County of Simcoe v. Oro-Medonte (Township), 2022 CanLII 40677

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 09, 2022

CASE NO(S).: OLT-21-001770

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

Applicant: Bruce North

Appellant: County of Simcoe

Subject: Consent

Property Address/Description: 363 Line 12 North

Municipality: Township of Oro-Medonte

Municipal File No.: 2021-B-02

OLT Case No.: OLT-21-001770

OLT Lead Case No.: OLT-21-001770

OLT Case Name: County of Simcoe v. Oro-Medonte (Township)

Heard: April 5, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Bruce North (“Applicant”)	Sarah Hahn Carly Emmett (Student-at-Law)
County of Simcoe (“Appellant”)	Marshall Green

DECISION DELIVERED BY ERIC S. CROWE AND S. TOUSAW AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal was an appeal by the County of Simcoe (the “Appellant”) concerning the decision of the Committee of Adjustment (the “CoA”) to approve a consent application from Bruce North (the “Applicant”) for his property at 363 Line 12 North (the “Subject Property”), in the Township of Oro-Medonte (“Township”).

2The Consent sought would sever and merge land for the purpose of a lot boundary adjustment. The northern and southern portions of the property are split by a watercourse and forested corridor which are zoned Environmental Protection (EP), along which the proposed lot line would follow.

3The lands to be severed (“severed parcel”) would have a lot frontage of approximately 131.0 metres (“m”) (429.8 feet (“ft.”)), a lot depth of approximately 665.0 m (2,181.8 ft.) and a lot area of approximately 11.3 hectares (“ha”) (28.0 acres). The severed parcel would merge with the abutting vacant residential lot (“grantee”) as shown in the Applicant’s Consent Sketch below.

4The lands to be retained (“grantor” or “retained parcel”) would have a lot frontage of approximately 425.0 m (1,394.4 ft.), a lot depth of approximately 665.0 m (2,181.8 ft.) and a lot area of approximately 29.6 ha (73.0 acres) for continued agricultural use, including the existing dwelling.

BRIEF CHRONOLOGY OF THE APPLICATION

5On February 3, 2021, the CoA deferred the application to give the Applicant the opportunity to address comments from Township Planning Staff and from the Lake Simcoe Region Conservation Authority (“LSCA”).

6A resubmission letter dated September 29, 2021 by the Applicant provided a revised analysis which recommended a zoning by-law amendment to a site specific Agricultural/Rural (A/RU) Zone to remove the Rural Residential Two (RUR2) Zone on the benefitting lands and establish a 30.0 m (98.40 ft.) structural setback from the southern limit of the tree line of the natural heritage feature.

7Subsequently, on November 3, 2021, the CoA approved the application subject to six conditions.

8Although planning staff recommended denial of the application, the CoA approved the application. The County of Simcoe subsequently appealed on the basis that the application would result in two undersized agricultural parcels that are not consistent with the Provincial Policy Statement, 2020 (“PPS”) and do not conform with the Simcoe County Official Plan (“SCOP”) and the Township Official Plan (“TOP”).

9For the reasons that follow, the Tribunal allows the Appeal and will not grant the Consent.

PARTY STATUS REQUEST

10The Tribunal granted Party status to the Applicant at the commencement of the Hearing, as he has a substantial interest in this matter and has evidence to offer, which is necessary for the adjudication of this matter by the Tribunal.

11The objective of the consent application is to sever the agricultural field on the south side of the environmentally protected watercourse and woodland, an area of approximately 11.4 ha (28 acres) and convey the severed parcel to the adjacent vacant lot. The proposed conveyance would result in an increase to the size of the vacant grantee lot and a decrease in the size of the grantor’s retained farm.

12The following table illustrates the existing lot areas and lot frontages of both the grantor and the grantee, together with the proposed lot areas and lot frontages of each parcel.

SITE CONTEXT

13The Subject Property is located to the west of Highway 11 North and fronts on the east side of Line 12 North, less than 1 kilometre from the Highway 11 interchange. The area is predominately agricultural, rural and environmentally protected lands.

14It was uncontested that the Subject Property is: designated as Agricultural and Greenlands in the SCOP; designated Agricultural in the TOP; zoned Agricultural/Rural (A/RU) and Environmental Protection (EP) in the Township’s Zoning By-law No. 97-95 (“ZBL”); and located within the area of the agricultural system in A Place To Grow, Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”).

15The Subject Property is developed with a single detached dwelling, a barn and agricultural land. The property is serviced by a private well and a private septic disposal system. There is a stream which traverses the property from the southwest to the northeast, and the stream is protected by a narrow forested corridor (natural heritage feature). The agricultural lands which are present on the north side of the creek have historically been used to pasture cattle.

16The Subject Property on the south side of the creek (natural heritage feature) is proposed to be severed and merged with the adjacent vacant rural residential parcel. The proposed severed lands have historically been used for cash cropping, most recently sorghum. The grantee’s adjacent vacant rural residential parcel has approximately 45 m of frontage on Line 12 North and an approximate lot area of 4,125 square metres (“m²”) (0.4 ha / 1.02 acres).

LEGISLATIVE FRAMEWORK

17In making a decision under the Planning Act (“Act”) with respect to this Consent, the Tribunal must have regard to matters of provincial interest as set out in s. 2. Under s. 2.1(1), the Tribunal must also have regard to any decision of the Township made under the Act that relates to the same planning matter, and the information considered by the Township in making those decisions.

18Under s. 3(5), the Tribunal’s decision must: be consistent with the provincial interests expressed in policy statements, being the PPS in effect at the date of this decision; and conform with, or not conflict with, an applicable provincial plan, being the Growth Plan in effect at the date of the decision.

19Per s. 53(1), consents may be considered if a plan of subdivision is not necessary to achieve proper and orderly development. Under s. 53(12), due regard is required to the provisions of s. 51(24), including official plan conformity. Conditions may be imposed under s. 51(25) if provisional consent is given.

PLANNING EVIDENCE

20Evidence in support of the application was provided by the Applicant’s expert, Joshua Morgan, while evidence against the application was provided by experts Catherine McCarroll for the Township and Julie Nolan for the County. All experts were duly qualified on consent to provide opinion evidence in land use planning.

21Ms. McCarroll provided an overview of the applicable designations and zoning. The Subject Property is designated Agricultural in the TOP.

22Mmes. McCarroll and Nolan both explained the SCOP is consistent with the PPS and identifies that lot creation is discouraged in the agricultural designation and may only be permitted for agricultural uses, agricultural-related uses, a residence surplus to a farming operation as a result of farm consolidation, and infrastructure. Lots for agricultural uses should not be less than 40 ha or the original survey lot size.

23In Mmes. McCarroll’s and Nolan’s opinions, the application does not arise from the needs of agriculture and does not warrant a resulting lot size less than 40 ha. Therefore, the application does not conform to the SCOP with respect to agricultural lot creation and is not consistent with the agricultural policies of the PPS.

24Mr. Morgan contends the proposed boundary adjustment will not create a new building lot and it does not propose to change the existing agricultural land uses, rather it will simply reconfigure the shape of two existing lots. The severed and retained parcels are farmed separately and independently from one another.

25Mr. Morgan proposed the boundary adjustment would enable the continued agricultural use of the retained parcel to pasture cattle and cash crop. Similarly, the proposed boundary adjustment would enable the continued use of the benefitting severed parcel for cash cropping.

26Mr. Morgan highlighted the unique physical traits of the Subject Property in particular, a watercourse and the woodland corridor (natural heritage feature) which transects through the Subject Property. Mr. Morgan explained there is no physical connection between the agricultural lands on the north side of the watercourse and the agricultural lands on the south side of the watercourse.

27In Mr. Morgan’s opinion, it is logical for lot fabric to be positioned along the south limit of the natural heritage feature, thereby placing the agricultural lands on the north side of the feature and the agricultural lands on the south side of the feature within separate ownerships.

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

28 Section 51(24) of the Act contains criteria that an approval authority must have regard to when considering a plan of subdivision or a consent application (if no subdivision is required).

29Ms. McCarroll advised she is satisfied that no plan of subdivision is required for the purposes of a boundary adjustment; however, contends the application does not meet certain requirements of s. 51(24) of the Act:

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

(d) the suitability of the land for the purposes for which it is to be subdivided.

30Ms. McCarroll advised that the provincial interests include “the protection of the agricultural resources of the Province” (s. 2(b)). She advised there are concerns about the suitability of the lot sizes of the severed and retained lands for viable agricultural purposes.

31Mr. Morgan opines that, because the lands will remain in agricultural production, the Consent satisfies the provincial interest of protecting agricultural resources.

32The Tribunal notes that the other criteria of s. 51(24) of the Act were all duly considered; however, it was found that the other criteria were not contested or applicable to the contested issues of the present case.

Provincial Policy Statement

33Ms. McCarroll informed the Tribunal that the applicable PPS policies are s. 1.1.4 – Rural Areas, s. 2.1 – Natural Heritage, and s. 2.3 – Agriculture.

34The PPS permits consents in agricultural areas for “legal or technical reasons” defined as including a “minor boundary adjustment.” Ms. McCarroll contends this boundary adjustment is not considered to be minor in nature, as it has the potential to negatively impact the agricultural viability of the farmland, due to the resulting undersized agricultural lots. The existing lot is approximately 40.9 ha (101.0 acres) which meets the SCOP’s minimum lot size requirement of 40.0 ha (98.8 acres) for agricultural uses and this SCOP policy is consistent with the PPS.

35Mr. Morgan testified the proposed boundary adjustment would not create a new building lot and it does not propose to change the existing land use, rather it simply proposes to reconfigure the shape of two existing lots. He opined the proposed boundary adjustment is not defined as “development” by the PPS.

36Mr. Morgan advised the proposed boundary adjustment would maintain the stream and the forest which protects it, which are collectively zoned Environmental Protection (EP), within one congruent parcel. The proposed boundary adjustment would enable the continued agricultural use of the Subject Property (the ‘grantor’) to pasture cattle, and cash crop, while also enabling the vacant parcel (the ‘grantee’) to function agriculturally.

37In Mmes. McCarroll’s and Nolan’s opinion, the proposed boundary adjustment does not comply with this minimum lot size requirement and thus results in two agricultural parcels that are not of a size appropriate for agriculture in the area. Ms. McCarroll testified, although there is a watercourse and associated woodland that transects through the property, the lands continue to be farmed currently and a severance is not required to continue farming these lands.

38In Mmes. McCarroll’s and Nolan’s opinion, from the above noted reasons, this application is not consistent with the PPS.

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

39The Subject Property is located within the prime agricultural area of the agricultural system in the Growth Plan. Ms. Nolan opined the application results in lots sizes that do not conform with the Growth Plan requirement to protect the long-term use for agriculture.

40Ms. McCarroll advised, with agreement of Mr. Morgan, the Subject Property contains a watercourse that is protected by the Growth Plan’s natural heritage policies but acknowledges that no change is proposed to the watercourse or its associated woodland as a result of this application.

41Ms. McCarroll informed the Tribunal, s. 4.2.3.1 states that outside settlement areas, development or site alteration is not permitted in key natural heritage features. However, since the proposed boundary adjustment does not represent ‘development’ as defined by the Growth Plan, these policies do not affect this application.

42Mr. Morgan testified the proposed boundary adjustment does not propose to change the existing land use and, similar to his review of the PPS, the proposed boundary adjustment is not considered ‘development’ by the Growth Plan because, in his view, lot lines are being adjusted but new lots are not created by this application.

43Ms. McCarroll advised the LSCA has requested a 30.0 m (98.4 feet) buffer around the natural heritage feature. According to Ms. McCarroll, this setback has already been established in s. 5.27 of the Township’s ZBL, which prohibits buildings and structures within 30.0 m (98.4 ft.) of the Environmental Protection Zone boundary.

Simcoe County Official Plan

44It is noteworthy that, during the municipal review of the proposed Consent, planning staff for the Township was of the opinion that the proposed Consent did not adequately conform with the SCOP and TOP. The CoA, however, found to the contrary, that no new lots are proposed as a result of the lot addition.

45These opposite findings reflect the respective differing opinions of the Parties’ experts and highlight key policies of the SCOP which are in dispute. It is upon these specific policies that the Tribunal finds this case turns on.

46Ms. McCarroll informed the Tribunal, the Subject Property is designated ‘Greenlands’ and ‘Agricultural’ in accordance with Schedule 5.1 – Land Use Designations of the SCOP. The portion of the lands to be severed and the benefitting lands are both designated ‘Agricultural’.

47Mr. Morgan referred to s. 3.3.5 of the SCOP permitting consents for legal or technical reasons and s. 3.6.5 permitting all sizes of agricultural uses, similar to the PPS. He opined the 40 ha size pertains to new lots whereas the application merely adjusts a lot boundary between two existing lots. In his view, this application results in an existing small agricultural lot becoming a more viable agricultural parcel when merged with the severed parcel and zoned accordingly.

48Mmes. McCarroll and Nolan, with reference to the PPS definition of “legal or technical reasons” for Consent, opine that this proposal is not minor in terms of size or effect and does result in the creation of two new farm lots that fail to conform with the SCOP.

49Mr. Morgan referred to the March 2022 – DRAFT Proposed Refined Prime Agricultural Areas Mapping (County of Simcoe Municipal Comprehensive Review) (Exhibit 4) identifying the retained parcel as ‘Greenlands’ and removing it from ‘Prime Agricultural Areas’. The Tribunal has not given weight to this information, as the document is only a Draft, and to date no changes to the SCOP have resulted from it.

Township of Oro-Medonte Official Plan

50Ms. McCarroll informed the Tribunal the Subject Property is designated ‘Agricultural’ in “Schedule A – Land Use” of the TOP. The TOP addresses boundary adjustments under the general “Subdivision of Land” policies.

51Section D2.2.2 Boundary Adjustments states:

A consent may be permitted for the purpose of modifying lot boundaries, provided no new building lot is created. In reviewing an application for such a boundary adjustment, the Committee of Adjustment shall be satisfied that the boundary adjustment will not affect the viability of the use of the properties affected as intended by this Plan. In addition, the Committee of Adjustment shall be satisfied that the boundary adjustment will not affect the viability of the agricultural parcels affected.

52Mr. Morgan contends the effect of the proposed boundary adjustment would be to increase the size of an existing small agricultural lot, thereby resulting in a more viable agricultural parcel.

53In Mmes. McCarroll’s and Nolan’s opinions, the boundary adjustment will negatively impact the viability of the farmland on the severed and retained lots.

Township of Oro-Medonte Zoning By-law No. 97-95, as amended

54The Subject Property is zoned Agricultural/Rural (A/RU) and Environmental Protection (EP) in the ZBL, and the benefitting lot is currently zoned Rural Residential Two (RUR2).

55Mr. Morgan advised it is envisioned that a dwelling will eventually be constructed on the lands which are zoned RUR2 and that the severed A/RU lands will continue to be used for cash cropping.

56According to Ms. McCarroll, should the application be approved, it is recommended that the Applicant be required to apply for and obtain a ZBL amendment to rezone the portion of the benefitting lands that are currently zoned Rural Residential Two (RUR2) Zone to the Agricultural/Rural (A/RU) Zone.

57Ms. McCarroll advised, in the absence of such a ZBL amendment, the RUR2 and A/RU zone boundary has the potential to complicate setback requirements depending on where someone might want to build a dwelling or other structures in the future. Additionally, leaving the RUR2 Zone in place could create the false impression that there is permission for an additional dwelling or severance of the RUR2 zoned lands. Any new buildings or structures would be subject to s. 5.27 of the ZBL which prohibits buildings and structures within 30.0 m (98.4 ft.) of the EP Zone boundary.

Minor Lot Boundary Adjustment

58Mr. Morgan contends when assessing whether a boundary adjustment is minor in nature, one most consider the size of the boundary adjustment, but more importantly, one must consider the impact that the proposed boundary adjustment would have on adjacent properties, and the impact that the boundary adjustment would have on the agricultural land base within the Township.

59In Mr. Morgan’s opinion, the historic agricultural uses of both the severed land and the retained lands would remain unchanged. Secondly, the Subject Property is transected by a watercourse and the woodland corridor which protects it. With no physical connection between the agricultural lands on the north side of the watercourse and the agricultural lands on the south side of the watercourse, no change in land use results, and it is logical to have two separate ownerships.

60Under cross-examination, Mr. Morgan acknowledged that the delineation of the farm into two parts separated by the natural heritage feature is not unique and that many properties in the Township may contain areas naturally separated by woodlands and watercourses.

61Ms. McCarroll emphasized if the watercourse/woodland is to be considered justification for a severance, there are countless other agricultural/farm parcels that could use this rationale in support of future Consents to subdivide farm parcels.

FINDINGS

62In determining this matter, the Tribunal accepts and adopts the land use planning evidence and expert opinions provided by Mmes. McCarroll and Nolan. The Tribunal is persuaded by the evidence that the effect of dividing this farm to add land to an existing severed lot is to fragment the agricultural land and the agricultural operation. In pursuit of viable farm parcels, such fragmentation should be avoided given its potential effects on land availability, affordability and use.

63Section 2.3.4.1 of the PPS states 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 are sufficiently large to maintain flexibility for future changes in the type or size of agricultural operations.” The Tribunal finds that this Consent would result in “lot creation” because it is not considered a “minor boundary adjustment” and thus does not constitute a “legal or technical” severance under s. 2.3.4.2 of the PPS.

64The Tribunal finds the SCOP is consistent with the PPS and identifies that lot creation is discouraged in the Agricultural designation and may only be permitted for agricultural uses, agricultural-related uses, a residence surplus to a farming operation as a result of farm consolidation, and infrastructure.

65The SCOP s. 3.6.7 calls for 40.0 ha (98.8 acres) minimum lot size requirement for agricultural uses as guided by the PPS. The existing lot is a suitable land base and considered a viable farm parcel. A Consent would result in two undersized lots, which would not conform with the SCOP and are not consistent with the PPS.

66The Tribunal is alive to the fact that the term “minor boundary adjustment” is not defined, thus the consideration of whether or not a boundary adjustment is ‘minor’ is subjective. Here, the Tribunal finds this case is not a minor boundary lot adjustment but rather, the creation of two new undersized farm lots. Adding a small area to an existing separated lot, for example, may be a minor lot addition, but not the conveyance of one-third of a farm as proposed here.

67In Ms. McCarroll’s opinion, which the Tribunal accepts, a boundary adjustment that takes two lots that meet the OP policy requirements for their individual designations, and then creates two lots that do not, does not meet the definition of minor boundary adjustment under the PPS.

68In closing submissions, the Appellant and Applicant addressed other Tribunal Decisions dealing with similar questions of what constitutes a lot adjustment for legal or technical reasons. In the case at hand, the Tribunal finds that it is not simply a matter of no increase in the number of lots: two before and still two lots after Consent. Of relevance is the effect of the boundary adjustment. The Tribunal finds that where the resulting lots fail to be consistent with the lot size expectations of the PPS and the SCOP, then they do not constitute a permitted lot adjustment.

69In considering the potential attraction of an enlarged lot for a large house or “country estate,” the Applicant did offer to restrict a future house to the area of the existing lot or impose a maximum setback from the front lot line to avoid a dwelling in the middle of the acreage. Nevertheless, the Tribunal finds that such offering does not overcome the absence of conformity of the two resulting farm parcels.

70Having had regard to the protection of agricultural resources per s. 2 (b) of the Act, and having had regard to the Decision and reasons of the CoA, the Tribunal finds that this Consent: is not consistent with the Agriculture requirements of s. 2.3 of the PPS; does not conform with the Agricultural System policy 4.2.6.2 of the Growth Plan; does not conform with the lot size requirement of s. 3.6.7(a) of the SCOP; and thereby fails to satisfy the criteria for Consents in s. 51(24) of the Act. As a result, the Tribunal finds that this Consent does not represent good planning and is not in the public interest.

ORDER

71THE TRIBUNAL ORDERS that the appeal is allowed, and Consent is not given.

“Eric S. Crowe”

ERIC S. CROWE

MEMBER

“S. Tousaw”

s. tousaw