Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 23, 2022

CASE NO(S).: OLT-21-001025, OLT-21-001027

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

Applicant/Appellant: 1281528 Ontario Inc.

Subject: Consent

Property Address/Description: 5888 Concession Road 6, Lot 9, Concession 5

Municipality: Township of Adjala-Tosorontio

Municipal File No.: B/03/20

OLT Lead Case No.: OLT-21-001025

OLT Case No.: OLT-21-001025

OLT Case Name: 1281528 Ontario Inc. v. Adjala-Tosorontio (Township)

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: 1281528 Ontario Inc.

Subject: Minor Variance

Variance from By-law No.: Zoning By-law 03-57

Property Address/Description: 5888 Concession Road 6, Lot 9, Concession 5

Municipality: Township of Adjala-Tosorontio

Municipal File No.: A/10/20

OLT Lead Case No.: OLT-21-001025

OLT Case No.: OLT-21-001027

Heard: October 28, 2021 and March 11, 2022 by video hearing

APPEARANCES:

Parties	Counsel
1281528 Ontario Inc.	James Gilmore
Township of Adjala-Tosorontio	James Feehely

DECISION DELIVERED BY T.F. NG AND ORDER OF THE TRIBUNAL

INTRODUCTION

11281528 Ontario Inc. (“Applicant”) of 5888 Concession Road 6 (“subject property/subject lands”) in the Township of Adjala-Tosorontio (“Township”) made an application for consent to sever the subject property into two lots and minor variances as reliefs from the Zoning By-law No. 03-57. The Committee of Adjustment (“COA”) denied the consent and the minor variance applications on February 24, 2021 (“Refusal”).

2The Applicant appealed the COA’s Refusal to the Tribunal.

3The proposed consent under the application was for the subject property to be severed into two lots. The purpose of the consent application is for the creation of a new lot containing an existing residence that is surplus to a farm operation as a result of a farm consolidation.

RELIEFS

4The reliefs sought under Zoning By-law No. 03-57 (“ZBL”) are:

For the severed lot:

1. A minimum rear yard setback of 3 metres (“m”) whereas the by-law requires a minimum rear yard setback of 7.5 m.

2. A minimum lot frontage of 55 m for the property whereas the by-law requires a minimum lot frontage of 60 m.

5The proposed severed parcel would have an area of approximately 0.7 hectares (“ha”) and a frontage of 55 m with the existing buildings on the parcel. The retained vacant parcel would have an area of approximately 56 ha and a frontage of 443 m.

SITE CONTEXT

6The subject property has a frontage of approximately 498 m along concession Road 6 and an area of approximately 56.65 ha and has previously been severed in 1979 through the farm consolidation process with a rezoning that prevented construction of a dwelling on the remnant parcel. However, in 2007, a Zoning By-law amendment reversed the condition which allowed a dwelling to be constructed. This resulted in a dwelling being built. The subject property is surrounded by agricultural lands to the east, west and south. To the north is the settlement area of Everett.

7The Applicant purchased the subject property in 2019, and in 2020 the Applicant applied to sever the subject property through the farm consolidation procedure. At that time, the external land use planner appointed by the Township advised that a minor variance application would be required as well.

8As such the Applicant made these two applications as required by the Township’s external planner.

9Marissa Handley, the author of the planning reports, and duly qualified by the Tribunal, opined in the report of September 11, 2020, that the policies’ requirements are met, but for the zoning standards, and did recommend a deferral until a minor variance application is made. At the COA meeting of the application on September 16, 2020, the consent was deferred.

10Ms. Handley, in her other report of November 19, 2020, recommended approval of the minor variances, provided the consent application was considered and approved by the COA. At the COA meeting of November 25, 2020, the consent was again deferred. However, Ms. Handley’s amended report of February 18, 2021 recommended refusal and when the COA met again on February 24, 2021, it denied both applications.

11At the hearing before this Tribunal, Ms. Handley testified that in her opinion, since there was a previous severance, another severance is not permitted under the policies. Ms. Handley acknowledged in cross-examination, that she did not notice the “cut-out portion” (that indicated a previous severance when the applications were filed) as she was focussed largely on the sketch map plan. Before the present owners bought the subject lands, the Township in 1979, approved a non-farm residential lot severance (the cut-out portion) which resulted in the retained lands (the subject lands) being rezoned to prohibit a dwelling from being built. However, it came to pass that in 2007, the Township permitted a zoning reversal of that dwelling prohibition (sterilization) on the retained lands, the subject of the present applications.

CORE ISSUE

12The core issue in this matter is whether a severance related to farm consolidation is limited to one time only or is not so limited by the relevant policy.

POLICIES

13The relevant sections of the policies that apply to this matter were succinctly explained by Jamie Robinson, the Applicant’s land use planner qualified by the Tribunal to give his opinion on land use planning matters.

14Mr. Gilmore, counsel for the Applicant, also called the Applicant’s director Martha Patton, as a fact witness. She testified as to her farming experience, her ownership of the subject property, her motivation for the severance, and her other farm operations in the Township and in the nearby Essa Township. She has been a farmer for a long time, and familiar with the needs of her large operations. She has a residence in the farm (5897 Concession Road 6) directly opposite the subject property. She needed to sever the subject property, to expand the agricultural farming and to divest the severed portion with the existing buildings to a future purchaser. This she claimed, would enable her to enhance her operations on the subject property and protect this prime agricultural land. The severance will follow the existing driveway to the farmland and the reduction in frontage of the severed lot is to ensure tillable land remains as agricultural land on the retained parcel.

15The following were marked: Document Book of Jamie Robinson (Exhibit 1); Jamie Robinson’s acknowledgement of duty (Exhibit 1A); Michael Wynia’s witness statement (Exhibit 2); Minimum Distance Separation Document Excerpt (Exhibit 3); 8386 – 20 Sideroad (Exhibit 4A); Decision 8386 Sideroad 20 (Exhibit 4B); 8944 and 8946 County Road 12 (Exhibit 5); Ms. Marissa Handley Written Statement (Exhibit 6) and Michael Wynia’s Revised Witness Statement (Exhibit 7).

ISSUE

16The issue before the Tribunal is whether a severance under farm consolidation is permitted only once or may be allowed again with respect to the subject property.

17Additionally, the severance as applied for in the consent to sever land application must meet the general requirements set out in the applicable provincial planning legislation, municipal planning policies and zoning requirements, the specific criteria of s. 51(24) of the Planning Act (“Act”) and represents good planning.

18The Tribunal shall also have regard to matters of Provincial interest and to information and material that the COA considered in making its decision.

19An applicant for minor variances must satisfy the Tribunal that the four tests in s. 45(1) of the Act are met, i.e., that the variances maintain the general intent and purpose of the official plan and the zoning by-law, are desirable for the appropriate development or use of the land, building or structure, and are minor in nature.

EVIDENCE AND ANALYSIS

20The Tribunal prefers Mr. Robinson’s views and opinions over those of Ms. Handley’s or Mr. Wynia’s, on the applicable policy framework and land use planning opinions in relation to the proposed severance and the conditions. Ms. Handley was supervised by her senior Mr. Wynia, at the time, and her report was reviewed by him, she said. Mr. Wynia’s opinion and his testimony generally centered on how the Foodland Guidelines 1978 guided farm consolidation policies which according to him are continued by the Provincial Policy Statement policies. He opined that the farm consolidation policies are not meant to allow for repeat applications to sever a surplus dwelling. He is also of the view that the application to sever is premature as, in his view, the rezoning has to be applied for first, before a severance. The Tribunal prefers, the opinion of Mr. Robinson, which is that the consent to sever is to be evaluated at the time of each application and can be granted subject to condition of a zoning By-law amendment to prevent any dwelling from being built on the retained parcel. In fact, the Township has routinely approved applications to sever subject to a zoning By-law amendment to “sterilize” the remnant parcel from a dwelling being built on a retained parcel (as Mr. Robinson has shown: see Exhibit 4A and 4B).

21Mr. Robinson reviewed the Provincial Policy Statement, 2020 (“PPS”) and the Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”).

22In his opinion, the proposed severance meets the criteria under s. 51(24) of the Act governing severances. It conforms to the official plan, is consistent with the PPS and conforms to the Growth Plan by protecting prime agricultural land.

23Mr. Robinson opines that the variances to facilitate reduced rear yard setbacks and lot frontage for the severed lot and to accommodate the retention of more agricultural land on the retained lot meet the four tests for minor variances under the Act. The proposal is desirable, minor, meets the general intent and purpose of the official plan and zoning By-law.

24In his opinion, the proposed consent is permitted by the policy framework, which does not specify any kind of limit to the number of times that a severance can be applied for. As long as the definition and application requirements are satisfied, a severance may be allowed. He opined that the proposal represents good planning and merits approval by the Tribunal.

THE FARM CONSOLIDATION POLICY

25This proposal turns on this policy. The Tribunal finds the requirements and elements that are pertinent to the application for severance under the farm consolidation policy do not fix the number of times a farm may be consolidated, subject to the particular circumstances of the case.

PPS 2020

26Section 2.3.4.1 of the PPS speaks to lot creation in prime agricultural areas (which) is discouraged and may only be permitted for:

c) a residence surplus to a farming operation as a result of farm consolidation, provided that:

1. the new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services; and

2. the planning authority ensures that new residential dwellings are prohibited on the 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.

27Section 2.3.4.3 of the PPS prohibits new residential lot creation in prime agricultural areas, except in accordance with policy 2.3.4.1(c).

FINDINGS

PPS

28The Tribunal finds that the proposal is consistent with the PPS. It will facilitate, within this existing rural settlement area, the protection, enhancement and maintenance of prime agricultural lands. The consent satisfies the requirements of a surplus residence as set out in s. 2.3.4.1(c) of the PPS.

29The policy thrust of the PPS is the development of safe, healthy communities and vibrant rural areas and the wise use and management of resources, by building upon rural character, leveraging rural amenities and assets (PPS s. 1.1.4.1).

30On the protection and maintenance of prime agricultural lands, the proposal achieves the intent of the PPS, including Policy s. 1.1.5.4. This proposal is a development that is compatible with the rural landscape and can be sustained by rural service levels that the policy says should be promoted.

GROWTH PLAN

31Mr. Robinson’s opinion is that the proposal for severance and variances conforms to the Growth Plan. The Tribunal finds that Policy s. 4.2.6.4 provides for the geographic continuity of the agricultural land base and the functional and economic connections to the agri-food network will be maintained and enhanced.

32The retention of this farm, as an existing lot of record for agricultural uses, is encouraged under the Growth Plan (s. 4.2.6.5).

33The proposed development results in a farm consolidation that is in line with the provincial policy of protection of an agricultural resource under the PPS as well as the Growth Plan.

34Further, an additional lot is the result and which lot is consistent with the existing lotting pattern of the agricultural neighbourhood. The proposed severance facilitates the retention and protection of a prime agricultural land.

COUNTY OF SIMCOE OFFICIAL PLAN (“COP”)

35The subject property is designated Agricultural in the County’s Official Plan. The language used in s. 3.6 of the COP is similar to s. 2.3.4.1 of the PPS.

36COP s. 3.6.7 states:

In the Agricultural designation, lot creation is discouraged and may only be permitted for:

c) a residence surplus to a farming operation as a result of farm consolidation, provided that:

i. the new lot will be limited to a minimum size needed to accommodate the residential use and appropriate sewage and water services, and should be an approximate size of 1 hectare; and

ii. new residential dwellings are prohibited on any remnant parcel of farmland created by the severance. To ensure that no new residential dwellings are permitted on the remnant parcel, municipalities may use approaches such as zoning to prohibit the development of a dwelling unit(s), and/or the municipality may enter into agreements imposed as a condition to the approval of lot creation and the agreements may be registered against the land to which it applies (COP s. 3.6.7 c)).

37The Tribunal finds that the proposed severance will result in a severed lot for residential use of 0.7 ha with a frontage of 55 m needed to accommodate appropriate sewage and water services. New residential dwellings will be prohibited on the remnant retained farmland parcel of 56 ha and 443 m frontage by the condition of consent requiring a Zoning By-law amendment.

38The Tribunal notes that in this matter, the Municipality has required the Applicant to apply for minor variances instead of a Zoning By-law amendment. This would mean that the municipality may enter into agreements imposed as a condition to the approval of lot creation (which as it stands, parties being in dispute have not done).

TOWNSHIP OF ADJALA – TOSORONTIO OFFICIAL PLAN (TOP)

39The Subject Property is designated Agricultural (Schedule A-5) in the Township Official Plan. Consent applications for residential or non-farm related purposes will generally not be permitted in the Agricultural designation, except when a residence is surplus to a farming operation as a result of farm consolidation (s. 4.3.4.1 of the TOP).

40As with the provincial policy framework, the COP is implemented through the TOP. The recurring theme is that a severance for a surplus residence in an Agricultural area is permitted in a farm consolidation. A reading of the sections of the PPS, the COP and the TOP, on the farm consolidation policy reveals that there is no fixed number of times that a severance may be employed under this policy. All that is required is for the application to meet the required definitions and parameters for the severance.

41In this matter, the application to sever meets the requirement of an agricultural land; the residence is a surplus to a farming operation; the severed lot is approximately 1 ha (0.7 ha) in size having appropriate water/sewage services; and the retained lot for farmland use will be “sterilized” from dwelling use by prohibition against building a dwelling. The proposed severance meets these parameters.

MINOR VARIANCES

42The proposed variances meet the general intent and purpose of the COP and TOP. The Official Plans designate the subject property ‘Agricultural’ which permits agricultural uses. Section 3.6 of the COP and s. 3.3 of the TOP set out the policies applicable to the Agricultural Areas. The overall intent of the Agricultural Areas is to protect agricultural activities and farming related uses and maintaining their stability. This is to ensure that new development is compatible with the existing agricultural character of the neighbourhood. In order to enable the agricultural industry to function effectively in prime agricultural areas, conflicting and competing uses are minimized while uses and facilities which support the agricultural economy are accommodated in accordance with the Act (s. 3.6.2 of COP).

43The Tribunal agrees with Mr. Robinson that the policy in section 3.3.2 of the TOP for agricultural areas is met. The intent of the policy has been addressed through the need to protect the active agricultural land base with the stringent controls over consent applications in order to protect the rural, natural open countryside character of this agricultural area.

44The Tribunal finds that the proposed development, specifically, in this neighbourhood will respect and reinforce the existing physical character of the agricultural area including prevailing patterns of yard setbacks, frontage, lotting pattern, with natural and open countryside. The proposed variances are in keeping with this neighbourhood area. The Tribunal is satisfied that the proposed variances maintain the general intent and purpose of the OPs.

45Mr. Robinson stated that under the ZBL, the subject property is zoned Agricultural (A) and Open Space Conservation (OSC). This permits lots with a minimum frontage of 60 m and a minimum lot area of approximately 1.0 ha. The proposed retained lot will be compliant with the minimum lot area and frontage. The severed lot is 0.7 ha, which is a little under 1.0 ha, to be addressed by a ZBL amendment as a condition of consent.

46His opinion is that the overall intent of the ZBL is to implement development that is compatible for the agricultural neighbourhood. The subject property is surrounded by other agricultural lots. With respect to the severed lot, the only variances required are to permit a rear yard setback of 3 m of an accessory structure and a 55 m frontage. In other respects, the proposal complies with the ZBL.

47Mr. Robinson stated that the proposed reduction is a modest reduction that will be imperceptible from the road, particularly given the severance is, to the casual observer, not manifested physically. On the ground, the subject property, before and after the severance, looks the same, without any physical boundaries to show the severance of the two lots.

48With respect to the severed lot, the intent of the lot frontage at 55 m is to facilitate adequate and appropriate retention of agricultural land for the retained lot so as not to lose any prime agricultural land. The objective is not achievable, if the frontage is at 60 m, since that will take away the existing driveway of the retained agricultural parcel. This, Mr. Robinson said, is not in the public interest.

49In Mr. Robinson’s opinion, the proposed variances maintain the general intent and purpose of the zoning by-law. The Tribunal finds that the zone permits the agricultural use. The two proposed lots’ frontages are compatible with those in this area. The Tribunal is satisfied that the proposed variances maintain the general intent and purpose of the zoning by law.

50The rear yard setback and frontage variances are desirable for the appropriate development of the subject site and the area. The variances will facilitate the consolidation of the farm and protect the prime agricultural land and resource in this area.

51The Tribunal finds that the resulting two lots is a desired outcome that enhances the agricultural stock in this prime agricultural area. The retained lot will be a prime agricultural resource, being utilized in a way intended by the policies affecting agricultural lands. The severed lot will retain the residential stock in the neighbourhood. The proposed severance maintains agricultural uses as part of the farm consolidation and protects agricultural resources. The Tribunal is satisfied that the proposed development is desirable for the appropriate development of the subject property.

52The proposed variances do not result in any physical changes on the subject property. The reduced rear yard setback and reduced frontage for the severed lot will have no adverse visual effect or impact. The subject property is a large lot which is suitable for the proposed severance. The retained lot is a very large parcel well suited for the agricultural purpose which will preserve and enhance its existing prime agricultural area status, as the severance was designed to avoid ceding valuable agricultural land to the severed lot. The landscape will remain vast, sweeping and naturally open, with no adverse impacts on adjacent properties. The Tribunal is thus satisfied that the variances are minor in nature.

53The Tribunal is satisfied that the proposed variances at the subject property have regard for the matters of provincial interest as set out in s. 2 of the Act, in particular 2(a) the protection of ecological systems, including natural areas, features and functions; 2(b) the protection of agricultural resources of the Province; 2(h) the orderly development of safe and healthy communities; and 2(p) the appropriate location of growth and development.

CONCLUSION

54The Tribunal accepts Mr. Robinson’s opinion, that no plan of subdivision is required where a plan of subdivision is not necessary for proper and orderly development.

55Section 51(24) of the Act denotes several criteria. The relevant criteria are met according to Mr. Robinson.

56The Tribunal has reviewed the applications and the documents filed in the appeals, the Municipal records, the Minutes of COA decision and the proposed Conditions of approval suggested by Mr. Robinson pertaining to consent application.

57Upon the preferred planning evidence provided by Mr. Robinson, the Tribunal finds that the consent application meets the criteria in s. 51(24) of the Act and has regard for Provincial interests.

58In summary, the Tribunal finds that the consent to sever land application is consistent with the policies of the PPS, conforms to the Growth Plan, maintains the general intent and purpose of the Official Plans and the ZBL, represents good planning and in the public interest. Accordingly, the Tribunal will authorize the consent to sever the subject property into two lots as proposed subject to the proposed conditions of approval.

59In respect of the proposed Conditions, having considered the evidence of Mr. Robinson, the Tribunal accepts that the Conditions are reasonable. The Tribunal will impose the conditions for the approval of the proposed severance.

ORDER

60The Tribunal orders that the Applicant’s appeals are allowed, and:

1. provisional consent is granted subject to the Conditions attached as Attachment 1 to this order, and

2. the variances to Zoning By-law No. 03-57 are authorized.

“T.F. Ng”

T.F. NG

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.

ATTACHMENT 1

CONDITIONS:

1. That the Applicant meets all financial requirements of the Municipality.

2. That a registrable description of the severed lands be submitted to the Municipality.

3. That one (1) paper copy and an electronic copy of a registered Reference Plan be given as required by the Township or any other agency which shows the location of any structures which would be impacted by the creation of new property lines to ensure all existing structures are in compliance with Zoning By-law requirements.

4. That the Applicant successfully apply to the Township to amend the Zoning By-law as required, to prohibit residential development on the retained parcel, and to permit a minimum lot area of 56 hectares and 443 metres frontage on Concession Road 6, for an agricultural use in the Agricultural Zone.

5. That the Applicant successfully apply to the Township to amend the Zoning By-law as required to permit a minimum of 0.7 hectares and 55 metres frontage on Concession Road 6, for residential use on the severed parcel.

6. That the foregoing conditions be fulfilled within one year of the date of the issuance of the decision of the Tribunal.