Oliver v. Bluewater (Municipality), 2021 CanLII 95049

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 29, 2021

CASE NO(S).: PL200304

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Joanne Oliver

Subject: Application to amend Zoning By-law No. 43-2015 – Refusal of Application by the Municipality of Bluewater

Existing Zoning: Residential Low Density

Proposed Zoning: Residential Low Density – Special Zone

Purpose: To permit the use of a shipping container as a home

Property Address/Description: 32 Fry St.

Municipality: Municipality of Bluewater

Municipality File No.: Z05-20

LPAT Case No.: PL200304

LPAT File No.: PL200304

LPAT Case Name: Oliver v. Bluewater (Municipality)

Heard: September 21, 2021 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
Joanne Oliver	Scott Gallagher*
Municipality of Bluewater	Ken Strong*
David MacLaren	Self-Represented

MEMORANDUM OF ORAL DECISION DELIVERED BY T.F. NG ON SEPTEMBER 21, 2021 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the second Case Management Conference (“CMC”) held as a video hearing (“VH”) for the Zoning By-law Amendment appeal of Joanne Oliver (the “Appellant”). The Appellant who owns 32 Fry Street (“Subject Property”) located in the Municipality of Bluewater (“Municipality”) is proposing to amend the zoning by-law in order to build a house out of shipping containers materials.

2The appeal is filed under s. 34(11) of the Planning Act.

DRAFT ISSUES LIST AND DRAFT PROCEDURAL ORDER

3Counsel for the Appellant and the Municipality have furnished a draft procedural order and issues list, which were finalized with the essential timelines inserted at the CMC. Parties expect to be able to prepare a joint document book and a joint witness brief by October 1, 2021.

4The Tribunal directs that the Procedural Order and the Issues List together with the List of Witnesses and Witness Statements be exchanged and forwarded electronically to the Tribunal’s Case Coordinator on or before September 24, 2021.

5This matter has previously been scheduled for a three-day hearing commencing on Tuesday, October 19, 2021 and the parties confirm that they will require the number of days as the Appellant will have four witnesses (two experts and two lay witnesses); the Municipality will call one expert witness, while Mr. MacLaren will not call any witness.

ORDER

6The Tribunal orders as follows:

1. The Procedural Order, the Issues List, list of witnesses and witness statements shall be delivered to the Tribunal’s Case Coordinator on or before Friday, September 24, 2021.

2. The Procedural Order with the Issues List which has been provided and now attached to this Decision, will additionally govern the proceedings.

7There will be no further notice.

8The Member may be spoken to with respect to matters arising from the Case Management Conference.

“T.F. Ng”

T.F. NG 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.

CASE NO(S).: PL200304

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended.

Applicant(s)/Appellant(s): Joanne Oliver

Subject: Application to amend Zoning by-law No. 43-2015 – Refusal of Application by the Municipality of Bluewater

Property Address/Description: 32 Fry Street

Existing Zoning: Residential Low Density

Proposed Zoning: Residential Low Density – Special Zone

Purpose: To permit the use of a shipping container as a home

Municipality: Municipality of Bluewater

Municipal File No.: Z05-20

OLT Case No.: PL200304

OLT File No.: PL200304

OLT Case Name: Oliver v. Bluewater (Municipality)

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on Tuesday, October 19, 2021 at 10 a.m. by Video.

3. The parties’ initial estimation for the length of the hearing is three (3) days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. The expected witnesses of the parties are set out in Attachment 4.

10. Expert witnesses in the same field may have a meeting on or before September 24, 2021 and use best efforts to try to resolve or reduce the issues for the hearing.

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

13. On or before September 24, 2021 the parties shall provide copies of their witness and expert witness statements in electronic format to the other parties and to the OLT case co-ordinator.

14. On or before September 24, 2021 a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before September 24, 2021, the parties shall provide copies of their visual evidence to all of the other parties in electronic format. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

16. On or before October 1, 2021, the parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence as may be permitted by the OLT and in accordance with paragraph 22 below.

17. On or before October 1, 2021, the parties shall cooperate to prepare a joint document book and witness statement brief which shall be shared with the OLT case co-ordinator and in accordance with paragraph 22 below.

18. Any documents which may be used by a party in cross examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT case co-ordinator, on or before October 19, 2021.

19. A person wishing to change written evidence, including witness statements, must make a motion to the Tribunal.

20. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before October 15, 2021 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22. Documents may be delivered by personal delivery, registered or certified mail, email, courier, electronic file sharing service, or otherwise as the Tribunal may direct. Material delivered by mail shall be deemed to have been received five business days after the date of registration or certification. All filings with the Tribunal shall be submitted electronically and in hard copy.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is not seized. So orders the Tribunal.

Parties

1. Joanne Oliver
2. Municipality of Bluewater
3. David MacLaren

Issues List

1. Is the proposed development consistent with the Provincial Policy Statement, in accordance with section 3 of the Planning Act, including, in particular, sections 1.7.1 e) and 2.6.3?
2. Does the proposed development conform to the County of Huron Official Plan, including section 3.2 Community Directions (Heritage and Culture), section 3.3 Community Policies and Actions (in particular 3.3 4)), section 7 Settlement Patterns, section 7.2 Community Directions (in particular Livable, Vibrant, Healthy Communities), and section 7.3.7 2) (Heritage)?
3. Does the proposed development conform to the Municipality of Bluewater’s Official Plan, including, in particular, sections 2.2_5, 7.3, 7.4.2, 7.5.1, 7.5.3, 8.3 and 8.4?
4. Does the proposed housing form blend with the form, scale, character and architectural design of existing development and is it in keeping with the character of surrounding uses, the streetscape and public realm, and the adjacent heritage property 41 Main Street, Bayfield?
5. Does the existing section 3.39 of the Municipality of Bluewater’s Zoning By-law appropriately regulate the use of shipping containers in Bayfield?
6. Is the proposed development appropriate, does it represent good planning, and is the proposed development compatible with the nature, character, and heritage features of the surrounding neighbourhood?

Order of Evidence

1. Joanne Oliver
2. Municipality of Bluewater
3. David MacLaren
4. Joanne Oliver in Reply

Expected Witnesses

Joanne Oliver Expected Witnesses

1. Joanne Oliver
2. Brent Hillier
3. Ric Knutson
4. Hanna Holman

Municipality of Bluewater Expected Witnesses

1. William Pol

David MacLaren Expected Witnesses

1. David MacLaren