Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 30, 2022 CASE NO(S).: OLT-21-001833 (Formerly PL210010)

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

Applicant and Appellant: 1140506 Ontario Inc. Subject: Minor Variance Variance from By-law No.: 61-16 Property Address/Description: 1744 Colborne Street East Municipality: City of Brantford Municipal File No.: A16/20/DN OLT Case No.: OLT-21-001833 Legacy Case No.: PL210010 OLT Lead Case No.: OLT-21-001833 Legacy Lead Case No.: OLT-21-001833 OLT Case Name: 1140506 Ontario Inc. v. Brant (County)

Heard: January 20 and 21, 2022 by video hearing and February 11, 2022 in writing

APPEARANCES:

Parties 1140506 Ontario Inc. Brian Smith

Counsel Derek Sinko J. Patrick Maloney

DECISION DELIVERED BY S. BRAUN AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is an appeal pursuant to s. 45(12) of the Planning Act ¹ (“Act”). It arises out of an application for minor variances by 1140506 Ontario Inc. (“Appellant”) in relation to the property at 1744 Colborne Street East, (“subject property”) which was refused by the County of Brant (“County”).

2The Appellant seeks to rectify zoning deficiencies associated with an existing, enclosed canopy structure located at the rear of the subject property. Relief was requested from s. 6.2 and 6.3 of Zoning By-law No. 61-16 (“ZBL”) in order to bring the structure into compliance. Specifically, the Appellant sought permission for:

a) a 7.0 metre (“m”) minimum rear yard setback, whereas s. 6.2 of the ZBL requires a minimum of 15.0 m; and

b) a maximum lot coverage of 28% for Agricultural uses and 18% all other uses (for a total of 40%), whereas s. 6.3 of the ZBL specifies a maximum lot coverage of 22% for Agricultural uses and 18% for all other uses (for a total of 40%).

3Although County planning staff recommended approval of the variances subject to the condition that the Appellant obtain a building permit and satisfy all requirements of the building permit process, the Committee of Adjustment (“Committee”) refused the application, citing “ongoing concerns with site plan”.

4The County did not participate in the hearing and was not a party. The Tribunal received one request for status from Brian Smith (Exhibit 1), an adjacent property owner who wished to be added as a party. Mr. Smith opposes the requested variances out of concern that approval of same will result in an exacerbation of impacts (drainage and odor issues) associated with the existing use of the subject property upon his and other neighbouring properties. The Tribunal granted Mr. Smith party status with no objection from the Appellant.

SUBJECT PROPERTY AND HISTORICAL CONTEXT

5The subject property is approximately 3 acres in size and is zoned Agricultural-46 (A-46). It has functioned as a mushroom operation for decades and is surrounded by active farmland. There are three residences within 300 m of the mushroom operation, one of which is at 1756 Colborne Street East, where Mr. Smith resides.

6At present, the subject property contains a residential dwelling (approximately 196.3 square metres (“sq m”) and an agricultural building (2,243.97 sq m) which has an attached canopy structure (995 sq m) immediately to its rear. The canopy structure, prior to its enclosure, was being used to store farm equipment and to protect workers in the process of transferring growing material to indoor growing beds located within the existing agricultural building. Information submitted in a letter attached to the minor variance application indicates:

the sole purpose of the canopy is to provide weather protection for workers, machinery and material which pre-canopy construction was totally conducted outdoors in the elements. The approved unenclosed canopy did not provide the intended protection therefore it was decided that the solution was to enclose the structure to provide the intended weather protection. The enclosure of the canopy does address the desired affect (sic) of providing the weather protection.

7There is a rather extensive history to this matter, which the Tribunal briefly summarizes as follows:

• The mushroom farm has been operated on the subject property since the 1980s and enjoys a legal non-complying status.

• In 1999, the Ontario Municipal Board (“OMB”) heard an appeal in relation to a Zoning By-law Amendment to allow an expansion of the existing agricultural use of the subject property. In its decision to allow the appeal and permit expansion, the Board imposed a total maximum lot coverage of 40%, comprised of 22% for Agricultural use and 18% other uses. The foregoing percentages are included in the ZBL as site-specific A-46 zoning applicable to the subject property.

• In 2012 a Site Plan Control Application was approved by the County permitting an ‘open’ canopy addition at the rear of the agricultural structure to provide weather protection for the mushroom operation’s workers and machinery.

• At some point prior to June 2020, the Appellant enclosed the canopy in the absence of consultation with, and permits from, the County.

• In the context of a June 2020 pre-consultation with the County on an unrelated development application, it was discovered that there were zoning deficiencies associated with the now-enclosed canopy.

8The act of enclosing the canopy triggered the need for the variances at issue because the previously open canopy was considered an accessory structure, which was not included as part of the use coverage allocations applicable to the property and which allowed for a lesser setback than what is required for enclosed structures.

LEGISLATIVE FRAMEWORK

9An appeal pursuant to s. 45 of the Act is a hearing de novo and the Appellant bears the onus of demonstrating that the four tests in s. 45(1) have been met, namely that the requested variances:

a) maintain the general intent and purpose of the Official Plan (“OP”)

b) maintain the general intent and purpose of the ZBL;

c) are desirable for the appropriate development or use of the land building or structure; and

d) are minor in nature

10Additionally, the variances must be consistent with the Provincial Policy Statement (“PPS”) and conform to any applicable Provincial Plan. In this instance, the applicable plan is A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“GP”). The Tribunal must also have regard to matters of Provincial interest and to the decision made by the Committee, as well as the information and material considered by it in the course of making its decision.

HEARING

11The Tribunal heard testimony from Mr. Smith, who explained what it is like living next to the mushroom operation and his concerns with respect to the variances at issue. Mr. Smith also called Michael Sullivan, a Registered Professional Planner, who was qualified by the Tribunal to provide opinion evidence in land use planning.

12The Appellant called Robert Phillips, a professional engineer, whom the Tribunal qualified to provide opinion evidence in drainage and stormwater management (“SWM”), and Brenda Kehs, a Registered Professional Planner, qualified by the Tribunal to provide opinion evidence in land use planning.

13Finally, Dan Namisniak, who acts as a Planner for the County, appeared under summons to provide land use planning opinion evidence. Counsel for Mr. Smith objected to Mr. Namisniak being qualified to do so, in large part, because he is currently a candidate rather than a full member of the Ontario Professional Planners Institute and had not previously been qualified to provide land use planning opinion evidence by this Tribunal or its predecessor, the Local Planning Appeal Tribunal.

14Notwithstanding the foregoing, the Tribunal found it appropriate to qualify Mr. Namisniak for the following reasons: he possesses relevant education and experience in land use planning, both as a planner and in his various other capacities at the County over the last several years; he authored the staff report recommending the Committee approve the variances at issue; and most importantly, the Tribunal considered his opinion to be relevant and necessary to assist in arriving at a decision on the matters in dispute.

Mr. Smith’s evidence

15Mr. Smith is opposed to the requested variances. He provided an overview of past events suggesting a history of non-compliance with by-laws on the part of the Appellant and a lack of enforcement by the County in relation thereto. In his view, the Appellant has been able to incrementally expand the mushroom operation on the subject property through this history of non-compliance. As such, Mr. Smith has serious misgivings with respect to the authenticity of the Appellant’s intended use of the enclosed canopy. It was asserted the Appellant could expand the existing agricultural operation by using the enclosure to grow more mushrooms, which would exacerbate existing impacts upon neighbouring properties.

16Mr. Smith explained the current permitted use of the subject property results in adverse impacts including, but not limited to, extreme and intolerable odor (worse in the summer than in winter) and what he described as a constant overflow of water onto his and other adjacent properties which has, in the past, interfered with the ability to grow crops on a portion of the Smith property. The Tribunal was shown a video taken by another adjacent property owner (dated January 12, 2020) which depicts water draining onto that adjacent property via open drainage pipes that appear to originate on the subject property. A similar video taken by Mr. Smith (dated March 30, 2021) shows a great deal of standing water on the Smith field and along the property line dividing the Smith property and the subject property. The video also depicts open-ended drainage pipes or hoses on the Smith property which appear to originate on the subject property. Partway through the video, a sudden gushing of water occurs out of one of the pipes. Mr. Smith testified that, as a result of drainage issues, the general area in which the video was taken has been difficult to farm. In addition, although admittedly only conjecture, it is Mr. Smith’s belief that the Appellant deliberately pumps excess water containing contaminants or detergents onto adjacent fields.

Mr. Phillips’ evidence

17Mr. Phillips provided an overview of the drainage and SWM systems in place at the subject property. He explained there is an exterior SWM grading/swale system at the rear of the property, which collects and redirects surface runoff out toward Colborne Street as well as a separate “closed loop” system completely internal to the agricultural building, which collects, recycles and reuses all water applied in the growing of the mushrooms. He testified that, from an engineering standpoint both systems, as designed, are adequate to serve the subject property.

18He further testified that those systems, which were approved in the context of an earlier site plan by the Ministry of the Environment, have been in place for approximately 10 years or more and, to his knowledge, there have been no issues with respect to non-compliance with any building codes or regulations in respect of those systems. He did, however, concede that the SWM system at the rear of the property had been accidentally altered/damaged by heavy construction equipment used in the enclosure of the canopy. While this did result in adverse drainage impacts, Mr. Phillips testified that such impacts had been adequately addressed and repaired through a recent regrading of the area.

Planning evidence

19It is important to note that the land use planners differed in their respective approaches to evaluating the variances at issue. Whereas Ms. Kehs and Mr. Namisniak evaluated the variances as though construction to enclose the canopy had not taken place, Mr. Sullivan analyzed the variances based on the existing situation. In addition, while Ms. Kehs and Mr. Namisniak characterized the proposed enclosure of the canopy as an ‘addition’ onto an existing agricultural building resulting in an enhancement of the existing agricultural operation, Mr. Sullivan characterized it as ‘new construction’ resulting in an expansion of the existing operation. Finally, Mr. Sullivan evaluated the application ‘holistically’, in light of past practices of the Appellant, a history of incremental expansions over the years and the fact that this application seeks forgiveness rather than asking for permission, all of which in his opinion, calls into question the Appellant’s true intentions. In contrast, Ms. Kehs and Mr. Namisniak considered the application independent of past events, focusing upon the variances at issue and the information provided in the application with respect to the intended use of the structure.

20Overall, in Mr. Sullivan’s view, the requested variances do not meet the four tests and are not representative of good planning. He opined the application “offends the 1999 OMB decision, as expansion of the operation is requested”, explaining that the site-specific zoning (A-46) and lot use provisions flow directly out of that decision. In his view, the intent of the decision was to limit any future expansion of the operation on the subject property and therefore, the requested variances do not maintain the general intent and purpose of the ZBL.

21Mr. Sullivan testified the variances are neither minor nor desirable for the appropriate development or use of the land building or structure as, in his opinion, they would result in expansion of the mushroom operation on an already undersized property which simply doesn’t have room for any more built form. While he acknowledged the total maximum lot coverage would be maintained, he reiterated his opinion that the 1999 OMB decision sought to limit agricultural expansion and the proposed reallocation of use percentages would result in such an increase. In his view, it is not desirable to deviate from these very specific lot coverage restrictions testifying that, while the enclosed canopy might currently be used for storage, in the future it could be used to grow more mushrooms, thereby expanding the operation closer to adjacent properties and increasing impacts (odor, drainage, water quality/quantity) on neighbouring residents.

22He further opined the variances do not maintain the general intent and purpose of the OP. He provided a brief overview of OP policies in general, but his evidence focused upon the following policies applicable to mushroom operations, found at s. 3.3.1 g):

Mushroom operations including the growing, harvesting, cleaning, packaging and shipping of mushrooms and any other uses related to mushroom production, including the creation of compost, shall be permitted in the Agricultural designation, subject to the following criteria:

i. the mushroom operation is located no closer than 300 m from a residential dwelling;

ii. specific development standards are provided in the County Zoning By-law;

iii. the mushroom operation is subject to Site Plan Control in accordance with Section 6.7 of this Plan;

iv. the recycling of irrigated water by the mushroom operation shall be required in order to reduce primary water use

Mr. Sullivan explained the foregoing provisions are intended to address and avoid impacts (ie: odor, visual impacts, groundwater) to neighbouring residential dwellings.

23While it was acknowledged that the mushroom operation enjoys legal non-complying status and the existing agricultural building does not meet the distance requirement in s. 3.3.1 g) i), Mr. Sullivan opined the now-enclosed canopy constitutes new construction (rather than an addition onto the existing agricultural building), which would be subject to that 300 m requirement. While he acknowledged that putting walls around the canopy did not physically move the structure any closer to adjacent residential properties, he opined that the new building is now situated in close proximity to the residences and could, in the future, be used for production, which could increase odor and drainage impacts.

24With respect to s. 3.3.1 g) ii), Mr. Sullivan testified the provision is intended to address negative impacts from mushroom operations through the imposition of specific development standards and he noted the ZBL includes few development standards applicable to the subject property beyond the site-specific lot coverage provisions for the A-46 zone. As the Appellant seeks to alter those development standards, Mr. Sullivan’s opinion is that this intent of this provision is not maintained.

25Regarding s. 3.3.1 (g) iii), which places mushroom operations under Site Plan Control and s. 3.3.1 (g) (iv), which addresses the handling of water used in mushroom production, Mr. Sullivan’s conceded that, in general, handling of water and SWM concerns are appropriately addressed at Site Plan, but with reference to the history of problems with the functionality of SWM and water systems on the property he stated, “I don’t have much faith in the County’s history of enforcement”.

26During cross examination with respect to the potential for adverse impacts and concerns of non-enforcement, Mr. Smith conceded that the imposition of a condition requiring an approved grading/drainage plan would likely mitigate any potential drainage impacts. On further questioning from the Tribunal, Mr. Smith also testified that a condition requiring the site plan to be registered on the title to the property might go some way to addressing concerns with respect to future use/potential impacts.

27Ultimately, Mr. Sullivan urged the Tribunal to dismiss the appeal, as it does not meet any of the four tests adding, “history should be considered if there is any goodwill to be generated [by the Tribunal] in making a decision on this matter”. In his view, the application should not be assessed on its own merits independent of the Appellant asking forgiveness for a conscious decision to enclose the canopy without a building permit, especially in light of incremental expansions of the operation on the subject property over the years.

28In contrast to Mr. Sullivan, Ms. Kehs analyzed the variances based on information provided in the application, which was that the canopy area was, and would continue to be, used for storage and weather protection for workers. Ultimately, she recommended approval of the variances (subject to the condition specified in the planning report), opining they meet all requisite legislative tests and represent good planning.

29In her view, the general intent and purpose of the ZBL is maintained because the mushroom operation is a permitted use in the A-46 zone and the existing setbacks, height, footprint and overall use of the canopy will not change. Moreover, despite a reallocation of specific use percentages, the maximum total lot coverage percentage of 40% would remain unchanged. Ms. Kehs noted enclosing the structure would not have the effect of encroaching any further into the rear yard and considered the requested rear yard setback of 7 m to be adequate, given that the structure backs onto open farmland. In her view, enclosing the canopy would not result in expansion of the agricultural operation but rather, an enhancement and more efficient use thereof. In any event, she disagreed that expansion would be precluded on the basis of the 1999 OMB decision, which clearly indicates future development would be subject to further review and consideration.

30Ms. Kehs testified that, in her opinion, the proposed variances result in an improvement in terms of the functioning and safety of the existing agricultural operation, allowing employees to comfortably work in all types of weather. Moreover, as the proposed enclosure would not change the size or the function of the canopy structure, there would be no new or worsened impacts upon the neighbouring properties. As such, she opined the variances are minor in nature and are desirable for the appropriate development or use of the land building or structure.

31She further testified that the general purpose and intent of the OP is maintained and, like Mr. Sullivan, the majority of her evidence focused upon the specific policies applicable to mushroom operations. She pointed out that this mushroom operation has existed within 300 m of residential dwellings for decades. In her view, the intent of s. 3.3.1 g) i) is to ensure new development will not be located within 300 m of a residential dwelling. She testified that there is a difference between simply enclosing something that is already there and permitted (in this case, the open canopy) and constructing a completely new building. On this basis, she opined the enclosure of the canopy constitutes an addition onto the existing agricultural building rather than new construction. She added that, because the footprint of the structure and the existing use (which was already there in an open format) would not change, the enclosure would not result in the mushroom operation being brought any closer to the adjacent residences and would not result in new or worsened impacts.

32With respect to the remainder of s. 3.3.1 g) she opined that, although the Appellant seeks a reallocation of the use percentages on the subject property, the overall lot coverage will remain at 40% which, in her view, is important and maintains the intent of s. 3.3.1 g) ii). In considering s. 3.3.1 g) iii) and iv), she acknowledged that there had been drainage and SWM issues in the past but testified that, to her knowledge, such issues had been addressed and further testified that she visited the property, was shown the closed loop system and confirmed that it recycles water as intended and required by the OP. Given s. 3.3.1 g) iii) she noted the subject property will remain under Site Plan Control and opined any drainage concerns can be appropriately addressed at the Site Plan stage.

33Finally, Ms. Kehs referenced the condition recommended by Mr. Namisniak (that a building permit be required and all requirements of the building permit process be satisfied) and opined this would appropriately address the historical concerns raised by Mr. Smith and should be retained in the event the variances are approved.

34In addition to evaluating the requested variances against the four tests in s. 45(1), Ms. Kehs provided a comprehensive overview of the ways in which the requested variances demonstrate consistency with the PPS, conform to/do not conflict with the GP and have appropriate regard for matters of Provincial interest.

35She testified the variances are consistent with PPS policies noting, in particular, the promotion of efficient development and land use patterns which sustain the financial well-being of the Province and municipalities over the long term; avoidance of development and land use patterns which may case environmental or public health and safety concerns; preparation for impacts of a changing climate; and promotion of a diversified economic base and employment opportunities. With respect to the GP, Ms. Kehs’ view is the variances demonstrate conformity, in that they support economic prosperity and the long-term viability and productivity of agriculture and the agri-food network by improving the functioning of an existing agri-food business. In her view, the requested variances also have appropriate regard for matters of Provincial interest including, but not limited to, protection of the Province’s agricultural resources; orderly development of safe and healthy communities; and protection of public health and safety.

36Mr. Namisniak, who authored the planning report recommending conditional approval of the variances, concurred with the evidence provided by Ms. Kehs and testified that, like Ms. Kehs, he evaluated the application on its merits in accordance with the information provided therein.

37While much was made of the fact that his planning report did not reference OP policy 3.3.1 g), Mr. Namisniak testified that, in the course of evaluating the application, he considered the OP in its entirety and found the variances to be in keeping with the general intent and purpose thereof. Although Mr. Namisniak was cross-examined at length with respect to s. 3.3.1 g), his opinion with respect to the variances maintaining the general intent and purpose of the OP remained unchanged. He noted the 40% total lot coverage would be maintained, that there would be no change to the footprint of the existing structure and “enclosed or unenclosed, the use of the space remains unchanged” and recommended the variances be approved subject to the condition specified in the planning report.

ANALYSIS AND FINDINGS

38It is clear there has been and continues to be animosity between the Appellant and Mr. Smith, owing to what Messrs. Smith and Sullivan characterized as the Appellant’s history of non-compliance, as well as apparent impacts associated with the current permitted use of the subject property. Notwithstanding the foregoing, the Tribunal is tasked with determining whether the requested variances meet the requisite legislative tests, and not whether the existing mushroom operation should be permitted or whether past events should somehow disqualify approval of variances that might otherwise meet those legislative tests.

39The Tribunal finds the case generally turns on how the now-enclosed canopy should be characterized. Counsel for Mr. Smith urged the Tribunal to accept Mr. Sullivan’s opinion that it should be treated as new construction which expands the agricultural operation by providing an increase of approximately 1,000 sq m in area for the production of mushrooms with a concomitant increase in impacts to neighbouring properties. It was further submitted that, although there may be a legal non-complying protection that permits the existing use of the property, the construction of a new building and the expansion of that use does not enjoy that legal non-complying protection.

40Written submissions for Mr. Smith note each of the three planning witnesses acknowledged that mushrooms could (emphasis added) be grown within the enclosed structure, something that would not have been possible in an open structure. It was submitted, “either way, the enclosed building will increase and intensify production capacity and exacerbate nuisance impacts associated with the mushroom operation” and the evidence of Ms. Kehs…

continued the narrative offered by the Appellant, namely that the canopy did not offer sufficient weather protection and nothing will change in the building now that it is enclosed. Ms. Kehs offered this narrative as a fact, which is inherently hearsay…the neighbours don’t accept this narrative…the Appellant’s own conduct allows one to question the veracity of that narrative…if the variances are approved, there is nothing stopping the Appellant from expanding the growing of mushrooms into this building.

41Counsel for the Appellant submitted that the Tribunal should prefer the testimony of Ms. Kehs, who opined the enclosure of the canopy does not constitute new construction, but an addition onto the rear of the existing agricultural building with a footprint and use which will not change, resulting not in an expansion of the agricultural operation but rather, a necessary and desirable enhancement thereof. The Tribunal was urged to reject the arguments advanced by Mr. Smith and the approach taken by Mr. Sullivan, which rested heavily on apprehensions with respect to the future use of the structure based on past events. It was submitted that the Tribunal:

a) must assume all owners will comply and observe all regulatory planning policies which may be the subject of enforcement;

b) must assess the evidence relating to the variances based upon the four tests and not upon past incidents…and mere apprehensions of future non-observance; and

c) should not accept opinion evidence that is dependent upon concerns about future use by the Appellant, based upon past uses.

42In support of the foregoing, the Tribunal was referred to Pillon v. Lakeshore (Twp), 2020 CanLII 66012 (ON LPAT). At issue in that case were minor variances to permit an accessory structure which the appellant was concerned could potentially be used for non-permitted commercial purposes. Vice-Chair Lanthier found too much emphasis had been placed upon irrelevant apprehensions and suspicions that the accessory structure would be used for commercial purposes, the underlying basis of which stemmed directly from the appellant’s testimony with regard to the applicant’s prior conduct. He determined that apprehensions of non-permitted activity, at some time in the future, were not relevant to the issues before him and went on to note:

It must be assumed that all owners will comply and observe all regulatory planning policies, which may be the subject of enforcement. It is assumed that the intended use of the accessory structure will be that identified by the Applicant, and the Applicant is surely aware of the consequences that will arise should he fail to comply with the Municipality’s designated and permitted uses. The Tribunal cannot make determinations on the test of what is “minor” based on apprehensions of breach of by-laws restricting commercial uses on the Subject Property. Neither can the Tribunal, in its view, interpret and apply the tests to the facts of the case upon concerns that the approval of the GFA and height Variances will “create opportunity” for non-observance of other restrictions on use.

43The Tribunal finds a similar argument is advanced by Mr. Smith, who foresees a future breach because the enclosure of the canopy creates an opportunity to grow mushrooms therein, contrary to the stated purpose of providing weather protection for workers and the storage of equipment. The Tribunal does not accept the submission of Mr. Smith that “either way the enclosed building will increase and intensify production capacity and exacerbate nuisance impacts associated with the mushroom operation”. The evidence is that the canopy was and will continue to be used for storing equipment and the protection of workers during the process of transferring material into growing beds housed within the agricultural building.

44The Tribunal generally preferred the evidence and opinions of Ms. Kehs to those of Mr. Sullivan. It is well-settled that, in cases where minor variances are sought after the fact, they are to be evaluated as if the work or construction had not yet been completed and this was the approach taken by Ms. Kehs. Ms. Kehs also evaluated the variances based on the information in the application rather than upon apprehensions.

45With respect to the significance of the 1999 OMB decision which resulted in the site-specific provisions respecting lot coverage and the percentages of use allocations within the ZBL, the Tribunal does not accept that this decision precludes any future reallocations of, or alterations to, the lot coverage provisions as the Board clearly states: “further development on the subject property would be subject to further review and consideration”. The Tribunal would also note that applications for variances and applications to amend planning instruments such as Official Plans and Zoning By-laws are routinely approved notwithstanding previous decisions of the Tribunal

46On the evidence of Ms. Kehs, the Tribunal is satisfied the requested variances maintain the general intent and purpose of the OP and ZBL, are desirable for the appropriate development or use of the land, building or structure and are minor in nature. Further, on the comprehensive analysis advanced by Ms. Kehs in relation to higher level Provincial policies, with which Mr. Sullivan generally agreed during his cross-examination, the Tribunal is satisfied that the requested variances have appropriate regard for matters of Provincial interest, are consistent with the PPS and conform to/do not conflict with the GP.

47In making its decision, the Tribunal considered it significant that the enclosed canopy is not intended to be used for mushroom production and, on that basis, accepted Ms. Kehs’ opinion that approval of the variances will not result in any new or worsened impacts upon neighbouring properties. With respect to concerns over the potential for increased impacts in terms of odor, in particular, the Tribunal finds it noteworthy that planning staff (including environmental planning staff) and public agencies to whom the application was circulated, did not raise concerns or recommend any further study.

48With respect to potential drainage impacts, beyond the videos taken in Jan 2020 and March 2021, there was no more recent evidence to refute Mr. Phillips’ testimony that a recent regrading of the area had adequately addressed drainage issues and, in any event, all three planners agreed that drainage and grading are matters which can be appropriately dealt with at the site plan stage. Notwithstanding the foregoing, it is clear there have been drainage issues in the past and both Messrs. Smith and Sullivan expressed concerns with respect to lack of enforcement by the County.

49On the basis of all the foregoing, the Tribunal finds it appropriate to approve the requested variances so as to allow the canopy to continue to be used for equipment storage and employee protection which results in an enhancement of the existing agricultural operation, subject to the condition recommended by planning staff and subject to the following further conditions as discussed in the course of Mr. Sullivan’s testimony: that an approved grading/drainage plan be required and that the site plan agreement be registered on the title to the property.

50In making this decision, the Tribunal has given appropriate regard to the decision of the Committee and the information considered by it including, but not limited to, public commentary received in opposition to the variances as well as the comments received in response to the application from various public agencies.

ORDER

51The Tribunal orders that the appeal is allowed. The requested variances to Zoning By-law No. 61-16 are authorized, subject to the following conditions:

a) that the Applicant/Owner receive a building permit for the ‘enclosed’ structure and satisfy all requirements as part of the building permit process;

b) that the Site Plan Agreement include a grading and drainage plan approved by the County and;

c) that the Site Plan Agreement be registered on the title to the property.

“S. Braun”

S. Braun 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.

Footnotes

1. 1R.S.O. 1990, c. P. 13, as amended.