News Brief: Court Finds IN8 Capital Condo Too High

Court Finds IN8 Capital Condo Too High

LPAT Decision and Kingston’s Official Plan upheld by Divisional Court – decision attached

Kingston—Today, the Divisional  Court of Ontario dismissed the IN8 Capital Developments Inc’s appeal of Member D. Lanthier’s November 9, 2018 Local Planning Appeal Tribunal (“LPAT”) which found a 16-storey building at 223 Princess Street too high and incompatible with its surroundings.   

 The three-judge panel rejected IN8’s arguments that there were errors in law in the Tribunal decision. The 11-page Divisional Court decision found no reasons to overturn the Tribunal’s decision and agreed that “the Downtown Zoning By-law restrict[s] height, massing and scale in Downtown Kingston, and issues of compatibility and proportionality must also be considered given the robust heritage policies.” (paragraph 32)

 The original application for a 16-story building was appealed to LPAT by The Frontenac Heritage Foundation (“FHF”) and Building Kingston’s Future (“BKF”). Following the LPAT decision, IN8 appealed to the LPAT and to the Divisional Court. The Court ordered IN8 to pay $40,000 in legal costs.

 “This decision confirms what we have been saying all along. Downtown Kingston has special policies in place that must be respected in all planning applications. There is a height limit for new buildings and the impact on the cultural heritage landscape of downtown must be fully considered. ”, said Shirley Bailey, President of FHF.

 “We are delighted with this decision,” says Samantha King, President of Building Kingston’s Future. “Our supporters from across the city want City Council to respect the City’ Official Plan and zoning rules.  Towers are out of place in the downtown core.  Happily, a three-person panel of judges unanimously agreed!”

 The Court was unequivocal in its endorsement of the Tribunal’s finding that 16-storeys was too tall, and that Kingston’s Official Plan does contain a height and density restriction.  The judges found that the Tribunal had carefully looked at the policies that apply to downtown development.

 The Tribunal then balanced the permissive nature of intensification policy with the restrictive confines of heritage policy and the importance of the heritage character in this part of downtown Kingston in arriving at its decision. This was a reasonable decision open to the Tribunal on the facts, and in the context of the law and policies applicable to the development. There was no error of law in the Tribunal’s interpretation of the Official Plan. (paragraph 25)

 “The decision is a clear and concise legal precedent for Kingston that provides a detailed roadmap for preserving Kingston's built heritage form and history for years to come”, said David Donnelly, counsel to FHF and Building Kingston’s Future in the LPAT appeal. 

 “We are in favour of downtown development and intensification. Our point is that new development must respect Kingston’s human scale and heritage core,” says Annette Burfoot, a director of Building Kingston’s Future. The Tribunal acknowledged the Witness Statement of A. Burfoot of the BKF that intensification can be achieved by distributing density “into a number of undeveloped sites instead of one central urban location.” (LPAT, paragraph 169) “We need City Council and City staff to stop allowing one-off, site-specific applications. We need a clear direction forward on downtown developments that respect the Divisional Court’s decision,” she concludes.


For more information contact:


Roberto Aburto, Gowling, WLG successful counsel at Divisional Court



Shirley Bailey



Vicki Schmolka, Building Kingston’s Future Inc.



Annette Burfoot, Building Kingston’s Future Inc.



Samantha King, Building Kingston’s Future Inc.



David Donnelly, Donnelly Law, successful counsel at the Local Planning Appeal Tribunal