Glen Abbey one step closer to demolition?

Superior Court justice’s decision allows golf club owner to appeal over rejected permit

OAKVILLE — Glen Abbey Golf Club appears to have moved one step closer to demolition.

In a decision dated Oct. 25, Justice Edward Morgan of the Superior Court of Justice sided with golf course owner ClubLink, noting the golf giant has the right to take its demolition application for Glen Abbey to the Local Planning Appeal Tribunal (LPAT).

Oakville Mayor Rob Burton issued a brief statement following this development in the ongoing Glen Abbey Golf Club saga.

“Council will be hearing from town staff on Monday, Nov. 5, 2018, regarding the implications of the court’s decision,” he said.

“During that meeting an assessment of options, including a possible appeal, will be discussed.”

ClubLink is hoping to demolish the renowned golf course, which regularly hosted the Canadian Open, in order to build 3,222 residential units at the Dorval Drive site, including nine apartment buildings between nine and 12 storeys high.

Town staff have said this proposed development is inappropriate for this location, noting it would essentially turn the Glen Abbey Golf Club into an unplanned growth area.

This court decision represents a setback to the Town of Oakville’s efforts to preserve the golf course.

Council voted unanimously on Feb. 12 to reject ClubLink’s development application based on its planning and heritage merits.

ClubLink attempted to appeal this decision to LPAT. However, with the town’s designation of Glen Abbey Golf Club under the Ontario Heritage Act on Dec. 20, 2017, the town argued ClubLink could not make this appeal.

Town lawyers said that because the golf course is a landscape, ClubLink could only appeal the rejection of their demolition application under Section 33 of the Ontario Heritage Act, which would see the matter heard by the province’s Conservation Review Board.

This approach favoured the town because the review board’s recommendations are not binding and the ultimate decision on whether to permit the demolition application rests with the town.

ClubLink then appealed the matter to the Superior Court of Justice and, during a July 16 and 17 hearing in Toronto, argued the golf course is not a landscape, but rather a constructed structure and as such the company has the right to appeal the demolition application to LPAT under Section 34 of the Ontario Heritage Act.

This route is preferred by ClubLink since, in this scenario, the decision would rest with LPAT and not the town.

In his decision, Morgan discussed the nature of Glen Abbey Golf Club and how in his view it is a structure — and therefore its demolition application can be appealed to LPAT.

“The evidence is that the golf course was constructed in accordance with Jack Nicklaus’ professional design. It is not raw land, and it is substantially more than a landscaped garden. As ClubLink points out, portions of the course have been renovated and rebuilt over time, and like all such constructions these features have a limited life,” said Morgan.

“Counsel for ClubLink emphasizes the evidence in the record of substantial irrigation infrastructure, subsurface drainage construction, earthwork spectator mounds or berms, artificial reservoir ponds, complex designed greens constructed in accordance with specific United States Golf Association standards, engineered bunkers, paved cart paths, etc.

“All of these features require installation, physical maintenance, periodic renovation, and elaborate construction. ClubLink submits that features that need to be constructed are structures that can be demolished.”

Morgan also pointed out that, in 2001, the federal government issued a tax bulletin recognizing the most identifiable features of a golf course — greens, tees, fairways — are man-made surface constructions and are depreciable assets.

“If constructed golf course features are depreciable, they cannot be land or landscape, but rather are something constructed on the land or landscape,” said Morgan.

“The Alberta Government Municipal Board has used this logic to conclude that golf courses are structures for the purposes of municipal tax assessment.”

News of the justice’s decision was well received by ClubLink.

“The court reconfirmed that the heritage act has built in protections for property owners that must be respected,” reads a statement from the company.

“The right of appeal available for Section 34 applications to demolish is one such protection, which ClubLink, as property owner, has a right to access. A heritage designation does not derogate from these protections … This decision is consistent with case law across the country. Golf courses and other entities like ski hills, landfills, drag strips, have been previously recognized as distinct from land and as structures in various contexts including in the areas of tax and planning.”

A date for the LPAT hearing concerning ClubLink’s demolition application has yet to be set.

The Town of Oakville continues to fight ClubLink’s proposed development of Glen Abbey Golf Club on a number of other fronts.

A second LPAT pre-hearing conference will be held Nov. 29 and 30 with respect to ClubLink’s appeal to council’s Sept. 27, 2017, decision to refuse company applications to develop the course.