Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 2, 2022
CASE NO(S).: OLT-22-003470
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Nelson Somerville
Applicant: Rodney and Trudy Malloy
Subject: Consent
Description: To sever the land with a reduced frontage in order to create a new residential lot.
Reference Number: E 8-22
Property Address: 42595 Walnut Street
Municipality/UT: Central Elgin/Elgin
OLT Case No: OLT-22-003470
OLT Lead Case No: OLT-22-003470
OLT Case Name: Somerville v. Elgin (County)
Heard: August 26, 2022 by Video Hearing
APPEARANCES:
Parties
Counsel/Representative*
Nelson Somerville (“Appellant”)
Kyle Cronk*
Rodney and Trudy Malloy (collectively “Applicant”)
Self-represented
County of Elgin (“County”)
Nicholas Loeb
DECISION DELIVERED BY A. CORNACCHIA AND ORDER OF THE TRIBUNAL
BACKGROUND
1The Appellant, a neighbour of the Applicant, appealed the decision of the Land Division Committee (“Committee”) of the County of Elgin (“County”) granting a consent application for a severance from the property municipally known as 42959 Walnut Street, Central Elgin (“Subject Property”).
2The Subject Property is designated as Settlement Area Tier 2 in the County Official Plan (“County OP”) and Residential and Natural Heritage on Schedule F – Community of Union, Land Use Plan in the Central Elgin (“Municipality”) Official Plan (“Municipal OP”). There is a woodlot on the Subject Property which is designated Natural Heritage under the Municipal OP while the remainder is designated Residential.
3The Subject Property is located in the village of Union and governed by the Township of Yarmouth By-law No. 1998 Consolidation (“ZB”) and is zoned Open Space 2 (OS2-85), a site-specific sub-category of the Open Space Zone 2.
4The application proposes to sever a new lot from the Subject Property with a frontage of 18.11 metres (“m”) and a depth of 111 m, for a total area of 0.2 hectares (“Severed Parcel”). The Severed Parcel will front onto Stone Church Road and it is proposed for residential use with one single detached dwelling. The retained parcel will continue to front onto Walnut Street.
5The Severed Parcel abuts the property owned by the Appellant (“Adjacent Property”). On the Adjacent Property, there is a single-family dwelling with a detached garage along the property line, having a roof soffit encroaching over the property line into the proposed Severed Parcel.
6The Municipality supported the severance application and the County’s planning department prepared a report recommending the approval of the consent application subject to conditions (“County Planning Report”). After hearing the recommendation of the planner, the Committee granted provisional consent for the proposed severance application, subject to the following conditions:
i. Approval of a Zoning By-Law Amendment to place the severed lot in the R1 zone;
ii. The applicant enters into an agreement with the Municipality of Central Elgin to address administrative, technical, legal and financial matters relative to the development of the subject lands;
iii. The payment of cash-in-lieu of the dedication of 5% of the land for parkland purposes;
iv. A copy of the reference plan to be provided to the Municipality of Central Elgin; and
v. A drainage reassessment be done, if necessary, at the owner’s expense;
7The Appellant who owns the Adjacent Property appealed the Committee’s decision.
8This Appeal is a hearing de novo of the consent application. The Tribunal must have regard to the decision of the Committee and the material used to make its decision.
9At the hearing, the Tribunal was advised that there were no issues with notice and there were no status requests.
10There were four witnesses that testified before the Tribunal. Three different witnesses were called by the Appellant but none were qualified as planning witnesses. The Appellant testified on his own behalf and issued summons to Jim McCoomb, Manager of Planning Services at the County and Lloyd Perrin, Director of Asset Management at the Municipality.
11Kevin McClure was called by the County to testify on land use planning matters (“County’s Planner or “Mr. McClure”) and was properly qualified as an expert witness in this field. The Tribunal found his evidence to be credible and it was uncontradicted by other planning evidence.
12The Applicant, who was self-represented, did not present any planning evidence but simply relied on the planning evidence presented by the County and confirmed that he agreed with all the submissions of counsel for the County.
13The parties agreed that Mr. McClure would provide a general overview of the application and then the Appellant would present his witnesses. Mr. McClure’s overview reflected the summary presented at the beginning of this decision.
14The Appellant’s representative then took the witnesses called by the Appellant through their testimony. Mr. Somerville gave evidence regarding the Adjacent Property owned by him. His evidence was focused on the following areas:
a. He expressed concerns regarding the lot frontage of the Severed Parcel being too small and that it does not conform with the ZB requirements;
b. He gave evidence that his garage was on the property line of the Subject Property resulting in possible conflict;
c. He expressed the view that the proposed Severed Parcel has too small a land area to support a private well and septic system; and
d. He expressed concerns regarding possible drainage issues due to large loads of soil placed on the Severed Parcel by the Applicant after the Committee’s decision.
15In cross-examination, Mr. Somerville admitted that the frontage of his property is 18.3 m on Stone Church Road while 18.11 m is proposed for the Severed Parcel.
16The evidence presented by Mr. Perrin from the Municipality was focused on identifying that there are no final plans for public water and sewage systems on Stone Church Road but they may be in the capital plan for 2023. He also testified regarding the minimum frontage of 100 feet required by the ZB for the Severed Parcel if it is rezoned to R1. He indicated that this issue is addressed in the condition to the consent requiring a ZB Amendment and in his view the Severed Parcel will have sufficient land area to accommodate a private well and septic system if a residence is constructed before public services are available.
17The evidence regarding lot frontage and lot area presented by Mr. McCoomb mirrored that of Mr. Perrin. He was also asked for his interpretation of Tier 2 areas and the requirement for any municipal services.
18None of the evidence of the witnesses examined by the Appellant was helpful in the determination of the issues presented by this case and none of these witnesses were qualified as planning witnesses. Their evidence can be given little weight with respect to the planning issues to be resolved by the Tribunal.
19The County Planner’s evidence was uncontradicted. Mr. McClure’s planning evidence was consistent with the County Planning Report.
20The County Planner’s evidence started with an explanation that the Provincial Policy Statement (“PPS”) directs development to settlement areas that are already serviced or will be serviced by infrastructure and public service facilities.
CONFORMANCE WITH THE OFFICIAL PLANS
21The County Planner’s evidence continued with a review of how the proposed severance conforms to the applicable Official Plans.
22The Subject Property is designated as Settlement Area Tier 2 in the County OP. The Tier 2 Settlement Areas are generally smaller than Tier 1 settlement areas and are on partial services like the Subject Property.
23There are no municipal water and sanitary services along Stone Church Road where the Severed Parcel is proposed. The proposed Severed Parcel does not meet the minimum frontage requirements but the lot area of 2011 m2 exceeds the minimum lot size requirements (1858 m2) of the ZB. Thus, there will be sufficient area for meeting setbacks required for a private water well and septic beds.
24The County OP sets out Consent Criteria for severance applications (collectively “County OP Consent Criteria”) in section E1.2.3.1 which state:
General Criteria
Provisional consent may be granted subject to appropriate conditions of approval for the severed and/or retained lot. Prior to issuing provisional consent for a new lot for any purpose, the approval authority shall be satisfied that the lot to be retained and the lot to be severed:
a) fronts on and will be directly accessed by a public road that is maintained on a year-round basis;
b) does not have direct access to a Provincial Highway or County Road, unless the Province or the County permits a request for access;
c) will not cause a traffic hazard;
d) has adequate size and frontage for the proposed use in accordance with the local municipal Zoning By-law;
e) notwithstanding d) above, where a zoning by-law amendment or minor variance is required, approval of such amendment or variance shall be included as a condition of the approval of the consent;
f) can be serviced with an appropriate water supply and means of sewage disposal, provided there is confirmation of sufficient reserve sewage system capacity and reserve water system capacity within municipal sewage services and municipal water services;
g) will not have a negative impact on the drainage patterns in the area;
h) will not restrict the development of the retained lands or other parcels of land, particularly as it relates to the provision of access, if they are designated for development by this Plan;
i) will not have a negative impact on the significant features and functions of any natural heritage feature; in this regard, lots should be restricted in size in order to conserve other lands in larger blocks for natural heritage purposes;
j) will not have a negative impact on the quality and quantity of groundwater available for other uses in the area;
k) will not have an adverse effect on natural hazard processes such as flooding and erosion;
l) conform with the local Official Plan; and,
m) will conform to Section 51 (24) of the Planning Act, as amended.
25In reviewing these criteria, the County’s Planner confirmed that the lot is sufficiently sized in terms of lot area to accommodate private water and sewage services if they are necessary for any home that may be constructed on the lot, assuming that a home is constructed prior to the availability of the planned municipal services. The details of the site plan and installation of the private services are appropriately addressed at the ZB Amendment stage and building code permit stage of development. The frontage of the lot which does not conform to the ZB, will be addressed through the condition requiring a ZB Amendment. The County’s Planner confirmed that there will be no issues with traffic, natural hazards or natural heritage features.
26In addition to these criteria, the County OP Consent Criteria require conformance with the Municipal OP. There is a woodlot on the Subject Property which is designated Natural Heritage under the Municipal OP while the remainder is designated Residential. The land is located within an Urban Settlement Area. The proposed Severed Parcel is within the portion of the Subject Property designated Residential and the policies with respect to Natural Heritage lands are not engaged by the Severed Parcel.
27The Subject Lands are zoned Open Space 2 (OS2-85), a site-specific sub-category of the Open Space Zone 2. This zoning permits only one single-detached dwelling on a rural residential lot. It is proposed that the Severed Parcel be moved to an R1 standard zone and one of the proposed conditions covers it.
CONSENT APPLICATION- SECTION 51(24) OF THE PLANNING ACT
28The County OP Consent Criteria finally require conformance with section 51(24) of the Planning Act. The planning evidence confirmed that the consent application addresses the requirements of section 51(24) of the Planning Act as follows:
Criteria
Planning Evidence
(24) In considering a draft plan of subdivision, regard shall be had, among other matters, to the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality and to,
No issues arise with respect to these factors.
(a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2;
The development proposal will add to the housing stock within the County.
(b) whether the proposed subdivision is premature or in the public interest;
The proposed severance is not premature.
(c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any;
The proposed severance conforms with the official plans.
(d) the suitability of the land for the purposes for which it is to be subdivided;
The land is suitable for residential housing.
(d.1) if any affordable housing units are being proposed, the suitability of the proposed units for affordable housing;
Not applicable.
(e) the number, width, location and proposed grades and elevations of highways, and the adequacy of them, and the highways linking the highways in the proposed subdivision with the established highway system in the vicinity and the adequacy of them;
Not applicable.
(f) the dimensions and shapes of the proposed lots;
The lot dimension for the Severed Parcel is similar to the neighbouring properties.
Criteria
Planning Evidence
(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;
Not applicable.
(h) conservation of natural resources and flood control;
No issues arise relating to conservation of natural resources or flood control.
(i) the adequacy of utilities and municipal services;
The lot will be on private water and sewage services if the building is constructed prior to the installation of the water and sewage on Stone Church Road and will be serviced by the municipality once these services are available.
(j) the adequacy of school sites;
There are adequate schools to service the Severed Parcel.
(k) the area of land, if any, within the proposed subdivision that, exclusive of highways, is to be conveyed or dedicated for public purposes;
Not applicable.
(l) the extent to which the plan’s design optimizes the available supply, means of supplying, efficient use and conservation of energy; and
Not Applicable.
(m) the interrelationship between the design of the proposed plan of subdivision and site plan control matters relating to any development on the land, if the land is also located within a site plan control area designated under subsection 41 (2) of this Act or subsection 114 (2) of the City of Toronto Act, 2006. 1994, c. 23, s. 30; 2001, c. 32, s. 31 (2); 2006, c. 23, s. 22 (3, 4); 2016, c. 25, Sched. 4, s. 8 (2).
Not Applicable.
29The County’s Planner also reviewed the proposed conditions for the provisional consent and confirmed that the proposed conditions are reasonable and meet the criteria set out under the Planning Act.
30The Tribunal accepts the planning evidence and finds that the consent application complies with the requirements of the County OP Consent Criteria which include section 51(24) of the Planning Act and should be allowed.
ORDER
31THE TRIBUNAL ORDERS THAT that the appeal is dismissed and the conditions imposed on the provisional consent by the Decision of the Land Division Committee of the County of Elgin dated March 23, 2022 remain in effect.
“A. Cornacchia”
A. CornACCHIA
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.