Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 14, 2022
CASE NO(S).: PL210191
PROCEEDING COMMENCED UNDER subsection 17(24) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Ministry of Municipal Affairs & Housing
Subject: Proposed Official Plan Amendment No. OPA No. 193
Municipality: County of Perth
OLT Case No.: PL210191
OLT File No.: PL210191
OLT Case Name: MMAH (Ontario) v. Perth (County)
Heard: August 10, 2021 by video hearing
APPEARANCES:
Parties
Counsel
Ministry of Municipal Affairs and Housing
Ugo Popadic
Upper Thames River Conservation
John Goudy
County of Perth
David Gundrum
MEMORANDUM OF ORAL DECISION DELIVERED BY CARMINE TUCCI ON AUGUST 10, 2021 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The purpose of the Case Management Conference (“CMC”) was to receive status updates from all parties to organize the hearing of these appeals.
2The Tribunal heard the Upper Thames River Conservation Authority (“UTRCA”) does not intend to contest the Ministry of Municipal Affairs and Housing’s (“MMAH”) appeal in this matter and will not be filing evidence in in response to the appeal.
3Mr. Popadic informed the Tribunal that the MMAH would be presenting an expert witness in support of the appeals to heard at the CMC.
4There was no objection by any party.
OVERVIEW
5The Tribunal heard that Minister of MMAH appealed the February 18, 2021 decision of the Council of the County of Perth to adopt Official Plan Amendment No. 193 (“OPA 193”) to the County of Perth Official Plan (“OP”).
6The Tribunal was informed that OPA 193 is a proposed official plan amendment to allow new site-specific policy exceptions to facilitate the future creation of five (5) separate non-farm residential lots containing five (5) existing detached dwellings in a prime agricultural area.
7The site-specific exception applies to the Subject Lands, which are three (3) separate lots containing the five (5) detached dwellings, located at:
a. 983115 Wildwood Road, Township of Perth South (1 dwelling)
b. 2248, 2288 and 2346 Road 137, Township of Perth South (3 dwellings)
c. 2492 Road 137, Municipality of West Perth (1 dwelling)
8OPA 193 would provide a site-specific exception to OP agricultural lot creation policies to circumvent provincial and county land use policies that are intended to limit the creation of non-farm residential lots in prime agricultural areas.
9The Tribunal heard that OPA 193 is contrary to the clear and explicit policies of the Provincial Policy Statement, 2020 (“PPS”), which prohibit non-farm residential lot creation in prime agricultural areas, except for a farmhouse made surplus by consolidation of farming operations. The proposed creation of the five (5) non-farm residential lots would not be as a result of any consolidation of farming operations, as no consolidation has occurred.
WITNESS
10Tyler Shantz presented evidence on behalf of the MMAH. Mr. Shantz is a Registered Professional Planner (RPP) and Member of the Ontario Professional Planners Institute (OPPI) and Canadian Institute of Planners (MCIP).
11Mr. Shantz’s Acknowledgment of Expert’s Duty was presented to the Tribunal with no objections.
12Mr. Shantz was qualified and sworn in to provide expert evidence in regards to land use planning.
SUBJECT LANDS
COUNTY OF PERTH OFFICIAL PLAN AMENDMENT 193 (OPA 193)
13The Tribunal heard that OPA 193 is a proposed official plan amendment by the UTRCA, which owns the Subject Lands, to allow new site-specific policy exceptions on these lands to facilitate the future creation of five (5) separate non-farm residential lots containing five (5) existing detached dwellings. OPA 193 would create a site-specific policy exception for the Subject Lands to facilitate future consent to sever five (5) non-farm residential lots, each containing an existing detached dwelling, in a designated prime agricultural area.
14OPA 193 proposes to add a new clause to Section 5.5.20 “New Site Specific Amendments” of the OP. This new clause would exempt the Subject Lands from OP policies 5.6.3.1 a) and f).
15OP policy 5.6.3.1 a) requires that the land on which the surplus farm dwelling is situated must be operated, or will be operated, as part of the consolidated farm operation. OP policy 5.6.3.1 f) is not a focus of the Minister’s appeal.
16OPA 193 would provide a site-specific exception to OP policy 5.6.3.1 a) to circumvent provincial and county land use policies that are intended to limit the creation of non-farm residential lots in prime agricultural areas.
17Specifically, OPA 193 would provide this site-specific exception to circumvent the 2020 PPS, policies 2.3.1, 2.3.4.1, and 2.3.4.3 and the definition of a residence surplus to a farming operation, that together protect prime agricultural areas, in part, by restricting lot creation for non-farm residential uses in these areas.
18The Ontario Ministry of Agriculture, Food, and Rural Affairs (“OMAFRA”) provided comments on OPA 193 to County of Perth planning staff on January 28, 2021. These comments stated that the PPS restricts the creation of new lots in prime agricultural areas, except for agricultural uses, agriculture-related uses, infrastructure, and a residence surplus to a farming operation resulting from farm consolidation, provided that the requirements under PPS policy 2.3.4.1 are met.
19OMAFRA stated that the following criteria should be met to ensure consistency with the PPS definition of a residence surplus to a farming operation:
the applicant has an existing farm operation,
the newly acquired farm parcel(s) will be added to the existing operation,
the newly acquired and existing farm parcels will be run as one farm operation,
the existing farm residence is surplus to the consolidated farm operation, and
the existing farm residence is habitable.
20In addition, for the purposes of the definition of a residence surplus to a farming operation, OMAFRA noted that a farm is generally considered consolidated when a farmer owns more than one parcel of land to be utilized as part of their farming operation. Purchase or ownership of the farm parcel is generally necessary to satisfy the policy criterion that a farm consolidation has occurred.
21The Tribunal heard that the County of Perth planning staff recommended in their planning reports, dated December 3, 2020 and updated on February 18, 2021, that OPA 193 be denied because it is not consistent with PPS policy 2.3.4.1(c) or the PPS definition of a residence surplus to a farming operation.
22OPA 193 was adopted by County of Perth Council on February 18, 2021 against the recommendations of their planning staff. The Minister of MMAH appealed this decision to the former Local Planning Appeal Tribunal on March 15, 2021 at the request of OMAFRA.
[PLANNING ACT](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)
23Mr. Shantz stated that land use planning in Ontario is a provincial policy-led system. The Planning Act (the “Act”) and, 2020 PPS both promote a land use planning system directed by provincial policy.
24Section 2 of the Act sets out matters of provincial interest that the Minister of MMAH, the council of a municipality, and the Ontario Land Tribunal shall have regard for, among other matters, when carrying out responsibilities under the Act. Applicable provincial interests include the protection of the agricultural resources of the province, the orderly development of safe and healthy communities, the appropriate location of growth and development, and the resolution of planning conflicts involving public and private interests.
25The provincial interests stated in s. 2 of the Act form the foundation for the more detailed and specific policy statements, namely the PPS, issued by the MMAH under s. 3(1) of the Act.
26Section 3(5)(a) of the Act requires that a decision by an approval authority on a planning matter, such as the Ontario Land Tribunal, must be consistent with the PPS in effect on the date of the decision. This means that planning decisions must not contradict the policies of the current PPS.
27Mr. Shantz summarized that the land use planning system in Ontario is led by provincial policy, overseen by the Minister of MMAH, which requires decision makers under the Act to have regard for provincial interests set out in s. 2 of the Act and to be consistent with the policies of the current PPS when making planning decisions.
PROVINCIAL POLICY STATEMENT, 2020 (PPS)
28The PPS provides policy direction on matters of provincial interest related to land use planning and development.
29Mr. Shantz informed the Tribunal that Part III of the PPS explains how to read the document. When applying the PPS, it is important to consider the specific language of the policies. Some policies set out directives, such as “settlement areas shall be the focus of growth and development” or “prime agricultural areas shall be protected for long-term use for agriculture.” Other policies set out limitations and prohibitions, such as “lot creation in prime agricultural areas is discouraged and may only be permitted for agricultural uses…” or “development and site alteration shall not be permitted.” Other policies use enabling or supportive language, such as “should,” “promote” and “encourage.” The choice of language is intended to distinguish between the types of policies and the nature of implementation. In the case of a conflict, a policy that sets out directives, limitations, or prohibitions must be given more weight or credence than a policy that uses enabling or supportive language.
30Mr. Shantz further informed the Tribunal that the policies of the PPS are outcome-oriented and represent minimum standards.
31The PPS is to be read in its entirety and the relevant policies are to be applied to each situation. The following policies are relevant to OPA 193 as they relate to protecting prime agricultural areas.
32The PPS provides strong land use and development protection for prime agricultural areas in part by limiting lot fragmentation, including restricting lot creation for non-farm residential uses in these areas.
33PPS policy 2.3.1 requires that prime agricultural areas be protected for long-term use for agriculture and describes prime agricultural areas as areas where prime agricultural lands predominate.
34Prime agricultural land is defined in section 6.0 of the PPS as Canada Land Inventory (“CLI”) Class 1, 2 and 3 lands in this order of priority for protection. The CLI is a system for classifying the effect of climate and topography and the characteristics of mineral soils for growing common field crops. CLI Class 1 lands have the highest capability and Class 7 lands have the lowest capability for growing common field crops.
35Prime agricultural area, which is a geographically broader concept than prime agricultural land, is defined as “areas where prime agricultural lands predominate. This includes areas of prime agricultural lands and associated [CLI] Class 4 through 7 lands, and additional areas where there is a local concentration of farms which exhibit characteristics of ongoing agriculture.”
36Mr. Shantz opined that it is important to understand the proportions of CLI Class 1 through 3 lands that comprise the Subject Lands and surrounding area, as such lands are considered to be prime agricultural lands for the purposes of interpreting the PPS. Areas predominately comprised of prime agricultural lands and/or areas where there is a local concentration of farms which exhibit characteristics of ongoing agriculture are considered to be prime agricultural areas in the PPS.
37The Subject Lands are predominately comprised of CLI Class 1 prime agricultural lands, as well as watercourses. CLI Class 1 lands have no significant limitations in use for common field crops. The areas surrounding the Subject Lands are comprised of predominately CLI Classes 1 and 2 prime agricultural lands, as well as to a lesser extent CLI Class 3 prime agricultural lands, CLI Class 5 non-prime lands, and watercourses. In summary, the Subject Lands are predominately comprised of prime agricultural land and are within a surrounding area predominately comprised of prime agricultural land.
38The Tribunal heard that the PPS policy 2.3.4.1 sets out that lot creation in prime agricultural areas is discouraged and may only be permitted for:
a) agricultural uses, provided that the lots are of a size appropriate for the type of agricultural use(s) common in the area and are sufficiently large to maintain flexibility for future changes in the type or size of agricultural operations;
b) agriculture-related uses, provided that any new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services;
c) a residence surplus to a farming operation as a result of farm consolidation, provided that:
the new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services; and
the planning authority ensures that new residential dwellings are prohibited on any remnant parcel of farmland created by the severance. The approach used to ensure that no new residential dwellings are permitted on the remnant parcel may be recommended by the Province, or based on municipal approaches which achieve the same objective; and
d) infrastructure, where the facility or corridor cannot be accommodated through the use of easements or rights-of-way. (emphasis added)
39A residence surplus to a farming operation is defined in section 6 of the PPS as “an existing habitable farm residence that is rendered surplus as a result of farm consolidation (the acquisition of additional farm parcels to be operated as one farm operation).” (emphasis added)
40PPS policy 2.3.4.3 states that the creation of new residential lots in prime agricultural areas shall not be permitted, except in accordance with PPS policy 2.3.4.1(c), which is only for a residence surplus to a farming operation.
41PPS policy 4.6 sets out that the official plan is the most important vehicle for provincial policy implementation. Comprehensive, integrated and long-term planning is best achieved through official plans. Official plans must identify provincial interests and set out appropriate land use designations and policies.
42Mr. Shantz opined that the policies of the PPS continue to apply after adoption and approval of an official plan.
COUNTY OF PERTH OFFICIAL PLAN
43Mr. Shantz informed the Tribunal that the County OP applies to the Subject Lands and serves as both the upper- and lower-tier official plan for its municipalities outside of serviced urban settlement areas. The Subject Lands are not located within settlement areas and so only the County OP applies. The OP establishes goals, objectives, and policies to direct land use planning decisions throughout the county.
44Agricultural land use activities are recognized in the OP as the predominant land use activity in the county. Perth County’s favourable land base and climatic conditions for agriculture are referenced in the OP as contributing factors to the importance of agriculture in the county. Approximately 90 per cent of the total land area in the county is rated as either CLI Class 1, 2, or 3 lands.
45The Subject Lands are collectively designated as ‘Agriculture’, ‘Natural Resources/ Environment’, ‘Recreation’, and ‘Floodplain’ in the OP. No policy changes have been proposed through OPA 193 to the ‘Natural Resources/ Environment’, ‘Recreation’, or ‘Floodplain’ designations on the Subject Lands. The Minister’s appeal is entirely with respect to the ‘Agriculture’ designation and proposed changes to its lot creation policies.
46Relevant OP goals for the ‘Agricultural’ designation include ensuring that prime agricultural lands are protected and preserved for food, fibre, and fuel production and providing an area free from conflicting and/or incompatible land uses, particularly non-farm related development.
47The ‘Agriculture’ designation permits agricultural and related uses and demarcates in the OP where prime agricultural areas are located in Perth County in accordance with the PPS.
48OP section 5.6 sets out consent to sever policies for lands designated as ‘Agriculture”, including the principles that agricultural lands be protected and preserved for food, fibre, and fuel production and that conflicting or incompatible land use activities should not be created in agricultural areas.
49OP section 5.6.3 prohibits lot creation for residential use in the ‘Agriculture’ designation, except for a residence surplus to a farming operation in accordance with OP policy 5.6.3.1, which is consistent with the PPS.
50OP policy 5.6.3.1 a), which is proposed to be amended by OPA 193, requires that the land on which the surplus farm dwelling is situated must be operated, or will be operated as part of a consolidated farm operation. For the purposes of section 5.6.3.1 of the OP, a corporation may be an eligible farming operation to sever a surplus farm dwelling provided the same corporation owns at least two farms, each containing a residence, one of which is surplus to the farm operation that may be severed in accordance with this section. (emphasis added)
51OP policy 5.6.3.1 a) implements PPS policy 2.3.4.1 and the PPS definition of a residence surplus to a farming operation in the OP by requiring that consent to sever a farm dwelling be contingent on whether that dwelling was made surplus to the needs of the farming operation by means of consolidation (i.e., the acquisition of additional farm parcels to be operated as one farm operation).
52Mr. Shantz opined that s. 3(5)(a) of the Act requires that a decision by an approval authority on a planning matter, such as the Ontario Land Tribunal, must be consistent with the PPS in effect on the date of the decision. The current 2020 PPS came into effect on May 1, 2020 and so a decision on OPA 193 must be consistent with the relevant policies of the 2020 PPS.
53The PPS provides strong land use and development protection for prime agricultural areas in part by limiting lot fragmentation, including restricting non-farm residential lots in these areas.
54The Subject Lands are designated as ‘Agriculture’, ‘Natural Resources/ Environment’, ‘Recreation’, and ‘Floodplain’ in the OP. No policy changes have been proposed to the ‘Natural Resources/ Environment’, ‘Recreation’, and ‘Floodplain’ designations on the Subject Lands and so the following analysis focuses only on the ‘Agriculture’ designation and proposed site-specific changes to its consent to sever policies.
55The Tribunal heard that Prime agricultural land is defined in section 6.0 of the PPS as CLI Class 1, 2 and 3 lands in this order of priority for protection. The Subject Lands are comprised entirely of CLI Class 1 lands, the highest CLI rating for agricultural capability.
56Prime agricultural area is a geographically broader term and includes areas where prime agricultural lands predominate.
57The Subject Lands are designated as ‘Agriculture’, are predominately comprised of prime agricultural land, and are within a surrounding area predominately comprised of prime agricultural land. For these reasons, it is my opinion that the Subject Lands are located within a prime agricultural area as defined by the PPS and so the prime agricultural area policies of the 2020 PPS apply to OPA 193.
58PPS policy 2.3.1 requires that prime agricultural areas be protected for long-term use for agriculture.
59PPS policy 2.3.4.1 sets out the land uses for which lot creation in prime agricultural areas may be permitted, which are agricultural uses, agricultural-related uses, a residence surplus to a farming operation, and infrastructure, subject to criteria. The purpose of PPS policy 2.3.4.1 is to protect farmland by limiting lot fragmentation and incompatible uses in prime agricultural areas, which helps protect the long-term viability of agricultural operations, as required by PPS policy 2.3.1.
60Mr. Shantz emphasized that for greater certainty, PPS policy 2.3.4.3 states that the creation of new residential lots in prime agricultural areas shall not be permitted, except in accordance with PPS policy 2.3.4.1(c), which only permits lot creation for a residence surplus to a farming operation. Specifically, a residence surplus to a farming operation must be rendered surplus as a result of farm consolidation (the acquisition of additional farm parcels to be operated as one farm operation).
61The purpose of PPS policy 2.3.4.1(c) is to assist farmers in acquiring more parcels of farmland for their operations without having the burden of dealing with a farmhouse (i.e., upkeep, tenants, etc.) that is surplus to their needs.
62Mr. Shantz opined that OPA 193 does not meet the definition of a residence surplus to a farming operation, which requires that a farm residence be made surplus as a result of the acquisition of additional farm parcels to be operated as one farm operation.
63Th Tribunal heard that the UTRCA is a conservation authority and does not operate any farms on the Subject Lands. The UTRCA has not provided any evidence that farming operations have been consolidated to render surplus the five (5) farm residences proposed to be severed.
64The UTRCA purchased the Subject Lands over time, beginning in the 1960s, to facilitate construction of the planned Glengowan dam and reservoir project. In December 2018, the UTRCA officially cancelled this project.
65The URTCA reportedly rents the Subject Lands to tenant farm operators and provides farm stewardship advice, including recommended tillage, cropping, and environmental best management practices specific to each property to its tenants. While this may be true, it is not indicative of farming operation consolidation as defined by the PPS (i.e., it is not the acquisition of additional farm parcels to be operated as one farm operation).
66Mr. Shantz opined that the PPS section 2.3.4 is clear and directive and, through the words “the creation of new residential lots in prime agricultural areas shall not be permitted, except in accordance with policy 2.3.4.1(c)” these policies restrict planning authorities from permitting lot creation for non-farm residential lots in prime agricultural areas, except for a residence surplus to a farming operation.
67Mr. Shantz further opined that in many areas across the province, including Perth County, farmers are increasingly affected by the presence of non-farm residential development. The creation of new residential lots in prime agricultural areas reduces options for farming in the future. It results in incompatible uses in prime agricultural areas and fragments the agricultural land base.
68Additionally, the establishment of residential development in agricultural areas creates restrictions on the ability of farmers to situate or expand their operations, particularly livestock, as a result of minimum distance separation requirements. Nuisance complaints about noise, odour, and dust tend to accompany the introduction of new residential lots in agricultural areas and thereby threaten agricultural production.
69Mr. Shantz opined that the proposed site-specific amendment in OPA 193 to circumvent the requirement that a residence surplus to a farming operation be in fact surplus to any consolidated farming operation is inconsistent with the intent and purpose of PPS policy 2.3.4.1 and the PPS definition of a residence surplus to a farming operation.
70Mr. Shantz informed the Tribunal that the goals of the ‘Agriculture’ designation include ensuring that prime agricultural lands are protected and preserved for food, fibre, and fuel production and providing an area free from conflicting and/or incompatible land uses, particularly non-farm related development.
71Mr. Shantz opined that the decision to approve OPA 193 would not conform to the goals of the ‘Agriculture’ designation, as it would result in further fragmentation of the Subject Lands and would introduce five (5) new incompatible non-farm residential lots, which were not rendered surplus as result of farming operation consolidation, into a prime agricultural area.
72Mr. Shantz further opined that for these reasons, OPA 193 is not consistent with the PPS, does not conform with agricultural land use policy goals of the County of Perth Official Plan, and is not good land use planning.
DECISION
73The Tribunal, having reviewed all evidence provided and having heard the opinion of Mr. Shantz, accepts the uncontroverted and uncontested expert land-use planning evidence provided by the witness.
ORDER
74THE TRIBUNAL ORDERS that the appeal is allowed and Official Plan Amendment No. 193 to the Official Plan for the County of Perth is not approved.
“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.