Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 03, 2021
CASE NO(S).: PL210005
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Lajambe Enterprises Inc.
Subject: Consent
Property Address/Description: Concession 2, Lot 10
Municipality: Municipality of Huron Shores
Municipal File No.: 2020 C-03
OLT Case No.: PL210005
OLT File No.: PL210005
OLT Case Name: Lajambe Enterprises Inc. v. Huron Shores (Municipality)
Heard: November 17, 2021 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Lajambe Enterprises Inc. | Mark A. Lepore |
| Municipality of Huron Shores | Paul Cassan |
MEMORANDUM OF ORAL DECISION DELIVERED BY T. PREVEDEL ON NOVEMBER 17, 2021 AND ORDER OF THE TRIBUNAL
1The matter before the Tribunal is a Settlement Hearing with respect to an appeal by Lajambe Enterprises Inc. in accordance with s. 53(19) of the Planning Act against the refusal of the Municipality of Huron Shores (“Municipality” or “Huron Shores”) to approve a consent application for an easement over a private access driveway.
2Prior to the Hearing, the Tribunal was advised that the Parties had arrived at a mutually agreeable settlement and would be bringing this matter forward. Peter Tonazzo was qualified to give planning evidence on behalf of the Appellant and Huron Shores, as he was the original author of the staff recommendation report. Mr. Tonazzo is an experienced professional planner who often provides advice to Council on Planning Act applications and has been a member in good standing of the Ontario Professional Planners Institute since October 2008.
BACKGROUND
3Lajambe Enterprises Inc. originally applied for and was granted provisional consent by Council of the Municipality and the Ministry of Municipal Affairs and Housing (“MMAH”) in 2008, to create three new lots (Lots 1-3) plus the remnant parcel (Lot 4) with waterfront frontage on Bright Lake.
4Provisional approval was subject to a number of conditions, including the construction of a private access road commencing from the upgraded and publicly assumed portion of Demonye Road, running northwest/southeast between Lots 1 and 2, and terminating at the western edge of Lot 4.
5Final approval was granted in 2009, the lots were registered and Lots 1, 3 and 4 were sold. The current owners of the four lots and the relative municipal addresses are as follows:
Lot 1 Robert & Kristine Maczollek Gladstone CON 2 SPT Lot 10; RP 1R11802 Part 1 The ‘L’ shaped parcel has approximately 63 metres of frontage along the publicly owned and maintained portion of Demonye Ave., and 58.8 metres of frontage on Bright Lake, totalling 3.46 hectares.
Lot 2 Lajambe Enterprises Inc. Gladstone CON 2 SPT Lot 10; RP 1R11802 Parts 2, 6 & 7 The ‘L’ shaped parcel has approximately 51 metres of frontage along the publicly owned and maintained portion of Demonye Ave., and 57 metres of frontage on Bright Lake, totalling 3.42 hectares.
Lot 3 Peter Perry and Sheena Casola Gladstone CON 2 SPT Lot 10; RP 1R11802 Parts 3 to 5 The ‘L’ shaped parcel has approximately 55.3 metres of frontage along the publicly owned and maintained portion of Demonye Ave., and 61.7 metres of frontage on Bright Lake, totalling 4.2 hectares.
Lot 4 Andreas Gebauer, Erwin and Cornelia Poeschl Gladstone CON 2 PT Lot 10; RP D83 Parts 1 & 2 The irregularly shaped parcel has approximately 142 metres of frontage along the publicly owned and maintained portion of Demonye Ave., and 453 metres of frontage on Bright Lake, totalling 31.3 hectares.
6The following sketch provides a visualization of the four lots and their relationship to Demonye Avenue.
7Due to the existing contours and topographical constraints along the originally planned road alignment, Mr. Lajambe constructed a private access road in a different location than what was originally agreed to, using an old logging road as a base.
8The above four lots are subject to site plan control requiring a legal access to permit issuance of building permits.
9In 2018, Council approved a preliminary Consent to establish a long-term legal access easement along the current access location. Inadvertently, the proper documents were not registered by the Appellant and it recently came to his attention that the preliminary consent granted in 2018 was never finalized. Therefore, as per the Planning Act, the approvals granted in 2018 have lapsed and a new application is required.
10In 2020, the Appellant applied for consent to establish a legal easement for the existing driveway that provides access to the subject properties. The application was recommended for approval by staff but denied by Council on the basis of concerns raised by the Demonye Avenue Road Committee (the “Road Committee”), being an unincorporated association of road users who privately maintain a portion of Demonye Avenue not maintained by the Municipality and used to access the easement and the subject properties as well as other properties along Demonye Avenue with water frontage on Bright Lake.
PARTY STATUS
11Gary Garton attended the Hearing, representing the Road Committee as its chairperson.
12As Mr. Garton is a signatory to the Minutes of Settlement, the Tribunal granted Party status to Mr. Garton on consent of the Parties.
THE SETTLEMENT
13As noted earlier, the matter before the Tribunal is a settlement Hearing as the Appellant, Huron Shores and the Road Committee have reached a mutually agreeable settlement, which will allow the Appellant to utilize the existing access road, which he constructed as access to the four subject lots.
14In the Minutes of Settlement, Huron Shores agrees to recognize access along the easement as acceptable and a legal access for Site Plan Control purposes for each of the four lots and for any other purpose, in order for building permits to be issued.
15The Minutes also include a monetary contribution from the Appellant to the Road Committee, for future maintenance of the private portion of Demonye Road, and certain conditions placed on the owners of the four lots.
16Although it is not normal practice to include Minutes of Settlement in Tribunal decisions, it was agreed on consent of the Parties to include the Minutes of Settlement as a Schedule to this Decision in order to ensure all conditions of the Minutes of Settlement are on the record.
POLICY CONTEXT
Conformity with the Official Plan (“OP”)
17Mr. Tonazzo made reference to his two previously submitted reports on this matter and provided the Tribunal with a thorough oral submission including a chronology of events.
18Mr. Tonazzo advised that the subject property is located within the Countryside Policy Area of the OP. Policies within the OP discourage the creation of new lots on private roads, thus the provisional consent in 2008, included a condition that the applicant upgrade a portion of Demonye Avenue to be assumed and maintained by the Municipality.
19The subject property is also identified in the OP as a Core Deer Wintering Area. Provisional consent was granted on the basis that one shared access would be less impactful than four (4) long driveways accessing each lot.
20OP 10.2.1 permits development on lots of record on private roads and, as previously noted, the subject properties are lots of record.
21The originally envisioned linear road running southeasterly between Lots 1 and 2 did not recognize the existing topography, would be difficult and costly to construct and have a major impact on existing vegetation.
22The existing private access has been constructed on an old logging road. There is one watercourse crossing and the topography is fairly “gentle”.
23The overall quality of the private road has been improved by the Appellant with new gravel and a new culvert placed at the watercourse crossing.
24Given that the lots exist, the new road location is appropriate, Mr. Tonazzo opined that the proposal was in conformity with the Official Plan policies.
Provincial Policy Statement (2020) (“PPS”)
25Mr. Tonazzo also made reference to several key sections of the PPS, where he opined that the proposed application has regard for efficient development and land use patterns and conserves biodiversity by using a shorter route to mitigate impacts to the natural habitat.
26Mr. Tonazzo concluded by stating his opinion that the proposed application is consistent with the policies of the PPS.
27Mr. Tonazzo also opined that the proposal does not conflict with any policies contained in the Growth Plan for Northern Ontario.
ANALYSIS AND FINDINGS
28Based on the oral submission of Mr. Tonazzo and his written reports, which were submitted to the Tribunal, and also based on the Minutes of Settlement that have been mutually agreed upon by all Parties, the Tribunal finds that the proposed consent is consistent with the PPS, conforms to the Municipality’s Official Plan and has regard for the Growth Plan for Northern Ontario.
ORDER
29The Tribunal Orders that the appeal is allowed, and the provisional consent is to be given subject to the conditions set out in the Minutes of Settlement and attached as Schedule 1 to this Decision.
30The Tribunal Orders that the owners of the four lots receive registered letters as indicated in Condition 3 (b) of the Minutes of Settlement no later than one month from the date of this Decision.
“T. Prevedel”
T. PREVEDEL 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.
SCHEDULE 1