Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 04, 2021
CASE NO(S).: PL200555
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Ministry of Municipal Affairs and Housing
Subject: Proposed Official Plan Amendment No. OPA 131
Municipality: Norfolk County
OLT Case No.: PL200555
OLT File No.: PL200555
OLT Case Name: Ontario (MMAH) v. Norfolk (County)
Heard: September 15 and 16, 2021 by Video Hearing
APPEARANCES:
Parties
Counsel
Ministry of Municipal Affairs and Housing (“Appellant”)
M. Awan and A. Beamish
Abel and Emily Kupi (Collectively, the “Applicant”)
N. Kolomaya
Norfolk County (“County”)
P. Boutis
DECISION DELIVERED BY A. CORNACCHIA AND ORDER OF THE TRIBUNAL
FACT SUMMARY
1This is an appeal under s. 17(24) of the Planning Act (the “Act”) of the County Official Plan (“County OP”) amendment permitting the creation of two one-acre residential building lots designated as Agricultural from a parcel of land in the County.
2The Applicant owns the property located at 293 Windham Road 12, Simcoe, Ontario (“Kupi Property”), which is approximately 40 acres in size. The Kupi Property is currently used for residential and business purposes and is not actively farmed. A house, a barn and three buildings are located on the property. All the buildings on the property, except for the residence, are currently used for an excavating business, operated by the Applicant.
3The Applicant filed an application for an Official Plan Amendment (“OPA Application”) on August 29, 2019, to permit the creation of two residential lots of 0.4 hectares each fronting onto the north side of Windham Road 12, for the purposes of residential construction (“Subject Property”). A Planning Justification document prepared by Mr. Kline, the lawyer representing the Applicant at the time (“OPA Application Planning Justification”), was attached to the OPA Application.
4The County OP designates a portion of the Kupi Property as “Agricultural” including the Subject Property and the remainder of the property is designated as “Provincially Significant Wetlands”. The closest settlement area to the Subject Lands is the Delhi settlement areas, which is approximately two kilometres east.
5The County Planning Department did not support the OPA Application since its objective was to create residential building lots in an area designated as agricultural by the County OP. The Planning Report, prepared by this department, recommended against the approval of the OPA Application since it is inconsistent with Provincial and County planning policies and does not represent good planning (“County Planning Report”).
6The County held a public hearing on December 10, 2019, on the OPA Application where the County Planning Report was presented. On February 11, 2020, the County Council-in-Committee (“CIC”) considered the OPA Application and passed a resolution approving it. This resolution was confirmed on February 17, 2020 by the County Council (“Council”).
7On September 22, 2020, Council adopted By-law No. 4-OP-2020 approving the Official Plan Amendment No. 131 (“OPA 131”) that designates the Subject Property as “Rural Land” to facilitate the severance of two Residential Building Lots. Council’s reasons for disregarding the recommendations made in the County Planning Report and adopting OPA 131 are unclear.
8The Appellant, the Ministry of Municipal Affairs and Housing (“MMAH”), appealed Council’s decision to adopt OPA 131 on October 19, 2020.
EVIDENCE
9The Appellant called two expert witnesses, Drew Crinklaw and David Stubbs, both of whom were properly qualified as expert witnesses in the field of planning. The Tribunal will refer to the evidence of Mr. Crinklaw and Mr. Stubbs as the planning evidence (“Planning Evidence”). The Planning Evidence presented will be discussed in more detail, relating to the specific issues to be resolved. Both Mr. Crinklaw and Mr. Stubbs stood up well to the cross-examination by the Applicant’s counsel and