Elev8 Properties Inc. v. Brant (County), 2022 CanLII 15834

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 04, 2022

CASE NO(S).: OLT-22-002017 (Formerly) PL210006

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

Applicant and Appellant: Elev8 Properties Inc. and Brenner Holdings Inc.

Subject: Application amend Zoning By-law No. 61-16 - Refusal of Application by County of Brant

Existing Zoning: Agriculture

Proposed Zoning: Rural Residential

Purpose: To facilitate the creation and redevelopment of two new residential lots

Property Address/Description: 526 Scenic Drive

Municipality: County of Brant

Municipality File No.: ZBA24-20-AW

OLT Case No.: OLT-22-002017

Legacy Case No.: PL210006

OLT Lead Case No.: OLT-22-002017

Legacy Lead Case No.: PL210006

OLT Case Name: Elev8 Properties Inc. v. Brant (County)

PROCEEDING COMMENCED UNDER subsection 53(14) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Elev8 Properties Inc. and Brenner Holdings Inc.

Subject: Application for Consent - Failure of County of Brant to make a decision

Purpose: To facilitate the creation and redevelopment of two new residential lots

Property Address/Description: 526 Scenic Drive

Municipality: County of Brant

Municipality File No.: B64-20-AW

OLT Case No.: OLT-22-002018

Legacy Case No.: PL210007

OLT Lead Case No.: OLT-22-002017

Legacy Lead Case No.: PL210006

Heard: February 7, 2022 by video hearing

APPEARANCES:

Parties

Counsel

Elev8 Properties Inc. and

Chantal deSereville

Brenner Holdings Inc.

(“Appellants/Applicants”)

County of Brant (“County”)

Jyoti Zuidema

DECISION DELIVERED BY K.R. ANDREWS AND INTERIM ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal involves a zoning by-law amendment (“ZBA”) and consent application brought pursuant to s. 34(11) and s. 53(14) of the Planning Act respectively.

2The Applicants own the land at 526 Scenic Drive in the County (the “Subject Lands”). The Appellants/Applicants seek to rezone the property to Rural Residential and sever it to create three parcels total. The retained parcel will consist of the existing dwelling. The two new parcels are proposed for future development as residential lots.

3The County refused the ZBA and failed to make a decision on the Consent application. The Appellants/Applicants appealed both, and the appeals have been administratively consolidated due to obvious overlapping of issues and evidence.

4Prior to the present hearing, the parties reached a Settlement of all outstanding issues, the proposal of which (the “Proposal”) has now come before the Tribunal for approval.

EVIDENCE AND ANALYSIS

5The evidence in support of the applications/settlement was provided by Scott Patterson, retained by the Appellants/Applicants, who was duly qualified on consent as an expert in Land Use Planning.

The Subject Lands

6The Subject Lands are located on the south side of Scenic Drive, in the former Township of South Dumfries. The lands are surrounded by the County’s Public Works yard to the north, rural residential uses to the east and west, wetlands to the west and southwest, and a woodlot to the south. The existing parcel currently has a frontage of 174.6 metres along Scenic Drive, a maximum depth of 268 metres and an area of 48,757.1 square metres. A single detached dwelling and detached garage is currently situated on the property (located on the proposed retained portion), which is serviced by private water, wastewater and storm water infrastructure.

7According to the County Official Plan (“OP”), the Subject Lands are designated “Rural Residential (RR)”, extending 160 metres into the property southward from Scenic Drive, and “Agriculture” for the remainder with pockets that are designated “Natural Heritage System”. Additionally, the OP identifies that the Subject Lands may be constrained by “Woodlands and Vegetation” and is located in a “Groundwater Recharge Area”.

8A Minimum Distance Separation (“MDS”) setback is of concern respecting the Subject Lands due to a livestock facility (a barn housing a horse and a small number of chickens), which exists on the abutting property at 280 East River Road. Despite the small scale and probable hobby-nature of the livestock facility, the Proposal takes the facility into account for MDS formulae purposes. As will be discussed in greater detail below, the corresponding MDS analysis confirms that a 162-metre setback (measured from the livestock facility) is required for the placement of any new residential building on the Subject Lands, which slightly encroaches upon on the proposed new western residential building lot. To address this, the Proposal includes an increased interior side yard setback for that lot to keep any future building proposal outside of the MDS setback.

The Proposal

9The specifics of the Proposal, as established through the Settlement, are outlined in the sketches that can be found at Attachments 1 and 2 of this Decision.

10Mr. Patterson testified that the proposed ZBA purports to change a portion of the Subject Lands from Agricultural to Rural Residential to facilitate the proposed Consent. The portion to be rezoned as Rural Residential would not extend beyond the limits of the Rural Residential designation of the OP (160 metres measured from Scenic Drive).

11Mr. Patterson noted that the RR zone:

Permits single detached dwelling uses;
Requires a minimum lot area of 4,000 square metres; and
Requires a minimum lot frontage of 40.0 metres.

He confirmed that the Proposal complies with these and other provisions of the RR zone.

[Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html), R.S.O. 1990, c. P.13

12 Section 2 of the Planning Act establishes matters of provincial interest. Mr. Patterson opined that the Proposal has regard for such matters as the development is a well-designed built form on an underutilized property that has been identified for growth and development, and it represents an orderly and efficient development that will need to occur on private services.

13The Tribunal accepts this evidence and finds same.

Provincial Policy Statement (2020)

14The PPS encourages the establishment of healthy, liveable and safe communities and requires that sufficient land be made available to accommodate an appropriate range and mix of land uses to meet projected needs for a time horizon of up to 25 years.

15Mr. Patterson testified that the area subject to the Consent is considered Rural Areas and is subject to the policies of Section 1.1.4 of the PPS, which provides policy direction on Rural Areas. Mr. Patterson opined that the Proposal does not conflict with these policies. He also confirmed that the subject area is not considered either a Prime Agricultural Area or a Settlement Area. As it relates to PPS policies associated with MDS formulae, Mr. Patterson confirmed that there is no conflict, as detailed further below.

16Mr. Patterson further testified that Policy 1.1.5 of the PPS provides the policy direction on the creation of lots within Rural Lands:

1.1.5.1 When directing development on rural lands, a planning authority shall apply the relevant policies of Section 1: Building Strong Healthy Communities, as well as the policies of Section 2: Wise Use and Management of Resources and Section 3: Protecting Public Health and Safety.

17Upon a comprehensive analysis of each section and subsection, Mr. Patterson opined that there are no areas of conflict with the policies of Sections 1, 2 or 3 when evaluating the Proposal. As such, he opined, the Proposal is consistent with the PPS as it is located within lands which have been designated in an official plan for development over the long-term planning horizon.

18In summary, he opined that the Proposal is consistent with the PPS as the proposed development is a modest level of residential intensification on lands that have been identified for development and will contribute to the efficient use of land and services. The Tribunal accepts this evidence and finds same.

A Place to Grow – Growth Plan for the Greater Golden Horseshoe

19The Growth Plan is a long-term plan that works with other provincial plans to provide a framework for growth management in the Greater Golden Horseshoe Region.

20Mr. Patterson testified that the Subject Lands are classified as Rural Areas in the Growth Plan and would therefore be subject to the policies of Section 2.2.9.

21Upon a comprehensive analysis of each section and subsection, Mr. Patterson opined that the Proposal conforms with the Growth Plan policies of Section 2.2.9 as it is located where lot creation is permitted. The Proposal also contributes to the Growth Plan’s direction to accommodate forecasted growth through the provision of new housing.

22Mr. Patterson further testified that the Growth Plan encourages the diversification of the housing market and the proposed development incorporates the opportunity to introduce new housing units in support of a compact built form and a more diverse range of housing options.

23In summary, Mr. Patterson opined that the Proposal conforms to the Growth Plan as the proposed development will contribute towards achieving a complete community and will provide additional housing options for the County, which are compatible with the surrounding established area. The Tribunal accepts this evidence and finds same.

[Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) – [Section 51(24)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec51subsec24_smooth)

24 Section 51(24) of the Planning Act establishes the criteria to be reviewed when a Consent application is being considered. With regard to each of the enumerated criteria of this section (listed below), Mr. Patterson provided the following opinion/comments:

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

As discussed above, matters of provincial interest have been reviewed and there are no conflicts.

(b) Whether the proposed subdivision is premature or in the public interest:

The Proposal is to occur on lands that are appropriately designated for the form of development that is being proposed. The Proposal is not premature and would provide housing stock which is in keeping with the public interest.

As described in greater detail below, the Proposal conforms to the OP and the form of development is locally appropriate.

(d) The suitability of the lands for the purpose for which it is to be subdivided:

The Proposal seeks to develop the lands by implementing the OP designation. The lots will conform to the “Rural Residential” zoning lot frontage and lot area requirements and will be compatible with other lots that have been created along Scenic Drive in this area.

(d.1) If any affordable housing units are being proposed, the suitability of the proposed units for affordable housing:

Affordable housing units are not proposed.

(e) The number, width, location and proposed grades and elevations of highways, 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:

Scenic Drive is a public roadway that is maintained year-round by the County. County staff has confirmed that two new accesses to Scenic Drive for the creation of two new lots can be supported.

(f) The dimension and shapes of the proposed lots:

The proposed lots will meet or exceed the minimum lot frontage and lot area requirements of the “Rural Residential” zoning, which is utilized to implement the “Rural Residential” land use designation. The proposed lots are rectangular in shape and are compatible with other lots which exist in the nearby area.

(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 lands:

The Proposal confirms that each dwelling to be constructed on the new lot can be undertaken in a manner that will conform to the proposed zoning. The retained lands would also not require any special zoning regulations, but zoning will be applied to reflect the land use designation and existing conditions.
To address the MDS requirements (as described in greater detail below), a site-specific interior side yard setback is required for one lot to ensure the dwelling is constructed at a required setback to an abutting property which houses livestock. The Proposal defines a buildable envelope on each property that will ensure the separation requirements are achieved.
The Proposal can be developed in a suitable manner that reflects good planning while having no impact on adjoining land.

(h) Conservation of natural resources and flood control:

Supporting materials accompanying the application provide confirmation that these matters will be satisfactorily addressed. The Proposal also defines a buildable envelope on each property to minimize tree-loss.

(i) The adequacy of utilities and municipal services:

Municipal services are not required (sanitary, water and storm) for the development of these lands. The two new lots and the dwellings contained thereon will be serviced by private on-site sewage systems and individual water wells. The existing dwelling on the retained lands has a septic system and water well which will remain and support that existing use.

(j) The adequacy of school sites:

The proposed addition of two additional dwellings to this area is not anticipated to have any impact on existing school sites.

(k) The area of land, if any, within the proposed subdivision that, exclusive of highways, is to be conveyed or dedicated for public purposes:

No lands are to be conveyed or dedicated for public purposes.

(l) The extent to which the plan’s design optimizes the available supply, means of supplying, efficient use and conservation of energy:

The plans are for single detached dwellings on two new lots that will utilize private services and no unacceptable uses of energy are foreseen under the Proposal.

(m) The interrelationship between the design of the proposed plan of subdivision and site plan control matters relating to any development of the land, if the land is also located within a site plan control area designated under s. 41(2) of this Planning Act:

Site Plan Control is not applicable to the Proposal.

25In summary, Mr. Patterson opined that the Proposal adequately conforms with and/or does not conflict with the criteria as outlined in s. 51(24) of the Planning Act. The Tribunal accepts this evidence and finds same.

County of Brant Official Plan 2012

26Mr. Patterson testified that Schedule “A” mapping within the OP identifies the Subject Lands as currently being designated both “Agricultural” and “Rural Residential”. He stated that County staff confirmed that their mapping system indicates the “Rural Residential” designation extends 160 metres from Scenic Drive southward into the Subject Lands, and small portions of the property (within the area designated “Agricultural” and outside of the proposed development limits) are designated as “Natural Heritage System”.

27Mr. Patterson noted the following policies as being applicable to the Proposal:

Section 1.11.2.2.2 h. of the Housing policies;
Section 1.11.2.4.1 of the Servicing policies; and
Section 2.2.3 are the Community Structure policies; and
Section 2.2.3.3 the Rural Residential Areas policies.

28In considering these policies, Mr. Patterson opined that the Proposal represents a limited amount of growth (creation of two new residential building lots) and infill development. He testified that each lot would have access to potable water and the proposed lots meet or exceed the minimum lot size as deemed appropriate by the zoning by-law for lands to be zoned “Rural Residential”. He further testified that the general area is dominated with single detached homes that have been created via similar severances and the Proposal is logical in that if follows this established pattern. A MDS analysis has been completed and submitted with the applications to support the Proposal. The Servicing System policies allow for development to occur on private services. The proposed development form is a large lot residential development that is both compatible and appropriate for the area.

29As it relates to policies found under Section 3.7 of the OP, Mr. Patterson, provided the following opinion/commentary:

The proposed lots are within the portion of the Property designated in the OP “Rural Residential”. The proposed creation of two new lots will not impact Agricultural uses.
Single detached homes are being proposed on the two new lots that are being created. This land use is permitted on the portion of the Property that is designated “Rural Residential”.
Development can occur in the Rural Residential areas on private services, which is how development is proposed via these applications.
The area of the Property that is designated Rural Residential has a land area of 28,624.6 m² (2.86 hectares). The maximum density allowed on these lands would be 3 units. A total of 3 units are proposed.
The proposed lots are of sufficient size to accommodate a private well and septic system for each new unit.
The proposed lots meet or exceed the minimum lot size as required by the Rural Residential zoning category which is applied to properties to implement the land use designation.

30Mr. Patterson opined that the Agriculture related policies of the OP pose no restrictions on the Proposal. The Tribunal is persuaded to agree.

31Mr. Patterson further noted that small portions of the property are identified with the land use designation of “Natural Heritage System”. To address OP policies applicable to this designation, an Environmental Impact Study was prepared by a qualified consultant under a Terms of Reference accepted by the Grand River Conservation Authority and the County. Noting that the identified “Natural Heritage System” areas are well removed from where development is to occur, the County was satisfied through the conclusions of the report that the related policies of the OP pose no restrictions on the Proposal. The Tribunal is persuaded to agree.

32In summary, Mr. Patterson opined that the Proposal conforms to the OP as set out above. The Tribunal accepts this evidence and finds same.

MDS Formulae

33As noted above, a livestock facility was identified at the property adjacent to the Subject Lands. Mr. Patterson testified that this triggered MDS considerations.

34The Ontario Ministry of Agriculture, Food and Rural Affairs (“OMAFRA”) has issued “The Minimum Distance Separation (MDS) Formulae” (“The MDS Document”), which is referenced in the PPS, Growth Plan and OP.

35The MDS Document is a land use planning tool developed by OMAFRA with the intent to prevent land use conflicts and minimize nuisance complaints associated with livestock facilitates. The MDS Document is aimed for use primarily by municipalities, planning boards and other similar planning authorities; as well as farmers, landowners, developers, land use planners, agrologists, nutrient management consultants, commissions, farm organizations, non-governmental organizations and the general public to ensure consistency with MDS Formulae.

36In relation to the Proposal, Mr. Patterson testified that a MDS study was completed by a qualified consultant, with the study results accepted by the County. The analysis confirmed that the construction of any new residential building should be a minimum distance of 162 metres from the livestock facility on the adjacent property.

37To comply with the applicable MDS formulae, it was determined that an increased interior side yard setback for one of new lots is required.

38The Tribunal is satisfied that the MDS study sufficiently shows that the proposed Consent adheres to MDS formulae, and is similarly consistent/conforms with corresponding policies of the PPS, Growth Plan and OP.

39The Settlement includes the Conditions of Severance Approval for the creation of the new lots.

40Mr. Patterson opined that these conditions are reasonable to affect the creation of the new residential building lots and can be completed within the legislated timeline. The Tribunal finds same.

Summary and Conclusion

41In summary, the Tribunal finds that the Proposal:

has regard for the matters of provincial interest set out in s. 2 of the Planning Act, as the development is a well-designed built form on an underutilized property that has been identified for growth and development, and represents an orderly and efficient development that will need to occur on private services;
is consistent with the PPS as it represents a modest level of residential intensification on lands that have been identified for potential development and will contribute to the efficient use of land and services;
conforms to the Growth Plan as the proposed development will contribute towards achieving a complete community and will provide additional housing options for the County which are compatible with the surrounding established area;
adequately conforms with and/or does not conflict with the criteria as outlined in s. 51(24) of the Planning Act;
conforms to the OP for the reasons set out above;
more specifically adheres to the prescribed MDS formulae; and
includes Consent conditions which are reasonable to affect the creation of the new residential building lots and can be completed within the legislated timeline.

ORDER

42THE TRIBUNAL ORDERS that;

the appeal pursuant to s. 34(11) of the Planning Act is allowed, in part, and Zoning By-Law No. 61-16 is hereby amended as set out in Attachment 1 of this Order. The Tribunal authorizes the municipal clerk of the County of Brant to assign a number to this by-law for record keeping purposes;
the appeal pursuant to s. 53(14) of the Planning Act is allowed, in part, and the provisional consent is to be given, in accordance with the sketch set out in Attachment 2 of the Order, subject to the conditions set out in Attachment 3 of this Order;
all aspects of this Order come into effect on the date when the execution and registration of the Development Agreement against the Subject Lands, as described in the Conditions set out in Attachment 3 to this Order, is completed. The Tribunal is to be provided with an update on the status of the registration of the Development Agreement the earlier of six months from the issuance of this order (and every six months thereafter) or upon completion of the registration of the Development Agreement. The Member is not seized but may be spoken to should any assistance be required in relation to this provision of the Order; and
In all other respects, the Tribunal Orders that the appeal is dismissed.

“K.R. Andrews”

K.R. Andrews

MEMBER

Ontario Land Tribunal

Website: www.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.

OLT-22-002017 – Attachment 1

OLT-22-002017 – Attachment 2

OLT-22-002017 – Attachment 3