In 1999, Official Plan Amendment 88 (OPA 88) introduced into the City of London’s Official Plan, the components that comprise the City’s Natural Heritage System and the associated environmental protection policies. As part of this process, OPA 88 designated certain lands “Environmental Review” (ER). The subject lands were identified by the City’s Sub-Watershed Studies as “vegetation patches”, having potential as significant woodlands.
OPA 88 required that a detailed environmental study be undertaken on ER lands to determine whether they are “significant”. Outside the urban growth area (UBG), the City was directed to do the study on the lands during the first 10 years of the planning period (1996 – 2006). Within the UBG, a detailed environmental study would be carried
out through area studies or would be triggered by a site-specific development proposal. Restrictive land use policies were established on ER lands, pending determination of “significance”.
If lands were determined to be “significant”, in accordance with the criteria set out in Section 15.4.5 of the Official Plan, the lands would be re-designated “Open Space”. Otherwise, the lands would be re-designated for the appropriate land use in accordance with Official Plan policies.
Section 15.4.5 of the Official Plan provides the definition of woodlands and the basis for determining significance:
Woodlands are complex ecosystems of different tree species, shrubs, ground vegetation and soil complexes that provide habitats for many plants and animals. Woodlands is a general term which collectively refers to Woodlands identified through the Subwatershed Planning Studies and located outside the recognized Environmental Significant Areas which are shown as Vegetation Patches on Schedule B.
The significance of woodlands will be based on an evaluation of the following considerations:
- The Woodland contains natural features and ecological functions that are important to the environmental quality and integrity of the Natural Heritage System.
- The Woodland provides important ecological functions and has an age size, site quality, diversity of biological communities and associated species that is uncommon for the planning area.
- The Woodland is important for the balanced distribution of open space amenities and passive recreational activities across the urban area.
- The Woodland provides significant habitat for endangered or threatened species.
- The woodland contains distinctive, unusual or high-quality natural communities or landforms.
In October 2000, the City of London adopted the first guideline document (the “2000 Guideline”) that set out a scoring system for evaluating “significance” of woodlands. A threshold was established in the 2000 Guideline that required one of the following to be met for woodland to be considered “Significant”:
- Three or more criteria meeting the standard for “high” or
- two criteria meeting the standard for High and four or more criteria meeting the standard for Medium or
- one criterion meeting the standard for High and six or more criteria meeting the standard for Medium or
- Seven criteria meeting the standard for medium.
The 2000 Guideline and threshold (hereinafter the “Three High Approach”), was the evaluation procedure for woodlands that was used until August 2006. As a result of ongoing review by the City and on the recommendation of consultants hired by the City to carry out the ER land studies, changes were made to the 2000 Guideline criteria. A new guideline document (the “2006 Guideline”) replaced the 2000 Guideline. Official Plan Amendment (OPA) 401 added the 2006 Guideline to the list of the City’s guideline documents enumerated under Section 19.2.2 of the City’s Official Plan.
The 2006 Guideline has since been used as the evaluation procedure for
significance of woodlands. However, unlike its predecessor, the 2006 Guideline did not include a threshold for determining “significance”. In response to public comments, the Department of Planning and Development recommended that the threshold for significance be made express within the Official Plan. The rationale was that its placement within a policy framework would allow for public review and appeals under the provisions of the Planning Act.
Official Plan Amendment (OPA) 403 added the threshold policy for determining “significance”. OPA 403 revised the previous threshold from the Three High Approach to the “one high approach” or a “five medium” approach (referred to herein as the “One High Approach”) as follows:
188.8.131.52 – the Woodland would be considered “Significant” if it achieves a minimum of one high or five medium criteria scores as determined by application of the Guideline Document for the Evaluation of Ecologically Significant Woodlands (March 2006) as listed in section 19.2 .2. A Significant Woodland will be designated as Open Space on Schedule A and delineated as a Significant Woodland on Schedule B.
A group of London developers (London Exeter Development Inc. (formerly, London Highbury Shopping Centres Limited), 700531 Ontario Ltd., T.W. Johnstone and Mollyanne Johnstone, London Development Institute, Corlon Properties Inc., Norquay Developments Inc., Joanne and Antonia Schalk, Liahn Farms, Sifton Properties Limited, Farhi Holdings Corporation, Drewlo Holdings Inc., Z Group Limited, Crich Holdings and Buildings, Crich Holdings and Buildings Limited, Sunningdale
Developments Inc., Claybar Developments Inc.) appealed the proposal to add Amendment No. 403 to the Official Plan of the City of London (O.M.B. File No. O060201). They argued that:
The guideline document is a technical manual that is not transparent and is immune from appeal. The guideline document contains standards for evaluating significant woodlands, which the Appellants assert are inappropriately low and insufficiently selective.
Accordingly, the guideline document effectively serves as a vehicle for expropriating to the Natural Heritage System privately owned vegetation patches in inappropriate cases.
In denying the appeal the OMB stated that “the proposed OPA 403 is consistent with the PPS, conforms to the City of London’s Official Plan and reflects community values and the City’s objective to protect Woodlands.” (read the decision here)