Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 07, 2022

CASE NO(S).: OLT-21-001215

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Nicholyn Farms Inc.

Appellant: Friends of Simcoe Forests Inc.

Subject: Official Plan Amendment No. 5

Municipality: Township of Springwater

OLT Case No.: OLT-21-001215

OLT File No.: OLT-21-001215

OLT Case Name: Friends of Simcoe Forests Inc. v. Simcoe (County)

Heard: March 1, 2022 by video conference

APPEARANCES:

Parties Counsel

County of Simcoe Marshall Greene

Ministry of Municipal Affairs and Housing Ugo Popadic, Maya Harris articling student

Township of Springwater Bruce Engell

Friends of Simcoe Forests (the Friends) Jacqueline Wilson

Nicholyn Farms Inc.(Nicholyn) David White

MEMORANDUM OF ORAL DECISION DELIVERED BY SHARYN VINCENT ON MARCH 1, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The County of Simcoe enacted By-law No. 6882 to adopt Official Plan Amendment No. 5 (“OPA”) to the Official Plan for the County of Simcoe on the February 9, 2021, pursuant to Section 17 and 21 of the Planning Act.

2The Notice of the Adoption (Exhibit 2) sets out the purpose and effect purpose of the amendment as follows: to amend the County of Simcoe Official Plan to clarify the County’s policies regarding its Solid Waste Management System (Section 4.9) and update how solid waste management sites are identified on Schedules 5.6.1 and 5.6.2. The effect of the amendment will introduce a systems approach to waste management in the County, differentiate landfilling, and non-landfilling activities, clarify language associated with D-4 Assessment Areas and D-4 Studies, and update associated mapping schedules.

3As is required by the Section 17(15) of the Planning Act, and as is attested to in Exhibit 2, prior to the adoption of OPA 5, a required statutory public meeting was held on November 24, 2020, to receive public input on the then proposed official plan amendment.

4The written submissions received in advance and following of the public meeting were detailed in a staff report to Council. No oral submissions were made at the public meeting.

5The County satisfied itself that the comments received in accordance with the Planning Act had been considered prior to the adoption of OPA 5.

6Notice of the June 21, 2021, decision was issued June 22, 2021, stipulating the last Date of Appeal as July 12, 2021, and directing any Notice of Appeal to the Ministry of Municipal Affairs and Housing, the approval authority for the OPA.

7Both the Friends of Simcoe Forests (“the Friends”) and Nicholyn Farms Inc. (“Nicholyn”) filed Notices of Appeal with the ministry within the prescribed timeframe.

8The County and the Ministry take the position that neither the Friends nor Nicholyn made the required oral or written submissions to Council for consideration prior to the adoption of the amendment and therefore have no standing to appeal OPA 5. The Township of Springwater supports this position.

9Counsel for both the Friends and Nicholyn argue that the County was well informed of the opposition of their respective clients to the proposal subject of County OPA 2 which created permissions for the County to establish a waste recovery facility on a 4.5 hectares (“ha”) parcel in generally the centre of the County owned Freele Track, an 84 ha wooded tract located at 2976 Horseshoe Valley Road, and forming part of a larger County owned forest. OPA 5, while addressing County wide clarifications, would incorporate the site specific permissions sought , and granted, through OPA 2, which was subject of a decision by this Tribunal dated January 28, 2022, and which is, at the time of writing this disposition, subject of a request for review pursuant to section 23 of the Ontario Land Tribunal Act , and a Motion for Leave to Appeal by the Friends who were Appellants, and a Party to the 15 day hearing held to consider the appeals of OPA 2 in the fall of 2021.

10The Tribunal, having reviewed all of the materials filed, and having considered the submissions of all Counsel, directed the County to bring a written Motion for determination by the Tribunal of the threshold issue of statutory standing. Given the nexus of Counsel involved in the request for Review and the Leave for Appeal against the Tribunal’s decision with respect to OPA 2, the Tribunal directed the following schedule for filings: Motion by the County to be filed and served on or before Monday April 11, 2022, with supporting filings from Ministry of Municipal Affairs and Housing and the Township on or before Monday, April 18, 2022; Responding materials from the Friends and Nicholyn on or before Monday, April 25, 2022; and final Rely by County on or before Thursday, April 28, 2022.

11The Friends indicated that their appeal was specific to only the Freele Tract parcel subject of OPA 2, whereas Counsel on behalf of Nicholyn advised that he would have to seek direction from his client, and was directed to do so and to report back to the Tribunal and all other Counsel with a view to scoping the appeals should the challenge of standing survive the motion.

12The County advised that as was undertaken during the hearing addressing the appeals against OPA 2, the wording of OPA 5 has been revisited to ensure that there were no unintended permissions granted to the Freele Tract. The Tribunal directed that the wording be circulated to all Counsel in the form of a tracked extract from the County Official Plan which clearly sets out the text of section 4.9 as it would be amended by OPA 2 if ultimately approved, and subsequently by OPA 5 if ultimately approved. Counsel for the Friends indicated that their client was open to mediation.

13So orders the Tribunal.

14This Member is not seized.

15The requirement for further notice will be determined by the Decision on the Motion.

“Sharyn Vincent”

SHARYN VINCENT

VICE-CHAIR

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.