difficult in the provinces intent –is that the NHRM does not apply to doing IES, determining negative impacts or anything else on a coastal wetland under 2.1.5 evidences yet there is zero policy guidance because ‘coastal wetland’ didn’t say significant in front of it. *
R: Mr. Usher, as stated, 13.2, in the case that leads to determine negative impacts on significant natural heritage feature or area the cumulative negative impacts on development or site alteration activity …(inaudible)…adversely affect the stability of a feature and …(inaudible)…must be considered against the integrity of the feature. But it speaks to the word significant natural heritage feature. Let’s come back to the question if I may, that I started asking you some time ago when I said ‘well what significant natural heritage features exist on this property?’
U: I thought you’d ask me about natural heritage features in the context of the current PPS.
R: I asked you ‘what significant natural heritage features exist on this particular site’?
U: I answered your question. For example there is fish habitat and I don’t see the word significant in the PPS in front of the word ‘fish habitat’. There is a section in here on fish habitat.
U: Are you telling me that even though the NHRM has fish habitat in it that it doesn’t apply at section 13.2 doesn’t apply to fish habitat because the word ‘significant’ is not in front of the word fish habitat? I’m looking at page 1 of the manual which says the second edition of the NHRM provides technical guidance for implementing the natural heritage policy in the PPS 2005. I hope that it wouldn’t be your view that we should throw this in the garbage because it doesn’t reference 2014 PPS. The manual represents the provinces recommended technical criteria and approaches for being consistent with the PPS in protecting natural heritage features and areas. And natural heritage systems in Ontario, and they footnote- natural heritage features and areas as having specific policies, direction and definition in the PPS and that term continues to be used in the present PPS with the slight modification that ‘coastal wetlands’ were added to it. So I understand what you’re saying- if you pick that one sentence, that one set of words, that doesn’t have the word ‘significance’ there, but the broader policy content, with the evolution of the PPS and the way the guidelines are brought in to force and amended, the overall direction provided here in the NHRM, I cannot agree with you. So far as I am considered there are two and possibly three types of natural heritage features and areas that are covered under section 2.1 on the site. One is coastal wetlands- even though it does not have the word ‘significant’ in front of it, one is fish habitat- even though it does not have the word ‘significant’ in front of it, and then maybe significant wildlife habitat.
R: Alright. So again based on the evidence, let me ask you this, based on the evidence before this Board. Is there a significant fish habitat on this wetland.
U: Its ‘fish habitat’.
R: Is it a ‘significant’ fish habitat?
U: That word is never used anymore with fish habitat. We don’t use that word anymore. I think it was in the old PPS but because of the changes- I think it was in the ’97 PPS…just give me a second sir. (flips through notes briefly) It’s the same thing in the 2005 PPS –it’s the same policy – ‘development and site alteration shall not be permitted in fish habitat except in the course with provincial and federal requirements. Again there is no section on fish habitat in this manual.
R: In your opinion as a professional is there a significant fish habitat on the wetland?
U: I don’t think there is a professional planning…
Helen Scott: I was going to object to the question. He keeps repeating the question. He’s answered the question.
R: No he hasn’t answered it.
OMB: Carry on Mr. Usher.
U: I was just going to say from a planning point of view there is no longer applicable definition of ‘significant’ to modify, or to fish habitat. It does not exist in planning terms. It defers to the Fishery Act. There is fish habitat and there is not fish habitat.
When questioning Ms. Hall last week Rosa asked her to elaborate on natural heritage features and areas stating, “I think your evidence is that you look to wetlands as being a subset of what constitutes a subset of what constitutes natural heritage features. Am I wrong in saying that?” To which Ms. Hall replied, “No. It would be considered a natural heritage feature and area under the PPS.”
Pressing for further clarification Rosa continued, “I asked it in the terms of significance that there was an evaluation made by the MNRF- a determination made that this is not provincially significant- that follows that it’s not a provincially significant coastal wetland. Now does this mean, based on that determination, that this land is the subject of this development, has limited natural heritage features or has limited natural heritage systems.” To which Ms. Hall replied, “No. Taking out the concept of ‘significant’ the province in the PPS made coastal wetlands a natural feature in the area that require…”
In his final remarks during his examination in chief Usher summarized his position stating, “My conclusion is that I’m recommending that the Board refuse the proposed instruments: the Official Planning amendment, the Zoning by-Law amendment, the Draft Plan and in its still, somewhat hypothetical nature- condominium description. In my professional filing opinion in support of these recommendations is: first, that the proposed instruments do not have appropriate regard for applicable members of provincial interest under section 2; second, that the approval would not have appropriate regard to the decision of Council to refuse the applications; third, that the instruments are not consistent with the PPS; fourth, that the zoning by-law amendment, the draft plan and the condo description such as it is do not conform to the City official plan; fifth, that the proposed by-law amendment does not fully or effectively implement the proposed official plan amendment; sixth, with the proposed draft plan and the condo description such as it is do not have appropriate regard for applicable manners under section 51.24; seventh, that the proposed instruments are premature with particular regard that I gave for reasons to the road closure; and lastly, that the proposed instruments are not consistent with good planning principles and practice and on balance they would not be in the public interest.”
Interesting to note that throughout the presentation of his testimony Usher had not yet been identified as either an ‘expert’ witness or a ‘lay’ witness. The OMB has reserved that decision until a future date and will weigh the evidence as presented by Usher appropriately to whatever witness designation is applied.
The Pointes OMB hearing resumes Thursday morning at 9:30 a.m. at the Civic Centre.