The Cultural Heritage Landscape Conservation Plan and its related bylaw were passed by council on Jan. 30, 2018, in an effort to further protect the Glen Abbey.
These measures were aimed at restricting what could be built at the golf course.
It regulated the erection, location and use of buildings and structures to ensure the heritage attributes of the site were retained.
They also required that any proposed development on the property first receive the approval of the town.
Although town staff said the protection measures would not interfere with the routine operations of the golf course, ClubLink did not see it that way.
ClubLink lawyer Mark Flowers said during the Jan. 30, 2018, meeting that the new rules would not only block the ClubLink development proposal, but would also prohibit ClubLink from building something as simple as a new washroom or an antenna at Glen Abbey.
Flowers also said the protection measures would add a new and unnecessary level of bureaucracy for ClubLink to get through if they even wanted to make a minor change to permit the operation of the golf course.
He said getting approval for such minor changes could take months.
Morgan appeared to agree.
“There is nothing in the Ontario Heritage Act or otherwise in provincial legislation and policy that empowers a municipality to require a private business — whether it is a cemetery, a farm or a golf course — to keep running as a business. The Conservation Plan for Glen Abbey stands alone in that regard,” said Morgan in his decision.
“For the impugned bylaws to ignore the economic impact on the property owner, and to effectively require a property owner not only to maintain its property, but to stay in business, all for the benefit of other residents of the town, is to reflect bad faith decision-making. And the community-spirited intentions of Town officials and council in enacting these measures provide no defence.”
In discussing the vagueness of the conservation plan and its bylaws, Morgan said they were unintelligible because they attempt to speak in general terms about a policy that is arguably specific to Glen Abbey.
“This confusion explains why the property owner does not have comprehensible notice of the contents of the impugned bylaws and Town council and staff do not have intelligible limits to their enforcement discretion.”
He said these bylaws are vague, undermine the rule of law and cannot survive challenge.
ClubLink has argued the decision shows the town is not entitled to use its powers regarding heritage to mandate that a property be put to a specific use — in this case, a championship golf course.
Town staff noted that, although they are disappointed with Morgan’s decision, the conservation plan and its related bylaws were only one front in the town’s battle for Glen Abbey.
The Local Planning Appeal Tribunal (LPAT) has scheduled an eight-day hearing on ClubLink’s appeal of the town’s updated official plan and zoning bylaw amendments for the golf course site.
This hearing will begin June 17, 2019.
Another LPAT hearing regarding ClubLink’s development application appeal has been scheduled for July 6 to Nov. 20, 2020.
This court decision represents another setback for the Town of Oakville in its efforts to save Glen Abbey Golf Course from development.
On Oct. 25, Morgan affirmed in an Ontario Superior Court of Justice decision that ClubLink has the right to make an application to the town to demolish the Glen Abbey Golf Course.
The town is appealing that decision to the Ontario Court of Appeal.