Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 05, 2021
CASE NO(S).: PL210070
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Robert and Lianne Schmidt
Applicant: Scott and Lois Millson
Subject: Consent
Property Address/Description: 3031 Stu Black Road
Municipality: Township of Hamilton
Municipal File No.: B-07/20
OLT Case No.: PL210070
OLT File No.: PL210070
OLT Case Name: Schmidt v. Hamilton (Township)
Heard: July 9, 2021 by video hearing
APPEARANCES:
| Parties | Representative |
|---|---|
| Robert and Lianne Schmidt | Self-represented |
| Scott and Lois Millson | Self-represented |
| Township of Hamilton | No one appeared |
DECISION DELIVERED BY T.F. NG AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Scott and Lois Millson (“Applicants”) of 3031 Stu Black Road (“Subject Property”) in the Township of Hamilton (“Township”), in the County of Northumberland (County), have made an application for consent to sever the Subject Property into two lots. The Committee of Adjustment (“COA”) approved the Application on December 8, 2020 (“Approval”) subject to several conditions that were imposed.
2Robert and Lianne Schmidt (“Appellants”) of 3057 Stu Black Road appealed the granting of the Approval.
3The proposed severance under the Application was for the Subject Property to be severed into two lots. The severed lot will be 2.16 hectares (“ha”) (5.34 acres (“ac”)) with 79.24 metres (“m”) (260 feet (“ft”)) of road frontage on Stu Black Road as a new farm/residential lot. The retained lot will contain over 15.3 ha (38 ac) of land and over 107 m (351 ft) of frontage on Stu Black Road.
4Both parties only made submissions based on documents on record. The parties did not call expert land use planning witnesses. The Township was not represented although the Township’s planning coordinator, Sandra Stothart was on the video hearing as an observer.
5Mr. Millson submitted that the consent created a parcel which is essentially an agricultural use lot of 5.34 ac. The Subject Property is designated Rural Area in the Northumberland County Official Plan (“COP”) and Rural under the Township’s Official Plan (“OP”). Agriculture and rural housing are appropriate uses. He stated that strip development (where more than four residential lots on a 300 m stretch are not permitted) does not apply to the Application, as the severed lot is more than 5 ac in size and is in the marginal agricultural zone. Mr. Millson stressed that the Appellant’s concerns of non-compliance are misplaced. He emphasized that the Application complies with the provincial policies, the OPs and the Zoning By-laws.
6Mr. Schmidt on the other hand, submitted that the Application does not comply with the official documents, the OPs and policies. The Stu Black Road already has seven residential lots to the north of the Subject Property, which will prevent the Applicant from creating this new large residential lot on the street because of the strip development prohibition under the OP. Mr. Schmidt’s opinion is that the OP does not permit this severance and the subject land contains species at risk, which necessitate further studies and assessments before any severance.
ISSUE
7The issue before the Tribunal is whether the severance of the Subject Property with the creation of two lots as applied for in the consent to sever land application meets the general requirements set out in the applicable provincial planning legislation and municipal planning policies and the specific criteria of s. 51(24) of the Planning Act (“Act”) and represents good planning. The proposed severance must meet the requirements of the applicable policies of the applicable OPs and ZBLs.
8The Tribunal shall also have regard to matters of provincial interests and to information and material that the COA considered in making its decision.
ANALYSIS AND DECISION
9The Application was originally set to be heard by the COA on September 22, 2020 but was deferred pending further review, in particular on the matter of strip development. When the matter was subsequently heard on December 8, 2020 by the COA, and ascertaining that the severance was for a separate farm lot to be created, the COA approved the Application noting that it is the best intended use of land and strip development policies do not apply.
10Section 11.4.1 (v) of the OP does not permit the extension or creation of strip residential development on roads in the Rural Areas. Strip development is defined as a series of four or more developed or undeveloped residential lots located on one side of a public road within a 300 m length along the public road. There are already seven residential lots north of the proposed lot within 297 m of the proposed lot; thus, adding one more lot will be contravening this policy. However, at the hearing of December 8, 2020 it was determined that the new lot created is more than 5 ac in size and thus is within the Marginal Agricultural (“MA”) use of the Zoning By-law. The lot created is thus considered an agricultural lot (which permits a residential dwelling) which does not contravene the strip development policy for residential lots.
11The Tribunal notes that the Ganaraska Region Conservation Authority (“GRCA”) will require a permit for the construction of a house or structure for the severed lot as it falls within the GRCA Regulated Area and that the GRCA generally has no objection to the approval of the consent application but recommended that an environmental impact study (“EIS”) be undertaken.
12The Tribunal reviewed the Provincial Policy Statement 2020 (“PPS”) and is of the opinion that the proposal to sever the original lot into two separate lots is consistent with the PPS.
13This proposed development is located in a Rural Area and subject to policies applicable to such areas. Several relevant sections are applicable for Rural Lands and Natural/Hydrologic areas in particular section 1.1.5.2(c) of the PPS, which states that on rural lands, permitted uses are residential development, including lot creation that is locally appropriate. This severance application will have the effect of creating severed and retained parcels on which lots with single detached dwellings are permitted. Section 1.1.5.4 indicates that a development that is compatible with the rural landscape and that can be sustained by rural service levels should be promoted while section 1.1.5.5 provides that a development shall be appropriate to the infrastructure that is planned or available and avoid the need for the unjustified and/or uneconomical expansion of this infrastructure. This development utilizes an existing municipally maintained road and private water and sewage systems on the Subject Property, so no additional municipal services are required. The proposed development is consistent with the natural heritage policies of the PPS. Although the Subject Property is within a significant woodland, the GRCA has determined that there are mainly invasive plant species (90%) that already dominate and that there is likely little impact on the natural features on the Subject Property.
14The Subject Property is designated Rural Areas in the COP and designated Rural in the OP, where under the local planning policies, the predominant use of land within the designation is agricultural and residential. There is no requirement to proceed by plan of subdivision as this proposed development involves one retained parcel and one severed parcel. The consent application complies with section 11.4 of the OP as it does not create more than four lots. This development proposal is a minor expansion to existing development along Stu Black Road, which is a dead-end road.
15In respect of the Zoning By-law No. 2001-58 (“ZBL”) of the Township, the severed and the retained parcels comply with the Marginal Agricultural Zone (“MA”) applicable on the Subject Property. The proposed retained and severed lots meet and exceed the minimum standards.
16The Tribunal has reviewed the Municipal Record, the original application and the documents filed in the Appeals, the Minutes of COA decision and the conditions of approval.
17The Tribunal finds that the consent application meets the criteria in s. 51(24) of the Act. In particular, the GRCA has no objection to the approval of the consent application. They acknowledged that the area has been degraded by invasive plant species and proposed to scope the EIS and work with the Applicant’s consultant. Presumably this would include the impact of these invasive species and proposals on methods of ameliorating the degradation. The Provincial interest of the protection of ecological systems, including natural areas, features and functions is taken into consideration.
18The Tribunal finds that the Subject Property is suitable for severance as this is within the MA Zone with frontage on Stu Black Road and is served by a publicly maintained road. The retained and the severed lots meet and exceed the MA Zone standard minimum requirements for lot sizes as well as the minimum frontage requirements. The zone size requirement is a minimum of 4.9 ac and a frontage of 198.6 ft. The proposed severed lot is 5.34 ac with a frontage of 260 ft while the retained lot is 38 ac with a frontage of 351 ft. The severed parcel is in an area which is treed and which provides some vegetative shield and screen cover. The Subject Property is presently served by private well and septic system that are adequate for this proposed zone development.
19The Tribunal finds that the consent to sever land application is consistent with the policies of the PPS, conforms to the OPs, meets the requirements of the ZBL, represents good planning and in the public interest. The relevant criteria of s. 51(24) of the Act are met. Accordingly, the consent to sever the Subject Property into two lots as proposed should be authorized subject to conditions of approval.
20Having considered the evidence and the conditions as originally imposed, the Tribunal finds them reasonable and will impose these conditions for the approval of the proposed severance.
ORDER
21The Tribunal orders that the appeal is dismissed, and provisional consent is to be given subject to the following conditions:
The Applicants shall submit three (3) full-sized hard copies, a PDF copy and an AutoCAD copy of a deposited Reference Plan identifying the newly created lot lines. The Reference Plan shall be in metric measure, UTM Zone 17. The AutoCAD version of the actual ‘drawing portion’ of the plan in UTM NAD83 co-ordinates is required. The area of each Part shall be identified.
The Applicants shall submit a Surveyor’s Real Property Report of the retained/parent lands illustrating the location of all buildings and structures with respect to the lot boundaries.
The Applicants shall pursue the successful completion of a Planning Act application recognising any zone provisions that do not meet the requirements of the Marginal Agricultural (MA) Zone, as may be identified on the above noted Reference Plan and Surveyor’s Real Property Report.
The Applicants shall submit an Ecological Site Assessment and Wildlife Habitat Study as required by sections 8.2.5 and 8.2.6 of the Township of Hamilton Official Plan, to the satisfaction of the Township of Hamilton.
The Applicants shall submit proof of payment in full (via a Tax Statement available from the Township Tax Department) of all current and outstanding taxes on the Subject Property, dated within 10 days of the stamping of the final Deed.
The Applicants shall provide three (3) hard copies of the new Deeds within one year of the giving of written notice of decision of the Committee of Adjustment, per new lot fabric created, suitable for the Secretary/Treasurer to stamp, concluding that all above noted conditions have been fulfilled.
“T.F. Ng”
T.F. NG MEMBER
Ontario Land Tribunal Website: www.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.