TORONTO — The owners of the storied Glen Abbey golf course and the Town of Oakville, Ont., each won a round on Wednesday in their fight over the proposed destruction and redevelopment of the property.
In its decision, Ontario’s Court of Appeal restored five bylaws the town had passed that could thwart Clublink Corporation’s plans. A judge had ruled in December the bylaws were invalid.
The Appeal Court did, however, invalidate the town’s conservation plan as it relates to Glen Abbey on the basis that it would have forced Clublink to keep operating the golf course against its will.
"The town had statutory authority to pass all the impugned by-laws, they were not passed in bad faith, and they are not void for vagueness," Justice Alison Harvison Young wrote for the court. "However, the town did not have the authority to approve the conservation plan."
Glen Abbey, the first links designed by golfing legend Jack Nicklaus, is arguably Canada’s most famous course. The site, whose design emphasizes the spectator experience, has been home to the Canadian Open on about 30 occasions as well as other memorable golfing events.
Apart from its golfing world significance, Oakville has for decades regarded Glen Abbey as having important historical value. It also passed a bylaw designating the landmark course as having cultural heritage value.
"The quality of the golf course and its connection to the Canadian Open have been important in defining the character of this community and giving it a distinct place within the larger Toronto metropolitan area and beyond," the bylaw states.
According to Golf Canada, more than 50 courses have closed across the country in recent years, in part due to increased residential-development pressures. Clublink, which purchased the 94-hectare property in 1999, decided Glen Abbey had also run its course. In 2015, it said it wanted to build up to 3,200 residential units on the site, along with office and retail space.
The town responded by designating Glen Abbey as a heritage site. It passed five general bylaws that effectively blocked Clublink’s development plans. It also passed a conservation plan requiring town consent for any changes to the course that affect its heritage attributes. Clublink turned to the courts.
In December, Superior Court Justice Edward Morgan sided with the owners and quashed the bylaws as well as the conservation plan. Among other things, Morgan found the municipality had no authority to enact the measures and that the town had acted in bad faith by what amounted to expropriation of Glen Abbey.
Clublink appealed, arguing Morgan’s finding were all wrong. The higher court agreed, upholding only his decision that the conservation plan was void.
"To comply with the conservation plan, Clublink has no practicable option but to continue to operate the golf course as it currently is, and minor changes to its course are subjected to town approval," Harvison Young said. "This runs afoul of the clear limitation on the town’s otherwise expansive jurisdiction over the sphere of heritage."
Oakville’s lawyer Tom Curry said he was pleased the court confirmed the town’s authority to pass the bylaws and had set aside the bad-faith finding. For his part, Clublink lawyer Earl Cherniak said he welcomed the quashing of the conservation plan, saying the owner could now proceed with its application to demolish the course and redevelop the property.
In a dissenting view, Justice Ian Nordheimer said he would have ruled in favour of the town’s ability to enact the conservation plan.
Separately, the Court of Appeal ruled in an associated case on Wednesday that the golf course is a "structure" under provisions of the Ontario Heritage Act. The ruling has implications for the routes Clublink must take in its quest to demolish the course.