The city has won a case to preserve the space over a downtown rail corridor solely for use by the public, preserving the opportunity for Mayor John Tory’s promise of a Rail Deck Park.

A unanimous decision Thursday from a panel of the Local Planning Appeal Tribunal dismissed the appeal of a development group looking to build a massive mixed-used complex over the corridor.

The tribunal found the city’s decision to designate the space for parkland use was consistent with provincial policies, noting a rapidly growing core and documented lack of public open space.

Council has voted to build a decked structure between Bathurst St. and Blue Jays Way, south of Front St., to support the 8.5-hectare public park, what was last estimated to cost $1.66 billion.

“The Tribunal is persuaded by the preponderance of evidence in this hearing that the Rail Deck Park project is not only visionary but represents a bold move that will respond to a very serious issue of parkland deficiency in the downtown, as well as being an element in the urban fabric that goes to the core of the complete community concept enshrined in provincial policy,” the LPAT decision reads.

Tory said Thursday his determination to move forward with Rail Deck Park is “very, very strong.”

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“This is a good news development because it reaffirms the city’s decision taken initially to make this land available for what I think will be a hugely important and very popular park,” Tory told reporters.

The city has yet to acquire the rights to build over the corridor, however, some which have already been sold to the developers, Craft Acquisitions Corporation, who claim to also have an agreement of purchase and sale for the remaining rights currently held by railway companies.

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That the city does not own the rights is not a deciding factor in whether council’s policy decision to protect the space for parkland was in order, the tribunal found, and noted the city has the power to expropriate the air rights.

Craft still has an appeal before the tribunal on their actual development application for eight condos and offices, which was refused by council in 2018 and has yet to go to a hearing. That appeal predates the passing of the council decision on the parkland and will be heard on its own merits. City staff opposed the application on several grounds, saying it raised several “significant planning concerns” including the need to balance growth and community infrastructure.

At the hearing on the parkland decision, lawyers for Craft argued the city did not properly assess other uses which “subverts proper planning and most particularly prejudices Craft as it strips away any prospect of a form of development which they might be able to pursue within their property interest.”

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Local Councillor Joe Cressy (Ward 10 Spadina—Fort York) called the decision “a huge step forward.”

“You have to imagine the city you want before you can build it,” he said in a statement. “It won't be built overnight, but now, we’ve protected Rail Deck Park for the future.”

A staff report is expected back in the fall concerning some of the engineering challenges and costs, Tory said.

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