Toronto is fighting a developer’s plan to build a highrise tower right next to a downtown rail corridor because city planners say it would put office workers’ lives at risk if a freight train derailed.

Freed Developments wants to build a 19-storey tower directly next to the rail corridor property line. Unusually, the tower would be split down the middle, with the north and railway-facing side of the tower containing office space, and the south side of the tower containing condominiums.

But the city says the office portion of the building is too close to the rail corridor, would present an “unacceptable risk to life” and insists a bigger buffer zone is needed to protect the office tower and its occupants from a derailment.

However, the proposed buffer zone leaves less room for the developer to build. The developer argues the office tower will act as the buffer for the condo and its residents.

The fight, which has drawn references to the 2013 disaster in Lac Megantic, Que., is now at the Ontario Municipal Board after Freed Developments appealed the city’s refusal of their building application on Dupont St. The city is citing rail safety as a major concern, which was the focus of arguments at a hearing that concluded Friday.

The city says the proposal both represents bad planning and does not create an appropriate buffer from the railway line that carries up to 40 trains daily at speed upwards of 80 kilometres per hour.

“Office workers spend the majority of their day at their place of employment. If a train were derailed, the consequences would be no different than for a resident in its unit,” senior city planner Giulio Cescato wrote in an often frank witness statement submitted as evidence at the board hearing. “In layperson’s terms; the lives of residential users are not more valuable than those of commercial office workers.”

The application was first submitted in 2010 by the Wynn Family Trust for three mixed-use buildings of varying heights, between eight and 29 storeys.

Staff refused that plan in May 2011, with a report noting several problems with the design, including that it “fails to address serious rail safety matters.”

A statement from Canadian Pacific Railway (CPR), which operates the line, said the company was “not in favour of residential uses adjacent to our right-of-way as this land use is not compatible with railway operations.”

Since then, Freed has taken over the site and submitted revised applications, including the current configuration in 2016: A nine-storey office building linked to the 19-storey combined office and condo building.

With no setback from the rail corridor property line, the design includes what’s called a crash wall, meant to deflect a derailing train.

The developer says they are following nationally-accepted guidelines on rail safety by protecting residential uses from the threat of derailment.

But the city's rail infrastructure expert said best practice would be to set back any high-occupancy building, which he said includes offices, and argued the development as proposed presented an “unacceptable risk to life.”

There is no legal requirement for how far a building must be set back from the rail corridor.

National guidelines produced by the Federation of Canadian Municipalities in cooperation with the Railway Association of Canada, recommend residential uses be set back 30 metres from a railway corridor with an earthen berm separating those buildings and the rail line.

When staff studied the Dupont St. area in 2014, the city’s consultants recommended residential and office uses be set back a minimum 30 metres from the rail corridor and have a berm.

But after several appeals at the OMB along the southern edge of the rail corridor, a settlement between the city and developers required a minimum 20-metre setback and alternative safety measures found acceptable by the city, such as a crash wall.

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Bousfields Inc. partner and land use planner Peter Smith, hired by Freed, wrote in a witness statement that the office is not a sensitive land use and argued there could be more people in a retail space than the same sized office space, so office spaces could be allowed closer to the rail corridor.

Though the developer has not said so outright, the setback impacts how much it could construct on the land and therefore how much profit it could make. Because parts of the irregularly-shaped site are 35 to 38 metres deep, a setback of 20 or 30 metres would complicate what could be built, Smith told the OMB.

“I don’t think it’s about whether one loses 50 people in the case of a catastrophic event or 500 people,” Smith said under questioning from the city’s lawyer Abbie Moscovich. “We all collectively have made decisions through this process, including putting more residential units closer to the rail corridor than what the purest default position would say. I don’t think any of us have done that thinking we’re putting people in harm’s way. The reason that we’re recommending that is because of the crash wall design and mitigation measures, which are designed so that there’s no loss of life. And so, if there’s no loss of life, it doesn’t matter if we save 50 people or whether we save 500.”

Smith said he was relying on evidence from the developer’s other experts on rail safety measures that the wall would hold and it was not necessary to build an office further back from the rail line.

One of those experts, Lawrence Rutledge, a senior engineering technologist with Johnson Sustronk Weinstein + Associates made the following conclusion in his written statement: “Based on the design of the proposed building and crash wall, the proposed office use is an appropriate buffer from the perspective of rail safety.”

The city’s rail infrastructure expert Patrick O’Connor disagreed that the wall alone would protect what’s behind it against a derailment and therefore the office should not be used as a buffer.

“Should the crash wall fail so could the structure above it resulting in an unacceptable risk to life,” O’Connor , an engineer with consulting firm Hatch, wrote in his witness statement.

He added that the crash wall would do nothing to protect the office workers from other health hazards, such as “smoke, fire, release of hazardous gases or fumes and explosion.”

O’Connor said a derailment on a main line like the CPR route running along Dupont can occur for a number of reasons, in any direction, at any time.

In concluding their case and urging the board to approve their proposal, Freed’s lawyer David Bronskill, a partner at Toronto firm Goodmans LLP, said: “What is before you is safe . . . It will not just be safe, but it will be safer than the existing situation.”

The city’s lawyer, Moscovich, outlined that no evidence was provided that a wall of any kind could be designed to be impenetrable.

“In light of what you heard the rail infrastructure expert say, that yes a wall can be breached, you can’t say unequivocally that it won’t be breached and in light of that you should have some space to spare . . . do you really want to take that risk? And I’d submit to you that you don’t.”

The final decision on whether to approve the development application is now up to the OMB member. A decision is expected in August at the earliest.