Mackay v. South Frontenac (Township), 2021 CanLII 109391

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

October 26, 2021

PL200576

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

Case Number:

PL200576

OLT Case Name: Municipality:

Mackay v. South Frontenac (Township) Township of South Frontenac

Municipal Number:

S-34-19-S

Property Location:

3467 Latimer Road

Applicant/Appellant(s):

Kerstin & Kevin Mackay

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

Case Number:

PL200576

PL200596

Municipality:

Township of South Frontenac

Municipal Number:

S-35-19-S

Property Location:

3467 Latimer Road

Applicant/Appellant(s):

Kerstin & Kevin Mackay

Heard:

June 17, 2021 via video conference call

Parties

Counsel

Kerstin & Kevin Mackay

Philip Osterhout

Township of South Frontenac

Tony Fleming

1The Tribunal held a hearing on an appeal under s. 53(19) of the Act regarding refusal by the Committee of Adjustment (“COA”) for two consent applications made by Kerstin & Kevin Mackay (“Applicants”). However, leading up to this hearing, the Town of South Frontenac (the “Town”) and the Applicants informed the Tribunal that they have reached a settlement and a settlement hearing was requested.

2The Applicants are the owners of the land (“subject lands”) municipally known as 3467 Latimer Road, in the Township of South Frontenac. The subject lands are approximately 7.66-hectare in size with approximately 280 metres of frontage along the north-south portion of Latimer Road, and approximately 260 metres of frontage along the east-west portion of Latimer Road. The Subject Lands are currently occupied with a one-storey single-detached dwelling, which is proposed to be retained. The subject lands are otherwise undeveloped. The proposed settlement will create two new lots for a total of three lots.

3The settlement was opposed by Chris Wicke who claimed to be a registered professional planner. Mr. Wicke sought party status and was opposed by the Town. Mr. Wicke changed his request to be a participant instead. The statutory parties had no objection to the granting of participant status to Mr. Wicke. The Tribunal having considered the request from Mr. Wicke, granted him participant status. The information submitted by Mr. Wicke to the Tribunal was accepted as a participant statement.

EVIDENCE AND ANALYSIS

4Two professional land use planners presented at the hearing. Christine Woods was called by the Town and Youko Leclerc-Desjardins was called by the Applicants to provide expert opinion evidence in the area of land use planning.

5The Book of Documents was marked as Exhibit 2 and the sworn affidavit of Mr. Leclerc-Desjardins was marked as Exhibit 3.

6Mr. Leclerc-Desjardins described that the proposed severances would create three lots as;

1Consent File S-34-19-S (“Severed Lot 1”) is to create an approximately 2.59-hectare (6.4-acre) lot with approximately 80 metres (262.5 feet) of frontage on Latimer Road;

2Consent File S-35-19-S (“Severed Lot 2”) is to create an approximately 3.8-hectare (9.3-acre) lot with at least 100 metres (328 feet) of frontage on Latimer Road; and

7The Retained lot will have an area of 0.9 hectares with approximately 76 metres of frontage on Latimer Road. The existing single detached dwelling will remain on retained lot.

8In order for the Tribunal to approve the consents, the requested consent(s) must have appropriate regard for matters of provincial interest in s. 2.1 of the Act; the proposal must show merit with regard to s. 53 of the Act as per the tests in s. 51(24) of the Act; and show that a plan of subdivision is not required.

9Mr. Leclerc-Desjardins reviewed the subsections in s. 51(24) of the Act and opined that;

with respect to s. 2 of the Act and the applicable subsections therein the proposal;

a) will not negatively impact natural, agricultural or cultural heritage resources. Notably, the proposed consents comply with the Minimum Distance Separation formulae as set out by the Ontario Ministry of Agriculture, Food and Rural Affairs;

b) represents orderly development on lands with frontage on an existing municipal road;

c) the proposed lots are adequately sized to accommodate a suitable building envelope in an efficient site layout that will not create conflicts in terms of public health and safety;

d) The proposal is not premature and is in the public interest as it represents a limited form of residential development that is compatible with the existing rural character.

Mr. Leclerc-Desjardins concluded that the proposal thus has regard for the provincial interest per s. 2 of the Act.

10Mr. Leclerc-Desjardins reviewed each of the remaining criteria in s. 51(24) of the Act and opined that Minimum Distance Separation (“MDS”) studies were carried out and the proposals were revised to comply; the lots will continue to maintain the character of the parent lot as rural designation in the County and Town Official Plans and continue to conform; the lots have been positively tested to establish suitability for proposed usage; there are no identified issues with flood control; suitable municipal roads and utilities exist; conservation authority has approved; the lots will provide for septic system and well water; there are schools nearby; there is no conveyance of lands required for conservation or public purposes.

11Mr. Leclerc-Desjardins concluded that the consents meet the criteria of s. 51(24) of the Act and a plan of sub-division is not required.

12Ms. Woods provided updated evidence regarding MDS testimony in the original applications review. She stated that there were two existing barns that were missed in the original calculations. She opined that with the updated evidence before the Tribunal, the revised consents will comply with MDS criteria.

13Mr. Leclerc-Desjardins reviewed the Provincial Policy Statement, 2020 (“PPS 2020”); the County Official Plan and the Town Official Plan. Focussing on four key themes of; rural character, protection of agriculture, natural heritage and public health; Mr. Leclerc-Desjardins provided uncontroverted expert opinion evidence that the proposal is consistent with PPS 2020, and conforms with the County and town Official Plans in the reviewed key theme areas.

14Mr. Leclerc-Desjardins also reviewed Township of South Frontenac Zoning By-law No. 2003-75 (“ZBL”) and opined that all lots comply with the specification of frontage and size in the ZBL.

15The Tribunal based on all available evidence including the participant statement, the uncontroverted expert opinion evidence of Mr. Leclerc Desjardins and Ms. Woods finds that the application has regard for the provincial interest, has met the requirement in s. 53 (1) of the Act, and has satisfied the Tribunal that a plan of subdivision of the land is not necessary for the proper and orderly development of the municipality.

ORDER

16The Tribunal allows the Appeals and Orders that provisional consents are to be given, subject to the conditions recommended by Township Planning Staff in their report dated October 7, 2020 and attached to this Order as Attachment 1 and Attachment 2.

“Jatinder Bhullar”

JATINDER BHULLAR

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.