Rhodes v. Parry Sound (Twn.), 2021 CanLII 105797

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 18, 2021

CASE NO(S).: PL200421

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

Appellant: Shawn Rhodes

Applicant: A. & R. De Sousa

Subject: Consent

Property Address/Description: Concession 1 Part Lot 32

Municipality: District of Parry Sound

Municipal File No.: B3/McConkey/2020

OLT Case No.: PL200421

OLT File No.: PL200421

OLT Case Name: Rhodes v. Parry Sound (Twn.)

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

Appellant: Shawn Rhodes

Applicant: A. & R. De Sousa

Subject: Consent

Property Address/Description: Concession 1 Part Lot 32

Municipality: District of Parry Sound

Municipal File No.: B4/McConkey/2020

OLT Case No.: PL200421

OLT File No.: PL200422

Heard: June 29, 2021 by video hearing

APPEARANCES:

Parties	Counsel
Shawn Rhodes	Paul Gastaldi
Antonio and Rose Marie De Sousa	Sharmini Mahadevan
North Almaguin Planning Board for Township of McConkey (unincorporated)	In absentia

DECISION DELIVERED BY M. ARPINO AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This proceeding was a hearing of the merits of the appeal by Shawn Rhodes (“Appellant”) of a decision of the North Almaguin Planning Board for the Township of McConkey (“Planning Board”).

2Antonio and Rose Marie De Sousa (“Applicants”) own waterfront land in the Township of McConkey being municipally Lot 32 2 Concession 1 (“De Sousa Property”). It is developed with a dwelling, garage, and several outbuildings.

3The Applicants applied to sever their property to create two new residential building lots (“Proposed Lots”).

4The Planning Board granted consents to create the Proposed Lots (“Consents”). The Applicants also applied for consent to create a permanent easement for access to the Proposed Lots. That matter was not before the Tribunal.

5Attachment 1 to this Decision is a sketch which depicts the Proposed Lots and Parts 1, 2, 3 and 4 on Plan 42R-10484.

6The Appellant owns Parts 1 and 2 Plan 42R-10484 which is adjacent to the De Sousa Property. The Appellant appealed the Planning Board’s decision to grant the Consents (“Appeal”).

7The matter before the Tribunal was a third-party appeal. The Tribunal determined that the presence of the Applicants as a Party to the appeal was necessary to enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding. The Tribunal granted Party status to the Applicants.

8The Proposed Lots are intended to be accessed by an existing right-of-way over Part 2 of Plan 42R-10484 (“Right-of-Way”). At the commencement of the hearing, the Parties informed the Tribunal that there was no dispute regarding the validity of the Right-of-Way. There was not common ground regarding the attributes of the Right-of-Way.

ISSUES

9The issue before the Tribunal is primarily regarding access to the Proposed Lots over the Right-of-Way.

10The Appellant asserted that the Right-of-Way is restricted to pedestrian use. He submitted that the Right-of-Way cannot be utilized for access to the Proposed Lots.

11The Tribunal advised the Parties that disputes regarding legal issues regarding the permitted use of the Right-of-Way are not within its jurisdiction.

EVIDENCE AND ANALYSIS

12The Tribunal received the benefit of following:

• Exhibit 1 – Applicants Compiled Document Book
• Exhibit 2 – Applicants Book of Authorities
• Exhibit 3 – Applicant – Transfer GB143099 and consent
• Exhibit 4 – Appellant Book of Authorities
• Exhibit 5 – Appellant Document Book
• Exhibit 6 – Will Say Statement of Elaine Brock

13The Applicant called Jamie Robinson to testify regarding land use planning matters. Without objection, after reviewing his curriculum vitae and hearing submissions, the Tribunal qualified Mr. Robinson to provide opinion evidence regarding land use planning.

14Mr. Robinson provided considerable testimony about the purpose and general location of Parts 2, 3 and 4 on Plan 42R-10484. Historically, the Appellant’s property and the De Sousa Property were one parcel of land which was severed into two parcels with reciprocal rights over Parts 2, 3 and 4.

15Parts 3 and 4 on Plan 42R-10484 (“Parts 3 and 4”) are entirely on the De Sousa Property. Part 3 and 4 connect Part 2 to Balsam Creek Road. The Appellant traverses Parts 3 and 4 to get to the dwelling on his property.

16Mr. Robinson informed the Tribunal that a traffic study had not been undertaken. He testified that in his expert opinion.

17Mr. Robinson testified that the Consents are consistent with the Provincial Policy Statement (“PPS”), conform to the Planning Act (“Act”) and the Growth Plan for Northern Ontario. In his opinion, the Consents represent good planning in the public interest.

18In cross-examination, Mr. Robinson testified that it would be premature to create a lot without access to a road.

19The Tribunal was informed that the Planning Board was aware of the Appellant’s concerns regarding the proposed access to the Proposed Lots. The Planning Board had deferred consideration of the Consents so it could get clarification regarding the Right-of-Way prior to making its decision to grant the Consents.

20Elaine Brock testified on behalf of the Appellant. Ms. Brock owned Parts 1 and 2 on 42R-10484 from 1999 to 2012. She testified that she had seen vehicles traverse Parts 3 and 4 to get to the private driveway on the De Sousa Property but she rarely “if ever” saw motor vehicles using Part 2.

21The Appellant purchased Parts 1 and 2 of Plan 42R-10484 in 2012, testified that he rarely sees pedestrians on Part 2 and has never seen anyone else driving motor vehicles on it.

22He stated that there is a locked gate which restricts access to Part 2 which he said is necessary to ensure the safety and security of his dwelling. He intends to keep the gate locked. He acknowledged that the Applicants may restrict his access over Parts 3 and 4 but said that he is prepared to construct a new driveway from Balsam Creek Road to his dwelling to eliminate his need to traverse Parts 3 and 4.

23The Appellant’s counsel asserted that the use of the Right-of-Way as primary access for the Proposed Lots is an unauthorized extension of the Applicants’ legal rights.

24Counsel for the Applicant acknowledged that there is a dispute amongst the Parties regarding use of Part 2 to access the Proposed Lots. She submitted that determination regarding the nature of the Right-of -Way was outside of the Tribunal’s jurisdiction but acknowledged that the Tribunal has jurisdiction to make a determination regarding the Consents.

LEGISLATIVE FRAMEWORK

25In making a decision regarding the Appeal, the Tribunal must determine if the Consents meet the necessary statutory and policy tests including appropriate regard for matters of Provincial interests pursuant to s. 2 of the Act, consistency with PPS, 2020 and conformity to such Provincial Plans that may be applicable, which in this case is the Growth Plan for Northern Ontario. The Township of McConkey which is unincorporated does not have an Official Plan. The Tribunal must determine if a plan of subdivision is necessary pursuant to s. 53(1) of the Act. The Tribunal must also have regard for the criteria set out in s. 51(24) of the Act. The Tribunal must also have regard to the decision of the Planning Board must be satisfied that the Consents represent good planning in the public interest.

26Mr. Robinson testified that Part 2, 3 and 4 provide appropriate access to the Proposed Lots, the retained parcel of the De Sousa Property and the Appellant’s Property. In cross-examination, Mr. Robinson provided his expert opinion that it is premature to create new lots without access to a road.

27The Tribunal considered the submissions from the Parties, the oral and documentary evidence and the material provided to the Planning Board. The Tribunal accepted Mr. Robinson’s expert opinion that it would be premature to create new lots without access.

28Counsel for each Party acknowledged the outstanding dispute regarding whether the Right-of-Way included the passage of motor vehicles. The Tribunal also noted the Appellant’s admission that he intends to keep the gate on Part 2 and stop motor vehicles from using it.

29The Tribunal determined that while access to the Proposed Lots is uncertain, there could be a problem amongst neighbours, including each or the other installing a gate to preclude access which would not be in the public interest.

30Based on the aforenoted, the finds that the Consents are premature, contrary to the criteria in s. 51 (24) of the Act.

ORDER

31THE TRIBUNAL ORDERS that the Appeal is allowed, and the Consents are not to be given.

“M. Arpino”

M. arpino

MEMBER

Ontario Land Tribunal

Website: www.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.

PL200421 – Attachment 1