Marbro Capital Limited v. Woolwich (Township), 2022 CanLII 45364

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 24, 2022

CASE NO(S).: OLT-21-001848

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

Applicant and Appellant: Marbro Capital Limited

Subject: Consent

Property Address/Description: 50 Martin’s Lane

Municipality: Township of Woolwich

Municipal File No.: B 13/2021

OLT Case No.: OLT-21-001848

OLT Lead Case No.: OLT-21-001848

OLT Case Name: Marbro Capital Limited v. Woolwich (Township)

Heard: March 31, and April 7, 2022 by video hearing

APPEARANCES:

Parties

Counsel

Marbro Capital Limited

J. Meader

(“Applicant”)

M. Baker

Township of Woolwich

K. Thompson

(“Township”)

J. Cockburn

DECISION DELIVERED BY S. TOUSAW AND S. BOBKA AND ORDER OF THE TRIBUNAL

INTRODUCTION

1It is remarkable how one line on a map can raise legitimate planning issues for adjudication at the Tribunal.

2The Applicant appealed to the Tribunal on the Township’s denial of its Consent application at the industrial property of 50 Martin’s Lane, Elmira (“property”).

3For the reasons contained in this Decision, the Tribunal will allow the appeal and grant the Consent for the primary reason that this industrial lot boundary adjustment of 2 hectares (“ha”), while it does technically result in two new lots, it does not change the property’s potential use, and a change in ownership does not undermine future options for a transportation corridor and a connecting street in the area.

APPLICATION

4The property is located within the industrial area in the northeast portion of the settlement of Elmira. The Applicant operates a bio-gas energy plant and battery storage on this “L”-shaped property of 8.25 ha. The property abuts the north and east sides of a similarly large, 7.25 ha industrial property at 43 Arthur Street North and 35 Martin’s Lane, owned by Elmira Pet Products Ltd. (“Pet Products”) containing pet food production facilities.

5As depicted in the following sketch, the Applicant seeks to convey 2 ha of vacant land (“severed lands”), being the southerly portion of the “L”, to Pet Products (“receiving lands”). The resulting lots would leave the Applicant with 6.25 ha (“retained lands” or “north lot”) and enlarge Pet Products’ property to 9.25 ha (“south lot”).

6In addition to the existing developed areas on these properties, the north lot would contain approximately 3 ha of vacant industrial land, and the south lot would contain approximately 5 ha of vacant industrial land.

PURPOSE AND EFFECT

7Central to this case is the purpose and effect of the sought Consent. The Applicant operates a bio-gas electricity production facility on the retained lands and does not need the severed lands. Pet Products seeks to enlarge its property for the potential future expansion of its industrial facilities. No new development is proposed at this time on either the north or south lot.

8The effect of the Consent is to introduce, in this location, a second owner of land adjacent to the east boundary of Elmira, being an area where the Region of Waterloo (“Region”) is studying options for a potential future bypass for Arthur Street. Among related Township Official Plan (“TOP”) requirements, central to this case is whether the requested Consent requires a full study on its potential effects to the options for a future bypass, where such bypass is as yet undetermined. David Gundrum, planner for the Township, accurately characterizes this question as the “known unknown”.

LEGISLATIVE REQUIREMENTS

9In 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.

10Under s. 3(5), the Tribunal’s decision must: be consistent with the provincial interests expressed in policy statements, being the Provincial Policy Statement, 2020 (“PPS”) in effect at the date of this decision; and conform with, or not conflict with, an applicable provincial plan, being A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (“GP”) in effect at the date of the decision.

11Per 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.

SUMMARY POSITIONS

12The Parties base their positions on the opinions of their respective planners, both of whom the Tribunal qualified and affirmed to provide opinion evidence in land use planning: Douglas Stewart, Registered Professional Planner (“RPP”), retained by the Applicant; and David Gundrum, RPP, on staff at the Township.

13The Applicant submits that the application represents the simple transfer of 2 ha of land from one lot-of-record to the adjacent lot-of-record. No development of the severed area is proposed at this time, resulting in no hindrance to the potential bypass options that will be evaluated in the Region’s study. The severed area is vacant industrial land today, and will remain so as part of the south lot unless and until Pet Products seeks expansion. If and when development is proposed, suitable regard can be given to the bypass plans as required through the Township’s site plan approval process.

14The Township submits that the parcel fabric should not be changed in the absence of justification as to its necessity. A Consent constitutes development and thereby invokes key requirements of the TOP for a land use study and transportation study which remain absent in this application. The Township is prepared to consider this application in future, if accompanied by the requisite studies and a development concept plan.

ISSUES AND FINDINGS

15The Parties raise no issues with general land use conformity of the resulting lot pattern from this Consent. The resulting north and south lots are: within the Elmira Urban Area in the Region’s Official Plan (“ROP”); designated as Industrial Area in the TOP with special policies applying to this North-East Policy Area; and zoned as M-1 - General Industrial - Dry in the Township Zoning By-law No. 55-86 (“ZBL”), with special provisions permitting the battery storage of electricity.

16The Parties do not disagree on the conformity of this application with the GP. Mr. Stewart opines that this industrial lot addition conforms with the GP, including provisions related to the efficient use of employment areas, and ensuring sufficient land in appropriate locations. The severed lands remain available for employment uses. The planners note that GP s. 2.3.5.1(b) requires planned corridors to be protected in accordance with the PPS, as addressed below.

17The primary issue addressed by the planning witnesses and requiring adjudication is whether this Consent constitutes development that invokes a need for a development concept plan and warrants the studies required in the North-East Policy Area by s. 7.18.14.2 of the TOP [referred to as “policy a)” and “policy b)”]:

a) Prior to consideration of the development of this area for industrial uses, the following studies shall be undertaken to the satisfaction of the Township:

i) A Land Use Study examining the compatibility of the proposed development with the existing residential development within the High Street Policy Area, potential buffering options and alternative development options for the lands subject to the application; and,

ii) A Transportation Study which shall examine the route options for an Elmira By-pass for Arthur Street and identify possible transportation corridors and any required buffering.

b) Notwithstanding the studies required in a) above, the Settlement Plan recognizes existing industrial uses in this area and their potential for expansion on lands zoned for industrial use at the time of adoption of this Amendment utilizing private services or capacity in the existing municipal system. Any development proposal will be subject to the Site Plan provisions of the Planning Act to ensure that the proposed expansions are not incompatible with adjacent uses, that the extension of future municipal services are not compromised and it does not jeopardize possible transportation corridors on the easterly portion of the property adjacent to the existing cemetery for an Elmira by-pass.

18The PPS, ROP and TOP provide context and guidance for the application of the above TOP requirements in this case.

19The PPS requires planning for, and protection of, transportation corridors to meet future needs (s. 1.6.1.8). Development is not permitted in planned corridors where it could preclude or negatively affect the corridor (s. 1.6.8.3). Those italicized terms are defined: development includes the creation of a new lot; and planned corridors are those identified through the Environmental Assessment Act (the “EA” process).

20The current ROP predates the Region’s consideration of an Elmira bypass, as now contemplated by the Region’s recent Transportation Master Plan. The ROP, however, does require consideration of whether a development application is premature where such application may compromise a future transit corridor (s. 5.A.27).

21In the TOP, the Community Values (s. 4.1) include “an atmosphere for economic development where existing business expansion and new business investment are encouraged.” The Severance Policies (s. 7.4) direct Consents to be “favourably considered” subject to various requirements, including: TOP conformity and compatibility with adjacent existing and planned land uses (s. 7.4.2); ZBL compliance (s. 7.4.3); and the protection of Trunk and Primary Roads (s. 7.4.5). The TOP Settlement Plan for Elmira (s. 3.18) includes a Transportation Objective (s. 7.18.3.6.f) to ensure that development does not jeopardize a potential future bypass.

22The TOP does not define “development” except in the context of a specific policy applying to a different area of the Township. The TOP does define “Development Application” as any application for approval under the Act, including for a Consent.

23For the reasons that follow, the Tribunal prefers the conclusions of Mr. Stewart who focusses on the “notwithstanding” policy b) cited above, based on no development arising from this application. However, the Tribunal also understands and appreciates the rationale of Mr. Gundrum’s position that focusses on policy a) seeking to ensure compatibility with the area and not impeding bypass options. Both planners agree that development, however defined, should not encumber the options to be considered in the EA for a future potential bypass.

24While the PPS considers this Consent as “development,” there is, as yet, no planned corridor here established by an EA. That process has commenced, however, and the Tribunal agrees that it should be duly considered.

25“Development” is not defined in the TOP relative to this site. The Tribunal accepts the Applicant’s submission that if “development” in policy a) invokes every possible application under the Act, then there would be no need for the “notwithstanding” policy in b). Policy b) anticipates the expansion of existing industries and requires “any development proposal” to obtain site plan approval while ensuring compatibility with adjacent uses and not compromising possible transportation options related to an Elmira bypass.

26The Tribunal accepts Mr. Stewart’s analysis that this Consent affects the location of a mutual lot boundary, which in itself does not create development. The ZBA permits development here regardless of which property contains the severed parcel. Mr. Stewart notes that further industrial development is permitted here through the site plan process described in policy b) which must not compromise a future corridor for the bypass. This Consent does not compromise the options for a future bypass, as supported by the absence of concern of the Region with reference to the ROP policy related to EAs.

27The Tribunal can imagine that cases could arise whereby a series of consents or a plan of subdivision propose new lots and street allowances that would result in a finding that they constitute “development” warranting the thorough studies required by policy a). In this case, however, the Consent is a lot boundary adjustment, involving 2 ha of industrial land that is zoned and ready for industrial use, whether part of the north lot or part of the south lot.

28Apart from who owns the severed parcel, there is no change to the designated use of the land or its availability for physical development. Again, the Tribunal agrees that the bypass options should not be limited, and such assurance is required by policy b) should any development be proposed on the severed parcel. The potential bypass could cross or come close to the north and south lots, and may well invoke a future easterly extension of Martin’s Lane that may involve either or both the north and south lots.

29Given that no change in the potential future development of the severed lands results from this Consent, and importantly, that the Region does not oppose this application, the Tribunal is satisfied that such matters as compatibility and preventing impediments to bypass options are not compromised. Such matters will be fully addressed at the time of any development on the north or south lot, with particular reference to the status or outcome of the bypass EA at such time.

30The Tribunal acknowledges that the one result from this Consent of relevance to the bypass is the introduction of two landowners adjacent to the edge of Elmira here, whereas only one owner existed previously. Should a bypass involve these lands, the Region must engage with two landowners. The Tribunal is satisfied that such result is not a burden or encumbrance to a bypass, having not been an issue raised by the Region. In addition, any future extension of Martin’s Lane will involve or affect both the Applicant’s lands and Pet Products’ lands regardless of this Consent.

31The Township argues, with reference to other Decisions of the Tribunal, that conformity with an official plan is not discretionary, and therefore the study requirements of TOP policy a) must be satisfied before endorsing this Consent. In Leal v. Wellington (County), 2019 CarswellOnt 6202, Member Tousaw wrote:

18The County provided several cases for the consideration of the Tribunal. What is clear from those cases is that conformity with an official plan is not a discretionary exercise in the sense that a policy can be applied or not applied in a particular case. Rather, the obligation of the Tribunal is to assess an application against each applicable policy to ascertain whether it sufficiently satisfies that policy or not. Of relevance is the purpose and intent behind the policy and the manner in which the application responds to that intent.

19Section 51(24) of the Act instructs that “regard shall be had” to a variety of matters including “whether the plan [consent] conforms to the official plan.” This section imposes a statutory obligation on the Tribunal to consider whether the application conforms to the official plan. To the extent that there may be some flexibility when having “regard” to an applicable policy, that flexibility is not whether the policy can be overlooked, but whether the application sufficiently satisfies the policy to be considered in conformity with it.

32In this Consent, the Tribunal is not overlooking the relevant TOP policy or finding that the application fails to conform. Rather, the facts of this case lead to the conclusion that policy a) is not offended because the Consent results in no change to the “development of this area.” As such, “development” is neither proposed nor considered here. For the severed parcel, the Consent results in a change of ownership only, with no effect on potential development as permitted by the ZBL (other than side yard setbacks will now follow the new mutual lot line instead of the former mutual lot line).

33The Tribunal acknowledges the importance of considering compatibility and transportation requirements when development is proposed, and takes comfort here that such consideration is required by policy b) if and when industrial expansion is proposed on these lands.

34As implied at the outset of this Decision, this Consent results only in the change of one segment of the lot line between two existing lots. All appropriate planning considerations remain in force should development be proposed. Thus, having had regard to the requirements of s. 51(24) of the Act, the Tribunal finds that this Consent sufficiently conforms with the applicable TOP requirements. The Tribunal finds this conclusion in step with Mr. Gundrum’s acknowledgement that “an official plan policy must be interpreted on its face with an understanding of its intent”.

35The Tribunal has had regard for the Decision of the Township Committee of Adjustment (“CoA”) and finds that its primary concerns for compatibility and bypass options are not compromised by this Consent and will be duly addressed should any physical development of the severed lands be proposed. Similarly, the Tribunal notes the concern related to further industrial development received by the CoA from a resident in the residential area to the south of the receiving lands. Again, such issues are unaffected by this Consent, given the industrial use permissions on the lands regardless of ownership and the Township’s ability to consider compatibility when approving a site plan application.

36The Tribunal finds that this Consent satisfies all legislative requirements: regard for the provincial interests of s. 2 of the Act, including the adequate provision of (f) transportation systems, (h) orderly development, and (k) employment opportunities; conforms with the GP; is consistent with the PPS; conforms with the ROP and TOP; does not require a plan of subdivision; and has regard for and suitably addresses the requirements of s. 51(24) of the Act, including (c) being found not premature, and (e) the adequacy of highways and future linkages.

37The Tribunal accepts the Township’s requested Conditions, except for requested Condition (e), such that Land Use and Transportation Studies are not required for this Consent.

ORDER

38The Tribunal Orders that the appeal is allowed and provisional Consent is given, subject to the following conditions:

a) That the Subdivider provide a Reference Plan for the proposed Consent (severed and retained lands) which is acceptable to the Township of Woolwich prior to it being deposited at the Land Registry Office;

b) That the Subdivider provide to the Township of Woolwich a Letter of Undertaking from its solicitor agreeing to register the deeds to create the lots proposed by Consent Application B13/2021 and to provide confirmation of the same to the Township of Woolwich;

c) That the Purchaser take title of the severed lands in the same manner as they hold the abutting lands; and that section 50, subsection (3) of the Planning Act, R.S.O. 1990, as amended, shall apply to any subsequent conveyance or any transaction involving the parcel of land that is the subject of this consent;

d) That the conveyance documents for the severed parcel contain a statement to ensure that section 50, subsection (3) of the Planning Act, R.S.O. 1990, as amended, shall apply to any subsequent conveyance or transaction with respect to the land described herein; and a statement that the consented parcel and the abutting lands to which this consented parcel is to be added shall be dealt with contemporaneously in any future conveyances or transactions unless further consent is granted under the Planning Act or other lawful order.

“S. Tousaw”

S. tousaw

MEMBER

“S. Bobka”

S. bobka

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 (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.