Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 28, 2022

CASE NO(S).: OLT-21-001209

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

Appellant: City of Ottawa

Applicant: Andrea Piquette

Applicant: Christian Piquette

Subject: Consent

Description: Consent to Sever to facilitate the future development of a residential dwelling

Reference Number: D08-01-21/B-00097

Property Address: 7935 Cooper Hill Road

Municipality/UT: City of Ottawa

OLT Case No.: OLT-21-001209

OLT Lead Case No.: OLT-21-001209

OLT Case Name: City of Ottawa v. Ottawa (City)

Heard: February 24, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Andrea and Christian Piquette (“Applicant”)	Jennifer Savini
City of Ottawa (“Appellant”)	Laura Robinson

DECISION DELIVERED BY CARMINE TUCCI AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The City of Ottawa (“Appellant” / “City”) has appealed the passing of the Committee of Adjustment's (“COA”) decision approving consent application D08-01-21/B-00097 pursuant to subsection 53(19) of the Planning Act.

Context to the Application

2The Applicant has submitted an application for Consent to Sever to the City of Ottawa regarding the property located at 7935 Cooper Hill Road (“subject property”) in the former township of Osgoode, City of Ottawa. The application is to sever the subject property into two separate parcels of land in order to create one new lot to facilitate a future residential development.

3The land to be severed will have frontage of 80 metres on Cooper Hill Road to a depth of 100 metres and will have a lot area of 0.8 hectares. This parcel is vacant and will be known municipally as 7915 Cooper Hill Road.

4The land to be retained will have frontage of 104.01 metres to a depth of 410.39 metres and will have a lot area of 8.68 hectares. This parcel contains an existing dwelling, well and septic and is known municipally as 7935 Cooper Hill Road.

5The subject property is designated General Rural Area on Schedule A of the Official Plan (“OP”) of the City. The General Rural Area designation is intended to provide a location for agricultural uses, non-agricultural uses that would not be more appropriately located within the urban or village locations, and a limited amount of residential development by severances.

6The intent of the application was to create a new lot for the construction of a one-storey, fully accessible dwelling to accommodate older relatives and to assist with their care. The Applicant has indicated that it was the intent of the owner of that property to remove or convert the existing barn in the near future, which would eliminate any zoning conformity issue.

7The application indicates that the subject property is not the subject of any other current application under the Planning Act.

8The Planning, Infrastructure and Economic Development Department objected to the application.

9Further, the City prepared a list of conditions should the COA decide to approve the application, which all parties have agreed are acceptable.

10The COA granted provisional consent to the application subject to conditions on June 25, 2021.

Nature of the Appeal

Submissions for the Appellant

11The Appellant submitted:

5. The severance is not consistent with the orderly development of the municipality for the reasons that follow.

6. In considering an application for consent to sever the approval authority shall have regard to the criteria for approval of a subdivision in subsection 51(24) of the Planning Act. , R.S.O. 1990 c. P.13 (the “Act”). The application in issue does not comply with the following criteria in s. 51(24) in particular:

a. (a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2,

b. (c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any;

c. (f) the dimensions and shapes of the proposed lots;

d. (g) the restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land.

7. Section 2 of the Act lists the following matters of provincial interest, among others:

a. (b) the protection of the agricultural resources of the Province,

b. (p) the appropriate location of growth and development.

8. The severance in issue does not comply Official Plan policy 3.7.2 (General Rural Area) policy 19 (Infill Outside of Historical Settlements), which states:

9. Limited residential infill through the severance of lots, will be considered in areas meeting the following criteria:

a) The proposed severance has road frontage on a paved and maintained public road; and

b) The proposed severance is opposite residential lots with frontage on the same road; and

c) The proposed severance is a vacant lot between two existing dwellings that are situated on the same side of the road and are not more than 250 metres apart; and

d) The lot(s) created, including the retained parcel, should be of a similar size to the existing surrounding lots, but must be at least 0.8 ha in size. [emphasis added]

9. The intent of policy 3.7.2 (19) is to recognize strictly limited scenarios where a severance, that would otherwise be not permitted, is desirable and constitutes good planning due to the existing surrounding built-up neighbourhood and community character. If all of the strict criteria of policy 19 are not met then the Official Plan prioritizes protection of agricultural land and other rural uses over severances for residential infill.

10. The severance in issue does not conform with the requirement in subsection (b) of the aforementioned policy as the severance is not opposite a “residential lot.” The severance is opposite a lot zoned RU – Rural Countryside Zone which permits residential and non-residential uses. However, the property is used for a use which is not solely residential. The property contains a residential dwelling but the field at the rear of the property is harvested for hay.

11. Furthermore, and in any event, the severance does not conform with the requirement in subsection (d) of policy 19 as the severance would not create a severed lot which is similar in size to the existing surrounding lots. The severed lot would be the minimum-permitted size of 0.8 m while the immediate surrounding lots have sizes ranging from 10.10 hectares to 21.62 hectares.

12. The retained lot, at 8.68 hectares, would also be substantially smaller than any of the adjacent lots.

13. Further, and any in any event, the proposed severance is within proximity of neighbouring livestock operations which requires the applicant to establish a minimum distance separation (MDS) before creating a new lot. The Provincial Policy Statement, 2020 (PPS) references the minimum distance separation formulae developed by the Province (Ministry of Agriculture, Food, and Rural Affairs). The Official Plan adopts the MDS formulae for new severances in the General Rural Area at section 3.7.2. policy 14.

14. The proposed severance does not adhere to the MDS setback from the unoccupied barn on 7895 Cooper Hill Road

12Mr. Sean Harrigan, a Planner for the Appellant, was qualified and sworn in to provide expert opinions regarding land use planning.

13At the onset of Mr. Harrigan’s testimony, Ms. Jennifer Savini, counsel for the Applicant, posed the following questions to Mr. Harrigan.

1. “Have you ever been qualified before the Tribunal?

2. “Have you received any training on Minimum Distance Separation?”

3. “Have you attended the subject site?”

4. “Have you visited the area?”

14Mr. Harrigan answered “NO” to all questions.

15Ms. Savini stated to the Tribunal that she reserved the right to put “any weight on Mr. Harrigan’s testimony.”

Statutory Framework

16The Appellant submitted, and the Tribunal heard:

17. Part VI of the Act pertains to the subdivision of land.

18. Section 50(3) of the Act establishes a general prohibition of the severance or subdivision of land in Ontario, except: with a plan of subdivision; where a consent is granted; or in other specified circumstances.

19. Section 53 of the Act sets out the process for obtaining consent for a severance.

The approval authority must:

1. Be satisfied that a plan of subdivision of land is not necessary for the proper and orderly development of the municipality; and

2. Have regard to the matters under subsection 51(24).

17The Tribunal was informed that:

20. Section 51(24) of the Act requires the approval authority to consider “the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality”, and fourteen additional criteria.

21. The Act and the PPS set out that Ontario is a “planning system led by Provincial policy”. Approval authorities, including the Tribunal, must have regard for the provincial interests enumerated in the Act, and resulting decisions must be consistent with the PPS.

The Application Does Not Satisfy the Criteria under section 51(24)

18The Tribunal heard that the proposed severance must meet each of the criteria under section 51(24). “Noncompliance with any of the criteria enumerated is fatal to an application for a consent to sever”.

19The Tribunal heard that the “application fails to satisfy two such criteria”: The first criteria is that the application does not have regard for provincial interests, such that:

25. Section 2(p) of the Act identifies “the appropriate location of growth and development” as a matter of provincial interest.

26. The strategic direction in the OP sets out the intended location for growth and development in the City, establishing that:

a. About 90 percent of growth in population, jobs and housing will be accommodated within the urban boundary; and

b. The balance of the growth will occur in the rural areas, “as a mix of uses in villages and as a range of rural-related uses and limited residential development elsewhere”. Villages are to accommodate at least 50 per cent of the rural growth.

27. The rationale for this direction, focusing growth within the urban boundary, is expressly stated:

a. It makes the best use of existing facilities and services, and ensures that new development will be in the most efficient manner possible;

b. It has the least impact on agricultural land, mineral resources and protected environmental areas; and

c. It is the most cost-effective pattern for the provision of municipal services and infrastructure.

28. In respect of growth and development in the rural area in particular, the OP emphasizes the need to:

a. Direct growth and development to those villages where community facilities and services already exist; and

b. Protect rural character by restricting the type and intensity of development that is permitted outside the Village designation.

20The Tribunal further was informed the “OP policies pertaining specifically to the General Rural Area…provide further particulars on the very limited nature of residential growth that is to be contemplated in those lands.”

21Mr. Harrigan opined that the subject property is not an appropriate location for the development requested in the application, that being a severance for residential infill, contrary to the OP’s strategic directions and designation. He opined “As this provincial interest is not satisfied, the Application should not be permitted”.

22The second criteria is that the application does not conform to the City’s OP. The Tribunal heard that planning documents are to be interpreted according to their purpose.

32. A stated purpose of the General Rural Area designation is “to limit the amount of residential development such that development will not preclude or resist continued agricultural or other non-residential uses”. The existence of residential development in the rural area limits current and potential future agricultural uses, due to the MDS required between these uses. There is also a public interest in maintaining existing parcels of land in the rural area, as agricultural and non-residential uses generally require larger-sized lots. A delicate balance must be struck, and a degree of caution exercised, due to the long-term implications of severances in the rural area.

23Mr. Harrigan proffered that while residential development is not prohibited in the General Rural Area, it is intentionally limited and discouraged. This goal is acknowledged and implemented by:

a. Policy 3.7.2(9), which now prohibits residential subdivisions in the General Rural Area except for specific exceptions; and

b. Policy 3.7.2(10), which permits the severance of up to two lots for residential purposes within the General Rural Area, subject to 8 specific criteria including that the retained lot will have a minimum area of 10 hectares, and the severed lot will be not less than 0.8 hectares.

24Mr. Harrigan opined:

The Subject Property does not satisfy the requirements of Policy 3.7.2(10), as it is only 9.48 hectares (rather than the necessary minimum of 10.8 hectares). However, policy 3.7.2(19) provides a limited exception to policy 10, where residential infill through severances may be considered.

25The Tribunal was informed the purpose of policy 3.7.2(19) is not to try to find opportunity to permit severances for residential infill in the General Rural Area: rather, it is to acknowledge very limited situations where it may be appropriate to consider such a severance.

26Policy 3.7.2(19) states:

19. Limited residential infill through the severance of lots, will be considered in areas meeting the following criteria:

a) The proposed severance has road frontages on a paved and maintained public road; and

b) The proposed severance is opposite residential lots with frontage on the same road; and

c) The proposed severance is a vacant lot between two existing dwellings that are situated on the same side of the road and are not more than 250 metres apart; and

d) The lot(s) created, including the retained parcel, should be a similar size to the existing surrounding lots, but must be at least 0.8 ha in size

27The Tribunal heard the intent of policy 3.7.2(19) is “to recognize strict scenarios where a severance, that would otherwise not be permitted, is desirable and good planning practice to fit within the existing surrounding built up neighbourhood and community character”.

Mr. Harrigan testified that an example of when this policy would be satisfied would be where a severance of a property located within an existing built up residential rural area was requested, where the subject site was at least 1.6 hectares and was surrounding by residential lots that were approximately 1-2 hectares in size. In that context, both the severed and retained lots would be of a similar size to the surrounding lots, and the severance would mimic lot sizes and the existing development pattern.

28Mr. Harrigan further informed the Tribunal the interpretation of policy 3.7.2(19), is to “provide a limited exception to the general severance policy 3.7.2(10), to recognize there may be occasions where a severance would be desirable even if the retained lot was not 10 hectares.”

29The Tribunal heard that the subject property is not such an exception. The Appellant acknowledges that criteria (a) and (c) are satisfied. However, the Appellants contests the subject property fails to clearly satisfy criteria (b) and (d) under policy 3.7.2(19).

30Regarding criteria (b), the subject property is not opposite residential lots with frontage on the same road.

31The Tribunal heard that the lot directly opposite the severed land (Parcel E, municipal address 7950 Cooper Hill Road) contains both residential and agricultural uses, the latter in the form of grazing practices at the rear of the lot. Mr. Harrigan acknowledged to the Tribunal that there was a residential use on that property.

32Mr. Harrigan opined that:

the criteria of a “residential lot” was not clearly satisfied due to that mix of uses. Furthermore, the lot visually opposite the Severed Land (Parcel D, municipal address 7900 Cooper Hill Road) contains both residential and agricultural uses, with Circle J Ranch, an equestrian training and boarding centre, located at the front of the property and visible from Cooper Hill Road. This ambiguity does not satisfy this criterion.

33Regarding criteria (d), the Tribunal was informed that two components must be evaluated;

a. what are the “existing surrounding lots”; and

b. whether those lots are of a “similar size” to both the Retained Land and the Severed Land.

34The Tribunal heard that the term “surrounding lots” should be interpreted:

in accordance with its ordinary meaning, and in the context of the other criteria in policy 19. To “surround” is to enclose on all sides or to encircle. That is more expansive that other terms used in the OP, such as to “abut” or to be “contiguous” to, which contemplate shared lot lines. The use of the term “surround” permits consideration of not only those properties that share a lot line with the subject site, but also consideration of properties across the street and in visual proximity to the subject site.

35Mr. Harrigan informed the Tribunal this “interpretation is consistent with the other criteria in policy 19, which speak to the immediate context of the subject site: the road frontage, the parcels opposite the same road, and the residential dwellings on the same side of the road."

36Mr. Harrigan opined that both the severed and the retained lands must be of a similar size to the surrounding parcels which is entirely consistent with the plain language of the provision.

37Mr. Harrigan further provided while the retained land would be of a similar size to “some” of the surrounding lots, the severed land would not be of a similar size to any of the surrounding lots. Accordingly, Mr. Harrigan opined the application does not conform to policy 3.7.2(19) of the City’s OP, and thus fails to satisfy the criteria in section 51(24)(c).

The Application Would Create an Undesirable Precedent

38The Tribunal heard the concern of an undesirable precedent is particularly applicable in this case, due to two factors:

a. There are three parcels “surrounding” the Subject Property that are less than 10.8 hectares in size, excluding the applicability of the general severance policy 3.7.2(10), and requiring any consent to sever application to be evaluated under policy 3.7.2(19); and

b. The specific terms of policy 3.7.2(19) require the consideration of the “existing surrounding lots”.

39Mr. Harrigan informed the Tribunal that:

granting the Application would create an undesirable precedent that could be used to justify up to three future severance applications in this rural area, entirely contrary to the policy directions in the PPS and OP that direct development and growth to settlement areas and limitations on severances in the rural area in order to preserve the rural character and large tracts of land. The Application does not conform to the OP, is inconsistent with the PPS, and would not only impact the general character of the area, but also the criteria against which future consent to sever applications would be evaluated.

The Application Is Not Consistent with the Provincial Policy Statement

40The Tribunal heard section 3(5) of the Planning Act directs that a decision of the Tribunal shall be consistent with the Provincial Policy Statement (“PPS”).

51. The PPS clearly directs at s. 1.1.3.1 that settlement areas shall be the focus of growth and development in Ontario. Even within rural areas, the PPS directs at s. 1.1.4.2 that rural settlement areas shall be the focus of growth and development. The Subject Property is not located in a settlement area; rather, it is an example of rural lands.

The PPS at s. 1.1.4.4 acknowledges that growth and development may be directed to rural lands, but it must be in accordance with s. 1.1.5.

41Mr. Harrigan informed the Tribunal that policies in s. 1.1.5 and especially the requirement in s. 1.1.5(c) that residential development, including lot creation, must be “locally appropriate”.

42Mr. Harrigan further acknowledged the requirement of s. 1.1.5.7, that:

opportunities for a diversified rural economy should be promoted by “protecting agricultural and other resource-related uses and directing nonrelated development to areas where it will minimize constraints on these uses”. As set out above, severances for residential development hinder existing and potential future agricultural and non-residential uses, which informs the emphasis in the PPS for development to be focused in settlement areas.

43Mr. Harrigan opined that the application is not consistent with s. 1.1.5 of the PPS as it is not locally appropriate. He concluded that the “proposed severance is not appropriate or desirable development at this location. The Application does not conform with the OP and is not consistent with the PPS.”

Submissions for the Applicant

44The Tribunal heard that the Appeal should be dismissed and the application for consent approved with the conditions as set out in the decision of the COA.

45The issue for this Appeal is how the criteria for severances for rural lots outside of historical settlements should be interpreted.

46The Applicant has applied to sever a 0.8 hectare residential lot from a 9.48 hectare lot within the General Rural Area designation and the Rural Countryside Zone. Both permit residential uses.

47The Tribunal was informed that the subject property is located on a collector road. There are residential uses on properties of various sizes around the subject property and an equestrian farm to the southwest. The Appellant’s planner acknowledged that with the neighbour immediately west of the subject property decommissioning his barn, all Minimum Distance Separation (“MDS”) setbacks are met.

Policy Framework

48The City’s OP sets out a policy framework for lot creation in this area, and provides several opportunities within the policy framework to create new rural residential lots.

49The Tribunal heard that the true issue in this hearing is whether the four criteria for lot creation as set out in the OP are met. It is the OP that determines whether or not lot creation is locally appropriate.

50Ms. Zander opined that:

the 2020 PPS has to be read in its entire context and that it allows for rural severances and encourages different types of housing. While growth is directed to settlement areas, there are certainly opportunities for rural lot creation and in her opinion the application is consistent with these policies and the 2020 PPS in its entire context.

51Ms. Zander opined after reviewing sections 2 and 51(24) of the Planning Act, the proposed severance is consistent with these sections.

Infill Outside of Historical Settlements

52The OP provides polices to determine when new rural residential lots are appropriate. If these criteria are met, lot creation is appropriate.

53The Tribunal heard within the:

General Rural Area designation, there are a variety of permitted land uses, including rural housing. Residential development is limited to situations where it would “not preclude or resist continued agricultural and or [sic] other nonresidential uses”.

54Ms. Zander opined it is essential to read this opening sentence in its entirety, and it provides an opportunity for rural lot creation. The limitation is not for residential lot creation itself, but rather to ensure the lot creation does not preclude agricultural or other non-residential uses.

55Ms. Zander further opined the proposed severance will not adversely impact agricultural uses as the MDS is met and the proposed lot sizes allow for agricultural uses.

56Ms. Zander noted that there are no other conflicting land uses identified in proximity to the subject property. The focus should not be on the word “limit”, but rather on ensuring lot creation does not preclude agricultural or other rural activities.

57The Tribunal heard the OP has general lot severance policies. The subject property meets 7 out of 8 of those policies. The subject property is 1.3 hectares (9.48 hectares versus 10.8 hectares) shy of falling within the general severance policies.

58The OP has additional opportunities for severances for properties that do not meet the general land severance policies. The subject property falls under the “Infill Outside of Historical Settlements” policy which states that “limited residential infill through the severance of lots, will be considered in areas meeting the following criteria”:

a. The proposed severance has road frontage on a paved and maintained public road; and

b. The proposed severance is opposite residential lots with frontage on the same road; and

c. The proposed severance is a vacant lot between two existing dwellings that are situated on the same side of the road and are not more than 250 metres apart; and

d. The lot(s) created, including the retained parcel, should be of a similar size to the existing surrounding lots, but must be at least 0.8 ha in size.

59Ms. Zander opined that these policies provide an opportunity for rural land severance to create lots of different sizes that are similar to surrounding lots, as is the nature of rural land development.

60The Appellant has acknowledged that criteria (a) and (c) are met. Therefore, the only issues to be determined are whether (b) and (d) are met.

On a Paved and Maintained Road

61The first stipulation is that the proposed severance has frontage on a paved and maintained public road. The evidence is that the proposed severed and retained lots front on Cooper Hill Road, which is a publicly maintained collector road.

62Mr. Harrigan provided in his evidence, that it is a gravel road, not a paved road and that in his opinion the intent of this policy in met. Mr. Harrigan is thus applying some flexibility to the interpretation of the wording to allow for a severance fronting on a road that is not paved, as a strict reading of the policy might require.

63Ms. Zander concurs that the intent of this policy is met, in that the proposed severance is on a maintained public collector road.

Opposite Residential Lots

64The second stipulation is that the proposed severance must be opposite residential lots with frontage on the same road.

65Under cross examination, Mr. Harrigan agreed that the lot across the road was created by severance as a residential lot.

66Ms. Zander opined that the principal use of the lot is clearly residential. The lot contains a single detached dwelling, was created by severance as a residential lot and contains no barns or agricultural structures.

67Ms. Zander informed the Tribunal that a grazing pasture can be an accessory use to a principal residential use and was further acknowledged by Mr. Harrigan on cross-examination.

68The owners of this property stated through a letter that their site uses a small grazing pasture at the back of the lot for horses from the equestrian centre next door only because one of the property owners also owns the equestrian centre.

69The Tribunal heard that Mr. Harrigan opined that the “majority” of the property is agricultural use based on his review of an aerial image. Mr. Harrigan has not spoken to the owners of that property and has never attended the site.

70Ms. Zander opined that the lot opposite the proposed severance is clearly a residential land use and residential lot and therefore the policy is met.

Between Two Existing Dwellings 250 m Apart

71Both planners agreed that the stipulation of being 250 metres between two existing dwellings has been met.

Similar Size to Existing Surrounding Lots

72The fourth stipulation requires that both the severed and retained lots should be of a similar size to the existing surrounding lots, but must be at least 0.8 hectare in size.

73Ms. Zander opined after review of this policy, in determining when considering the surrounding lots, it was appropriate to look at the lots in the neighbourhood, not just the immediately abutting lots.

74Ms. Zander used a one kilometer (“km”) catchment area based on the MDS setback requirements and reference to one km in Policy 4.2. Within that area, there are clearly multiple lots of similar size to both the proposed severed and retained lots.

75Ms. Zander further gave evidence that her focus was on the lots along Cooper Hill Road. Her analysis included lots within the subdivision to the north as this falls within the 1 km catchment area, but even excluding those lots, the policy requirement is met.

76The Tribunal heard that Mr. Harrigan acknowledged in his evidence and on cross-examination that it is important to consider the neighbourhood and streetscape character when considering the appropriateness of a severance.

77The Tribunal was informed that Ms. Zander’s interpretation of the policies does focus on neighbourhood and streetscape character along Cooper Hill Road.

78Ms. Zander’s opined it is not appropriate to interpret this policy as including only the lots immediately adjacent to the proposed severed and retained lots, as this does not align with lot fabric in a rural setting.

79Ms. Zander further opined that a broader analysis is appropriate in the rural context.

80Ms. Zander provided that Mr. Harrigan’s interpretation of this criterion is very narrow. Ms. Zander further provided that it would be very difficult to find a situation where Mr. Harrigan’s interpretation would apply. In her experience, the lot fabric in rural areas does consist of a variety of shapes and sizes.

81The Tribunal heard that Mr. Harrigan’s interpretations are consistent with the three preceding policies. However, each of these policies involves a consideration of other lots along the same road. Ms. Zander’s interpretation of “surrounding lots” also includes a consideration of other lots along the same road.

82The Tribunal further heard that Mr. Harrigan acknowledged in cross-examination that the words of the OP are important.

83The Tribunal was informed if the intent of this policy was to limit the consideration to all lots immediately surrounding the proposed severed and retained lots, the drafters of the OP had the opportunity to state this. Mr. Harrigan’s use of “all” and “immediately”, the use of words “contiguous” or “adjacent” as is used in other areas of the OP, or some other means of making this clear if this was the intent of the policy. However, such words do not appear in this policy.

84Ms. Zander opined her interpretation is supported by a more fulsome review of the 2020 PPS and makes sense for rural residential situations.

FINDINGS

85On consent appeals, the Tribunal under section 2 of the Planning Act must have regard to matters of provincial interest, including co-ordination of planning activities of public bodies and the appropriate location of growth and development. Under section 3(5) of the Planning Act, decisions of the Tribunal must be consistent with the PPS. Furthermore, for a consent to be given, an applicant must satisfy the Tribunal “that a plan of subdivision of the land is not necessary for the proper and orderly development of the municipality” under section 53(1) of the Planning Act and that the application has regard to the criteria set out in section 51(24) of the Planning Act. Finally, under section 51(25) of the Planning Act, the conditions to a consent must be reasonable.

86In consideration of the planning analysis and evidence of Ms. Zander, the Tribunal finds that the granting of provisional consent is warranted.

87The Tribunal is satisfied that the relevant criteria set out in section 51(24) of the Planning Act are met, is consistent with the PPS and a plan of subdivision is not necessary for the orderly development of the proposed lots.

88The Tribunal has considered the issues raised by the Appellant and is satisfied that their concerns have been fully and appropriately addressed by the COA and through the conditions of provisional consent.

89The Tribunal will give provisional consent, subject to the conditions originally imposed by the COA.

ORDER

90The Tribunal Orders that the Appeal is dismissed and provisional consent is to be given subject to the conditions appended hereto as Attachment “1” to this Order.

“Carmine Tucci”

Carmine TUCCI

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.

ATTACHMENT “1”

1. That the Owner(s) satisfies the Chief Building Official, or designate, by providing design drawings or other documentation prepared by a qualified designer, that as a result of the proposed severance the existing building on Part of Lot 10, Concession 7, shall comply with the Ontario Building Code, 0. Reg. 332/12 as amended, in regards to the limiting distance along the east property line. If necessary, a building permit shall be obtained from Building Code Services for any required alterations.
2. That the Owner(s) provide evidence that payment has been made to the City of Ottawa of cash-in-lieu of the conveyance of land for park or other public recreational purposes, plus applicable appraisal costs. The value of the land otherwise required to be conveyed shall be determined by the City of Ottawa in accordance with the provisions of By-Law No. 2009-95, as amended.
3. That the Owner(s) convey, if required, at no charge to the City of Ottawa, sufficient frontage across the severed and retained lands to provide for a road right-of-way measuring 13 metres from the centreline of Cooper Hill Road. The Owner(s) must provide to the City Surveyor a copy of the Committee of Adjustment Decision and a draft Reference Plan that sets out the required widening. The Committee requires written confirmation from City Legal Services that the transfer of the widening to the City has been registered.

If the Owner's Surveyor determines that the widening condition has already been satisfied, it must be indicated on the Draft Reference Plan and submitted to the City Surveyor for approval. The Committee requires written confirmation from the City Surveyor confirming that the widening is not required.

1. That the Owner enter into an Agreement with the City, at the expense of the Owner(s) and to the satisfaction of the Development Review Manager of the Planning, Infrastructure and Economic Development Department, or his/her designate, which provides the following covenant/notice that runs with the land and binds future Owner(s) on subsequent transfers:

"The City of Ottawa does not guarantee the quality or quantity of the groundwater. If, at some future date, the quality or the quantity of the groundwater becomes deficient, the City of Ottawa bears no responsibility, financial or otherwise, to provide solutions to the deficiency, such solutions being the sole responsibility of the home owner."

The Committee requires a copy of the Agreement and written confirmation from City Legal Services that it has been registered on title.

1. That the Owners provide a report, to the satisfaction of the City of Ottawa demonstrating the adequacy of the aquifer with respect to quality and quantity to support the proposed development, failing which the Owners construct a new well on the severed lot and provide a report, to the satisfaction of the City of Ottawa, to demonstrate the adequacy of the aquifer with respect to quality and quantity to support the proposed development. The report must include a septic impact assessment to evaluate the water quality impact of the on-site septic system on the receiving aquifer.

The Owners' report must demonstrate the following to the City of Ottawa:

a. That the construction of any new well on the severed parcel is in accordance with the Ministry of the Environment, Conservation and Parks

b. That the quality of the water meets the Ministry of the Environment, Conservation and Parks Regulations, Standards, Guidelines and Objectives;

c. That the quantity of water meets all the Ministry of the Environment, Conservation and Parks requirements.

d. That the septic impact assessment meets the Ministry of the Environment, Conservation and Parks requirements.

A qualified Professional Engineer or Professional Geoscientist must prepare the report. It is the Owner's responsibility to coordinate the person drilling a new well, if required, and the professional noted herein in order to properly satisfy this condition.

If the accepted report recommends specific mitigation measures or design requirements, the Owners shall enter into a Development Agreement with the City, at the expense of the Owners, which is to be registered on the title of the property, which includes those recommendations. In instances where the subject site has sensitive soils, the drilling of a well or the conveyance of a 30-centimetre reserve may be required. Both the report and any required Development Agreement shall be prepared to the satisfaction of the Development Review Manager of the Planning, Infrastructure and Economic Development Department, or his/her designate.

The Report shall be prepared as per Procedure D-5-4 "Technical Guideline for Individual On-Site Sewage Systems: Water Quality Impact Risk Assessment" and Procedure D-5-5 "Technical Guideline for Private Wells: Water Supply Assessment".

1. That the Owner(s) provide evidence, to the satisfaction of the Development Review Manager of the Planning, Infrastructure and Economic Development Department, or his/her designate, to be confirmed in writing from the Department to the Committee, that the Minimum Distance Separation requirements of the Ministry of Agriculture, Food and Rural Affairs have been met. If the Minimum Distance Separation requirements are not met, the Owner(s) must provide evidence, to the satisfaction of the Development Review Manager of the Planning, Infrastructure and Economic Development Department, or his/her designate, to be confirmed in writing from the Department to the Committee, that a minor variance permitting the reduced Minimum Distance Separation has been obtained.
2. That the Owner(s) file with the Committee a copy of the registered Reference Plan prepared by an Ontario Land Surveyor registered in the Province of Ontario, and signed by the Registrar, confirming the frontage and area of the severed land. If the Registered Plan does not indicate the lot area, a letter from the Surveyor confirming the area is required. The Registered Reference Plan must conform substantially to the Draft Reference Plan filed with the Application for Consent.
3. That upon completion of the above conditions, and within the one-year period outlined above, the Owner(s) file with the Committee, the "electronic registration in preparation documents" for a Conveyance for which the Consent is required.