Grein v. West Grey (Municipality), 2021 CanLII 97486

ISSUE DATE: October 08, 2021

CASE NO(S).: PL200641

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

Applicant/Appellant: Dean Grein & Becky Kaufman

Subject: Consent

Property Address/Description: 281320 Normanby-Bentinck Townline

Municipality: Municipality of West Grey

Municipal File No.: B08/2020

OLT Case No.: PL200641

OLT File No.: PL200641

OLT Case Name: Grein v. West Grey (Municipality)

Heard: April 15, 2021 by video hearing

APPEARANCES:

Parties

Counsel/Representative*

Dean Grein and Becky Kaufman

Glen David

Municipality of West Grey

Erroll Treslan*

DECISION DELIVERED BY JATINDER BHULLAR AND ORDER OF THE TRIBUNAL

1This was a hearing for a consent application. Dean Grein and Becky Kaufman (“Applicant/Appellant”) have appealed the decision of the Committee of Adjustment (“COA”) for the Municipality of West Grey (the “Municipality”), which denied the application.

2The subject property is located near the southwest corner of the Normanby-Bentinck Townline and 10th Sideroad and is municipally known as 281320 Normanby- Bentinck Townline. The subject lands currently contain a single detached dwelling unit with identified hazard lands in the form of a managed forest on the subject lands. The surrounding land uses in the area are predominantly agricultural with portions of hazard lands and residential lots of record. Historic access has been provided to an adjacent property over the subject lands. The legality of this access has not been determined.

3The site is currently comprised of approximately 29 hectares (“ha”) (72 acres) with approximately 562 metres (1844 feet) of frontage along the Normanby-Bentinck Townline. The purpose of the application is to sever a rural lot at the north-east corner of the existing lot that the Applicant owns. The severed parcel is proposed to be approximately 3.6 ha in size and the retained parcel is proposed to be approximately 25.6 ha in size.

PARTIES AND PARTICIPANTS

4The Applicant/Appellant and the Municipality were the only two parties. The Tribunal received no requests seeking participant status.

EVIDENCE AND ANALYSIS

5The Municipality presented Lorelie Spencer as a Professional Land Use Planner.

6The Applicant/Appellant was assisted by a neighbour Glen David. Mr. David while not an expert has lived in the neighbourhood for extended period of time and helps with building new dwellings. Mr. David provided factual evidence which was appropriately filed and shared with the Municipality.

7The key issue in this matter is whether four or five lots are permitted based on original crown survey that the official plan refers to in such determinations.

8Mr. David explained that the existing lot was formed 100 plus years ago from a larger lot part of which is a separate lot merged with a different lot. The planning instrument that set consent policies refer to the original crown surveys from 100 plus years ago for establishing how many lots are permitted. Ms. Spencer provided a historic view of the lot creation around the existing lot. Ms. Spencer explained that the original crown survey lot was subdivided over an extended period of time as shown in Exhibit 9. The Applicant/Appellant currently owns parcel “A” in Exhibit 9 and the proposed severance is planned in the north-east corner of future retained lot A . Mr. David explained that lot “C” relates to severance as a result of the municipal road.

Exhibit 9: Grey County MAP

9Mr. David explained that some of these activities’ pre-date the Planning Act as well as multiple land registry or other regimes over the years. Ms. Spencer asserted that in spite of all that, the County Official Plan defers to original crown surveys for consideration of creating consents. Ms. Spencer explained that the original lot was composed of A, B, C and D lots. In a report dated October 5, 2020 and provided in the Municipal Record (“MR”), the Grey County planner, Hiba Hussain, stated to Ms. Spencer that the original land parcel was 51 ha in applying the Grey County Official Plan (“OP”) for the determination of allowable maximum number of lots consisting of retained and severed. However, since there was no category for 50 ha lots in the Table, the County determined to apply 40 ha lot size to determine that a maximum of four lots would be permitted inclusive of a retained lot. However, the Tribunal notes that the OP has provided discretionary guidance which allows for pro-rating up or down as follows;

5.4.3 Consent Policies

All consents for new lot development shall be no smaller than 0.8 hectares in area, and the maximum lot density shall not be exceeded as outlined in Table 9 below. The lot density is determined based on the original Township lot fabric (i.e. as determined by the original crown survey) and shall be pro-rated up or down based on the size of the original Township lot. Any proposed increase to this maximum lot density will require an amendment to this Plan and will require justification as to the need for additional Rural lot creation.

10Ms. Spencer deferred to the analysis of Ms. Hussain which does not provide explanation as to why pro-rate lower; which allowed maximum four lots; versus prorate up was used; which allowed five lots as sought by the Applicant/Appellant. Ms. Hussain identified that the original lot from the 100 plus years old crown survey was 50 plus ha. The size of the lot made it to be closer to the 60 ha category versus the 40 ha category. This unexplained discrepancy was carried forward in the Municipality’s analysis to conclude four (4) was the maximum for retained and severed lots and that it was already achieved. Pro-rating up allows for a total of five (5) lots and is allowed under s. 5.4.3 of the OP.

11The Tribunal finds based on the evidence on file that the OP permits a total of five (5) lots as determined from the original crown survey.

12Ms. Spencer and the County’s information on the record refers to possible designation of subject lands as having strategic aggregate resources and that the protection of the same per provincial policy is mandatory. In Exhibit 2, Mr. David showed that there is confirmation of a previous aggregates operation as the Applicant/Appellant was informed;

In response to your request, the Management of Abandoned Aggregate (MAAP) program can confirm that there was a legacy aggregate site on Lot 9, Concession 18, Normanby Township, Grey County that was rehabilitated in 2006 by the MAAP program.

13The Tribunal finds that the Municipality as well as the County have unnecessarily ignored this information with the assertion that updating of aggregate resource information is a responsibility of the owners of such sites.

14The final aspect of why the staff recommended that the consent be denied relates to the existence of significant woodlands. The Saugeen Valley Conservation Authority (“SVCA”) report dated November 3, 2020 from Megan Stansfield to Ms. Spencer asserts that the application neither causes inconsistencies with the Provincial Policy Statement nor any non-conformity with the OP. The NVCA concludes no concerns with woodlands or flooding hazards. The NVCA does recommend that the Applicant/Appellant reach out to Ministry of Environment, Conservation and Parks to address endangered and threatened species policies.

15The Tribunal notes based on evidence on file that Ms. Spencer communicated with the Applicant/Appellant that they could still build the planned dwelling through zoning application, but the Applicant/Appellant has sought the severance as of right within the OP.

16The Tribunal depends on the municipal record and the submission of Mr. David and finds that the application for severance has regard for matters of provincial interest under s.2 of the Act as it preserves the natural areas and protects from any natural hazards. The Tribunal also finds that the application is consistent with the Provincial Policy Statement 2020 based on the submissions to the Tribunal that all strategic aggregate resources have been depleted at the site and the environmental aspects have been duly assessed and vetted by the NVCA. Similarly, the Tribunal, based on staff analysis and the evidence on file, finds that the application has consideration for s. 51(24) of the Act and that a plan of subdivision is not needed for the orderly development of the municipality.

17While reviewing all the evidence on file, the testimony of Ms. Spencer and the submissions of the parties, the Tribunal finds that the Applicant/Appellant, as of right has met the appropriate OP policies. Additionally, the Tribunal having regard for the municipal record finds that that all policy considerations have been given regard to and the Applicant/Appellant has met the requirements for the requested consent and that any concerns raised by the Municipality and the County planners are ill founded given the detailed review of all aspects by the SVCA which was not contested by the Municipality or County during testimony or staff reports., The Tribunal finds that the requested consent is appropriate.

ORDER

18The appeal is allowed, and the provisional consent is to be given as in Attachment 1.

19Should there be any difficulties implementing this order, the Tribunal may be approached.

“Jatinder Bhullar”

JATINDER BHULLAR

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.