Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 24, 2021
CASE NO(S).: PL200267
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Gerrard Forestell
Subject: Consent
Property Address/Description: 126 Cooper Road
Municipality: Township of Madoc
Municipal File No.: B17/20
OLT Case No.: PL200267
OLT File No.: PL200267
OLT Case Name: Forestell v. Hastings (County)
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Gerrard Forestell
Subject: Consent
Property Address/Description: 126 Cooper Road
Municipality: Township of Madoc
Municipal File No.: B18/20
OLT Case No.: PL200267
OLT File No.: PL200268
Heard: October 27, 2021 by Video Hearing
APPEARANCES:
| Parties | Counsel*/Representative |
|---|---|
| Joanne and Gerrard Forestell | B. Forestell |
| Township of Madoc | John Mastorakos* |
DECISION DELIVERED BY N.P. ROBINSON AND ORDER OF THE TRIBUNAL
OVERVIEW
1The within matter involves an application for consent to sever pursuant to s. 53(19) of the Planning Act (“Application”) at the site locally known as 126 Cooper Road, in the Township of Madoc (“Subject Lands”). In advance of the hearing, the Tribunal was informed that the parties had entered into a Memorandum of Settlement (“MOS”) that would dispose of the matters before the Tribunal.
2Emily Galloway, a planner employed by the County of Hastings, was qualified by the Tribunal as an expert to give opinion evidence in the field of land use planning. Ms. Galloway informed the Tribunal that the settlement outlined in the MOS: (i) is in conformity with the Official Plan of the County of Hastings (as recently amended), (ii) is consistent with the Provincial Policy Statement, 2020 (“PPS”), and (iii) represents good planning.
Terms of the MOS
3The terms of the MOS entered into between the parties includes the withdrawal of Consent File No. B18/20, and approval of Consent File No. B17/20, with revisions to that application resulting in a larger severed lot. The retained lands remain the same.
4Representative for the Applicants and Appellants, Gerrard and Joanne Forestell (“Applicants”), withdrew the appeal of Consent File No. B18/20 at the hearing.
5The lot configuration proposed in the revised Consent File No. B17/20 is set out in Schedule 1 attached herein with recommended conditions of approval provided in Schedule 2 also attached herein.
Applicable Law
6In disposing of an appeal under s. 53(19) of the Planning Act (“Act”), the Ontario Land Tribunal (“Tribunal”) is empowered, by way of s. 53(34), to make any decision that a Municipal Council could have made.
7Sections 53(12) and 53(34) of the Act each mandate that a Municipal Council and the Tribunal on appeal, respectively, shall have regard to the matters set out in s. 51(24) of the Act when considering whether to grant a provisional consent.
8Inter alia, s. 51(24) of the Act requires that a Municipal Council consider whether the granting of a provisional consent conforms to any applicable Official Plan(s).
9Further, pursuant to s. 3(5) of the Act, a decision of a Municipal Council shall be consistent with policy statements issued under the Act. Decisions of the Tribunal must be consistent with the PPS.
ISSUES AND ANALYSIS
Compliance with the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)
10In her evidence, Ms. Galloway considered whether one additional severance from the subject lands, as contemplated in the MOS, would be consistent with the requirements of the Act.
11Particularly, Ms. Galloway noted at paragraph 24 of her Affidavit that:
Staff recognize Section 6.3.1.4 of the Hastings County Official Plan would permit one final severance on the subject lands and would consider this one additional severance consistent with the requirements of Section 51(24) of the Planning Act.
Consistency with the PPS
12Ms. Galloway also considered whether the creation of one further lot from the subject lands would be consistent with the PPS.
13Ms. Galloway referenced s. 1.1.5.2 of the PPS in her evidence. This section requires that “On rural lands located in municipalities, permitted uses are: c) residential development, including lot creation, that is locally appropriate.”
14Ms. Galloway testified that what constitutes “locally appropriate”, as contemplated in the PPS, is to be defined having regard to the policies of the applicable Official Plan. Ms. Galloway relied on the preamble to the PPS, which clarifies that a Municipality’s Official Plan is the “[…] most important vehicle for implementation of the Provincial Policy Statement.”
15Ms. Galloway concluded that the creation of one additional lot by way of severance can be regarded as “locally appropriate”, subject to recommended conditions of approval.
16Ms. Galloway also considered s. 1.1.5.4 of the PPS, which states that “Development that is compatible with the rural landscape and can be sustained by rural service levels should be promoted.”
17Ms. Galloway concluded that, subject to the completion of a hydrogeological study as a condition of consent (which is to confirm that adverse effects upon groundwater resources will not result from the creation of one additional lot), the resulting lot creation in the MOS would be consistent with s. 1.1.5.4 of the PPS.
18The Tribunal agrees with the conclusion that the creation of one additional lot from the subject lands would be consistent with the PPS.
Provincial Plan Conformity
19No Provincial Plan applies to the subject lands. Therefore, the Tribunal does not need to consider whether the land division contemplated by the terms of settlement conform to any Provincial Plan.
Official Plan Conformity
20The County of Hastings Official Plan is the only Official Plan applicable to the subject lands.
21The Tribunal received evidence from Ms. Galloway that s. 6.3.1.4 of the County of Hastings Official Plan permits a total of four severances from an original land holding.
22The creation of one further lot from the subject lands would thus be consistent with the consent policies of the County of Hastings Official Plan.
Good Planning
23Ms. Galloway opined that the creation of one further lot from the subject lands, as contemplated in the MOS, represents good planning.
FINDINGS
24The Tribunal finds that the Settlement is consistent with the PPS, conforms with the Hastings County Official Plan, and that the revised application represents good land use planning.
25The Tribunal relies on its authority under s. 53(35) of the Act to make a decision on an amended application and finds that the amendment to the original application arising through settlement is minor and requires no further notice.
ORDER
26THE TRIBUNAL ORDERS that the appeals are allowed in part, and provisional consent is to be given to Consent File No. B17/20, as revised in accordance with Schedule 1 attached herein and subject to conditions as prescribed in Schedule 2 attached herein.
"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.