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Agenda Item t Page #
SUBJECT:
To: I
APPLICATION BY: WONDERLAND POWER CENTRE 3040 WONDERLAND ROAD SOUTH
MEETING ON JULY 9,2007
CHAIR AND MEMBERS PLANNING COMMITTEE ll
R. W. PANZER GENERAL MANAGER OF PLANNING AND DEVELOPMENT I
RECOMMENDATION
That, on the recommendation of the General Manager of Planning and Development:
(a) the Decision of the Ontario Superior Court of Justice dated May 31, 2007, BE RECEIVED; and
that the City Solicitor BE DIRECTED to attend at a hearing dt the Ontario Municipal Board (OMB) and take all necessary steps in support of maintaining the common internal driveway connections between 375 Southdale Road West and 3040 Wonderland Road South, as originally approved by the City in accordance with the registered development agreements.
(b)
II PREVIOUS REPORTS PERTINENT TO THIS MATTER II October 30, 2006 - report to Planning Committee regarding 375 Southdale Road West and 3040 Wonderland Road South.
II PLANNING HISTORY II In 1998, the property owned by 922012 Ontario Limited at 375 Southdale Road West was developed for a Wendy’s restaurant. In 2001, Wonderland Power Centre (WPC) filed application for site plan approval to develop a Loblaws. In 2001, WPC entered into a development agreement with the City of London. Subsequent to this, the original agreement was amended to accommodate additional buildings. WPC entered into amending development agreements with the City. A fifth agreement was prepared to consolidate the four preceding agreements and incorporated all the plans from the other agreements including the two internal drive connections into 375 Southdale Road West.
In August, 2006, the City received letters from BMO’s solicitor and the owner of the Wendy’s. On September 18, 2006, Municipal Council referred the letters to staff to review and report back to a future meeting of the Planning Committee.
On October 30, 2006, staff submitted a report to Planning Committee (PC) outlining the background and the issues with respect to the common internal driveways between 3040 Wonderland Road South and 375 Southdale Road West.
On November 6, 2006, City Council resolved:
2. Power Centre Inc. and 922012 Ontario Limited advising that the Municipal Council:
That the City Clerk BE REQUESTED to provide a letter to the Wonderland
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Agenda Item # Page # .I
(a)
(b)
(c)
expects the access driveways at 3040 Wonderland Road South to remain open;
is prepared to assist the parties with respect to their ongoing discussions;
will avail itself of such remedies as it deems appropriate should the issues not be resolved within 30 days including taking the necessary steps to enforce the site plans in the interest of public safety; and
notes that any occurrences that may arise are at the risk of the parties; (d)
it being noted that the Planning Committee received and noted the attached communication from V. Frijia, President, Wonderland Power Centre Inc. to Councillors R. Caranci and P. Van Meerbergen with respect to this matter. (2006-Dl 1-08/2006-L03- 01 )( 1 /27/PC)
On January 15, 2007, the Planning Committee (PC) received and noted a verbal delegation from A. Patton, Patton, Cormier and Associates representing V. Frijia, President, Wonderland Power Centre Inc., with respect to the jersey barriers on the property located at 3040 Wonderland Road South; it being noted that Mr. Patton did not appeal the issue to the Committee but provided clarification with respect to the history of the installation of the barriers on this property as well as his client's position from a legal perspective with respect to any removal of these barriers; it being further noted that Mr. Patton also provided documents in support of his comments. (34/3PC)
On January 31,2007 and February 1,2007, the City served its court documents in connection with a motion for an interlocutory injunction for the removal of the concrete barriers,
On March 2, 2007, WPC's agent made application to add landscaping and amend the existing site plan. On March 12, 2007, the plans were circulated for review and comments. The effect of this proposal was to eliminate the common internal driveways shown on the approved plans and in the registered development agreement.
On April 4, 2007, WPC's lawyer, Patton Cormier &Associates, filed an appeal to the OM6 as "the municipality has failed to approve the revised plan which provides for the additional landscaping."
On April 11, 2007, the Manager of Site Plan Approvals advised WPC's agent that "we cannot approve your request to remove the two internal driveway connections. This is contrary to our previous approval and your agreement. Please advise our office if you would like to appeal this decision to the Planning Committee and Council, in accordance with clause 7(e) of your development agreement, registered as ER365035 on June 28, 2005."
On April 19, 2007, the OMB acknowledges receipt of the appeal filed by WPC's solicitor.
On May 7,2007 and May 11,2007, the Ontario Superior Court of Justice heard argument from the counsel for the City, WPC, Loblaw and 922012.
On May 25, 2007, the City Clerk received a Notice of Hearing from the OMB. The hearing is to commence on August 2,2007 for two days.
On May 31, 2007, the Ontario Superior Court of Justice released its Decision, a copy of which is attached as Appendix "A.
On June 7, 2007, WPC's solicitors filed a Notice of Motion for leave to appeal Justice Browne's decision of May 31, 2007 to Divisional Court. The Motion will be heard on August 13, 2007. The lawyer for 922012, Barry Card, has indicated that he intends to seek party status for his client at the OMB hearing, Loblaws has retained Aird & Berlis for the OMB hearing and the firm has indicated it intends to seek party status as well.
On the date of writing this report, the concrete barrier located across the common internal driveway parallel to Southdale Road West had been removed. The concrete barrier located across the common internal driveway parallel to Wonderland Road South had not yet been removed.
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Aoenda Item # Paae P
II SIGNIFICANT DEPARTMENTIAGENCY COMMENTS II Traffic Engineering and Transportation Planning responded:
"The Transportation Division is not in support of the proposed changes to the site plan for the reasons as identified in my affidavit sworn January 30, 2007 of the Motion of Record, Volume 11 1, the Corporation of the City of London and Wonderland Power Centre Inc., 922012 Ontario Ltd., Loblaws Properties Ltd., etc. tab 3."
I ANALYSIS
The proposed plan to add landscaping on the WPC property has the result of eliminating the two internal drive connections into 922012 Ontario Inc.'s property. These two internal drives provide for a connection between the two properties to facilitate vehicular travel of patrons without the need to go back onto the city streets. These internal driveway connections provide the 922012 lands with access to full traffic signalized accesses on the WPC lands. The original plans for the WPC contemplated two common internal drive connections. Subsequent phases clarified the location and the design of the common internal drives for the City. These plans are incorporated in the registered development. WPC agreed to develop its site in accordance with the approved site plans.
The City's Official Plan sets out development control policies. The intent of site plan control is to improve the efficiency of land use and servicing and to encourage more attractive and compatible forms of development which is functionally integrated with adjacent development to provide for the compatibility of designs and to minimize impacts on adjacent properties: provide for the orderly and safe movement of traffic in and out of private properties with minimum interference to vehicular and pedestrian traffic, including orderly circulation within parking areas.
In this case, the common internal driveways provide connection between WPC lands and 922012's lands. These connections eliminate the need for customers going from one property to the other to go back onto the arterial road. The common internal driveways also provide opportunity for 922012's customers to travel to a signalized intersection on both Southdale and Wonderland Roads, respectively.
Section 6.9 of the City's Site Plan Design Manual makes provision for Joint Use of Common Internal Driveways; "where required, the site plan shall make provisions for the joint use of common driveways with abutting lands. The development agreement may also provide for this, including construction and use of the common driveways."
In 2001, WPC's approved site plan for Loblaws showed two future common internal driveways between WPC and 922012's lands and this agreement included clauses for the same. The common internal driveway adjacent to Southdale was in operation in mid-2001, although not paved until 2006 when 922012 constructed its second and third building on the site.
When WPC rezoned their lands to provide for the Loblaws and the subsequent development, the City considered its commercial design policies when the zoning and site plan were being considered. These policies were consistent with the Official Plan Policies and were looking for a number of items including the integration of WPC's lands with 922012's lands.
Since 2001, WPC entered into a number of amending agreements and an agreement that generally consolidated the requirements of the previous agreements.
While the City abandoned the idea of a joint access with 922012 onto Southdale, the City did maintain the two common internal driveway connections. The common internal driveways have been approved on both WPC's and 922012's site plans. The City is requesting the construction of the southerly internal drive by WPC to connect with the portion already constructed by 922012 adjacent to BMO.
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l l t e m # l l Page# , lo \a53
PREPARED BY:
d/& B. HENRY MANAGER OF SITE PLAN APPROVALS
ir
SUBMITTED BY:
R. CERMINARA DIRECTOR OF BUILDING CONTROLS
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CONCLUSION I I Staff have reviewed the proposed amendment to eliminate the two internal drives by adding landscaping. These changes are contrary to the plans previously approved by the City'and agreed to by WPC. The elimination of these drives is not in the public interest. The developer should complete construction of the internal drive in accordance with the approved site plans.
June 27,2007 BH:lt
Attach.
cc: J. Barber, City Solicitor J. Page, Solicitor II
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May 31 2007 ll:22RM JUDGES CHAMBERSLONDON ~. 519 660 2288 P. 3
.COURT PULE NO.: 53027
SUPERIOR COURT OF JUSTICE - ONTARIO
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RE: THE CORPORATION. OF.THE CITY OF LONDON - and - WONDERLAND POWfiRCENTRE INC., 922012 ONTAFUO LIMITED, LOBLAWS PROPERTIES LIMITED, BANK OFMONTREAL, 1307912 ONTARIO INC: o/a WENDY'S RESTAURANT, WILLIAMS COFFEE PUB
LIMITED mc., LIQUOR CONTROL B.OARD OF ONTARIO, and CAM OPERATIONS . .
. . . . BEFORE: .JUSTICE E.R. B R O W ' '
COUNSEL: ' Janice L. Page, for.the PlaintiBMunicipality . '
. . Alan R. Patton .&d h a l i e Femandez, for the. Defendants, Wonderland Power Centre. Inc., and Loblaws Properties.Liniited
Bany R Card, for the Defendant, 922012 Ontario Limited
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Renato M. G&parotto, for the Defendant, 1307912 OnGo Inc.
. . HEARD: May 7,2007 and May 11,2007 ' . . . .
. . . . EN D O R S E M EN T . . . .
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[l] . . At the outset, Mr. Gaspatotto appe&g'€or 1307912 Ontario Inc., cob as Wendy's Restaurrint advised that he supported the. p6.sition of the City'and of 9220.12 Ontario Limited h e r e i d e r referred to as ("92213. Mr. C&spqotto had filed material on behalf of his client. There has been no examination upon that material. He requested permission to withdraw. No contrary position.to that request w& made and he was granted permission to withdraw.
[2] ' The Corporatianof the City o f London (''the' City") Leks injunctive relief.
.'[3] ' As a preliminary matter,. counsel on behalf of the City filed material &om the City undertaking to abide by . h y orda concerning d.a&ges which might ultimately result shodd
The facts.are not subs&tially in dispute and I borrow liberally from factual ,aspects as in factums filed.
[5 ] The City seeks a mandatory order for.the removal of concrete bpiers and curbs erected across common internal driveways between the' lands developed. by Wonderland Power. Centre
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. . there be injunctive relief granted. . . .
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Inc. ("WPC") and lands of 922. &d for an interim interlocutory injunction restrang the defendants .&om erecting or placing 6iarriers across common internal driveways beM;een the said
[6] The total property -involved is located at the south: east comer of the intersection of Southdale Road aqd Wonderland Road'in the City of London. The 922 property is hght at the comer and is approximately one acre in size. The Property,of WPC fronts on Southdale and Wonderland and is approximately. forty-two acres in.size. Pdor to development, which h& been ongoing for appqoximately ten . . . years, the propee was described as greenfield. All of the property is subject to site plan appqvd.
[7] Both developers entered ink development &eemerits,yith the City which development agreements are. registered on title. In total, WPC entered into five development agreements with accompanying site plans., WTC's contracts with the municipality include two obligations which &e central to the matters before me. The oljligations are to prbvide a common internal driveway across the northern portion of WPC lands p.arallel to ScruthdaIe ,and a further common internal, driveway across the westerly portion of, tlie WPC lands parallel to Wonderland with-both common internal driveways. to &ice lands o f 922, The development agreements provide for WPC and 922 to contract with each o,ther for joint use and maintmahce. Site plans .illustrate two internal common driveways betwe.en lands of the two developers with points of mutual access connections.
lands ofthe two developers., . . . . . . .
[SI for approximately five years.
The internal driveway parallel to Sonthdale and the internal drive connection was used
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driveways aqd.to p,ermit access to the internal driveways, one property to' the other.
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The internal driveway parallel 9 Wonderland has not been coostruetd
, ' [ lo] . The, obljgatioris are tb construct and enter 'agreements relating. to common internal
The WPC dc;velopment agreements &ontemplate .apped to the planning committee and/or . couricil on the subject matter of location of c o k o n access and/or other matters relating to
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common access. . . . .
(121 There has b&no appeal initiated as contemplated by paragraph 7(e) of tbdeveloprnent . .
agreement.
.[13] , Various matters have been before the planning corimike.over a period of years and a report was prepared for a meeting October 30, 2006. The report contains the following:
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The owner,,922012 Ontario Liiited (922O12)-Of 375 Southdale Road West, ,
entered into a development agreement with the City of London to develop the Wendy's restaurant in 1998. The 'site ~ l a n s incornorated in the aareement showed future internal drive'connectiofis to the east and to the . , . south. (emphasis .added) The develqmept agreement .wak registered on title m.,htrume@ Number LT542769 on October .28, 1998. This agreement (LT542769) also included the following clause:
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"8. Joint Use of Common .Internal Driveways and Services: The owner shall enter into an agreement with the &mer of the lands abutting to the e&' and south. at swh time as those lands develop xspe6ting the development thereon to provide for the joint construction, use and maintenance of . common intenddriveways and sen;ices". :
The'Wendy's restaurant &as subsequently constructed and occupied.
In 2001, the City received an application for site plan approval for a portion of 'the ,adjacent property at ' 3040 Kond,erland. Road South, owned by Wonderland Power Centre (WF'C),'to develop Phase One of their site for Lohlaw's. The site plan indicated a futture connection to the west and to the north 'Yboth at ,375 Southdale. Road Wed): (emubasis added) The development 'agreement 'for this .w&. registered as Instrument. ,Number ER1061.55 onMay 23,2001, Clause 9 of this agreement indicates:
"9. . . Joint Use .of Common Internal Driveways and Sewiiks. . .
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(a) The Owner shall provide. a commoi intmml drheway from Southdale Road across the northerly~poktion of the development
. . to seiye the 'abutting lands to the wedknown municipatly as 375 Southdale Road West. . .
(b) The Owner shall, at such time the Owner undertakes the development of I%ds ' abutting Wonderland Road situated between the lands known .municipally a s 375 Southdale Road lands ind the.siqalized access driveway to Wonderland Road,
: provide a . comon htemal ,driveway from Wdnderland Road across the westerly portion of the development to sene the abutting lands to the'ndrth ltnown municipally ai375 Southdale Road.West. (emphrisis added) . .
(c) .The Owner shall en& into m agreement with the 'owner of the, lands abutting to the south known municipally .as 3198 Wonderland Road South ma currently identified as the 'Athletic
' ' Club, respecting.the development thereon to provide for the joint cons~ction, ,use' .md maintethce of common inteind
An'intemal connection was provided between the Loblaws'and the Wendys- .sites in 2001. Thi.s connection was not paved by 922012 Ontario Limited and no .agreaient was entered into between ,922012 Ontario .Limited and WPC.
On December. 2,2002, 922012 Ontario Limited commenced an application 'for site plan approval for a building $ i l a r toihe,ckrent BMO., During the. review of these pies; it was apparenf that @e intemd,diives fOF this layout
' driveways and seNicesI" . .
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did not align with the intemal drive to tlke-uth. Their drive was further west than the. drive on the PIGS for WPC.
,On May 12, 2003, W k filed an applioation to *end the site p l k for Building 'ID': to add a drive thn' for the propo.sed Krispy &me. 'The plans were greenlined by staff' to'dign with the proposed internal drive. On September : 4,. 2003, ' WPC registered' the .development agreement as 1nstrument.Number ER242873. Crape 9 of the onlginal development '
agreement as amended a i follows: . . .
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"9(e). .Joint Use of Co&oii.hternal'Drivewavs: The Owner shall enter into an wemenf with ,lhe &mer of the lands abutting known as 375 Southdale Road West as the siuthwest portion of those lands are developed, respecting the.developr&ent thereon to provide for the joint, use ana maintenance df a common inte.rnal driveway as shown .
on Schedde "By' o,f the agreement,'. The .o&ers bf both properties . ' ' will confrskone with the 0th~ fie location in the field before the
internal conneition is. constructed. In the event that the Owner ornoses this rea.nirernent,or any part thereof. the Owner will appeal this ka~irement 'to the Plshnini Committee and Muiiciual Couicil arid the Owner,.liei;ebv covenants 'and anrees to comptv with $e decision of Munjciual Cotmcil.".(emphasis added) '
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. . . . , . As a result, ,922012 Ontaiib -Limited revised their plans to provide. an
approved in August 2003 .on the WPC.
WPC did not construct the .parking. ark. and internal road in accord&ce withthe approved,p~ir~fdr thb =spy =erne.
In ,2005,. WPC reipesteda revision to the development agreement to revise the.extent of the road works on Wonderland.Road. As-.% result of th is 'request, s k f f took steps to &end the agreement. The amendment took the fortn of a new development agreement to codsolidate the plans and clauses from the agreements associated..with thk v&o.w phases' and revisions to phases and reniove the unnecess& ciauses for the road works.
This agreement: was .executed by WPC and the- City and registered .as Instrument .Niunber EN65035 'on Jiule- 28, 2005. Clause 7 of this agreement reads asfollows:
' . . . 'internal connection.. '. This alignment CohespOnded to the alignment as :
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. "7.' Joint Use of . . Common Int&al Driveways and Services:
(a) The. Owner shall provid.e..a cO&On internal driveway from Southdale Road :across the northerly portion of the development to serve the abuffing lands to the west known municipaliy as 375 SouthdaleRoadWest. . . ' '
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Ma3 31 2007 1 1 : 2 3 R M JUDGES CHRMBERSLONDON 519 6 6 0 2288 P - 7 ...
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(b). The Owner shall, at such Arne .d the Owner undertakes the ' development of lands abutthig: Wonderlahd Road situated between the lands known municipally as 375 Southdale .Road lands and the signalized access driveway to Wonderland Road, .provide a common, internal driveudy .&om Wonderland Road .across the westerly portion .of the development to serve the abutting' lands to the north'known municipally as 375 Southdale Road West. .
(c) The Owner .shall enter into ati ,agreement with the owner of the larids abutting to. the .:so.uth known' municlpaliy . as 3198
' Club, feespectirig the development'rhereon to provide for the joint . construction, . use 'and. &i&enance of common intemd
driveways and common- storm sewe.r q d sanitary sewer seryices.
(d), The Owners of each phase of the development, shall enter into ' . agreements on8 'with each other respecting the development
thereon to provide for -the joint conshction, use and mainteriance of Common.interna1 driveways &d services. .
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Wonderland Road South &d currently identified as the Athletic. . .
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' ' . lands abutting known as 375 Southdale Road West' as the southwest portion of those lands axe dkveloped, respecting the development. thereon to '-provide for the joint use ' and maintenance of a ' common . . . internal driCeway as sho'ikn on Schedule "C" of the agreement a$' shown on the plans for Building "D . The O&ers of-both properties Vjill confirm one with 'the other', the' loc&io$ .in the field before the' intend connection is constnicted. In the event that the Owner opposes th is requirement or any part thaeof, the owher will appeal this requirement to the Plaq~Gig Cominittee and Municipal Council.- and the h a hereby covenants md'agrees. to comply with the
This agreement mahtahed the same .clause 89 .a6ded in Sbteniber; 2003; To date, WPC has. not appealed this clause, or 'the associated plans to Planning Committee and C6mcil. :
The 'internal accessfiri front'of the former Krispy' &me had not .been constructed in accordance the plqs; The.'Owner has not appealed . these plans .or clauses to Planning.Committee and council. The property owners have not entered into any access agreements with each.otber.
On May.24, 2005, 922012 made application for site plan approval 'to add two new buildings to this si@ 'in addition to the:Wendy's. As a result of this
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application; 922012' Ontario Lhnited'filed for a :viirignce to reduce their
The Committee of Adjustment approved ,@e applicat'ion. WF'C appealed the decision to the'OMB. Subsequent to this, 922012: applied to the OM% to have. a hearing to have the.appeal.dismissed without a hearing. As a result of this, OMB &smissed,the appeal Sy WPC.
Ultimately, 922012's site plan .was.approved by the City and a developmefit agreement w8s entered into, between 922012 and the City. This agreement waS registered as Instrument NGber ER401731 on December 12;2005. The proposed.inter&l drive digned with Wpc's approved plan from 2003 for the Krisp,y Kreme (see attached):
Permits have been issued forthe two new buildings,on the 922012 p r o d . The. south westerly building has .been occupied 'by BMO. The south easterly building is currently under constniction.
During the e&ly ,stages of construction" of the south easterly .buirding, we. were advised that the'contractdr.entered WPC IEinds without consent: As a result 'of this action, WPC has placed.bariiers kross the 'easterly access road, notwithstding that this drive had"been operational for .customers since2001. ' . , .
With respect to the proposed access djaceat to .the former Krispy Kreme,' now William's, the, intemal'.drive' b d parking in this area bave not been constructed in accofdance with the'kpproved PI&. WPC has 'installed a concrete barrier at the north end of this area'tb prevent vehicles from travelig south over a grassed area'onto their site.
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We would note, the approved plans have incorporated an internal drive connection for this location. The internal drive to the propee line has not be& constnicted by WPC and'no.baniers &e shown on these plans.
In the fall of 2005, the City wrote both p&es to.remind,them ofthe need to enter into an agreement for the joint int&al drives;
On May25,2006,'922012 prgated qd'forwarded %'agreement to WPC.
On June .8, 2006, WPC'S. solicitor respond4 to 922012's planner. WPC .identified fifteen points'to outline their client's position.
On.'July 21, 2006, WC's solicitor wrote 922012's planner looking for a response to theirJude 8,2006 let& by;Tuly 3.1, 2006.. Since the July,letter, there have. been a'series of letters between'the 'two representatives. AS o f October 2, 2006, no. agreement has ,been reached betweea the parties to
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achieve an agreement for the jOit use and mitintenance of the m m o n internal drives.
. , On .October'17, 2006, a meeting.was held to '.bring'the parties together to dis'ck~s the h u e s . At the meeting, there were representatives fkom 922012 Ontario L i t e d , Wonderland Power Centre .and the'city.
As a result of the meeting, the parties agreed. to continue to meet to achieve an agreement to satisfy both parties. The agrekment would deal with the issues raked in the WPC's letter'of J- 2006. 922012 Ont&io,Lirnited ' ,
agreed to advise their tenants not'to park on wPC& la6ds.
AS noted in the a k v e report; the paities have been before the Ontario MUniCipal Board :
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[14] ("0.M.B) on ko.occasions. In August 2005, the 0.M.B found. that issues a d m c e d by WPC did not require a full hearhg. W C had appealed a C o w i t t e e of Adjustments variance .decision granting 922 the variance perm$ting a reduction in parking space. In dismiss,ing the appeal ' without holding .a 111 hearing, the bbard. co&nen%d as follows:
. . ,' ' Wonderland Power Cer?tre he.. v. 922012 Ontario Ltd., August 2,' 2005;
What is clear to the Board from the documentary :evidence p r o ~ d e d (- . : notably the copies'of the various deve1opmei-d a&-&inents.. .) is that the City h@ required .
. . these two Parties to develop joint .internal access in that if bod parties CEIQ not agree on rnutuallyacc6ptable points of intend access, the City will unilatgdly decide on the optirnal'configon(sj,
115) ' . In October 2005, WPC appealed the'August 2005 Mder requesting $e Board stay the- eatlier decision arguing it wished to maintain the status quolpending a Divisional Court decision on the issue of leave to appeal the August decision (leave to appeaf. was subsequently declined). In its decision the Board comments as follows:
. . DecisiodOrder No. 1998 (0.M.g.) . . . .
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. . 'The form of the co.orc$iiated parking and common 'access has been known since 2003 and is incorporated in'a'development'agreement signed by WPC. It is clearly the responsibility of WPC; to initiate any dispute.regarding the access and it is agreed that the. City will be.t.he ultimate arbitrat& in that regard.
1161 Subsequent to the installation of the cencrete barriers .in 2006, the City pass,& two resolutions requiring 922 and ,W.C to remove the barriers.
f17] ' The subject properties.are within a site p l p control area. Conditions for approval of site plans may .be required. Conditions usually take the farm of-a. development agreement as in.this case.. Section 41. of The Planning Act provides a code'dealing with site'.pllan agreements and registration of agreements. Sub-s&tion 3 contemplates agreenient or &nditiW relating .to access:' The Ciws Official ' Plan provides that Site PI& .control address traffic wtloerns, ipcluding minimization of the .number ' a d spacing 6faccess:points by such m k s as c0-0ri
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. . . . driveways or service roads. .The OfficiaLPlan also contemplates that the site plan contrdprocess shall also 'address requirements for'developient of conqon driveways. The City hw a manual, including a draft development agreement Ghich contemplates provisions .for intemd . . common driveways..
[18] ' AS previoysly indicated, 922 and WPC are theldevelopqs of adjacent propekes, Ten&.ts, of 922 include three buildings, a two-storey office buildihg, a Bank- o f Montreal building, plus Wendy's. WPC has a main ,tkna&'-Loblaws, who j o h s with WPC'in this action. My understanding-is that Loblaws has a fifty-ye&-lease. Other tenants. of WPC include Williams Coffee Pub Inc., Liquor Con&l Board of Ontario (LCBO), Swiss Chalet.
[19] The applicable development agreement and' site plan contemplated the ' two iqtemal .&ivewayS previously referred to. The agreement was amended A u s s t 2005 and December 2005 for cons&tion of the Bank'of Montreal buildihg, ,plus a two-storey office building. The two further site plans ' . show internal driveways add cornon connectiok.
[20]. WPC applied for.approvd contemplating construction of a Loblaws store to be so& of '
Southdale Road and east of lan,ds of 922. Fuf%re development to the south of the Loblaws store ' and'to the south of the 922 .land was contemplated. ' There were five development'agreements betwkn the City and WPC. Firstly in ,April.2001 for the Loblaws development, secondly h . October '2002 for lands south of922, including Canadian Tire, LCBO, Swiss Chalet and others.' '
The third agxeemFt.was August 2003 for .a Krlspy -erne outlet, now Wdliams CofYee.Pub immediately south o f 922 lads.. Fburthly;November ZOO3;an agreement'to develop a Loblaws gas bar.west of the Loblaws store and ea@ of 922's Ian&. The fifth agreemew is dated May 2005- b d constitutes a consolidation of the.first four agreements. .,The fifth agreement contains section'7 as quoted from the earlier report: The agreiments between Loblaws and WPC included. the same site plan as contained in the fifth development agreement. All the development agreements contaima standard clause to the..effect that.the iigreements are conditiqn,precedent to ' municipal' site plan approval. h e n d e d : pliums, may be .submitted, on an'ongoing basis and if
[Zl] Building permits were issued to both develcpers. and the lands developed with the exception, as I understand'it,.of . . the intemd roadway p&alI& to Wonderla~id and maintenance of
[22] at. least the driveway paralleling Wonderland Road south. The 'Factum o f WPC maintaiqs that location of points of access were not agreed. Lboation of access connections'are clearly set out on site plans. There can be no .dispute as. to locatioh and the proceedings before me prdkeded on the basis that there was no dispute o f locations .of the points, of-connection. It is equally cleaf that there .is a lack of agreement between the two developers as costs, if any, relating to joint access. .
[23]. I'have referred above to two.proceedings before &a OntAo Municipal.Boaid and the court application for leave to appeal the first OMB decision. ,In-add?tio& WF'C . . co-nced in.
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The property 'for' Wendy's was fu'stly developed in or about' 1998.
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approved are treated =.part of the whole. agreement. . .
. . ; access previously refeired to. . . . .
It is clear that for some time there was dispute as ,& the'ldcation of the internal driveway, . , ,
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. . . Superior Court,. application: for an ordet to stop the issuance of a building permit to 922. The ,
application was withdrawn before, the hearing date.,l%ere w;ls a second similar application again . '
,withdrawn before. the hearing date.. Thi: b d e r s were constiucted on ar .about August 8% 2006. The tenants of 422'hd'WPC have complained to the Municipality. The barrier issue has been before the City Planning Committee 'andof Mbicipal 'Council five times. The City' has
' cofresponded by letter to WPC addsing that Council expects the driveways to remain open.
[24] There are contentious issues ,between, both developers' as' evidenced by the vario& .proceedings to date.
[25] In the context of traffic inovement and the va.ri6u.s development agreements, WPC has been involved at 'mnsiderable expense in road imprdvement work-on Southdale &d 'Wonderland. The agreemeqts provide for traffic signal access. from the-WPC lands to Southdale near the Loblaws. store and a' second signalized access to.. Wondechd &om the WPC lands. Both signalized access points & in use.. .
.[2q ' .Subsequent to the co&encement of these. prooeedings,' WPC fded an application. to amend the .fifth deveropment agreement, to prdvide landscapirig,.which landscaping is located ,so a s to have the effect of permanently blacking the common points' of illteinal &cess. . Issues on
[27l 922 is in general agreement with the positions..adv@ced by the..City. They emphasize that the barriers are not on 922 lands but.are on WPC'I&nds 'and that. if a mandatory order required 922 as a defendant to ..=move the' barriers, that they, have no :authority to do so.. 922. ask that the mandatary order be against.on~y the defeudarit, W C . ' Although paragraph 7(e) of the fifth WPC development agre&ent,is not in 922 aevelopment agreements it is my bndermding
' , that 922 has 'proceeded'and is prepared to proceed ' y r t h e ba&that its developnient agreement contaii proesions such a.$ in 7[e) of the W C development agteement. It is arbable that the dispute 'resolution procedure contemplated by section -7(e); applies to. .more than location of
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common intend access conn~ctiops.
proposed Gorimion internal access . . connections. ' . .
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[2&] ,As'I have indicated earlier,,my conclusion is that thkfe is no dispute to.location of
1291 '&C takes the position that'922 or'users of922 phpxty would,benefit at the expense of WPC. The BrgumeM seems to be one based upon' size and' thevfee usage .of 'the respective properties. The contemplateid access would have mutuality of access between customers on.$e' 922 facility and customers on the WPC facility, The size issue being related to the use o f a ane- . acri parcel as compared to thetuse of a forty-tv+o acre parcel. The -difference is self-evident h d I
The agreement proposed, May 25, 2006, by 93; to' WPC is shply that each bear their own costs for construction on their own lands. The 922: proposed agreement does ,not use the word "1icence"ht if implemented appears to be B licence' for access Without property rights.
[31] licence. WPC seeks the payment- at the'outs&t for constkction costs and for payment of a.nnua1
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. . . . The responding agreement proposed on' be&aWof WPC proposes the @anting of a .
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maintenance costs. . The concept is for 'm k u a l lickce yith rights of termination. It is not necessary on the. issues .before me, but the WPC proposed agfeement seems to be Traught with. . , issues of complianceand, frankly, I view it as unreasonable.
There are placed b.efore me no figures dealing with matters of costs. 'Theye. has been placed before me no figures dealing with .-c co;idts at a point or points of,access connection prior to and post-barrier installation.
[33] , In its material, WPC raises issues of safety andimproper parking as,triggeringthe barrier. response.
[34] The safety r i f pertains to the'southdale. access of 922 being ih close proxi&y to.thd Loblaws gas bar. The intekal connection 'is iil.so.clc~se to .the g k bar. Thwe issues were raised on behalf of WPC and/or Loblaws. When the access was clearly shown on WPC development agreemenb and WPC&oblaws abeeinents; the raising of .safety issue at this'time is disingenuous. This. is particularly so when such issues were apparently not raised when gas b& peimissions w&e obtahied. ,.
[3S] from common.access .md can be dedf.with by Loblaws and 922 tenants in a manner. such ai the
1361 WPC argues that it is: a condition precedent to . thefe be& common and internal. ' driveways that there be agreemeat between 922 a ~ d WPC, including agreement involving cost sharing. Both developers have their individid contiacts: with the City, all contemplating common access. I conclude that the.municipality need not tieat the Wization of an agreement between 922 and WPC as a condition.precedentfor the relief that .they now seek. If there were to be such a condition precedent, perhaps it is arguable that'building permits should not have been issued. ' That issue was never raised.
[37] In any event, .the d&elopment agreements provide for kvqability between its various parts. Dealing with'pak. 7(aj and (b); those two paragraphs,'if scyered are, by their words, capable of implementation. I repeat the specific words . fidm : . para. 7(a):
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The owner shall'provide a common i d e m 1 driveway from Southdale Road, across,' the northerly ' poition ,of the. development to serve the abutting, property to the west known municipally as 375 Southdale Road West.
. . ' ' [38] Pkagraph 7(a) may be read in the context that &agreement provides for traffic signals
.to service access accomuiodating Loblaws .tenant and other tenants of WF'C and through 'common internaldriveways the tenants of 922.
[39] .It is argued.on behalf of WPC that si 41 does not perinit internaldriveways as between abutting o w e & &d that the. provision 05 the agreement even if severable 'is' UXtra vires and not enforceable. WPC relies upon High,Meadow Qd .v. City OfCambridge (1 999) 38 0.M.B:R. 251 (O.M.B.).. In this case, the Board was' considering. if the municipality had jurisdiction under S.
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41 (7) to require owners io,provide'interconnection withtdjo~ing property. The Board provides . .
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. ' The Board has fully cansidered.the matter, including' the csise law, and. agrees ,with the position of counsel. for the owha and finds that the Act
. does ,not confer to the C i ~ the jurisdiction to impose a condition which requires the interconnection &d access, ov& private lands which in reality establishes a dt? facto right-of-way betweerr private properties, unless there is agreement from . . the uroDertv owner. In this particular cise, the owner, . whom property is under .Site Pi&, is unwilling to provide for. the interconnection and there is no. expressed indication that the owners of the adiacent moperties are aware'and .&mort the .Citv and the Region's position:?"ne proposed .interconnection'withon'with access fights does hot originate &om, cross over, or is an extbnsion of public lands and is not a direct link to a driveway connecting to a public highway or right-of-way. The Board is of the view that the decisioiof Vi&-Chair,..D.L. Sat0 in First Ciry Shopping. Centre Group v. Ctp of GIoucesfer '(1990)., 25. 0.M.B.R 91, stands for the same'jurisdictional principles advanced by.. coimsel. for the .property owner in this appeal. (ergphasis adaed) . .
And further, the Board provides: .(fro% p. 253)
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Counsel forthe municipality seized on the words "access io and from the land, jurisdiction and for the need to liear. expert. te&.fnony as to the planning merits of the request. The,Boaid. finds the reference to "access to thelands" and ''access driveway" refers to the intersection of .public and private lands ' . : for the purpose of proper traffic .flow and.'thefe is liothing contemplated within the confines of section 41(7) .of the Planding Act that specificalLy requires tlie h e ' giving of a right-of-way to adjo'ining pmperties that are ,
privately owned.. .W&e .in planning terms aid..fto;om. a t r a o planning perspective the hrconnection- may..ma;ke good sense, issues ofjurisdiction " . and property rights must take a.superior position in this regard.
[41] As I have indicated earlier, it is .my conclwion'that there can be cornpiimce.with the development agreements of,both',parties; 922, and WPC, short of giving a right-of-way sucb as, for example, by way of a licence. Both p h e s in their dtaft agreement positions seem to adopt my conclGion that a licence would be su,@cient; ,I conclude that-it is not necessary that thete be ..: .a property right such as a right-of-way to give eEect to the agreements. I conclude f d e r that a 'Licence would be sufficient.
acckss driveway'' to sup@& his contention as ,to the ' City's '
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.. .[42] I have underlined from the OME? decision the words ynless there is ameement fkom the , . , properly owner. In.'this.case, there are agijxments b y ' h t h prgperty owners. with the municipality upon common driveways .and of links' between properties. The High Meadow decision is distinguished.
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My conclusion for the purposes of that which is befots:me,'is that the agreements &-e not
My f a c d conclusion is that the internal.driveways &e part of a continuous link from
The municipality's draft development agreement . . provides a joint wcess paragraph in the
[43] ultra vires s. 4 l(7). .
' [44] access signalized driveways to the properties to be served.
foUowing wording:
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The Owner shall enter into, a joint &cess agreement dth the owner of lands to the at such h e a s those.lands develop, to provide that a joint access be granted by each'owner to. the other over their respective lands to the extent. necessary to provide common access to a public sfreet at a location determined by the General Manager of Environmental Services and City Engineer, all at no cost to the City. '
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This wording aids me in my conc1usion:that. common access to a public :street can be'.a link'by way of internal driveways and commpn connections, betweeri.o&ea without' creating a property right as for examp1.e ,an easemait or right-of-way. ai coinmon connection requires ody a licence to be effective.
[46] In support of the foregoing see:.The.Corporation of the Ciw of London v. Scott's Hospitaliw, ' [1986] Ont. Dist. CL In this case .w&ich. & @&ed on aipeal, Madam Justice' . .
Van Camp dealt with access between.t&o adjoining'properties. The issue was access to the northerly of two properties: '&ere we a development agreement which dealt iVith landscaping;. . .The question before the 'murt was "wh&er &der the development .agreement . . . the applicant may require the respogdent/owner to keep open an access betweerithe lands and the private lands to the north". .The ltinds to the north had no easement'or right-of-way over the southerly lands. The site had been developed. aher 1977. .There was-an open.access space~+dhiia the approved landscaping plan. which 'open access space remiined Ufitil'late in 1985 when the responding party blocked it off with shrubs and fill. Section 40, now s. 41 ,yas consiaered. The' .
court comments that.thqe would have been no develoixmnt ivihout approval of plans showing location of buildings, facilities and.works aidthat as a condition'of approval the municipality may require the owner to provide access driveways. By agreement the owner was to restrict the means of access to locations marked on the site plan. There were two means of access' to .the adjoining roads, in addition to the internal access in issue. ' The fact of the internal access being maintained for a period of time was signbuit,; It .was found .that the ?general tenor. of the agreement support' the finding that it was.. a. temi .of this agreement".: that landscaping be 'maintained. In 'the result, landscaping .not'appmwd by the site , . plan which had the effect of blocking mutual access was improper., ' . . '
an easement or right-of-way were not .requireil for'the access. between the two pm$erties to be maintained.
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' f47]. My interpretation ofhladap Justice VaqC&p's.d&ision is, that property rights such .
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[48], ' My conclusion is that the rights recog&ed by Justice Van Camp were a licence or I
analogous to a licence. '.
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[49] The concept in the City's draft development agreement is to tie'or fi&. comnion access to a public street. The' overwhelming conclusion is that the concepi.'of public access in this case was to address public traffic concerns inmaking-an ,jnteml ccimmon link to public streets. The
, common access is a- Iogicd extension of a de facto k e s s driveway which utilizes both public and private land.' The granting'of wmmoddriveways-and connecting lihks to adjoining property- is arguably part of the give &d take in this, case + the g i h g &d recei&g of two 'points .of
[SO] The parties are in agreement that the following factors found in WR-McDonald Inc. .v. Cal?ada'(Aftorney-Generol) (1994) 111 D.L.R. (4th) 385 (S.C.C..) (QL) para. 3.5 are to .be considered namely:
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(a) is there a serious issue tt, be tried, . > .
(b) whether the moving party will suffer irr2parable. hami if the.injunction is not
(c) whether the balzjice ofcohvenience favouis the granting ofthe kjunction;.
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[5 11 than regular commercial agieement& See Hi-Rise Strucfure Inc, v. Scarborough.(Cify) (1992), 1D.O.R; (3d) 299 (C.A.), Carthy J.A; provides at p, 304 the'following:
A development agreement bd sit0 pl& approvd. .further to. such 'agreement are different' '
'I . . Site 'plan agreements: are S i p ~ y not cd;pmercid agreements in the
traditional sense. They represent the public interest in the finite plahning of a portion ofthe municipality. K'the owner feels that the council is being . ..'. unreasonable m its requirements, an appeal cail be taken to the Mmicipal Board pursuant to s. 40(12).(now s. 41(12J. There i,s.no similar recourse for. a supplier who desires to sell prodirct'to a mmicipality aiid is' dissatisfied with the price offered.' In the'confext pf.a site pia-agreement, the Municipal Board stands as a surrogate &J the'municipality to assure proper planning -of the colllmunity: If .the distinction between a pro'duct supply contract and a site plan control. agreement is evident when a.'poperty is first developedi There is 'no reason in' principle fiat it should not remain a
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' distinction when property is redevelop&d:d; . . . .
[SZ] .For a recent adoption .and application of the foregoing,. see 'Ayerswood Development. Curp. v. Luondon'(City) ChiefBliiZding Oflciul.,(June 2,2006) Div. Ct. File No. 1501 @iv. 0.).
[53] The DjvisionaI Court makes further refezence to €€&Rise Structures Inc. v. Scarborough (Cjfy} and to the decision in Bruce v.. Toronto. See 'the following paragraphs .from the Divisional' Court decision:
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. . 41. The Ontario Court Of Appeal &ducted .a , historicql '.analysis of the plaqning legislation 'and 'its 'objectives in .Re .Hi;Riie Siructures Znc. v. Sc.urborough (City) <1992), 10 0:R. (3d) 299, stating at para. 13:
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This histbrical analysis dernonstktbs that the proliions qf s. 40 are essentially i n extension of planning d t r o k . It i? the f i e tuning of the zoning by-laws. TO the e&ent.tliat agreements are contemplated,
ma&tained'on.an ongoing bask. To the extent that registration is contemplated, it is to .assure that s&c%som in title will be bound to observe the corehants: .The agremients are unique in that there'is no . , , .
contemplation of an 'bI&atien. of.performance on the part of the
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42. The court concluded at pga. 17 that:
. . ". .. in terms ofthe broad purpo,&s of the statute and its development . . . over the years,. a site .plan agreement must be viewed primarily as a,
., p h i r i g instrument, remaining a &ntract.'for enforcement purposes . from time to time, but qnentible on the change which is inherent in
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43 , %I interpreting the. ie1evant':legislative .provi'sions, the courts have generally adopted'a liberal approach, taking into account the interests ,of the community. In Bruce v..Toroizto.(Gty), [19711.3.O.R 62.'(C.A.) the court reviewed @e sbict..interpretm ofmu&ipal @yAaws &d then stated, at p. 66:
Notwithstanding .this,:it is my belief that Ontario Courts now accept tbat.the 0.bligatio.n impQsed'oq.the municipal council to plan for the gmyth and cleevelopment of the, CornrnGnity demands recognitioli of . the necessity for mew:to compel the observance of the'rights of the c o q u g i t y tb determine and.. enforce the directiqn in which the community should be. shaped, imd.&'that e&rd the rights of the
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1541' T K ~ PositioA ofthe City- is that WPC is estopped corn resiling fro& its agiewent as is set out .in the fifth development agreement and sirnilak'provisions in ,the .earlier development agreements. . .
[SS] 1n.support of this positiok I am referred to Re. Toropltd' Colkge Street Centre Ltd and Ci@ of Toronto ef al. .(1986), 56 0.X (2d) 522 (C,&). The:C:ourt.of Appeal decision was given. by Cory J.A. From the headnote at p. 523 is the folloihring:
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. (3) The defendant was estopped 'fiom resiling' ,,&om its .co&itment retain the seventh floor ofthe.building in its origin&state. Its cb&iprnent. ' . was intended to affect &&did\afTect.the legal"&klatidns between the parties, and the' relspondent myicipality, acted .on 'it .as the basis for conferring . . . . , benefits upon the appell&nt:, A municipality. can .re;ly. upon the doctrine of promissory estoppel where it has the.authority to enact a by-law and'the by-' law is not contested by the. persons affected by it. : ; '
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[56] The fo,ngoing .concept is in .keeping ' with the distinction between development agreements and commercial contracts. In this case rights granted by the City incIude signalized access on Southdale Road q d Wonderland Road to the'WCP property. The City granted-other rights and building permits issued'. ., The municipality has ..a right to rdy upon the concept ,of estoppel when it has contracted for, and in'fact given such rights aS the signalized :access and issued building permits.
[57] ' The municipality has 'the authority to '.e& the'bylaw giving rise ,to the development '. agreements. I find, even if severable, the terms.at issue in the development agreement not to be ultra vires. The municipality is entitled to expect adherence to agreements made in aosprdabce with proper. bylaws.
- [58] My conclusion i s that WPC 'should not be .able to resile from its position adopted (with , some variation) in five separate development agreements.
[59] In any event. I find paragmphs 7(a) and 7(b) of the'wPC' development agreement to be severable and enforceable.
[60] .These reasons are not to be taken to meah that WPC d o t apply to vary the.site plan for the propo'sed landscaping change. AS I have tried to bdicate,developm&t,agkeements, a d site plans ?e part of an evolving process. Site play .and/& landscape provisions reflected therein '.
can evolve and change.' The change must be consided in'.the coqtext of planning issues which I . '
amsure will be the case before the Ohia.
[61]' My own view,/gi.ven the agreement of WPC, is that the-landscaping chapges would have ' . the -effect of closing the agreed common access.locations, and amount to procedural steps t o accomplish somethinglby way of a'side door or back door'which they'chose not to do by a f r k t
landscaping change w-ijll not be'approved by the OMB.
[62] before the OMB, whatkver is done at this time does ixCtk%n that WPC cannot apply to amend its site plan, for exgm$le, if it w&e sought tb $mend ili sgme way the.location ofthe driveway to parallel Wonderland and not yet constiucted, there may be: goad'.planning reasons to amend the site plan without doing violehce't0:the agreed location ofthe access between properties.'
1631 There are serious issues to be tried in this Superior Court action. There are serious issues to be addressed by the.OMB.. It is not my &tent that'any.opini9n.that I expr&s.ih these reasons be biding on a trial judge and/or the OMB. I would,'howeyer, expect. my' reasoning to be
[64] 'Mad& Justige Greer adclreskd the 'issue df irreparable liarm. catqedby a municipality's ability or lack of ability to .enforce bylaws. 'See Innisfil (Town) v. Innis$[ L& Holdings I~c. (2003), 38 M.P.L.R. (3d) 273. (Ont. S.C.J.). At p. 279 Madam Justice Greer comments 'as follows:
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.arbitrate.the location andor appeding to the I have a strpng suspicion that the- . .
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Notwithstand& my opinion abd'ut success on the' cuirent landscaping matter yet to be "
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Chir court has held that a municip.dity whose duty.it is to enforce it (sic.) bylaws need not show .that it will s a e t irreparable ham in the smme way that must be established. by a private pliiptiff. .
[6S] In Innisfil there had been a fo.u-year delay in seeking redre'ss. In *e present case there ' has been a five-year usage ofthe access to the south of Southdale-Road and the connecting link. There were, during' all that +nod of the, available .proVisions for redress. Those avenue9 of
[66] I have concluded above thatthere & .serious issues to be tried I conclude further that , the municipality has a.right to.expect'compliance with its-bylaws.. The munisipality has a duty to '
see that bylaws have a f ~ integrity which is.m~ntained. .The.municipaIity has an obligadon to enforce and 'maintain bylaws, wliic'ti it has enacted and further' to which it has entered into, agreements.
[67] .Citizens have the'right to.expect by-laws to be adhered to. There is irreparable harmif , . by-Iaws ire not enforced. Madam Justice Greer found that the balance of convenience favoured
the municipality atid an interim'injunctim issued in the base before her.
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. . redress were not pursued. . . .
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.. [68] , As stated by the Court of Appeal in Bruce v. Touonto.{&@ra): . . . .
. .,.growth'.and development of the,commuiity .demands recognition of the necessity for means to cadpel the obsefvmce of the rights of the community to .determine and enforce the ,direction in which the cornu& should be shaped, and .in thSt reg@ the rights . . .of the. community are paramount to the rights of.the owner. . .
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,1691 The abbwe appiied specifically to an issue of by-law .interpretation, but applies equally to . mfomernent of agreements made furtherto .by-laws.md to the balance favouring the community,
[70] On behalf of WPC it was argued thatthe status &was represented by the now existing factual situation, in other words, with the.barriers present. The City argues that the status quo to be maint+hed is the position prior ta'&e erection of the'bders. I agree yith the City-s position! This is particularly true With the five-year usage of the common driveway parallel to Southdale.
[71j ' development agreements conte,mplating an internal drive, be.-conskkted parallel to Wonderlanil
' as the lands to the,south of 922' lands,were developed.: Those.lads have been developed. for some time without construction of.the i n t a d . driveway link. T b accepi the form of status quo argued on behalf of WP.C would be tanmount to'&ying that at the .present time the contractual obligation to, construct a .a,riveway 'paratlet -to Wonderlbd Road in ,accordance .%th the development agreement was abrogated.
[72]. ': link to W C ' s ' internal driveway, notwithstanding use .since 2001. . .
contract with the City continue. :
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, .represented by the .City overthe propetty ower. ' '
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To maintain a status quo With the 'barriers remainkg would 'appear to w d e m i k the . ,
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MatGal makes i t 'cleai.that 922 h k not paved ,the internal driveway for the connechg '
922 obligations &der
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[73] I am satisfied that therehe serious issues to betried. ' . . . . . [74] ' The City will suffer irreparable harm if there is not injmcherelief at this point in &ne.
[75] The balance of convenience favours the granting of an injunction..
[76] There will be injunctive relief.
[77] In the result, there will be a mandatory order requiring WC and Loblaws to remove'the concrete barrier$ and curbs across the common intemal.drivemys betiveen the lahds of 922 and the lands of WPC and for an interim interlocutory injunotion,restraining the defendants, W C , Loblaws, and 922 from erecting :or .pla&g. any barriers 'across conqon internal driveways
1781 I have adopted the position of 922 that relief should..not be applicable against 922 requiring mandatory Amoval of the bairiers. 922;will, hokver, be bound on'the balance of the . injunctive relief: dealing with er+g or replacing any. .bWiers across 'common internal driveways which applies to the Ihirids of 922 as well as thelakds of WPC.
[79] '
[SO]
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' ' located between the s m e lands or upon the lands of either developer.
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The' formal order will incorporatc.theundert&g filed bythe City.
The order shall include that all otherparties.whethir appearing or not, shall be mailed, by , .
. remlar mail, a copy of this ordef; . .
SubAssions on costs . . are to be made in Writing within 30 days-of the release of.these .
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DATE: '.May 31; 2007
. Justice E.R Browrie
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