Lang v. Sundridge (Village), 2021 CanLII 102669

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

October 15, 2021

CASE NO(S).:

PL190542

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellants:

Bill & Susan Lang

Applicants:

Peter & Jill Bray

Subject:

Consent

Property Address/Description:

207 Main Street

Municipality:

Village of Sundridge

Municipal File No.:

B013/19

OLT Case No.:

PL190542

OLT File No.:

PL190542

OLT Case Name:

Lang v. Sundridge (Village)

Heard:

September 1, 2021 in writing

APPEARANCES:

Parties

Counsel*/Representative

Bill and Susan Lang

Patricia Foran*

Peter and Jill Bray

John Ewart*

Village of Sundridge

Chris Jones

Central Almaguin Planning Board

No one appeared

DECISION DELIVERED BY T.F. NG AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Peter and Jill Bray (“Applicants” or the “Brays”) owners of the property described as 207 Main Street, Concession 10, Part Lot 25 (“subject land”) in the Village of Sundridge (“Village”), District of Parry Sound (“District”) have made an Application for consent to sever the subject land to create a new lot and a retained lot. The subject land fronts onto Lake Bernard.

2The Central Almaguin Planning Board (“CAPB”) the delegated Authority in an unorganized municipality, gave provisional consent on September 18, 2019 (“Approval”) subject to several Conditions being imposed.

3Bill and Susan Lang (“Appellants”), who are adjacent property owners, appealed against the granting of the Approval on October 7, 2019.

4The appeal was fixed for hearing on September 1, 2021, by way of video hearing but upon written request by the parties was converted to a written hearing on account of a settlement being reached between the parties.

5The Minutes of Settlement and draft conditions for consent (proposed settlement) were presented to the Tribunal. Chris Jones, a registered land use planner engaged by the Village, filed an affidavit dated August 26, 2021, in support of the application. The original application was revised and the retained and severed lots’ dimensions and lot sizes were altered as shown in the revised sketch attached in Mr. Jones’ affidavit.

SUBJECT PROPERTY’S SEVERANCE

6The severance application seeks approval to create one (1) new lot totalling 2.13 hectares (“ha”) in area, by severing a lot consisting of 31.7 metres (“m”) of frontage on Main Street (320 m of frontage on Union Street) and a 350 m Depth (“severed lot") from the 3.64 ha parcel of land (''the subject land") and retaining a 1.51 ha parcel of land consisting of 42.6 m frontage on Main Street and a 350 m Depth (“retained lot”) as per the revised sketch.

ISSUE

7The issue before the Tribunal is whether the consent is consistent with the Provincial Policy Statement, 2020 (the “PPS”), conforms with the Growth Plan for Northern Ontario (the “NGP”), has regard for the specific criteria of s. 51(24) of the Planning Act (“Act”), and represents good planning. In accordance with s. 51(24), the consent must meet the requirements of the applicable policies of the applicable Official Plans and Zoning By-laws. In this matter, the Village has no official plan and CAPB is the Approval Authority.

8The Tribunal shall also have regard to matters of Provincial interest and to information and material that the CAPB considered in making its decision, pursuant to s. 2 and 2.1 of the Act, respectively. Section 3(5) of the Act requires any decision to be consistent with the PPS and any other Provincial Plans.

9The Tribunal will have regard to the appeal records, Mr. Jones’ Memorandum to the Council/Committee of the CAPB dated July 16, 2019 and the Environmental Evaluation and Recommendations Report of Michalski Nielsen Associates Ltd. dated February 11, 2020.

10Mr. Jones stated that the Brays have submitted an application for consent for a shoreline lot located in Part Lot 25, Concession 10. According to the application, the subject land has an area of 3.8 ha (9.4 acres (“ac”)) with a frontage of approximately 106 metres (347 feet) on Lake Bernard.

11The subject land currently has a dwelling located near the water's edge with access from Union Street. The subject land also has frontage on Main Street.

12The Applicants wish to sever a lot that would include the existing dwelling. The severed lot would have a lot area of approximately 2.13 ha with a shoreline frontage of approximately 60 m.

13The retained, vacant lot would have a lot area of approximately 1.51 ha and a shoreline frontage of 42 metres.

LAKE BERNARD

14Lake Bernard is a "Lake Designated for Lake Trout Management" by the Ministry of Natural Resources and Forestry (2015) (“MNRF”). The reason for this designation is that the Lake Trout species depend on a special habitat found only in cold-water "Lake Trout" lakes (i.e. low nutrients, high dissolved oxygen, cold water).

15The Provincial publication further explains that Lake Trout lakes are rare and only 1% of Ontario's lakes contain Lake Trout.

16The implication of this designation is that planning policies regarding the creation of new lots or to intensify land use in shoreline areas are typically more restrictive and/or prohibitive.

PROVINCIAL POLICY STATEMENT, 2020 (“PPS”)

17Given that the Village does not have an Official Plan, the PPS is the primary policy document guiding planning decisions in the Village. There are a few relevant policy sections to consider given the status of Lake Bernard as a Lake Trout lake.

18Section 2.1.5 (d) states that development and site alteration shall not be permitted in significant wildlife habitat unless it has been demonstrated that there will be no negative impacts on the natural features or their ecological functions.

19Section 2.2.1(e) states that planning authorities shall protect water by implementing necessary restrictions on site alteration to protect, improve or restore sensitive surface water features.

20Section 2.2.1(h) also requires planning authorities to ensure the consideration of environmental lake capacity, where applicable.

21The subject land is zoned Residential Single Family (Rl) under Zoning By-law No. 89-002. The lot area and frontage of the severed and retained lots are compliant with the Rl Zone standards, however, it is recommended by Mr. Jones that the lot proposed to be severed identify the building location, the location of the on-site stream and topographic elevations to determine if any matters of non-compliance exist and would need to be remedied by a zoning by-law amendment as a condition of consent.

22The subject land is quite large and there is a prospect that the new development on the retained lot could be serviced by the Village's sanitary sewer system. On this basis, Mr. Jones reasoned that the proposed severance will not be impactful on or detrimental to lake health or the lake ecosystem.

23Mr. Jones recommended that Council require the Applicants to retain a qualified professional to review the MNRF Lake Trout Management policies against the proposed severance and provide an opinion together with any appropriate recommendations for consideration by Council and the CAPB.

24Amongst the concerns raised in the appeal are those relating to water quality impacts on Lake Bernard, which is considered an at-capacity Lake Trout lake and which could therefore be vulnerable to any increase in phosphorus load resulting from land use changes.

25Gord Nielsen is the ecologist who was retained to make a report to provide background information on Lake Bernard and its fishery. He gave an overview of the role of both dissolved oxygen and phosphorus in protecting lake trout habitat; additional background information on the water quality of Lake Bernard; an explanation of how phosphorus loads can be influenced by land use change, with particular emphasis on Ontario's Lakeshore Capacity Assessment Handbook and environmental information on the nature of the proposed retained and severed land parcels.

26Based on his site inspection, and with an emphasis on factors related to potential changes in phosphorus loads to Lake Bernard on the development of these lots, he provided summary comments on the appropriateness of the severance, subject to the implementation of the recommended water quality mitigation measures.

27Mr. Nielsen stated that Lake Bernard is a moderately large lake, with a surface area of 2,050 ha (20.5 square kilometres (km²)). It has a mean depth of 16 m and maximum depth of 48 m. It supports a diverse fishery, which includes naturally reproducing lake trout and lake whitefish populations. Other species include brook trout, cisco, burbot, smallmouth bass, yellow perch, rainbow trout and rainbow smelt, the last two species having been introduced to the lake. MNRF notes that there has been considerable management attention on this lake, it being the largest lake in the Almaguin area. It is one of a number of lakes in the Province which, beginning in 2009, were intended to be regularly monitored (on a five-year cycle), for long-term trends in water quality, fish community and sport fish abundance.

28While lake trout have been stocked in Lake Bernard in the past, that practice has been currently discontinued because the population of naturally produced fish appears to be relatively healthy. That situation is intended to be monitored in order to guide future management direction.

29According to the MNRF Lake Fact Sheet, Lake Bernard also supports an abundant lake whitefish population and a naturalized, self-sustaining rainbow trout population.

30MNRF completed a winter creel survey on Lake Bernard in 2011. The published report from that survey (MNRF 2011) indicates that the total winter fishing efforts on the Lake have been relatively stable since 1993. The report notes that the efforts of anglers have shifted away from lake trout and towards whitefish as the abundance of stocked lake trout has declined. However, the total number and biomass of harvest of these two species combined was higher than it was when stocking occurred. The number of naturally reproduced lake trout is increasing and it was MNRF's conclusion that this population is capable of sustaining itself and supporting a modest fishery. In keeping with its present-day views of fish stocking objectives, MNRF is of the view that supplemental stocking should not be undertaken when a viable, self-sustaining population is present. The important take-away from this report is that Lake Bernard presently supports a self-sustaining Coldwater fishery, with naturally reproducing lake trout being an important component of it, and with no indication that this fishery is being negatively impacted by land uses within the watershed.

31Mr. Nielsen’s report encompasses the overview of the role of both dissolved oxygen and phosphorus in protecting Lake Trout habitat. In this regard, lake trout require colder water temperatures, so in the summer the lake trout move deeper into the lake, below the thermocline, into the colder waters of the hypolimnion. Those waters must remain well-oxygenated for lake trout to thrive. Oxygen concentrations tend to naturally decline within the hypolimnion over the course of the summer, with the rate of such oxygen depletion dependent on both the size and shape of the lake basin and on the amount of phosphorus the lake receives. The latter is influenced by both natural conditions (nature of the watershed, atmospheric deposition, parent soil composition within the watershed, etc.) and human-influenced, or anthropogenic factors (extent of shoreline development, number and condition of septic systems around the lake, and other possible human-related sources of phosphorus within the watershed, such as urbanization, agricultural activities, sewage treatment plants and industrial facilities). Phosphorus is the nutrient controlling algae growth in a majority of lakes. As phosphorus levels go up, the amount of algae increases and because such algae have a short lifespan, when the amount of algae increases, so too does the amount of decaying algae which sinks towards the lake bottom. As the amount of decaying organic matter in the hypolimnion increases, oxygen is consumed at a greater rate and dissolved oxygen levels go down. The MNRF presentation noted that as traditional shoreline development (on septic systems) increases, phosphorus loads to a lake tend to increase, with a corresponding decrease in the oxygen levels within the hypolimnion during the summer.

32The MNRF report apportions the great majority of phosphorus loads from new shoreline development to septic systems, with the view that all phosphorus entering septic systems, which have any proximity to a lake ultimately finds its way into that lake. Importantly, MNRF indicates that there should be a flexible planning approach, which permits new development on at-capacity lake trout lakes if tile fields are physically or functionally at least 300 m from the lake, or if new tile fields do not drain into the lake. Of additional note, this presentation also recognizes that Ontario's Lakeshore Capacity Assessment Handbook proportions a small amount of the phosphorus load from new development to changes in the vegetation composition of lots, with the presentation including recommendations to prevent adverse impacts associated with such changes (minimum 30 m setbacks for new development); protection of a shoreline buffer and use of the appropriate best management practices. The Province has developed a very effective long-term monitoring program for water quality on recreational lakes in Ontario, known as the Lake Partner program. Through this program, it provides training and equipment for volunteer stewards on lakes throughout the Province. Those volunteer stewards then collect water samples, which are submitted to the Province for analysis. On Lake Bernard, this program has provided long-term information on phosphorus levels (dating back to at least 2005), as well as on light transparency (as measured by a Secchi disk depth, and dating back to at least 1997).

33The long-term mean phosphorus level in Lake Bernard, as measured at various locations throughout the lake, is 6.6 micrograms per litre (“µg/L”). This puts the Lake into an oligotrophic, or low nutrient level, status. Oligotrophic lakes, which are reasonably common within portions of the Precambrian Shield but less common elsewhere within the Province, are prized for their high water clarity and aesthetics. While generally not having as productive a fishery as higher nutrient level lakes, many such lakes are capable of supporting a Coldwater fishery, depending on depth and other physical characteristics. An examination of phosphorus levels over the summarized period of record of 2005 to 2016 indicates quite stable water quality conditions, with no indication that phosphorus levels have been increasing over that period.

34Mr. Nielsen stated that a Secchi disk is a very simple tool, consisting of a disk with alternating black and white quadrants which is lowered down into a lake on a weighted line. The point at which the disk is no longer visible, referred to as the Secchi depth, provides an indication of light transparency. As one of the most significant variables affecting light transparency is the quantity of algae in the water column, which in turn is affected by phosphorus levels, Secchi depth measurements serve as a very useful adjunct to data on phosphorus concentrations. The long-term mean Secchi depth for Lake Bernard is 4.1 m, which means the lake is quite clear, and which is consistent with its designation as an oligotrophic lake. An examination of Secchi depth measurements over the summarized period of record of 1997 to 2016 indicates quite stable conditions, with no indication that light transparency has been decreasing over that period.

35An important take away from the long-term water quality information for the Lake is that the water quality of the lake is excellent, with no indications that it is being negatively impacted by land uses within the watershed. In its provision of planning advice for Lake Bernard, MNRF has relied on the Province's Lakeshore Capacity Assessment Handbook (Province of Ontario, 2010). As previously noted, that manual proportions a majority of the phosphorus load from new lakeshore development to septic systems, while proportioning a much smaller portion of it to changes in overland runoff in association with the development of such lots. Although a growing body of research has demonstrated that soil conditions within the watersheds of many lakes on the Precambrian Shield have specific qualities which can minimize and/or completely prevent migration of phosphorus from on-site septic systems (low calcium carbonate levels in association with large amounts of available iron and aluminium), that research is not particularly germane to the present discussion, given both the basis of MNRF's policy direction on this lake, and the quite unique opportunities that present themselves with respect to the subject severance. The two sources of phosphorus addressed in the Lakeshore Capacity Assessment Handbook are further described below.

Phosphorus Load From Septic Systems

36The Lakeshore Capacity Assessment Handbook states that "the Lakeshore Capacity Model focuses on phosphorus from septic systems as the major, human contributor to lake loadings". The current version of the Lakeshore Capacity Assessment Handbook (Province of Ontario, 2010) assumes that 0.66 kilograms (“kg”) of phosphorus is contributed per capita per year to septic systems (based on full-time occupancy). In recognition of the fact that occupancy rates of cottages or homes on recreational lakes can be quite variable, it applies standard usage rates as follows:

• Seasonal residence - usage rate equals 0.69.

• Extended seasonal residence – usage rate equals 1.27.

• Permanent residence – usage rate equals 2.56

37The phosphorus load is then simply calculated as usage rate multiplied by per capita load, which equates to 0.455 kg/year for each seasonal residence, 0.838 kg/year for each extended seasonal residence and 1.690 kg/year for each permanent residence.

38In the present situation, both the existing and future residences are within the Village of Sundridge, on well-maintained roads, and should be modelled as being permanent residences. The current home presently has a septic system which would therefore be calculated to contribute 1.69 kg/year of phosphorus to Lake Bernard. If an additional home was to be built on a septic system within 300 m of the lake, the model would assume a further phosphorus load to the lake of 1.69 kg/year.

Phosphorus Load From Overland Runoff

39There has been considerable research within Ontario and in other jurisdictions relating to phosphorus loads in overland runoff from various land uses. In brief summary, atmospheric deposition of phosphorus occurs everywhere. Some of the phosphorus arising from atmospheric deposition, together with some of the phosphorus that is otherwise naturally present in soils, is mobile, with its mobility depending on land use. In this regard, relatively little phosphorus is exported from a forested environment whereas much larger amounts of phosphorus are exported from intensively farmed lands and urban lands. Rural land uses and less intensive agricultural uses fall in between. The Lakeshore Capacity Assessment Handbook has assumed an overland run-off phosphorus load from developed cottage lots of 0.04 kg per lot per year. Accordingly, the current developed residential lot is modelled to contribute 0.04 kg of phosphorus from overland runoff to Lake Bernard per year, and the creation of one new residential lot, on build­out, would contribute the same.

Total Modelled Phosphorus Load

40In accordance with the above, the total modelled phosphorus load to Lake Bernard from the existing residence is 1.69 kg/year from the septic system plus 0.04 kg/year from overland runoff, or 1.73 kg/year in total.

41If a new lot was to be developed on private services, it would also be modelled to contribute 1.73 kg/year of phosphorus to the Lake, increasing the total phosphorus load to the lake from these combined properties to 3.46 kg/year. However, if one of the stipulations of creating a new lot is that both the retained and severed lots must be brought onto full municipal services as a condition of building on the retained lot, the calculated phosphorus load from septic systems would be completely eliminated, and the new modelled phosphorus load to the Lake from both lots combined would be 0.08 kg/year, a 95.4% reduction from the presently modelled phosphorus load of 1.73 kg/year from the existing residence on its own.

42Although the Lakeshore Capacity Assessment Handbook is likely over predicting phosphorus loads from septic systems on the Lake, there remains substantial benefit to the Lake, particularly in consideration of the precautionary approach MNRF has taken in relying upon the Lakeshore Capacity Model, if these lots are to be developed on/converted over to full municipal services, as well as, if best management practices to mitigate against phosphorus loads associated with overland runoff, are implemented.

Nature of the Proposed Retained and Severed Land Parcels

43Appendix A in the report includes drawings and aerial photography showing the subject property, as well as an associated severance sketch. Lot boundaries on the mapping and aerial photography are approximate, based on the MPAC property boundary in MNRF's mapping database.

44The subject land slopes very gently from north to south, towards Lake Bernard. The existing residence is located within the south-central portion of the subject lot on the lands to be severed. It is approximately 40 m back from the lake and much of the riparian zone has been left treed, although containing some mown areas (tree cover within 30 m of the lake was estimated to be 70%). The beach is sand and cobble at the shoreline. The nearshore of the lake has sand-dominated substrates, and 1:12 to 1:15 slopes.

45From the mapping included in Appendix A, there is a small watercourse which flows north to south through the eastern portion of the property, in some proximity of the existing residence. Although much of that watercourse is wooded, there are portions of it in which lawn extends up to, or close to, its banks.

46A dwelling is intended to be constructed a minimum 40 m back from the lake within the retained parcel in the general area in the foreground. The riparian zone is very gentle and well treed, with an opportunity to maintain the great majority of such trees.

47The proposed building lot capitalizes on an area, which has been partially disturbed, as part of the amenity space associated with the existing residence. To the north of this location, the majority of the remainder of the property is wooded. Apart from the maintenance of the existing driveway, the intent is to retain the wooded character of the northerly portion of the property over the long term.

48Based on his site review of these lands, Mr. Nielsen opines that the retained lot is very buildable. It is serviced by an existing driveway and tree removal requirements to create a building envelope are quite minimal. A dwelling can be established at least 40 m back from the lake, with it then being possible, to protect a natural buffer of a minimum 30 m over the long term.

49Tree removal within the buffer can be limited to the creation of a pathway down to the shore; a small amenity space by the lake; view windows towards the lake and removal of any trees that pose a hazard. No works are required within 30 m of the creek on the property. The large buffer that is to be protected, together with the very gentle slopes within that riparian zone, makes it easy to employ construction best management practices.

50Although the parcel to be severed has an older dwelling on it, built in an era when there was typically less attention to shoreline management, the dwelling is set back a considerable distance from the lake (approximately 40 m), with generally quite good tree cover between the dwelling and the lake. The buffer removes concerns that Lake Bernard (which is an at-capacity lake trout lake) being subject to any increase in phosphorus load, which would diminish oxygenation levels in the lake trout habitat during the late summer.

51Longer-term fisheries’ information for the Lake indicates that it supports a self-sustaining Coldwater fishery. Although there have been changes in the way this fishery is being managed, there are no indications that this fishery is being negatively impacted by land uses within the watershed.

52Long-term water quality information for the Lake indicates that the water quality of the lake is excellent, that phosphorus levels are low and very stable, and with no indications that water quality is being negatively impacted by land uses within this watershed.

53Therefore, there is no need to improve upon the current condition of the riparian area. However, there are some opportunities to increase the extent of tree and shrub buffer along the more open portions of a watercourse within the lands to be severed.

54In having made recommendations to municipalities against new shoreline development on Lake Bernard, the MNRF has taken a precautionary approach, based on Ontario's Lakeshore Capacity Assessment Handbook, which focuses on phosphorus from septic systems as the major, human contributor to phosphorus loadings to recreational lakes.

55The municipal sewage treatment system for the Village of Sundridge employs sewage lagoons which seasonally discharge to a watercourse several kilometres downgradient of Lake Bernard and which have no potential to negatively impact on the water quality of this lake. It is not a very ordinary circumstance for there being an option to connect lots to full municipal services on recreational lakes in Ontario. However, the Province's Lakeshore Capacity Assessment Handbook does recognize that sewage being treated off-site, and not re-entering the watershed, should be discounted from the model. Further, in one municipality in Ontario in which this option exists (portions of the Municipality of Dysart et. al.), its Official Plan allows new development on full municipal services on at-capacity lake trout lakes. Accordingly, there is good precedent for allowing a severance on full services.

56Based on Mr. Nielsen’s experience, he maintained that it is rare to see a new lot application on a recreational lake in Ontario today, in which the opportunities to mitigate against potential water quality impacts are as good as they are on this lot.

57In addition to requiring these lots be on municipal servicing, Mr. Nielsen has recommended that a number of measures be incorporated to reduce phosphorus loads from overland runoff, including: a minimum 40 m setback for the new dwelling; maintaining a 30 m natural buffer between the amenity space of a new dwelling and the lake; employing construction best management practices, including properly installed and maintained sediment fencing between areas of construction and the lake; and improving upon the extent of riparian cover along a creek within the severed lot. These recommendations provide complementary water quality benefits. He stated that with the implementation of all such recommendations, there is no risk to lake trout.

ANALYSIS AND FINDINGS

58Policy 2.1 of PPS addresses Natural Heritage. The Tribunal agrees with and accepts the uncontroverted evidence of Mr. Nielsen that the Lake Bernard, Lake Trout habitat is not prejudiced or jeopardized by the proposed severance. His detailed analysis demonstrates that the natural heritage features and most importantly, the water quality of Lake Bernard are not affected over the years by the existing developments on the watershed area of the lake. As no development is proposed within 30 m of the creek and/or within the 40 m buffer from the shoreline, on the subject land with the application, there are no impacts to any natural features or their functions. The subject land is well treed, characterised by gentle slopes within the riparian zone and there is a large buffer that is protected from the existing dwelling located 40 m away from the shoreline. The Tribunal is satisfied that the proposal is consistent with the PPS.

59The Village is located within the Northern Ontario Growth Plan Area and thus decisions are also required to conform with this Plan (s. 3(1) s. 3(5) of the Act). Section 6 of NGP speaks to the importance of environmental protection, where the province will work with municipalities to provide information on natural heritage features. These policies align with the similar policy direction within the PPS described earlier.

60The Tribunal notes that the ecologist found that the development will not have any negative impact on Lake Bernard. The land use planner has confirmed that the PPS policies are applicable since there is no official plan in the Village.

61The respective experts opined that due assessment has been carried out and that the application to sever does not result in any negative impacts. In weighing the evidence, the Tribunal is persuaded by the experts’ evidence that the consent application for the subject land does not have negative impacts.

62The Tribunal finds that the application has been amended to correct the size of the subject land (as the CAPB decision misstated the size). Further, the revised sketch has changed the dimensions and frontages of the severed and retained lots. Pursuant to s. 53(35.1) of the Act and as the Tribunal is of the opinion that the amendment to the original application is minor, no further written notice is required to be given.

63The Tribunal agrees with Mr. Nielsen that no harm or impact will be occasioned to the natural heritage features and functions or the water quality of Lake Bernard, as there is no evidence over the years, as presented by MNRF and Mr. Nielsen’s report, that the water clarity or quality of the Lake had been diminished by overland runoff from the watershed or the septic systems in the watershed area. As Mr. Nielsen has surmised, the MNRF are conservative or precautionary in their approach but the evidence shows that the water quality of the Lake is maintained and phosphorous runoff is minimal from the watershed area of the lake. The Tribunal accepts that there is potential for the new development to be connected to the municipal services that discharge waste lagoons downslope away from the Lake, which will reduce significantly the phosphorous load to the lake that may result from the proposed development. Mr. Nielsen has provided a report that demonstrated consistency with s. 2, PPS natural heritage requirements that in his opinion, no negative impacts arise from the application.

64The Tribunal finds principal policy considerations in the NGP relate to its stated purposes under s. 1.2: (a) to enable decisions about growth to be made in ways that sustain a robust economy, build strong communities and promote a healthy environment and a culture of conservation; and (b) to promote a rational and balanced approach to decisions about growth that builds on community priorities, strengths and opportunities and makes efficient use of infrastructure. The Tribunal further notes that s. 4.2.1(c) speaks to optimized use of existing infrastructure and s. 4.2.2 encourages municipalities and local planning boards to align their plans or policies with their long term community strategies developed in accordance with s. 4.2.1. The Tribunal is satisfied that the consent application to sever the subject land conforms to the NGP.

65There is no necessity to proceed by a plan of subdivision under s. 53(1) of the Act, as the severance into two lots is a proper and orderly development in the Village.

66The Tribunal has reviewed the Municipal Record, the original application and the documents filed in the appeal; the minutes of CAPB decision and the Conditions of Approval; the documents of the proposed settlement and the land use planner’s memorandum as well as the evaluation report of the ecologist.

67The Tribunal finds that the Consent Application meets the criteria in s. 51(24) of the Act. Specifically, the report by Mr. Nielsen addressed the key features of the Lake Bernard Trout capacity and habitat fronted by the subject land and had determined that the proposed severance will not have negative impacts on the natural heritage features and functions, fish habitat and water quality. There is a significant treed buffer on the subject property. Mr. Nielsen had also recommended further construction management practices to address watershed runoff as well as other mitigation measures to ensure the continued protection of the Lake Bernard fish habitat. The Provincial interest in protecting ecological systems, including natural areas, features and functions is taken into consideration. The Tribunal finds that the subject land is suitable for the proposed severance.

68The Tribunal finds that the Consent for the severance application is consistent with the policies of the PPS, conforms with the policies of the NGP, maintains the general intent of the Zoning By-law, represents good planning and is in the public interest. Accordingly, provisional consent is granted subject to the Conditions of Approval. The Tribunal is satisfied that these conditions are reasonable in accordance with s. 51(25) of the Act.

69The Conditions as hereto imposed shall apply to the consent for severance and the Tribunal will impose these conditions for the approval.

ORDER

70THE TRIBUNAL having been asked to consider an application that has been amended from the original application, and the Tribunal having determined, as provided for in s. 53(35.1) of the Planning Act, that no further notice is required.

71THE TRIBUNAL ORDERS that the appeal is dismissed and the provisional consent is to be given subject to the conditions set out in Attachment 1 to this Order.

“T.F. Ng”

T.F. NG

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

ATTACHMENT 1

SCHEDULE C

FINAL CONDITIONS OF CONSENT APPROVAL

That this approval applies to create one (1) new lot totaling 2.13 ha in area, by severing a lot consisting of 31.7m Frontage on Main Street (320 m of frontage on Union Street)(+/-) x 350m Depth(+/) ("Severed Lands") from the 3.64 ha parcel of land ("the Lands") and retaining a 1.51 ha parcel of land consisting of 42.6 m Frontage on Main Street x 350m Depth(+/-) ("Retained Lands") as per the revised sketch attached to this Decision. That the applicant(s) shall satisfy the following conditions and/or deliver the following documents to the Secretary-Treasurer of the Central Almaguin Planning Board for the transaction described above:

a) One photocopy of the executed Transfer/Deed of Land form for records;

b) A Planning Schedule to the Transfer/Deed of Land form which is set out the entire legal description of the parcel(s) in question. This Schedule must also contain the names of the parties indicated on Page 1 of the Transfer/Deed of Land form - Transferor and Transferee; and

c) A Reference Plan of Survey which bears the Land Registry Office registration number and signature as evidence of its deposit therein, illustrating the parcel(s) to which consent approval relates or a legal description acceptable to the Land Registry Office for registration and certification;

d) The municipality requires 5% Cash in Lieu of Parkland payment; 4 copies of the registered survey be provided to the Village office; copies of any and all Central Almaguin Planning Board decisions be provided to the Village office; that the applicant's property taxes be paid in full to date, prior to granting of consent; payment of all outstanding accounts and invoices incurred by the municipality during the process of this account.

e) The applicant is required to enter into a development agreement with the Village of Sundridge pursuant to subsection 51(26) and 53(12) of the Planning Act, R.S.O. 1990, in which the applicant agrees to implement and maintain the recommended mitigation identified in section 7.0 of the report prepared by Michalski Nielsen Associates Limited dated February 11, 2020 ("the Report"), which assessed provincial policy and guidelines pertinent to development on Lake Trout Lakes and identified development requirements for the Lands. The development agreement will be registered against title to the Lands prior to final consent approval.

f) The applicant is required to submit to the municipality a Reference Plan of Survey and building location survey of the severed lot, prepared by a duly licensed and qualified Ontario Land Surveyor, illustrating the location of any existing buildings, the location of the stream as well as topographical elevations, the required setbacks and the area to be maintained as vegetative buffer identified in the Report. The applicant is also required to provide a site plan illustrating required setbacks and area to be maintained as vegetative buffer identified by the Report applicable to the retained lands. For clarity, the site plan required by this condition shall be based upon the Reference Plan of Survey and will prepared in accordance with Section 4.7.5 of Village of Sundridge By-law 2016-041 ("Building By­ law") or any successor thereto.

g) Written confirmation from the Village of Sundridge that the applicant has disconnected the existing buildings from any on-site sewage services (septic) and has connected them to Village wastewater services. The applicant shall be responsible for decommissioning the existing septic system in accordance with municipal and provincial requirements.

h) Written confirmation from the Village of Sundridge that the applicant will also be required to connect to Village wastewater services for any new development on the Lands;

i. All conditions must be met before the deeds can be stamped and final approval given.

i) That the applicant(s) shall remit the Finalization Fee of $100- certified cheque or money order for each separate transfer document to the Central Almaguin Planning Board prior to finalization of the consent.

j) It is the applicants and/or agents’ responsibility to fulfill the conditions of consent approval within One Year of the Tribunal order becoming final.

k) The required Transfer/Deed of Land form and schedule page shall contain a complete and accurate legal description. The Certificate of Consent will be affixed to the completed Schedule Page.

l) All buildings shall comply with the Ontario Building Code, those in unorganized townships can make inquiries to the Ontario Buildings Branch, Ministry of Housing 2^nd Floor, 777 Bay St. Toronto, On MSG 2E5.n.The Province of Ontario (MTO) have made notes that MTO Building/Land Use permits will be required for any change in use of the Subject Lands, or for any proposed buildings or structures located within 45 meters of the MTO ROW or within 180 meters of the intersection of Highway 124 and White Pine Drive. The required setback for most residential buildings and structures is 8 meters from the highway property limit or 26 meters from the centreline of the highway, whichever is greater. New wells must be setback a minimum of 30 meters from the limits of the MTO ROW. And, a new MTO entrance permit is required for any change in Ownership of existing entrances on Highway 124.

Schedule : C1 (To Provisional Consent Decision)

Retained (Vacant) Lot

i. A building envelope will be identified on the Building Location Survey and will be a minimum 40 m back from the shoreline of Lake Bernard;

ii. All trees within 30 m of Lake Bernard will be preserved as an undisturbed riparian buffer, save for the following:

iii. limited limbing of trees to create view windows from the residence down towards the lake:

iv. removal of trees posing a legitimate safety hazard, based on poor condition or the extent of leaning, as confirmed by a qualified professional or tree removal authority licensed and insured to unde1take tree removals in the Province;

v. Prior to development, or site alteration or construction, sediment fencing must be properly installed along the side of the building envelope facing Lake Bernard.

vi. The required sediment fence must be inspected on a daily basis over the course of all work by the contractor. Any repairs required to the sediment fencing must be carried out immediately;

vii. Sediment fencing must be retained in good working order until all disturbed areas have been restored with vegetation;

viii. All earthworks must be kept behind the sediment fence.

ix. Any permitted soil stockpiling shall be of minimum duration and will not exceed twenty-eight (28) days in total time.

x. Any areas where there has been site alteration or disturbance will be regraded immediately, and will be stabilized with grass seed or sod;

xi. Any new building must be connected to municipal sanitary sewage services. On­ site treatment of sewage is prohibited.

Severed (Developed) Lot

xii. Any buildings existing on the Severed Lot will be disconnected from any on-site sewage (septic) services and connected to municipal sanitary sewage services. The Owner shall be responsible for decommissioning the existing septic system in accordance with municipal and provincial requirements.

xiii. Within one year of final consent approval, all open areas within eight (8) metres of the watercourse (creek) identified on the Building Location Survey are to be planted with a combination of native trees and shrubs as confirmed by a qualified professional as follows:

(a) The Owner shall plant shrubs in presently open areas within two (2) metres of the watercourse (creek), on 0.8 metre centres (one planting for every linear metre of presently open area of creek).

(b) The Owner shall plant trees in the area within two (2) metres to eight (8) metres of the creek. All trees are to be planted on two (2) metre centres (one planting for every two linear metres of presently open creek).

(c) Once the plantings required by conditions 11 (a) and (b) have been properly established, all areas within eight (8) metres of this watercourse are to be managed as no-maintenance naturalized buffers.

NOTE: Condition 1 shall require the owner to produce a building location survey in order to fulfill the provisional consent and will serve to require the owner to build in a manner which is compliant with such survey. Condition 10 is required to be satisfied prior to issuance of a certificate of final consent. Conditions 2 -9 and 11 are conditions that are not required to be fulfilled prior to the issuance of a consent certificate, but shall be binding subsequent to registration of the consent certificate. Further no site alteration of the subject lands shall occur during the period of provisional consent.