December 22, 2021

Robert McEnery v. Town of Erin, 2021 CanLII 134580

Case Summary

The applicant appealed the refusal of applications for consent to sever a property into three residential lots. At a settlement hearing, the Tribunal reviewed the proposed minutes of settlement. Based on uncontested expert planning evidence, the Tribunal found that the proposed severances conform to the applicable Official Plans, comply with the Zoning By-law, are consistent with the PPS 2020, conform to the Growth Plan 2020, and represent good planning. The appeals were allowed in part, and the consents were granted subject to conditions.

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 22, 2021

CASE NO(S).: PL190565

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

Applicant and Appellant: Robert McEnery

Subject: Consent

Property Address/Description: Part of Lot 13, Concession 3

Municipality: Town of Erin

Municipal File No.: B47/19

OLT Case No.: PL190565

OLT File No.: PL190565

OLT Case Name: McEnery v. Erin (Town)

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

Applicant and Appellant: Robert McEnery

Subject: Consent

Property Address/Description: Part of Lot 13, Concession 3

Municipality: Town of Erin

Municipal File No.: B100/17

OLT Case No.: PL190565

OLT File No.: PL190567

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

Applicant and Appellant: Robert McEnery

Subject: Consent

Property Address/Description: Part of Lot 13, Concession 3

Municipality: Town of Erin

Municipal File No.: B-99/17

OLT Case No.: PL190565

OLT File No.: PL190566

Heard: October 25, 2021 by video hearing

Parties

Counsel

Robert McEnery

Herbert Arnold

County of Wellington (Town of Erin)

Kevin Thompson and Zachary Prince

1The appeals before the Tribunal were filed under s. 53(19) of the Planning Act from decisions of the Land Division Committee of the County of Wellington which refused applications (“Applications”) for consent to sever a lot (“Development”) known locally as 8940 Wellington Road 124 (“Subject Property”) into three residential lots.

2The Ontario Land Tribunal (“OLT”) is required to hold a hearing in respect of such appeals as provided for in s. 53 (30) of the Planning Act. The power of the OLT on such appeals is set out in s. 53 (34) of the Planning Act.

3On October 25, 2021, at the request of the parties, the Tribunal convened a settlement hearing. Minutes of Settlement (“Settlement”) elaborating the proposed resolution were filed with the Tribunal.

4The Subject Property is subject to the subdivision control provisions of the Planning Act and the Applicant filed applications for consent to convey three separate parcels under s. 53 (1) of the Planning Act.

5The consent process under s. 53 incorporates certain provisions related to the approval of plans of subdivision:

53 (12) A council or the Minister in determining whether a provisional consent is to be given shall have regard to the matters under subsection 51 (24) and has the same powers as the approval authority has under subsection 51 (25) with respect to the approval of a plan of subdivision and subsections 51 (26) and (27) and section 51.1 apply with necessary modifications to the granting of a provisional consent.

6 Section 51(24) of the Planning Act reads:

51 (24) In considering a draft plan of subdivision, regard shall be had, among other matters, to the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality and to,

(a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2;

(b) whether the proposed subdivision is premature or in the public interest;

(c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any;

(d) the suitability of the land for the purposes for which it is to be subdivided;

(d.1) if any affordable housing units are being proposed, the suitability of the proposed units for affordable housing;

(e) the number, width, location and proposed grades and elevations of highways, and the adequacy of them, and the highways linking the highways in the proposed subdivision with the established highway system in the vicinity and the adequacy of them;

(f) the dimensions and shapes of the proposed lots;

(g) the restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land;

(h) conservation of natural resources and flood control;

(i) the adequacy of utilities and municipal services;

(j) the adequacy of school sites;

(k) the area of land, if any, within the proposed subdivision that, exclusive of highways, is to be conveyed or dedicated for public purposes;

(l) the extent to which the plan’s design optimizes the available supply, means of supplying, efficient use and conservation of energy; and

(m) the interrelationship between the design of the proposed plan of subdivision and site plan control matters relating to any development on the land, if the land is also located within a site plan control area designated under subsection 41 (2) of this Act or subsection 114 (2) of the City of Toronto Act, 2006

7In addition to the criteria in s. 51(24), s. 3(5) of the Planning Act requires that any decision of the Tribunal shall be consistent with the Provincial Policy Statement 2020 (“PPS 2020”) and shall conform with The Growth Plan for the Greater Golden Horseshoe 2019 (“Growth Plan”), as amended, commonly referred to as the ‘Growth Plan 2020’.

8 Section 51(25) of the Planning Act empowers an approval authority to impose conditions to a plan of subdivision. The Settlement proposed in the within matter is subject to numerous conditions.

9John Cox (“Mr. Cox”) was qualified by the Tribunal as an Expert in Land Use Planning and able to provide the Tribunal with opinion evidence in that regard. His evidence followed a ‘will say’ statement filed with the Tribunal.

10Mr. Cox further advised the Tribunal that recent amendments to the County of Wellington Official Plan (“Wellington OP”), the Town of Erin Official Plan (“Erin OP”) and Town of Erin Zoning By-law brought the property subject to the consent applications into the Hamlet of Ospringe with associated zoning. All such amendments are in full force and effect. Mr. Cox provided evidence that the subject consent applications conform to the Official Plan(s) and the proposed uses will comply with the zoning by-law as amended.

11Mr. Cox provided evidence that the amendments and the proposed consent applications before the Tribunal were all consistent with the PPS 2020.

12Mr. Cox provided further evidence that the amendments referred to in paragraph [3] above and the proposed consent applications before the Tribunal all conform to the Growth Plan 2020.

13Mr. Cox provided evidence that the consent applications meet the criteria set out in s. 51(24) of the Planning Act and represent good planning.

14Mr. Cox gave evidence that the proposed conditions of consent contained in the Settlement were appropriate.

ISSUES

15The issues before the Tribunal can be summarized as follows:

Does the Settlement conform to the applicable Official Plans?
Does the Settlement comply with the Town of Erin Zoning By-law?
Is the Settlement consistent with the PPS 2020?
Does the Settlement conform with the Growth Plan 2020?
Does the Settlement constitute good planning?

ANALYSIS

Conformity with Official Plans

16A small portion of the Subject Property was designated Hamlet Area within the Wellington OP and located within the Ospringe hamlet area boundary. The remaining lands were located adjacent to the Hamlet Area boundary and primarily designated Secondary Agricultural. The County of Wellington Official Plan Amendment 118 included this portion within the Ospringe hamlet boundary and re-designated the land to Hamlet Area.

17Section 7.4 of the Wellington OP provides that “development will be relatively small-scale given the rural context and level of service available in hamlets. The primary residential use will be low density single detached units…”

and Section 4.8.3 of the Wellington OP Hamlet Expansions states:

None of the hamlets in Wellington are on municipal services and it is the policy of this Plan to limit growth in areas without municipal services. Hamlet expansions of more than 5 residential lots or units will not be allowed…

18Official Plan Amendment No. 118 to the Wellington County OP amends the Plan by redesignating the majority of the Subject Property from Secondary Agricultural to Hamlet Area and came into full force and effect on June 30, 2021.The Development conforms with the Wellington OP in this regard.

19Section 10.1.3 of the Wellington OP sets out the matters for consideration with regard to creating new lots and the proposed consents are in conformity with these considerations.

20The Erin OP similarly provides a policy for future growth in hamlet areas which states:

It is the intent of this Plan that some of the Town’s growth is to be directed to the six Hamlets. Some of these settlements have environmental constraints such as hazard lands and wetlands. Their growth potential is also limited by servicing constraints such as lack of municipal servicing constraints such as lack of municipal sewage treatment and water supply services, which are not currently available for any of the Hamlets. Therefore, the ability of these settlements to expand varies and in some cases, future development will be limited to minor infilling and rounding out.

21The Development also conforms to these requirements and is within the constraints.

22Official Plan Amendment No. 11 to the Erin OP amends the local Official Plan by also redesignating the majority of the Subject Property from Secondary Agricultural to Hamlet Area and came into full force and effect on August 11, 2021.

Town of Erin Zoning Bylaw

23At the time of application for consent approvals the subject property was primarily zoned Agricultural (A) Zone, with a small portion zoned OS1-107, in Town of Erin Zoning By-law No. 07-67.

24On June 15, 2021 Town of Erin Council adopted By-law No. 21-28 which zoned the portion of the property which is the subject of the applications for consent from Agricultural (A) zone to R3-110 zone. The proposed consents comply with the requirements of the R3-110 zone which include a minimum lot width of 38.1 metres and a minimum lot area of 0.4 hectares. A small portion of the lands remains zoned Rural Environmental Protection (EP2) Zone.

25Zoning By-law Amendment No. 21-28 was not appealed and came into full force and effect upon approval of the related Official Plan amendments.

26The proposed conditions of approval for the consents are the subject matter of the within decision and result from the review of the applications by various parties to the process. A condition regarding the registration of restrictive covenants has been included and results from request(s) from neighbours to have restrictions similar to those applying to the registered plan to the north (61M-118).

Consistent with PPS 2020

27The Development is consistent with Section 1.1.3 of the PPS 2020 which encourages settlement areas as the focus of growth and development. Section 1.1.3.8 of the PPS 2020 states that:

A planning authority may identify a settlement area or allow the expansion of a settlement area boundary only at the time of a comprehensive review....

28However, Section 1.1.3.9 goes further on to state:

Notwithstanding policy 1.1.3.8, municipalities may permit adjustments of settlement area boundaries outside a comprehensive review provided:

a) there would be no net increase in land within the settlement areas;

b) the adjustment would support the municipality’s ability to meet intensification and redevelopment targets established by the municipality;

c) prime agricultural areas are addressed in accordance with 1.1.3.8 (c), (d), and (e); and

d) the settlement area to which lands would be added is appropriately serviced and there is sufficient reserve infrastructure capacity to service the lands.

29The Development meets the requirements set out in Section 1.1.3.9 and is an example of positive intensification.

Conforms to Growth Plan 2020

30The Growth Plan defines “rural settlements” as:

Existing hamlets or similar existing small settlement areas that are long-established and identified in official plans. These communities are serviced by individual private on-site water and/or private wastewater systems, contain a limited amount of undeveloped lands that are designated for development and are subject to official plan policies that limit growth.

31The Growth Plan in Section 2.2.9.7 provides that;

Notwithstanding policy 2.2.8.2, minor adjustments may be made to the boundaries of rural settlements outside of a municipal comprehensive review, subject to the following:

a) the affected settlement area is not in the Greenbelt Area;

b) the change would constitute minor rounding out of existing development, in keeping with the rural character of the area;

c) confirmation that water and wastewater servicing can be provided in an appropriate manner that is suitable for the long-term with no negative impacts on water; and

d) Section 2 (Wise Management of Resources) and 3 (Protecting Public Health and Safety) of the PPS are applied.

32The Development also conforms to Section 2.2.9.7 of the Growth Plan.

Good Planning

33Catherine Briggs was granted Participant status and expressed concerns about the development creating traffic safety issues as well as impacting home values and the environment. The Tribunal does not have evidence demonstrating negative environmental impacts and other concerns are outweighed by the community benefits of further development as reviewed in the above policy analysis.

34The Tribunal shares Mr. Cox’s assessment that the Settlement represents good planning.

FINDINGS

35For the foregoing reasons, the Tribunal makes the following findings:

The proposed Settlement is consistent with the policies of the PPS 2020 and the Growth Plan, and specifically the portion of the Growth Plan (Section 2.2.9.7) which permits minor adjustments to rural settlements outside of a municipal comprehensive review.
The proposed Settlement conforms to the Wellington County Official Plan and Town of Erin Official Plan which encourage low density residential growth and minor infilling and rounding out in hamlet areas.
The proposed Settlement complies with Town of Erin Zoning By-law 07-67 as amended.
The proposed Settlement meets the criteria of Section 51(24) of the Planning Act R.S.O. 1990, C.P. 13, as required by Section 53(12) of the Planning Act.
The proposed Settlement represents good planning.

ORDER

36THE TRIBUNAL ORDERS that:

The appeals for OLT files PL190565, PL190566, and PL190567 are allowed, in part;
Consents B-47/19, B-99/17 and B-100/17 shall be granted in accordance with the severance sketch attached hereto as Schedule A, subject to the conditions set out in this Order;
Consent B-47/19 shall be subject to the modified conditions of consent attached hereto as Schedule B;
Consent B-99/17 shall be subject to the modified conditions of consent attached hereto as Schedule C; and
Consent B-100/17 shall be subject to the modified conditions of consent attached hereto as Schedule D.

“N.P. Robinson”

N.P. ROBINSON

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 “A” – SEVERANCE SKETCH

SCHEDULE “B” – CONDITIONS OF CONSENT FOR B47-19

THAT the Owner's solicitor, in preparation for the issuance of the Certificate of Consent, provide to the Secretary-Treasurer of the County of Wellington Planning and Land Division Committee a printed copy of the “completed electronic transfer document in preparation”.
THAT the Solicitor for the Owner give an undertaking in writing to provide to the Secretary-Treasurer of the County of Wellington Planning and Land Division Committee within 30 days of the date of registration in the Land Registry/Land Titles Office for Wellington (No. 61) a copy of the receipted and registered electronic transfer document including the Form 2 Certificate for Consent B47-19.
THAT the Owner, as provided for under Section 69 of the Planning Act, R.S.O. 1990, shall pay to the Treasurer of the County of Wellington the administrative fee which is in effect at the time of the payment of the fee for the review and issuance of the Certificate of Consent for the severed parcel.
THAT the transfer for registration with respect to description complies with Ontario Regulation 43-96; and if that description contains a reference to a Reference Plan(s), the Owner’s solicitor shall provide a full print of that deposited reference plan(s) as well as a digital PDF copy to the secretary-treasurer of the Planning and Land Division Committee.
THAT the Owner satisfy all the requirements of the Town of Erin, financial and otherwise which the Town of Erin may deem to be necessary at the time of issuance of the Certificate of Consent for the proper and orderly development of the subject lands; and further that the Town of Erin file with the Secretary-Treasurer of the Planning and Land Division Committee a letter of clearance of this condition.
THAT the Owner satisfy the requirements of the Local Municipality in reference to parkland dedication as provided for in the Planning Act, R.S.O. 1990; and that the Local Municipality file with the Secretary-Treasurer of the Planning and Land Division Committee a letter of clearance of this condition.
THAT the Owner provides written confirmation from a licensed septic installer that the existing septic system is functioning properly and the required setbacks from property boundaries are in compliance with the Ontario Building Code to the satisfaction of the Town of Erin; and further that the Town of Erin file with the Secretary-Treasurer of the Planning and Land Division Committee a letter of clearance of this condition
THAT the proposed severed parcel achieve zoning compliance to the satisfaction of the Town of Erin; and further that the Town of Erin file with the Secretary-Treasurer of the Planning and Land Division Committee a letter of clearance of this condition.
THAT the owner satisfy the requirements of the County of Wellington Roads Department concerning road widening conveyances of a one foot reserve along Wellington Road 124 along the frontage of the severed parcel; and that the County of Wellington Roads Department files with the Secretary-Treasurer of the Planning and Land Division Committee a letter of clearance of this condition.
THAT the applicant apply restrictive covenants in keeping with restrictive covenants registered on title within the existing subdivision (61M-118) to the north of the severed lands; and further that the County of Wellington Planning Department file with the Secretary-Treasurer of the Planning and Land Division Committee a letter of clearance of this condition.

SCHEDULE “C” – CONDITIONS OF CONSENT FOR B-99/17

THAT the Owner's solicitor, in preparation for the issuance of the Certificate of Consent, provide to the Secretary-Treasurer of the County of Wellington Planning and Land Division Committee a printed copy of the “completed electronic transfer document in preparation”.
THAT the Solicitor for the Owner give an undertaking in writing to provide to the Secretary-Treasurer of the County of Wellington Planning and Land Division Committee within 30 days of the date of registration in the Land Registry/Land Titles Office for Wellington (No. 61) a copy of the receipted and registered electronic transfer document including the Form 2 Certificate for Consent B99-17.
THAT the Owner, as provided for under Section 69 of the Planning Act, R.S.O. 1990, shall pay to the Treasurer of the County of Wellington the administrative fee which is in effect at the time of the payment of the fee for the review and issuance of the Certificate of Consent for the severed parcel.
THAT the transfer for registration with respect to description complies with Ontario Regulation 43-96; and if that description contains a reference to a Reference Plan(s), the Owner’s solicitor shall provide a full print of that deposited reference plan(s) as well as a digital PDF copy to the secretary-treasurer of the Planning and Land Division Committee.
THAT the Owner satisfy all the requirements of the Town of Erin, financial and otherwise which the Town of Erin may deem to be necessary at the time of issuance of the Certificate of Consent for the proper and orderly development of the subject lands; and further that the Town of Erin file with the Secretary-Treasurer of the Planning and Land Division Committee a letter of clearance of this condition.
THAT the Owner satisfy the requirements of the Local Municipality in reference to parkland dedication as provided for in the Planning Act, R.S.O. 1990; and that the Local Municipality file with the Secretary-Treasurer of the Planning and Land Division Committee a letter of clearance of this condition.
THAT the Owner provides written confirmation from a licensed septic installer that the existing septic system is functioning properly and the required setbacks from property boundaries are in compliance with the Ontario Building Code to the satisfaction of the Town of Erin; and further that the Town of Erin file with the Secretary-Treasurer of the Planning and Land Division Committee a letter of clearance of this condition
THAT the proposed severed parcel achieve zoning compliance to the satisfaction of the Town of Erin; and further that the Town of Erin file with the Secretary-Treasurer of the Planning and Land Division Committee a letter of clearance of this condition.
THAT the owner satisfy the requirements of the County of Wellington Roads Department concerning road widening conveyances of a one foot reserve along Wellington Road 124 along the frontage of the severed parcel; and that the County of Wellington Roads Department files with the Secretary-Treasurer of the Planning and Land Division Committee a letter of clearance of this condition.
THAT the applicant apply restrictive covenants in keeping with restrictive covenants registered on title within the existing subdivision (61M-118) to the north of the severed lands; and further that the County of Wellington Planning Department file with the Secretary-Treasurer of the Planning and Land Division Committee a letter of clearance of this condition.

SCHEDULE “D” – CONDITIONS OF CONSENT FOR B100-17

THAT the Owner's solicitor, in preparation for the issuance of the Certificate of Consent, provide to the Secretary-Treasurer of the County of Wellington Planning and Land Division Committee a printed copy of the “completed electronic transfer document in preparation”.
THAT the Solicitor for the Owner give an undertaking in writing to provide to the Secretary-Treasurer of the County of Wellington Planning and Land Division Committee within 30 days of the date of registration in the Land Registry/Land Titles Office for Wellington (No. 61) a copy of the receipted and registered electronic transfer document including the Form 2 Certificate for Consent B100-17.
THAT the Owner, as provided for under Section 69 of the Planning Act, R.S.O. 1990, shall pay to the Treasurer of the County of Wellington the administrative fee which is in effect at the time of the payment of the fee for the review and issuance of the Certificate of Consent for the severed parcel.
THAT the transfer for registration with respect to description complies with Ontario Regulation 43-96; and if that description contains a reference to a Reference Plan(s), the Owner’s solicitor shall provide a full print of that deposited reference plan(s) as well as a digital PDF copy to the secretary-treasurer of the Planning and Land Division Committee.
THAT the Owner satisfy all the requirements of the Town of Erin, financial and otherwise which the Town of Erin may deem to be necessary at the time of issuance of the Certificate of Consent for the proper and orderly development of the subject lands; and further that the Town of Erin file with the Secretary-Treasurer of the Planning and Land Division Committee a letter of clearance of this condition.
THAT the Owner satisfy the requirements of the Local Municipality in reference to parkland dedication as provided for in the Planning Act, R.S.O. 1990; and that the Local Municipality file with the Secretary-Treasurer of the Planning and Land Division Committee a letter of clearance of this condition.
THAT the Owner provides written confirmation from a licensed septic installer that the existing septic system is functioning properly and the required setbacks from property boundaries are in compliance with the Ontario Building Code to the satisfaction of the Town of Erin; and further that the Town of Erin file with the Secretary-Treasurer of the Planning and Land Division Committee a letter of clearance of this condition
THAT the proposed severed parcels achieve zoning compliance to the satisfaction of the Town of Erin; and further that the Town of Erin file with the Secretary-Treasurer of the Planning and Land Division Committee a letter of clearance of this condition.
THAT the owner satisfy the requirements of the County of Wellington Roads Department concerning road widening conveyances of a one foot reserve along Wellington Road 124 along the frontage of the severed parcel; and that the County of Wellington Roads Department files with the Secretary-Treasurer of the Planning and Land Division Committee a letter of clearance of this condition.
THAT the applicant apply restrictive covenants in keeping with restrictive covenants registered on title within the existing subdivision (61M-118) to the north of the severed lands; and further that the County of Wellington Planning Department file with the Secretary-Treasurer of the Planning and Land Division Committee a letter of clearance of this condition.