Local Planning Appeal Tribunal

Tribunal d’appel de l’aménagement local

The Ontario Municipal Board (the “OMB”) is continued under the name Local Planning Appeal Tribunal (the “Tribunal”), and any reference to the Ontario Municipal Board or Board in any publication of the Tribunal is deemed to be a reference to the Tribunal.

CORRECTION NOTICE

OLT CASE NO(S).: PL200506

DECISION ISSUE DATE(S): September 29, 2021

CORRECTION NOTICE ISSUE DATE: October 04, 2021

RE: Lyon v. Melancthon (Township)

Correction to: Paragraph [39], line 1 and Paragraph [68], line 3.

Originally: Appellant

Corrected to: Applicant

“Euken Lui”

EUKEN LUI

REGISTRAR

Local Planning Appeal Tribunal A constituent tribunal of Ontario Land Tribunals Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 29, 2021

CASE NO(S).: PL200506

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

Appellant: Harvey J. Lyon

Applicant: Adam H. Vander Zaag Farms Ltd.

Subject: Consent

Property Address/Description: Part Of Lots 296 & 297, Concession 3 SW

Municipality: Township of Melancthon

Municipal File No.: B3/20

OLT Case No.: PL200506

OLT File No.: PL200506

OLT Case Name: Lyon v. Melancthon (Township)

Heard: June 10, 2021 by Video Hearing

APPEARANCES:

Parties	Counsel
Harvey J. Lyon (the “Appellant”)	Kim Mullin
Adam J. VanderZaag Farms Ltd. (the “Applicant”)	Leo F. Longo

DECISION DELIVERED BY M. RUSSO AND ORDER OF THE TRIBUNAL

Introduction

1The Applicant submitted an application for Consent to Sever to the Township of Melanchthon (the “Township”) and its Committee of Adjustment (the “C of A”) for the purpose of severing a surplus farmhouse dwelling, municipally known as 116258 Second Line SW (the “Severed Parcel”) from lands located in the Part Lots 296 and 297, Concession 3, S.W. (the “Retained Parcel”). The Severed Parcel and Retained Parcel are collectively referred to as the “Subject Lands” in this Decision.

2The C of A gave provisional consent on the application subject to nine conditions.

3The Appellant appealed the C of A’s approval of this severance pursuant to subsection 53(19) of the Planning Act (the “Act”) to the Tribunal.

4Prior to the hearing, the Tribunal was informed that the Township would not be present, nor be participating in the hearing.

5The core issue that evolved and became apparent to the Tribunal, was whether the consent should be approved, with the dwelling that formally existed on the Subject Lands having been demolished?

Site Context

6The subject lands have a total lot area of approximately 45.65 hectares with 332.5 metres of frontage on Second Line SW and are currently occupied by several aging agricultural buildings. The lands were previously occupied by a trailer and a dwelling, which were both demolished in 2018.

7The Applicant has taken the position that the demolition of the farmhouse dwelling was a consequence of extenuating circumstances. Through their witness they intend on explaining this position. The severance would delineate the Severed Parcel (formerly occupied by the farmhouse dwelling) consisting of approximately 1.25 hectares and a frontage on Second line S.W. of 100 metres. The retained agricultural holdings would have an area of approximately 44.4 hectares.

Applicable Legislation and Policies

8When considering whether to give provisional consent, the Tribunal must have regard to matters of Provincial interest enumerated in s. 2 of the Act. The Tribunal must also have regard for the criteria as set out in s. 51(24) of the Act.

9The proposal must conform with the Growth Plan for Greater Golden Horseshoe, 2019 as amended by Amendment No. 1 (the “GP”). Pursuant to s. 3(5) of the Act, the Tribunal must be convinced that the proposal is consistent with the Provincial Policy Statement, 2020 (the “PPS”). The Tribunal must also find that the proposal conforms with policies of the OP (both of the County and the Township), as well as represents good land-use planning in the public interest.

Positions of the Parties

10Margaret Walton a land-use planner and principal of Planscape, the firm and agent used by the Applicant in its Application to the C of A, provided a brief site description and overview. Ms. Walton was qualified by the Tribunal, with no objection, to provide opinion evidence in the area of land use planning.

11Ms. Walton submitted that Adam Vanderzaag is a third-generation farmer, with deep roots in the community and had purchased the Subject Lands with the intent of farming the lands. Already living in a home in the general vicinity, the Applicant wished to sever the farmhouse and lot existing on the Subject Lands, as it was a surplus farm dwelling not useful to the Applicant in his endeavours to farm the lands.

12Ms. Walton focused on three main issues or questions in relation to the core issue identified in her testimony that include:

i. The interpretation of the OP and PPS and their intent, when assessing the consent sought.

ii. Who speaks for the public interest?

iii. What is the interest or impact to the Appellant?

13Ms. Mullin, in her brief opening submissions introduced the Appellant, Harvey Lyon, as also a farmer with deep roots and long-time interest in agriculture and its preservation.

14It was Ms. Mullin’s submission, that lot creation on prime agricultural land, is not permitted unless policy 2.3.4.1(c) of the PPS is met. The Appellant’s claim is that policy 2.3.4.1(c) has not been met. Therefore, Counsel’s respectful submission, is that with policy not being met, the C of A, nor Tribunal, have the authority to grant the consent sought by the Applicant.

Applicant’s Planning Witness

15Ms. Walton was retained by the Applicant, shortly after the purchase of the Subject Lands in 2018, for the purposes of consulting and providing her expertise on whether the farmhouse dwelling lot could be severed.

16Ms. Walton’s knowledge of the area and familiarity with the farming community and rural policies (including the Act, in use versions of the GP, PPS and both County and Townships OPs) led her to conclude that the severance was possible and met the criteria of severance from a perspective of surplus dwelling on farm lands.

17In providing her opinion on what led to the farmhouse being demolished, Ms. Walton opined, a serious tenant issue arose that led to safety and health concerns that precipitated the Applicant’s demolition.

18The tenant had serious hoarding issues and their home was left in disarray with both sanitary and safety issues present. Even after multiple evictions, the tenant and others resorted to illegal squatting, which influenced the Applicant’s decision.

19The demolition of the farmhouse occurred before Ms. Walton was retained. The Applicant believed this was an insignificant issue, as his intention was to sever and sell the property, and the farmhouse in its current state was more of a liability than an asset from his perspective. However, this does not change Ms. Walton’s opinion that the consent is still supported by policy, as the Applicant’s intent has not changed. The Retained Parcel was, and still is, to be farmed. The Severed Parcel was occupied by a non-farmer and nothing precludes the farmhouse to be rebuilt and the home likely again will be a non-farmer. Ms. Walton opined that this scenario was akin to a fire destroying the farmhouse in its transition while it was being sold; the land-use planning issues remain the same.

20Ms. Walton was present at the Dufferin County Council meeting where Council contemplated whether or not it would support the appeal. She opined that their minutes marked as Exhibit 5 at this hearing, are accurate and reflective of County’s Council position being in line with her opinion on the matter.

21County Council chose not to appeal nor participate in this appeal. This decision was reached even though the County had received outside consultant recommendations that the consent was not consistent with the PPS, nor conforms with the County OP. However, in the opinion of Ms. Walton, Council similar to the C of A saw things differently. She opined, having heard the extenuating circumstances, being familiar with the farming needs and protecting farming lands, Council chose to not appeal the C of A decision and were satisfied that the intent of the Applicant, aligned with the intent of the planning instruments applicable, and both superseded the specific wording disputed within policy.

Appellant’s Planning Witness

22Mr. Duhamel, planning witness for the Appellant, was qualified by the Tribunal to provide opinion evidence in the area of land use planning with no objection by opposing counsel.

23In Mr. Duhamel’s opinion the consent does not meet the criteria required by policy, thus should not be approved. His opinion focused on the home being demolished and removed, therefore precluding the lands from being considered residence surplus to a farming operation. Further, he opined that the Minimum Distance Separation (the “MDS”) required by provincial publication 853 has not been demonstrated, therefore reinforcing his opinion that the consent should not be approved.

The Planning Act

24The witnesses did not spend a great deal of time on the Act and policies within when providing evidence in support of their position. However, Ms. Walton did opine that as required, the consent does take into account provincial interest in s. 2 of the Act, specifically s. 2(b). The protection of the agricultural resources is provided with the consent, as the Applicant is a farmer that intends on farming the Retained Parcel. Further, the Severed Parcel is a surplus farmhouse dwelling lot and it is not changing from that land-use. Thus, Ms. Walton is of the opinion that the intent of this policy is met.

25Mr. Duhamel disagreed and took the position that s. 2(b) is not met as the consent in its current state does not meet the requirements of the policy. Further, he opined s. 2(p) is also not met with the proposal, as the site is not the appropriate location for growth and development.

26Criteria to be met in subdividing lands are set out in s. 51(24) of the Act. Mr. Duhamel pointed out concerns in subsection (a), as he had opined, that the proposal did not meeting provincial interests set out in the Act. Mr. Duhamel referred to his visual evidence that portions of active farmland are being removed and opined that demonstration that the lot size of the Severed Parcel is the minimum size required, has not been provided. Further with the proposal in his opinion not conforming to both County and Township OPs, he therefore opined, the criteria required in s. 51(24) are not met.

27Ms. Walton in contrast opined that all criteria as set out in s. 51(24) are met and the severance should be approved. She opined that the intent of the Applicant and his family history in farming and the lands continuance of that use should supersede any perceived wording conflicts. In her opinion, habitation of the farmhouse being included in its description, only exists to ensure surplus dwellings are being severed and that only exists to protect the farmland, which she opines is being protected by the Applicant and his intended land-use.

28Pertaining to the Act, The Tribunal prefers the position of Ms. Walton and is satisfied that the evidence is supportive of such. The farmhouse being demolished does not change the land use of what was present on the Severed Parcel, nor what can be rebuilt on it as of right. Further the Tribunal is not satisfied that the severance and a rebuild of what was existing, would represent growth. The Tribunal is satisfied that the intent of what s. 2 of the Act strives to achieve is maintained by the consent. Further, The Tribunal in reviewing the evidence and the testimony of the witnesses is satisfied that all relevant criteria as set out in s. 51(24) are met by the proposal and with the severance sought.

Provincial Policy Statement, (2020)

29Ms. Walton provided the Tribunal some details of the initial application and when her report was authored for the C of A. At the time the PPS in force was that of 2014. However, her opinion is that there are no discernible differences that exist in PPS 2014 policies cited to the current in force PPS 2020. Mr. Duhamel concurred with this opinion.

30Ms. Walton in testimony opined that the proposal is consistent with s. 2.3 of the PPS titled Agriculture and all relevant policies within with emphasis on s. 2.3.1:

Prime agricultural areas shall be protected for long-term use for agriculture.

31Focusing on s. 2.3.4, Lot Creation and Lot Adjustment policies, Ms. Walton opined that the consent is consistent with s. 2.3.4.1 (c) and subsections 1 and 2.

s. 2.3.4.1, “Lot creation in prime agricultural areas is discouraged and may only be permitted for:

c) a residence surplus to a farming operation as a result of farm consolidation, provided that:

1. the new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services; and

2. the planning authority ensures that new residential dwellings are prohibited on any remnant parcel of farmland created by the severance. The approach used to ensure that no new residential dwellings are permitted on the remnant parcel may be recommended by the Province or based on municipal approaches which achieve the same objective.

In Ms. Walton’s opinion, subsection 1 is satisfied with the Severed Parcel having a size consistent with surrounding area’s rural residential lots and providing the sewage and water service capability required. In her opinion, it should be noted that the Severed Parcel not only provides the capability but already has the infrastructure in place, having been used to serve the dwelling. Subsection 2 in Ms. Walton’s opinion was strengthened by the fact that the Applicant is a well known farmer and farming family with the intent of solely farming the Retained Parcel and adding to its already large farming holdings, seen on the map provided on page 60 of Exhibit 2. She also indicated that through discussions with the Applicant, they would not be averse to additional conditions of approval fortifying subsection 2 requirements.

32Ms. Walton concedes that the problem or challenge raised stems with the definition of residence surplus to a farming operation on page 50 of the PPS, that reads:

Residence surplus to a farming operation: means an existing habitable farm residence that is rendered surplus as a result of farm consolidation (the acquisition of additional farm parcels to be operated as one farm operation).

The inclusion of the word “habitable” in her opinion has led to this appeal and opposition from other consultants as highlighted by the Appellant’s Counsel. However, Ms. Walton took the Tribunal to Part III of the PPS text, where the reader is instructed to read the document in its entirety. Further, she focused on text within the preamble of the PPS that states:

The Provincial Policy Statement recognizes the diversity of Ontario and that local context is important. Policies are outcome-oriented, and some policies provide flexibility in their implementation provided that provincial interests are upheld.

With all the above in mind, Ms. Walton opined that the simple word habitable cannot, nor should not replace the intent of the policy. The farmhouse was habitable at time of purchase and would be still habitable if not for circumstances. Ms. Walton opined the task of the C of A and County Council was to provide that important local context and both did so by choosing to support the consent.

33Mr. Duhamel in contrast to Ms. Walton opined the proposal is not consistent with the PPS. In providing his evidence, he brought the Tribunal to Part IV of the PPS text that indicates the Vision for Ontario’s Land Use Planning System and opined the significance of policy framework and its repetition in Provincial to County to Township polices highlight their importance.

34In Mr. Duhamel’s opinion, protection of agricultural lands is paramount in the PPS. Seen in s. 1.7.1 (i) and s. 2 and reinforced in s. 2.3.1 that reads:

Prime agricultural areas shall be protected for long-term use for agriculture.

Mr. Duhamel opined that this language is important and is directive and as he intends on focusing on in following policies, is prohibitive.

35As Ms. Walton had discussed, Mr. Duhamel opined that s. 2.3.4.1 is significant in analyzing policy direction relevant to this proposal, however, he focused on the language and again its directives. Policy 2.3.4.1 as previously noted reads:

Lot creation in prime agricultural areas is discouraged and may only be permitted for:

a) agricultural uses, provided that the lots are of a size appropriate for the type of agricultural use(s) common in the area and are sufficiently large to maintain flexibility for future changes in the type or size of agricultural operations;

b) agriculture-related uses, provided that any new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services;

c) a residence surplus to a farming operation as a result of farm consolidation, provided that:

1. the new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services; and

2. the planning authority ensures that new residential dwellings are prohibited on any remnant parcel of farmland created by the severance. The approach used to ensure that no new residential dwellings are permitted on the remnant parcel may be recommended by the Province, or based on municipal approaches which achieve the same objective; and

d) infrastructure, where the facility or corridor cannot be accommodated through the use of easements or rights-of-way.

36Mr. Duhamel opined the word “discouraged” as being a significant directive and the words “may only be permitted” within the policy eludes to its subsections, and if these subsections are not met, the totality of the policy is prohibitive as is made clear in s. 2.3.4.3 that reads;

The creation of new residential lots in prime agricultural areas shall not be permitted, except in accordance with policy 2.3.4.1(c).

37The Appellant’s counsel in closing submissions takes the position that consistency with the PPS is not the general intent of the PPS, but the wording written within. Counsel put forward that Mr. Duhamel was clear in his evidence that s. 2.3.4.3 provides directive and prohibitory language conceded in cross examination by Ms. Walton.

38Counsel for the Applicant submitted that the key policy dealt with in this proposal and PPS, is not s. 2.3.4.3 but in fact s. 2.3.4.1. and that s. 2.3.4.3 merely speaks to the focal policy before it. Thus, focus should be given to s. 2.3.4.1 and subsections within, that are not prescriptive, but rather the policy discourages lot creation. However, the Applicant’s position is that they are not creating a new lot but establishing formal recognition of what has existed for some time. In that formal lot creation policy, it does provide remedies and tests as set out in subsections (a) through (d) that if met do permit the lot creation, as is the case in this proposal. Therefore, the prohibition seen in s. 2.3.4.3 is a moot point, if and when s. 2.3.4.1 (c) is met, which Counsel submits Ms. Walton has demonstrated.

39The Tribunal prefers the position of the Appellant and finds that policies within s. 2.3.4.1 have been met and the prohibitory language of s. 2.3.4.3 does not apply, nor that it supersedes the intent of the policy. The PPS instructs the reader to read it in its totality. Therefore, in doing so and implementing all relevant policies, it is reasonable to conclude that if the intent of what the policy strives to achieve, be it the protection and maintenance of agricultural lands is achieved.

40The Tribunal finds that it is reasonable to conclude that the inclusion of the surplus dwellings and their ability to be severed (s. 2.3.4.1 (c)), exists to avoid fragmenting and ongoing elimination of agricultural lands to be limited to lands meeting the criteria provided. However, the rigidity of the criteria must not overlook why the policies exist in the first place, to protect and maintain the agricultural lands. The Proposal achieves this goal and meets the intent of the policies, with it solely missing the dwelling that would have checked off all the boxes. The Tribunal is satisfied that exclusion of a habitable dwelling existing does not prohibit its severance, particularly when it existed months prior, differing from if it never existed at all. Again, it must also be noted that the dwelling can be rebuilt (as of right) and that box can be checked. However, in doing so the Tribunal finds as opined by Ms. Walton the results would be the same “the Applicant would be farming the Retained Parcel and the Severed Parcel would remain a rural residential parcel”.

41For the reasons provided above and when assessing the evidence in its totality, the Tribunal is persuaded more so by the testimony of Ms. Walton and is satisfied that the proposal is consistent with the PPS.

The Growth Plan

42Similarly to the Act, not a great deal of testimony was provided on the GP. Ms. Walton opined that the GP does not speak to surplus dwellings and plays a lesser role in discussions for this proposal. However, Ms. Walton did opine that the proposal overall conforms to the GP and particularly implements agri-food network and enhances it as directed in s. 4.2.6.4.

43She also opined that the lands and overall area will benefit in having a farmer who is invested, and part of the community work the Subject Lands. This is diminishing in the industry with the rental of lands being more prevalent and that link to community lessening.

44Mr. Duhamel concurred with Ms. Walton that the GP does not speak to surplus dwellings and does not speak to severances in general. Thus, he opined that the GP is not overall highly relevant in his opinion formation on the proposal. Mr. Duhamel did point out that s. 4.2.6.5 encourages retention of lands as they are, and agricultural uses are encouraged whereas non-agricultural uses are discouraged, as is sought by the consent.

45The Tribunal on its review of the GP and with the evidence provided finds that the proposal generally conforms to the GP.

The County OP

46Ms. Walton directed the Tribunal to s. 1.1.5 of the County OP, its goals. With its derivation from the PPS, these goals seek to protect, sustain and promote agricultural areas. In Ms. Walton’s opinion the intent of the OP is maintained with the proposal. The Retained Parcel will be farmed by a local farmer and the Severed Parcel will remain in its current state, with rural character and its long-standing complimentary use.

47Mr. Duhamel disagreed and pointed out to subsection (c) in s. 1.1.5 and again its repetition of protection of agricultural areas. In his opinion severing off a parcel for economic gains does not equate to protecting the Subject Lands.

48Ms. Walton in her testimony in contrast to Mr. Duhamel saw economic decisions as a vital component to ensuring farming sustainability particularly when reinvested into farming lands and in farming families. Ms. Walton opined that farmers do not want to be landlords nor wish to shoulder the work involved in managing a residential property. The money that would be attained from this common surplus dwelling sale, would be reinvested into farming operations and aid in sustaining this farming family, particularly important in this area bordering on an urban node and pressures associated with that.

49Ms. Walton spoke to the County objectives within agricultural areas within s. 4.2 of the OP. In s. 4.2.1 (b) the County seeks to maintain and enhance the agricultural resource base and the farming operations within the County. Ms. Walton opined that the proposal both maintains and enhances local farming operations and thus conforms to this policy. The severance of a surplus dwelling lot aids a young farming family in reinvesting and enhancing the agricultural resource base and expand a farming operation already existing within the County, as depicted in the Vanderzaag family holdings seen on the map provided (and already spoken to) in Exhibit 2.

50Ms. Walton opined that the definition found in the County OP for surplus dwellings to a farming operation was a repetition of the definition found in the PPS. Therefore, her opinion on the matter is the same. The inclusion of the word habitable is not sufficient to deny the consent. She maintains the opinion that the home was standing and habitable (although is poor and unsanitary conditions) when the Applicant purchased the lands and circumstances caused the home to be demolished. Ms. Walton opined that this is not a new lot being created, the lot exists and has existed for some time, just not formally severed. The land-use has not changed and does not change with the previous farmhouse standing or a new dwelling being erected. The Retained Parcel will be farmed and that is, in her opinion, the overall intent of the creation of the surplus dwelling policies, to protect those lands, not the mere habitation of a dwelling.

51Speaking to s. 4.2.5, Ms. Walton is of the opinion that the proposal conforms to this policy and generally to the policies of the County OP. Also as indicated prior and in speaking to s. 4.2.5 (c), Ms. Walton indicated that the Applicant is open to having additional conditions applied that strengthen and ensure compliance, particularly to ensuring no dwellings will be erected on the Retained Parcel and adhering to MDS and associated requirements.

52Mr. Duhamel took the Tribunal as did Ms. Walton to County objectives in s. 4.1 and opined they are akin to the goals discussed in s. 1.1.5. His review of s. 4.2 and s. 4.2.1 objectives led Mr. Duhamel to provide the opinion that the proposal seeks to fragment the Subject Lands and the lot size provided for the Severed Parcel has not been demonstrated to encompass these goals and objectives adequately. His site visits and review of the visual evidence provided in Exhibit 6, led to his opinion that the Severed Parcel although relatively small has not demonstrated if it can be smaller. He opined that some vital agricultural land will be lost and with no farmhouse present on the lands currently, policy guides his opinion and he cannot support the proposal as he opines it does not conform to the County OP.

53The Tribunal on its adjudication of the matter and the proposal’s conformity to the County OP finds that it is more so persuaded with the evidence of Ms. Walton. Through its review of the visual evidence the Tribunal finds the agricultural land that would be lost to be negligible or none at all, and the lot size remains in line to similar rural residential lots in the area and encompasses what has existed for some time. Further safeguards may be set in place to ensure compliance with MDS requirements. Both witnesses put forward evidence and opinions that very much mirrored the issues and policies with the proposal’s assessment against the PPS. Thus, similar in its findings in evaluating the proposal against the PPS policies, the Tribunal is satisfied that the proposal conforms to the County OP.

The Township OP

54Ms. Walton opined that Council for the Township through its endorsement of their OP, has focused on maintaining the character of the community while implementing the directives of the province in the PPS and GP.

55Ms. Walton opined that s. 2.1 (b) is indicative of Council’s vision with particular focus (as is required with this proposal) to understand the opportunities and challenges of the Township and its balance between pressures for growth against preserving and enhancing its rural fabric, while still community building. This in Ms. Walton’s opinion highlights the weight that should be put upon the local approval authorities decisions and as she had indicated at the onset of the hearing, them being best suited to speak for the public interest locally and how decisions affect the community at large. She opined that the C of A, and Council of both the Township and County best understand the intricacies of their community.

56Ms. Walton spoke to policies 2.1.1, titled Our Commitment to the Future and opined bullet 6, maintaining the small town and rural character of the Township and bullet 7, protecting the agricultural land base for farming, both conform with the proposal and its sustenance of a smaller rural residential lot along with a viable farming parcel that will be utilized as such.

57Lastly, Ms. Walton brought the Tribunal to the OP’s consent polices in s. 5.2.5. Her opinion was that the Township explicitly contemplates severances and provides direction to allow appropriate consent applications. The proposal in her opinion conforms with these policies and coupled with the higher order consistency with the PPS and conformity with the County OP, she is of the opinion the appeal should be dismissed and the approval of the consent should be allowed.

58Ms. Walton briefly touched upon the Township zoning provisions and intent of the by-laws and opined they are maintained with the proposal, while ensuring no additional lots or dwellings are to be allowed on the Retained Parcel infringing on the farming lands.

59In summary Ms. Walton concluded that from a historical or practical perspective the Subject Lands had a rural farmhouse dwelling with farmland surrounding it. She opined the consent maintains just that, with the exception being the dwelling unfortunately is not currently standing, but the land-use is still the same. It is her opinion that the proposal has no negative impacts and it maintains what has existed for years. For all the reasons provided, Ms. Walton maintains the proposal in her opinion represents good land-use planning in the public interest.

60Mr. Duhamel disagreed with Ms. Walton’s position and turned the Tribunal to s. 3.1 of the OP and the Township’s growth management policies that he opined do not conform with the proposal and as he had indicated previously is not the appropriate location for growth. Mr. Duhamel maintains that with the house not existing at this time, these policies become relevant and the proposal must conform appropriately, which in his opinion it does not.

61Similarly to Ms. Walton, Mr. Duhamel brought the Tribunal to OP vision policies, s. 2.1.1. However, he did not concur with Ms. Walton’s opinion that the proposal protects the agricultural land base as directed in bullet 7. He further opined that bullet 3 is not met, as it directs growth to occur in settlement areas.

62Mr. Duhamel put forward the opinion that s. 2.2.4 (a) through (f) all speak to the protection of farmland and avoiding conflicting uses. It was his opinion that the current conditions of the land lend it to be recognized as an extension of the adjacent farmland and should be maintained as such.

63The above paragraph in the opinion of Mr. Duhamel is reinforced by s. 5.2.2 (b) and the fact that Agricultural uses shall be given priority over all other uses. It was his position that the exception to the proposed Severed Parcel has been nullified with the home no longer existing.

64Mr. Duhamel opined in contrast to Ms. Walton that the OP consent policies in s. 5.2.5 were not in conformity to the proposal. He opined that policy 5.2.5 (b) specifies that lot creation is discouraged, and his opinion of nonconformity is further reinforced by the lot severance proposed not having demonstrated to be the minimum size required.

65In conclusion Mr. Duhamel opined the proposal does not conform to the Township OP. He did acknowledge that the zoning by-laws are maintained by the proposal however, with his evidence as provided lead him to conclude that the overall land-use planning merits of the proposal lack the requirements for him to support the consent and for all the provided reasons opines, the appeal should be upheld and the consent refused.

66In cross-examination Mr. Duhamel conceded that a portion of the proposed Severed Parcel is made up of current driveway and the lot still consists of several mature trees, precluding it from being farmed. Also Mr. Duhamel conceded that the minimums mentioned in policy are not mandatory, nor are they quantified in any relevant policy to be absolute. He further conceded that the historical lot fabric of the proposed Severed Parcel mimics the dimensions as proposed.

67Counsel for the Applicant cited Bele Himmell Investments Ltd. v. Mississauga (City), 1982 Carswell Ont 1946 (Bele Himmell) at Para. 22:

Official Plans are not statutes and should not be construed as such. … It is the function of the Board in the course of considering whether to approve a by-law to make sure that it conforms with the Official Plan. In doing so, the Board should give to the Official Plan a broad liberal interpretation with a view to furthering its policy objectives. [emphasis added]

Mr. Longo’s submission was that Ms. Walton in her testimony and in presenting her opinion evidence did precisely as above. In contrast it was his submission that the Appellant has taken a strict literal interpretation of the OP policies which frustrates the achievement of the policies’ intent and objectives.

68The Tribunal having evaluated the evidence provided in its totality is persuaded more so by the testimony of Ms. Walton that the proposal conforms to the Township OP. The Tribunal agrees with the Appellant’s counsel, that the strict literal interpretation of policy frustrates and negates the intent and objectives that those polices strive to achieve. The Tribunal is satisfied that the character of the area is maintained and the agricultural land base for farming is protected. Further the Tribunal is not persuaded that proposal equates to growth and therefore the policies referred to by Mr. Duhamel in that matter are not relevant. The Tribunal having found that the policies in the PPS pertaining to severances and consent were met are subsequently satisfied that the similar policies in the OP are also met and the proposal conforms to such policies.

Decision

69Counsel for the Applicant put forward several examples of case law that highlighted matters when the Appellant’s proximity and impact felt by proposals were considered by the Tribunal or former Ontario Municipal Board. With the Appellant in this case being over 10 - 13 kilometres away, Counsel argued that although it is his submission that there is no negative impacts created by the proposal, with the Appellant’s distance to the Subject Lands, there is no impacts felt at all by the Appellant and likely the appeal has been put forward for other reasons.

70In addressing the submissions of Counsel, the Tribunal finds that although the Appellant’s proximity to the Subject Lands is rather distant, the ability of a local resident to appeal an application for matters of agricultural protection has been afforded to the resident and the Appellant has provided the evidence to have their concerns heard. In this hearing the Tribunal will weigh in proximity of the Appellant but finds this is not determinative to its decision.

71Ms. Mullin provided the Tribunal case law that took the position that although the Tribunal may be empathetic to circumstances, language does not allow for a “slight deviation” from policy nor discretion in its interpretation. The Appellant’s position is that the farmhouse does not exist and thus is not habitable, therefore, policy direction does not support the approval of the consent.

72The Tribunal considers language to be important and particularly when it provides clear directive. However, the Tribunal must interpret what is the purpose of language, what are the words used trying to obtain or prevent. The Tribunal takes direction from Part III of the PPS and its direction on how to read the PPS. The PPS does make a distinction between enabling or directive language, however, it also directs the Tribunal to read the entire PPS and to consider the “language of each policy, including the Implementation and Interpretation policies, will assist decision-makers in understanding how policies are to be implemented”. Further, the Tribunal is satisfied that the prohibitory language discussed in the PPS is reserved for a policy that only applies if the previous policy is not met. Therefore, being satisfied that relevant policy and its subsections have been met, this does in fact make the latter moot.

73The Tribunal has weighed into its analysis paragraph 22 of Bele Himmell. The Tribunal is persuaded and concurs with the evidence of Ms. Walton “that the words in policy cannot, nor should not supersede the intent of the policy” particularly when there are extenuating circumstances. Ms. Walton’s comparison of the scenario encountered by the Applicant, being akin to a fire destroying the farmhouse weighed into the Tribunal’s analysis and the above citation reinforces to the Tribunal the importance of interpreting the objectives and goals the policy strives to achieve.

74The Tribunal has had regard to s. 2.1.1 (a) of the Act and the decisions of both the C of A and County Council. It has also had regard to s. 2.1.1 (b) and considered all the evidence including the recommendations to deny by both planning consultants of Township and the County. Recognizing as Mr. Longo had submitted, the planners were not before the Tribunal and their findings could not be tested. Nonetheless, the recommendations are part of the Tribunal’s file on the matter. However, the Tribunal has put more weight in the decisions provided by the local bodies. These bodies had the recommendations before it similarly to this Tribunal and chose to approve the consent (the C of A) and not to appeal (County Council). Their rural knowledge and understanding of local complexities within their communities cannot be overlooked.

75The Tribunal is satisfied that there will be no negative impacts to the agricultural land base in the area with the consent upheld. Further, it dismisses the argument that an approval will be precedent setting. As is the case in every planning application, the merits of that application must be analysed and reviewed. Specific to this scenario, the farmhouse demolition and its analysis in deriving a decision is very case specific.

76Having reviewed the conditions imposed by the C of A on the original application, the Tribunal finds them to be appropriate and justified. However, the imposing of the two additional conditions put forward does strengthen from the perspective of this Tribunal the protection and preservation of agricultural lands. As provided in evidence the inclusion of the MDS falls inline with provincial interests and verifies compliance with the formulae in provincial publication 853. The condition verifying that the retained lot be part of a farm consolidation with an existing farm lot in the Township, operating as one, speaks to policies discussed throughout the hearing and particularly PPS, s.2.3.4.1 (c)2. The Tribunal finds that both conditions are appropriate and useful.

77The Tribunal having heard the testimony of the witnesses and having been provided submissions by Counsel and reviewing the evidence provided in its totality, finds that the Applicant’s proposal and consent sought, does have regard to s. 2 of the Act as required. The Proposal is consistent with the PPS and conforms to the GP and both the County and Township OPs. The consent satisfies all applicable criteria set out in s. 51(24) of the Act and represents good land-use planning in the public interest.

ORDER

78THE TRIBUNAL ORDERS that the appeal is allowed in part and the provisional consent is to be given subject to the conditions set out in Attachment 1 to this order.

“M. Russo”

M. RUSSO

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.