On May 5, 2021, the Ontario Divisional Court released its decision in Masters v Claremont Development Corporation[1], which discusses the Clergy principle, as well as the jurisdiction of the Divisional Court to review decisions of the Local Planning Appeal Tribunal (“LPAT”).
Clergy Principle
The Clergy principle is taken from Clergy Properties Ltd v Mississauga (City)[2], and states that, generally, land use planning applications should be tested against the law and policy documents in place at the date of the application. As noted by Justice Lederer in Masters, the underlying concern in respect of this principle is procedural fairness:
How could it be fair to require than an application adhere to an understood policy framework and then, in the course of examining the proposal, change the policy foundation thereby making it more difficult, perhaps even impossible, for the application to succeed?
At issue in Masters was an application to have lands rezoned from agricultural to residential uses and subdivided. The application was initially filed by Toko Investments Ltd. (“Toko”) in 1990 but lay dormant for some time. In 2012, Claremont Development Corporation (“Claremont”), which had purchased the lands from Toko, submitted a revised application to amend the zoning by-law and a draft plan of subdivision. In 2018, further planning applications were made by Claremont, which were referred to as “...an update and consolidation of the original 1990 applications.”
These applications were brought forward on the premise that they would be reviewed under the planning policies which existed at the time the applications were first made in 1990. However, in the nearly 30 years since the initial applications, an entirely new official plan had been adopted by the City of Pickering and approved by the OMB. In addition, two new regional plans had been approved since 1991.
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