Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 17, 2021 CASE NO(S).: PL210074

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Robert & Barbara Hunter Subject: Application amend Zoning By-law No. 1816-2006 - Refusal of Application by Prince Edward County Existing Zoning: Rural Residential (RR2) Proposed Zoning: Rural Residential (RR2) Purpose: To permit the severance and rezoning of the subject lands Property Address/Description: 17283 Loyalist Parkway Municipality: Prince Edward County Municipality File No.: Z38-20 OLT Case No.: PL210074 OLT File No.: PL210074 OLT Case Name: Hunter v. Prince Edward (County)

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

Applicant and Appellant: Robert & Barbara Hunter Subject: Consent Property Address/Description: 17283 Loyalist Parkway Municipality: Prince Edward County Municipal File No.: B45-20 OLT Case No.: PL210074 OLT File No.: PL210075

Heard: October 21-22, 2021 by video hearing

APPEARANCES:

Parties	Counsel
Robert and Barbara Hunter	Kathleen Kinch/Jenna Khoury-Hanna
County of Prince Edward	Darrell B. Mast
Sophia Pantazi	Tony Fleming

DECISION DELIVERED BY BRYAN W. TUCKEY AND ORDER OF THE TRIBUNAL

1The Ontario Land Tribunal (“Tribunal”) convened a hearing of the merits with respect to the appeals of Robert and Barbara Hunter (“Appellants”) from the refusal of the Council of the County of Prince Edward (“County”) for a Zoning By-law Amendment (“ZBA”) and Consent for the lands located at 17283 Loyalist Parkway (“Subject Lands”). The Appellant appealed to the Tribunal pursuant to s. 34 (11) and 53 (19) of the Planning Act.

2The Appellant proposes to sever a 0.8 hectare (“ha”) parcel from the western half of the subject property for residential proposes. The severed parcel has a frontage of 60 metres (“m”) and the retained parcel has a frontage of 62.2 m on Loyalist Parkway. The purpose of the proposed ZBA is to rezone the subject lands from a Rural Residential 2 (RR2) zone to a Special Rural Residential 2 (RR2-XX) zone which has the effect of reducing the required Minimum Distance Separation (“MDS”) setback from an existing barn located on the adjacent property owned by Sophia Pantazi.

KEY ISSUE

3From the outset of the hearing, it was clear to the Tribunal that the key issue relating to the proposed ZBA and consent is as follows:

1. is the proposed ZBA consistent with the application of the MDS guidelines for existing livestock facilities and does it meet the intent of MDS Guideline 43 found in the ‘Minimum Distance Separation (MDS) Document’ with respect to the proposed reduction in the MDS setback?

THE WITNESSES

4The Tribunal had the benefit of testimony from two witnesses. This decision includes oral testimony and material found in individual Witness Statements (“WS”) and Reply Witness Statements (“RWS”). The witnesses are as follows:

1. Bob Clark for the Appellant (WS Exbibit 1a) Tab 2 and RWS Exhibit 1b) Tab 4) is qualified to give expert evidence in the disciplines of Land Use Planning and Agrology.

2. James Griffin for the County (WS Exhibit 1a) Tab 3 and RWS Exhibit 1 b) Tab 5) is qualified to give expert evidence in the discipline of Land Use Planning.

5The witnesses prepared an Agreed Statement of Facts (“ASOF”) which is helpful in focusing the evidence with respect to key issue in this proceeding (Exhibit 1 a) Tab 2). The ASOF is referenced in this decision.

SITE AREA AND ANALYSIS

6The proposed ZBA and consent related to property known municipally as 17283 Loyalist Parkway. The subject lands are 1.66 ha in size with a frontage of 122.2 m on Loyalist Parkway and 143 m frontage on Lake Ontario. There is an existing Single Detached Dwelling (“SDD”) with an attached garage along with two accessory sheds located on the eastern half of the subject lands. The SDD gains access from Loyalist Parkway from an existing driveway.

7The proposed consent would divide the subject lands roughly in half with the effect of creating a vacant lot of approximately 0.8 ha on the property’s western half.

8Surrounding the subject site are the following:

1. North – immediately across from the subject site is an active farming operation at 17270 Loyalist Parkway (12 Hobbs Rd.) which is made up of two existing livestock facilities one used for horses, ponies, and turkeys and the second facility is used for laying hens. There is a fenced five acre paddock adjacent to Loyalist Parkway and east of the barn. Evidence is the barn is very close to Loyalist Parkway.

2. South – Lake Ontario.

3. West/East – a series of residential homes on lots of a similar size to both the proposed severed and retained lot and a winery.

BACKGROUND AND PROPOSAL

9The Appellants submitted applications to the County for;

1. a consent to sever the subject lands to permit the creation of a new separately conveyable lot;

2. a ZBA to By-law No. 1816 - 2006 for both the severed and retained parcels to be rezoned to a Special Rural Residential 2 (RR2-XX) zone to permit a rural residential use and allow a reduced MDS to reflect the proximity of the barn located on the north side of Loyalist Parkway.

10The severed parcel would have an area of 0.81 ha. and a lot frontage of 60 m while the retained parcel would be an area of 0.85 ha. and a lot frontage of 62.2 m. Access to both parcels would be by a common access lane crossing the property in an east-west direction.

11Both the severed and retained parcels were found to be in compliance with all zone provisions of the existing zone. As part of the granting of a consent, the proposed consent must comply with the MDS formula of the Ministry of Agriculture and Food and Rural Affairs (‘OMAFRA”).

12County Council received a staff report at its November 18, 2020 meeting recommending the refusal of the “applications on the basis that the lot created by the proposed consent application would not satisfy the minimum distance separation requirements from livestock facilities on adjacent lands.”

13At its meeting on November 18, 2020, County Council refused the applications. This refusal was appealed to the Tribunal.

LAND USE PLANNING POLICY

The Planning Act

14Mr. Griffin in his evidence noted that a Provincial Interest found in s. 2 (b) of the Planning Act is ‘the protection of the agricultural resources of the Province’. With this provincial interest in mind, he is of the opinion that the ZBA and Consent does not have appropriate regard for the Planning Act.

15Mr. Clark did not speak to the Planning Act in his evidence.

Provincial Policy Statement 2020

16The Provincial Policy Statement (“PPS”) serves to provide a framework and general direction with respect to matters of Provincial Interest and is a key foundational component of the Provincially-led planning system. Analysis in this section relates to evidence by both witnesses regarding the following sections: s. 1.1.4 and 1.1.5 – Rural Areas in Municipalities and s. 2.3 Agriculture.

17Mr. Clark opined that ‘the proposed consent and the residential construction is consistent with the PPS and complies with the policy in s. 1.1.5 for the following reasons:

1. it is compatible with the rural landscape and can be sustained by rural service levels. The appropriate infrastructure is planned or available.

2. it diversifies a type of rural economy that should be promoted as it protects agricultural uses and directs non-related development to an area that will minimize constraints.

3. represents an infilling within a residential area where residential uses already constrain surrounding agricultural uses and therefore does not represent an additional constraint on adjacent agricultural uses.

4. while the creation of lots shall comply with the MDS formula, it is not a new use in the area and provisions have been made in the MDS Guidelines for unusual situations and conditions which do not comply with the calculated separation distance such as the proposal before the Tribunal.

18In his evaluation of consistency to the PPS, Mr. Griffin looked to relevant policy but also a number or policies that may not directly apply to this matter but in his opinion are relevant. The subject lands are within a “Rural Area”. But the lands to the north are ‘Prime Agricultural Lands’ in a ‘Prime Agricultural Area’ and therefore policies found in s. 2.3 have relevance and are appropriately considered in any evaluation.

19Mr. Griffin noted the following policies as important in forming his opinion that the proposed consent and ZBA are not consistent with the PPS 2020 are paraphrased as follows:

1. healthy integrated and viable rural areas shall be supported by providing opportunities for economic activities in prime agricultural areas, in accordance with policy 2.3 which is a clear indication of the underlining importance of Prime Agricultural Areas within the context of the PPS (s. 1.1.4.1 i));

2. residential development including lot creation is a permitted use on a rural lands ‘only if it is locally appropriate’. (s. 1.1.5.2);

3. the opportunity should be retained to locate new or expanding land uses that require separation from other uses which implies the protection of existing and potential future uses in the adjacent prime agricultural area (s. 1.5.5.6);

4. support for the protection of agricultural uses is further emphasized by the statement “a diversified rural economy should be promoted by protecting agricultural and other resource-related uses and directing non-related development to areas where it will minimize constraints on these uses”. Adding an additional rural residential lot will potentially increase constraints on the existing agricultural facilities (s 1.1.5.8);

5. all “new land uses, including the creation of lots, are required to comply with the minimum distance separation (MDS) formulae” (s. 1.1.5.8). This policy clearly asserts a requirement to comply;

6. within the ‘Wise Use and Management of Resources’ section off the PPS relating to Agriculture, the first statement identifies a clear policy direction with respect to the priority given to Agriculture in the Province: “Prime agricultural areas shall be protected for the long-term use for agriculture”. (s 2.3.1) By permitting the proposed consent and ZBA immediately adjacent to a prime agricultural area clearly one is not serving to ensure its protection; and

7. non-agricultural development on Rural Lands which may constrain or restrict agricultural uses direct these uses to areas where it will minimize impacts. (s. 1.1.5.7)

20Mr. Griffin opined that the proposed ZBA is not consistent with the PPS and do not have sufficient regard for matters of provincial interest specifically the protection of agricultural resources in the Province. Hence, the proposed reduction of the MDS separation distance specifically does not comply to the PPS policy s. 1.1.5.8.

Minimum Distance Separation

21It is clear to the Tribunal that the entirety of this matter turns on how one concludes on Issue 2 b) of the Issues List being “Whether the proposed by-law amendment conforms with MDS Guideline 43 with respect to the proposed reduction of the MDS setback?”

22It is important to give some context. In March 2017 OMAFRA released a document entitled “The Minimum Distance Separation (“MDS”) Document – Formulae and Guidelines for Livestock Facility and Anaerobic Digester Odour Setbacks – Publication 853 (“MDS Document”). It replaces all earlier versions of the MDS formulae and Implementation Guidelines and is specific to the implementation of the PPS. It is a comprehensive document intended to provide technical implementation guidance and “support and clarify, but not add to or detract form the policies of the PPS or other applicable provincial plans”. The “MDS document shall apply in prime agricultural areas and rural lands”.

23Evidence from both planners indicated 2017 version of the MDS Document is determinative in the matter before the Tribunal.

24In this latest version OMAFRA introduced additional and further clarified existing Guidelines to assist in implementation of the MDS formulae. Guideline 43 – Reducing MDS Setbacks and its interpretation is critical to the analysis of the proposed ZBA and consent. Guideline 43 states:

“MDS 1 setbacks should not be reduced except in limited site specific circumstances that meet the intent of this MDS Document. Examples include circumstances that mitigate environmental or public health and safety impacts or avoid natural or human-made hazards.

If deemed appropriate by a municipality, the processes by which a reduction to MDS 1 may be considered could include a minor variance to the local zoning by-law provisions, a site specific zoning by-law amendment or an official plan amendment introducing a site specific policy area.”

25When speaking to the interpretation regarding the reduction of MDS Setback, OMAFRA is very clear in its perspective on the issue which is as follows:

“OMAFRA does not generally support or encourage reductions to MDS 1 distances, especially for new development. The intent of MDS 1 is to minimize nuisance complaints associated with livestock facilities and anaerobic digesters due to their odour and thereby reduce potential land use conflicts.”

26In the ASOF the planners agreed on the interpretation of the following Implementation Guidelines:

1. Guideline 8 – MDS must be calculated for both the severed and retained lots with respect to the calculation setbacks for the creation of new lots;

2. Guideline 34 – the proposed severance would result in a cluster of four or more residential lots within immediate proximity of one another and therefore is a Type B Land Use; and

3. Guideline 41 – the MDS setback is measured from the shortest distance between the proposed lot line and either the surrounding livestock occupied portions of the livestock barns, manure storage or anaerobic digesters.

27The planners had some discussion regarding Guideline 12, how it is interpreted and used to evaluate an application. Mr. Griffin provided a good explanation of how this guideline should be applied with respect to “located in the intervening area (120^o field of view shown in Figure 4…”. Exceptions for existing or approved development are possible subject to meeting certain criteria and in his opinion the proposal does not meet these criteria. Hence, as it states in the ASOF Guideline 12 does not apply.

28The planners agreed on the measurements of the existing barn and that resulted in a MDS 1 setback for the new lot as proposed being 252 m. Opinions diverged on the extent of the needed reduction. Mr. Clark measured from the livestock portion of the existing barn to the nearest existing or proposed home meaning the required setback would be reduced to 165 m. Mr. Griffin in his evidence strictly followed Guideline 41 of the MDS Document which states the actual setbacks are to be measured as the shortest distance between the occupied portions of the livestock facilities and the lot lines of the proposed retained and severed lots. His interpretation results in a setback that is reduced to 36 m and 70 m respectively.

29Mr. Clark in his evidence is of the opinion that the proposed reduced MDS setback is appropriate for the following reasons. He made special note of the evolution of farming practices, refinements to the implementation of the MDS Formulae and direction the province gave to municipalities to assist in the evaluation of reduced separation distances. This evolution of thinking is captured in the 2017 MDS Document (Exhibit 1 b) Tab 7 pg. 99 – 103). A summary of his reasons are as follows:

1. the evolving use of the MDS Formulae shows there is a recognition by OMAFRA that there are a variety of structures and uses in rural areas. Hence the introduction of variable and different setbacks as being appropriate. This evolution began in 2006 and is now well established;

2. the nature of agriculture has changed significantly including the management, storage, and treatment of manure. Therefore, there are a series of factors that must be considered when evaluating issues of compatibility along with nuisance and odour complaints including: size of operation, type and number of livestock and the manure handling and disposal practices. This results in a far greater degree of interpretation;

3. reducing the setback for the construction of one home on the severed parcel does not impact the flexibility for existing or future agricultural uses. Non-farm development along the shore of the lake represent existing constraints;

4. the proposed use is similar to the those in the surrounding area, is further away than existing development and there is no history of complaints. It does not represent a constraint on existing agricultural uses and represents infilling within an existing residential area that serves to already limit adjacent agricultural uses;

5. because of the required 30 m setback to ensure slope stability and 15 m buffer to protect the natural environment of Lake Ontario, there is no other option on the subject lands to construct the proposed new dwelling. The restrictions of lake related environmental requirements give rise to the acceptance of a reduced MDS setback as there is no other practical location on the subject lands;

6. the size of the subject lands and site restrictions begs for flexibility in the application of MDS setbacks;

7. by insisting on a joint driveway access to Loyalist Parkway, all necessary safety issues have been considered and addressed;

8. the existing barn is very close to the road which is not where barns are located in a more recent agricultural setting;

9. the portion of the subject lands where the new dwelling is to be located is capable to accommodate all the required private well and septic servicing facilities; and

10. the site specific circumstances that are found in this case will not result in a precedent for other applications in the County. Any future applications would be evaluated on their own merits.

30Mr. Clark is of the opinion that the proposed consent and ZBA to reduce the MDS separation distance complies with the intent of the MDS Document “in that It proposes development of the subject lands and the proposal does not restrict the ongoing use of the barn. The ability to expand the livestock facility is not restricted by the approval of the Consent and the Zoning By-law Amendment.”

31Mr. Griffin in his evidence noted that a setback has historically been applied as a ‘Code of Practice’ but through its evolution adherence to the MDS evolved to be a requirement within the Provinces overall planning framework. in his opinion this progression results in two very clear policy directions being: the protection of prime agricultural areas for the long-term use for agriculture and the restriction of residential uses on rural lands. The County has an active agricultural industry and is committed to having this industry continue and thrive. Therefore, it has implemented the MDS Formulae in both the PECOP and consolidated Zoning By-law.

32The planner outlined the various guidelines in the MDS document he believed are important. Those relevant to his evidence are:

1. Guideline 2 – “the MDS 1 setback distances shall be met prior to the approval of: proposed lot creation…” subject to other guidelines.

2. Guideline 8 – “an MDS setback is required for both the severed and retained lot.”

3. Guideline 12 – “An MDS 1 setback is required for proposed development or dwellings, even though there may be existing or approved development or dwellings nearby that do not conform to MDS 1 requirements.” Although it was determined in the ASOF that this guideline did not apply, it is relevant because witnesses interpreted differently how one determines that there are “four, or more, non-agricultural uses and/or dwellings closer to the subject livestock facility than the proposed development or dwellings…”. One must first determine if there are four or more non- agricultural uses within the intervening area using a 120 degree field of view between the closest part of the proposed development or dwelling and the nearest livestock facility. With this initial step confirmed certain exemptions apply subject to several criteria. Mr. Griffin very effectively described for the benefit of the Tribunal how this Guideline applies in this situation and he opined that ‘the applications do not satisfy these criteria’.

4. Guideline 34 - speaks to locations that have a higher density of human activity which leads to the use of a Type B Land Use setback. This is determined to be an appropriate interpretation as found in the ASOF.

5. Guideline 41 – relates to setback requirement for the creation of a lot. The proposed lot with an existing dwelling states that “MDS 1 setbacks are measured as the shortest distance between the proposed lot line and either the surrounding livestock occupied portions of the livestock barns…” In Mr. Griffins opinion the proper use of this criteria would reduce the MDS setback from 252 m to 36 m. A setback reduction more than 200 m is too great to consider it being in compliance with the MDS formulae and can not be recommended.

6. Guideline 43 – MDS setbacks should only be reduced in very limited site-specific circumstances such as the mitigation of environmental, public health or safety impacts or the need to avoid natural or human-made hazards.

33Mr. Griffin is of the opinion the proposed ZBA and consent does not conform to the MDS Guidelines for reasons which include the following:

1. the MDS setback must be measured from both the severed and retained lot and the actual setbacks are to be measured from the shortest distance between the occupied portion of the livestock facility and the lot lines of the proposed severed and retained lots. The result is a setback of only 36 m from the nearest lot line and 70 m from the nearest property line of the proposed severance. Therefore the ‘applications do not meet the regulations set out in Guidelines 12 and 43” and do not comply with the MDS formulae.

2. being adjacent to a prime agricultural area, the proposed severance would create another incompatible use and could negatively impact the potential to expand or enhance agricultural operations in the immediate area.

3. the main purpose of the MDS separation formulae is to protect lands within a Prime Agricultural Area for the long-term use as agricultural. Therefore, permitting additional residential development on the subject lands within the required MDS 1 setback would serve to further restrict the existing livestock facilities from expanding and add to existing restraints on agricultural uses.

4. MDS setbacks are used to reduce odour conflicts by separating incompatible uses and any reduction must be evaluated with this seminal intent in mind.

5. it clear that OMAFRA in their efforts to provide implementation guidance on how to use the MDS, generally does not support MDS formulae reductions. The proposal can not be supported as described in Guideline 43 as there are no site-specific circumstances that meet the intent of this Guideline. A setback is not required to mitigate an environmental, public health or safety impacts and is not required to avoid any natural or human made hazard.

6. there may be areas in the County where one may consider it appropriate to reduce the MDS separation distance, but the subject property is not one of them.

34Mr. Griffin also provided evidence with respect to the questions a municipality may use when evaluating a reduced MDS 1 setback that Mr. Clark relied heavily upon in his evidence (Exhibit 1 b) Tab 7 pg. 99 – 103). His testimony included:

1. a new residential lot with proximity to an existing livestock facility will create opportunities for land use conflicts and nuisance complaints.

2. there are no environmental or public safety concerns that would support the reduction of the MDS 1 formulae.

3. the existing land uses in the area do not make further development on the subject lands a ‘logical extension of residential development’.

35Mr. Griffin opined that “the applications do not present any of the limited circumstances that may warrant a reduction of the required MDS1 setback under Implementation Guideline # 43. Furthermore, the reduction of the required setbacks would not be consistent with the intent of the MDS document, the PPS, and the County’s Official Plan, which encourage the separation of incompatible uses and promote the protection of agricultural land for long-term agricultural uses”.

Prince Edward County Official Plan (“PECOP”)

36The County adopted a new Official Plan in February 2021 which was approved by the Minister in July 2021. Transition policies in the new Official Plan state that an application deemed complete before July 6, 2021 shall be reviewed under the policies found in the existing 1998 Official Plan (as amended). Therefore, the matter before this Tribunal is properly evaluated against the 1998 PECOP.

37The subject lands are designated in the PECOP as “Shore Land” on Schedule E – Land Use Designation. Part IV provides land use designation policies and s. 4.0 is the basis for policy direction in those lands designated “Shore Land”. Part V of the PECOP applies to the division of land and applications for consent. Planners spoke to s. 4.0 policies including:

1. Mr. Griffin – s. 4.3.8; 4.4.1 j) k); and s. 1.3.1 j) and o); and

2. Mr. Clark – s 4.3.2; 4.3.4; 4.4.1; and s. 1.4.1 j).

38Mr. Clark in his evidence focused first on the policies of the Shore Land designation. This designation considers the linear development along the lake as a traditional form of development in the County which is found in the immediate area. Policies encourage shared driveways to reduce entrances; a setback of 30 m form the highwater mark of the Lake; and recommends a natural vegetative buffer of 15 m.

39It is uncontested evidence that the ZBA conforms to the polices of the PECOP save and accept those relating to conformity to the required MDS setback as follows:

1. “Subject to and in accordance with the policies of the Plan, all development in the Shore Land designation will be required to meet the Minimum Distance Separation (MDS 1 &11) Formulae, as amended from time to time. The distance shall be measured from the nearest point of the livestock facility and/or manure storage facility to the nearest point of the building or structure regardless of lot area.” (s. 4.4.1 j)).

2. “For the purposes of calculating the Minimum Distance Separation 11 (MDS 11) Formulae, lands designated Shore Land will be considered a Type A land use unless zoned to permit land uses identified as Type B land uses in the MDS Formulae Implementation Guidelines, as amended form time to time”. (s. 4.4.1 k)). Planners in their ASOF agreed that this policy is the proper way to use the MDS Formulae in this matter.

3. “no consent shall be given where residential development on the severed lot will take place in such a manner as to contravene the Minimum Distance Separation Formula as amended from time to time” (s. 1.3.1 j)). and

4. “Minimum Distance Separation (MDS) 1 Formulae will not be applied to the creation of a new lot around an existing dwelling located on a lot separate from the livestock facility” (s. 1.3.1 o)).

40Mr. Clark opined that the proposed ZBA and consent conforms to the above noted policies of the PECOP because there are several existing residential dwellings within the Shore Land designation in the immediate vicinity some that do not meet the required MDS formulae. Hence, since there are existing residences closer to the existing barn, the use of the barn is already limited, and its future expansion will not be impacted by the approval of the consent and the requested reduction of the MDS separation formulae setbacks proposed in the ZBA.

41Mr. Griffin is of the opinion that the PECOP is clear in its intent to protect and preserve the viability of existing agricultural operations and ensure that there are not situations that could result in limiting on-going agricultural operation’s within the areas designated as ‘Prime Agricultural Areas’. By allowing a consent that serves to add another residential dwelling that does not meet the required MDS formulae does not conform to the PECOP.

42The planner also clarified that Municipalities have very limited scope in their ability to alter the application of the MDS Formulae. He noted that the PECOP policies were largely crafted for the 1998 Official Plan and are less restrictive than stated in the MDS Guidelines being: s. 1.3.1 o) (Implementation Guideline 8) and s. 4.4.1 j) (Implementation Guideline 41) and therefore, it is his opinion that the MDS Implementation Guidelines are determinative with respect the matters in these proceedings. He also noted how MDS Implementing Guidelines 8, 33 and 41 “do not specifically allow for variation, so the more restrictive guideline in the MDS formulae must be applied” when he considers any application in the County. The Tribunal agrees.

43Mr. Griffin is of the opinion that the proposal will limit and endanger the ability of the existing livestock operations to expand and possibly hinder other agricultural operations in the vicinity. As the proposal would contravene the MDS 1 setbacks, therefore the ZBA and consent do not conform the PECOP.

CONSENT

44Most of the evidence at the hearing was related to the ZBA and its conformity to relevant planning documents but Issue 2 on the Issues List addresses the appropriateness of the consent with respect to the requirements of s. 51 (24) of the Planning Act, consistency with the MDS requirements of the PPS and conformity with the policies of the PECOP. PPS consistency and PECOP conformity are discussed earlier in this decision therefore all the remains is: does the consent have regard to the criteria found in s. 51 (24) of the Planning Act.

45Mr. Clark did not speak to the criteria in any detail but is of the opinion “that approval of the Consent based on the reduced MDS 1 meets the criteria set out in Section 51 (24).”

46It is Mr. Griffin’s opinion that the proposed consent application does not have sufficient regard to s. 51 (24) criteria most notably:

1. s. (24) (a) – with respect to having the necessary regard for provincial interests specifically the protection of the agricultural resources of the Province.

2. s. (24) (c) – the consent does not conform to the PECOP.

3. s. (24) (g) – because the proposed lots will negatively impact the surrounding agricultural uses and could restrict further development of livestock facilities on neighbouring agricultural lands.

TRIBUNAL ANALYSIS AND CONCLUSIONS.

47The Tribunal heard evidence from two qualified planners (Mr. Clark is also qualified in Agrology), detailed witness statements and a comprehensive document book all of which are considered in the findings made in this matter.

48The Tribunal finds that the County planner completed a comprehensive planning and thorough technical review of both the ZBA and Consent applications. His review was informed by input from a variety of Departments, Agencies and Staff routinely circulated on similar applications. With this information he completed a rigorous evaluation of the applications and recommended refusal of both the ZBA and Consent. County Council adopted staff recommendations.

49In the qualification of Mr. Griffin, much was made of his relative short tenure and experience as land use planner in the County. The Tribunal found Mr. Griffin extremely well versed regarding the intent of the MDS formulae, its many interpretation nuances and how it is routinely applied in the County. It is an important part of his professional responsibilities and the evidence he presented demonstrated his diligence in discharging this duty. As example, he was able to effectively describe the intent and application of Guideline 12 to the benefit of the Tribunal and his professional opinions stood the test of rigorous cross examination.

50Mr. Clark has an undisputed breadth of experience but struggled in cross examination of his evidence related to the interpretation that the measurement of the MDS 1 setback required one to measures setback distances to the lot line of both the severed and the retained lot. Although at the conclusion of this exchange, he stated that it did not change his opinion but would require some additional review. The exchange gave the Tribunal reason to pause.

51The Tribunal prefers Mr. Griffin’s evidence and opinion that the ZBA and consent “are not consistent with the Provincial Policy Statement, 2020, do not conform to the Prince Edward County Official Plan …and do not have proper regard for the criteria set out in subsection 51 (24) of the Planning Act”. He went on to opine that “there is no basis for the reduction of the calculated MDS setback from the livestock facilities on the adjacent property to (the) proposed severed and retained lands, including through the application of implementation guideline #43 in the MDS document". The ZBA and consent do not represent good land use planning.

52The Tribunal agrees with Mr. Griffin that the ZBA and consent is not consistent with the PPS 2020 because of its evident and consistent policy support of the importance of Prime Agricultural Areas in the Province and their need to be protected over the long-term. New uses and the creation of lots are required to comply with the MDS formulae; and further non-agricultural uses that may serve to constrain or restrict agricultural are not in any way encouraged. The subject lands are not ‘locally appropriate’ for additional residential development and cannot be considered an area where an additional non-farm uses will minimize impacts.

53The Tribunal finds that the ZBA and consent do not conform to the PECOP as its intent is evident. The County seeks to protect and preserve the long-term viability of the County’s existing agricultural operations and to ensure circumstances do arise that would have the effect of limiting on-going agricultural operations in the areas designated Prime Agricultural. Policy direction is that additional development in Shore Land designations are required to meet the MDS separation distance and no consent shall be given where residential development contravenes the MDS formulae as amended from time to time.

54There is much made about the PECOP’s policies approved in 1998 that are less restrictive than those found in the 2017 MDS document. The Tribunal agrees that municipalities have little scope in their ability to alter the application of MDS and the Guidelines found in the 2017 MDS Document are determinative.

55The Tribunal finds that the ZBA and consent do not meet the limited site specific circumstances where a reduction in the prescribed setback as described in Guideline 43. There is no evidence to show that a reduced setback is required to: mitigate an environmental or public health and safety impact or a human-made hazard. The size of the subject lands and the site restrictions with respect to setbacks from Lake Ontario do not in themselves give rise to the need to be flexible in the application of MDS setbacks.

56OMAFRA’s view toward the use of Guideline 43 and reducing MDS setbacks is uncontested. As previously quoted OMAFRA does not generally support or encourage reductions in MDS 1 distances especially for new development of which the ZBA and consent would facilitate. Interpretation goes on to state that the intent of MDS 1 is to minimize nuisance complaints associated with livestock facilities.

57The Tribunal finds a reduced MDS separation from the existing livestock facility is not appropriate for reasons including the following:

1. properly measured, the MDS setback would be reduced from the required 252 m to the lot lines of the retained lot - 36 m and the severed lot - 70 m. There is no justification for such a dramatic reduction.

2. the proposed severance and the construction of a new residential dwelling would create another incompatible use that could negatively affect the existing agricultural activities in the immediate area. No complaints about existing facilities in the past is no indication of potential for complaints in the future.

3. Direction with respect to lands designated Prime Agricultural by all relevant public policy examined in this hearing, is to protect these lands for the long-term use as agricultural. Permitting an additional non-compatible use is clearly not in keeping with these policy objectives. By simply stating there are existing non-farm uses along the shore of the lake and the proposed use is similar in no way leads to the conclusion that one more house is appropriate.

4. the existing land uses along the shore of Lake Ontario do not in themselves make further development on the subject lands a logical extension of residential development as described in the MDS Guideline document.

5. much is made of the location of the existing livestock facility insofar as it is very close to the road and is not located where one would find more recent agricultural operations. That is an undisputed fact in this matter but is not a reason whereby MDS separation distances should be reduced.

58It is noted by the Tribunal that County Council did make the decision to refuse both the ZBA and Consent applications and did have the benefit of a comprehensive planning report providing sufficient information to assist in their deliberations. The Tribunal has, in its determination of these Appeals, had regard to matters as outlined in s. 2.1(1) of the Planning Act, which states: “When … the Tribunal makes a decision under this Act that relates to a planning matter, it shall have regard to, (a) any decision that is made under this Act by a municipal council…as it relates to the same planning matter; and (b) any information and material that the municipal council…considered in making the decision described in clause (a)”.

59For all of the forgoing reasons, the Tribunal finds that the application for a ZBA and Consent are not consistent with the PPS 2020, do not conform to the PECOP and do not have proper regard to the criteria found in s. 51(24) of the Planning Act. There is not evidentiary basis for the reduction of the calculated MDS separation distance of 252 m from the existing livestock facilities as described by implementation Guideline 43 of the 2017 MDS document. Therefore, the proposed ZBA and Consent do not represent good planning nor are in the public interest.

ORDER

60Accordingly, the Tribunal Orders.

61THAT the appeal against By-law No. 1816 – 2006 for the County of Prince Edward is dismissed.

62THAT the appeal for a Consent (County of Prince Edward file B45-20) is dismissed and the provisional consent is not to be given.

“Bryan W. Tuckey”

BRYAN W. TUCKEY 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.