was signed in 1981 by the City of Kanata and Campeau Corporation, an original area developer to guide the use of the Kanata Golf Club lands
To support a Master Development Plan Campeau Corporation formulated a plan for this area which mandated a minimum of 40 percent open space consisting of an 18-hole golf course (approximately 30% of the overall area), a storm water management area (the Kizell wetlands), natural environmental areas, parkland and connecting links which was approved by Kanata Council and legalized as The 40 Percent Agreement and which was ultimately registered on the land title
The 40 Percent Agreement did not conform to the Regional Municipality of Ottawa-Carleton [RMOC] Official Plan of the day but was adopted by Regional Council as Amendment 24 to the Official Plan
To ensure the open space would survive as originally intended, the Agreement stipulated that the golf course was to be “operated in perpetuity”. It could be sold provided the operation of the golf course was continued. If the golf course owner could find no one to acquire and operate the course, “it shall convey the golf course (including lands and buildings) to Kanata at no cost and Kanata shall operate or cause to be operated the land as a golf course. If Kanata will not accept the conveyance of the golf course, then Campeau could apply to develop it in accordance to the Planning Act.”
Additionally, “the golf course shall be made available for reasonable use by the public in the winter season for pedestrians, cross-country skiing, including motorized grooming of cross-country ski trails, and non-motorized winter activities which will not interfere with the primary use of the land”
Clauses 5 and 9 of The 40 Percent Agreement set out the following provisions for the golf course:
- 5(2) the owner of the course can only sell the course to a new owner if that new owner enters into an agreement with the city to operate the course in perpetuity as provided in the Agreement.
- 5(3) If the course owner receives an offer to buy the course the city is to be given the right of first refusal (the city can purchase for the same price).
- 5(4) Provides two conditions after which the owner is to convey the course free of cost to the city to operate:
- The owner wants to cease operating the course; and
- The owner cannot find any other person to purchase or operate the course
- 5(5) If the city refuses to accept the course the owner is free to make and application to the City to develop the land.
- 9. If the city accepts the golf course but later the land is not used for recreation or natural environmental purposes, the land and buildings are to be returned to the owner (that gave the course to the city) for development
ClubLink purchased the golf course and signed on to the 40 Percent Agreement in 1996.
In December 2018, ClubLink announced their intention to develop the golf course into 1500 homes. In 2019 ClubLink submitted their development application to the City of Ottawa who later turned down the application. In the same year, the City applied to the Ontario Superior Court asking for a declaration that the 40 Percent Agreement is valid and enforceable. The KGPC sought intervenor status and argued alongside the City of Ottawa to defend the Agreement. In 2021 the court ruled in the City’s favor, declaring the 40 Percent Agreement to be a valid and binding contract but ClubLink appealed the decision. Only two clauses were overturned on appeal: clauses 5(4) and 9. The City appealed that decision to the Supreme Court of Canada, but the case was dismissed.
The appeal judge ruled that the validity of the remainder of the 40 Percent Agreement would be returned to the lower court to decide if any other provisions in the Agreement should be affected. A hearing was held in September 2022 to decide the validity of the Agreement. ClubLink argued that all references to the golf course should be stricken from the Agreement. Both the City and the KGPC maintained that the remainder of the Agreement should remain intact.
Until a decision on the appeal is made, the 40 Percent Agreement remains valid and enforceable. This means that 40% of this area must remain open space and the golf course shall be operated in perpetuity.