Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 24, 2022
CASE NO(S).: OLT-21-001217
PROCEEDING COMMENCED UNDER subsection 6(2) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended
Owner: David Waldie et al.
Expropriating Authority: The Corporation of the County of Northumberland
Property Address/Description: Lot 17, Concession 3, Part 1
Municipality: County of Northumberland
OLT Case No.: OLT-21-001217
OLT Case Name: David Waldie et al. v. The Corporation of the County of Northumberland
Heard: April 20, 2022 by video hearing
APPEARANCES:
Parties
Representative
County of Northumberland
M. John Ewart
Jeff and David Waldie
Tony Fleming
REPORT BY G. BURTON DELIVERED BY THE TRIBUNAL
1This is the Report of a Hearing of Inquiry, or Necessity, held under s. 7 of the Expropriations Act, R.S.O. 1990, c. E.26 as amended (“the Act”). Such informal inquiries are held in order to determine whether the proposed taking by the expropriating authority of an owner’s land is “fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority” as the Act states. The courts have interpreted this test to be whether the proposed taking is “reasonably defensible”.
The Property
2The County of Northumberland (“County”) served a Notice of Intention to Expropriate on October 31, 2019 on the owners Waldie (James, Grant, Garth, David and Jeffery) of lands being Part Lot 17, Concession 3, former geographic Township of Alnwick, now Township of Alnwick-Haldimand, now shown as Part 1 on Plan 39R-14038 and as part of PIN 51121-0216.
3The portion required by the County is approximately 0.75 hectares (1.87 acres) of undeveloped land, as seen on the survey at p. 11 and in an aerial photograph at p. 214 of Exhibit 1. The zoning map at p. 79 of Exhibit 1 shows the extended surroundings.
4The County’s purpose for the proposed expropriation as set out in the Notice was “the efficient, proper and uninterrupted operation and maintenance of the Roseneath Emergency Services Base” (“ESB”).
5The owners (or “requestors”) then filed a notice requesting a hearing under s. 7(5) of the Act respecting whether the taking is fair, sound and reasonably necessary in the achievement of the County’s objectives. Owners Jeff and David Waldie followed the Hearing online.
6Such hearings are now held by the Ontario Land Tribunal (“OLT”) under recent legislative changes transferring such responsibility. The resulting alteration in proceedings was acknowledged by the Parties here by the filing of Exhibit 1, a Joint Document Book (“JDB”) and Issues List (Exhibit 2). These documents are usual for hearings held by the OLT, but were unknown for the less formal Hearing of Necessity under the Act.
Evidence of the County
7The County’s evidence was provided by Denise Marshall, Director of Public Works for the County. She has had many years of experience in design and construction of environmental and civil engineering projects. She was qualified as an expert by the Tribunal in these fields, with emphasis here on transportation issues such as road operations, and stormwater management.
8Ms. Marshall testified that the Roseneath ESB, planned in 2016 with the Township and now fully functioning, met with some issues during and after its construction. The site location may best be seen at Tab 10 of Exhibit 1, p. 212 to p. 215. The general location is seen at Tab 6 of Exhibit 1, p. 33, the as-built plans by G.D. Jewell Engineering Inc.
9The Services Base is reached by a driveway off County Road 45, south of its intersection with Halstead Road. The driveway leads only to this site and does not continue, that is, it is not otherwise a road.
10Private property owned by the Waldies surrounds the site on the north, west and south sides. There is a watercourse further to the west, seen on the “Latest Survey” at p. 213. Surrounding this is a 30-metre (“m”) buffer as required by the Lower Trent Conservation Authority (“CA”), seen in blue hatching on the survey.
11During construction, some waste materials including fill were accidentally left by the contractor on the adjacent Waldies’ lands. These consisted of soil only. There was no encroachment from construction, or by septic systems. Ms. Marshall explained that no remedy other than expropriation is possible here, since the owners would not provide permission to go on the lands to remove the excess materials. In her opinion, the area proposed to be expropriated would also provide an adequate buffer, and is fair to the Waldies.
12Ms. Marshall addressed the Issues List submitted by the parties (Exhibit 2). On Issue 1, an overall buffer is required from the site to the neighbouring property to ensure the proper operation and use as an ESB. This would help to resolve complaints for noise and traffic from the site. Emergency services require unimpeded access to the site.
13On Issue 2, the proposed buffer would minimize runoff and other stormwater management impacts, since some water now flows onto the Waldie properties. While a proposed swale for runoff was not constructed as designed, it could still be constructed within the site itself if needed, and this would further alleviate this concern. Respecting snow storage in Issue 3, the additional distance would minimize runoff from melting snow. There would be less runoff and saltation. The septic beds referred to in Issue 4 exist now, and are raised, so that an additional buffer would also assist in preventing erosion.
14As for interference with proper operations of the facility (Issue 5), in Ms. Marshall’s opinion, neighbours’ complaints about noise and traffic from the 24/7 fire and ambulance operations could be “negated” with a further buffer. There appear to be few traffic conflicts, but the need remains to ensure 24-hour road access by the emergency services.
15Neighbouring residences to the east were already in place when construction of the ESB was decided. The Waldies had long and full knowledge of the proposal since they had donated land to its construction. The main concern now is the fact that the contractors for the ESB had dropped fill on the Waldie properties. However, when the County met to resolve the “trespass” of the extra fill, the owners would not grant access in order to remove it.
16In cross-examination, Ms. Marshall acknowledged that the Waldies had already granted a portion of their lands to the County to facilitate construction of the ESB. On the survey at p. 11 of Exhibit 1, the irregular line on Part 1 entitled “northwesterly limit of occupation” indicates the extent of the waste material deposited on the Waldies properties. In her opinion, the majority of extra fill on the proposed portion to be expropriated could be left in place, with some seeding on top, leaving only the grading to be considered. Expropriation is only required here since no agreement could be reached for access to permit removal of the extra soil from the current Waldie lands.
17Ms. Marshall was challenged on the alleged lack of a plan for removal of the fill. It had been considered. However, a proposal for a retaining wall to facilitate the fill removal was rejected by the County because of design issues, stormwater management and the potential cost.
Evidence of the Owners
18Trevor Day, a very experienced civil engineer, provided expert opinion on the proposed taking from this perspective. He had been engaged in 2018 mid-project to ensure proper construction, especially the grading. He reviewed the drawings for the ESB facility by G.D. Jewell Engineering dated May 3, 2017 to be able to assess the situation of fill presently encroaching on the Waldies properties. He foresees a problem in blending the grading on both sites. There is no grading transition provided in the original designs to deal with the site’s 1.5 m grade above the Waldie lands.
19Mr. Day provided a report, Exhibit 4, and visual evidence, Exhibit 5, addressing the unacceptable grading he sees on the plans and on the site and its neighbours. Respecting Grading Plan Sheet C1, he stated that the grading plan includes a conveyance swale parallel to the north property line, centred in the space between the driveway and that line. This has not been completed as planned. Post-development grades had been specified to facilitate the collection and flow of stormwater, and to coordinate with the floor level of the building.
20This design resulted in the grade being raised significantly in the area immediately adjacent to the north property line. Since there was no design for the grade to blend back to the original level at the property line, he testified that fill was placed on the neighbouring property to accomplish this.
21He provided sketches, Section A-A and Section B-B, being cross sections through the property line showing the proposed profile. In his opinion, the slopes involved are much too steep to be considered stable. Thus there is an error in the grading plan. No provision was made to blend the new raised grade to meet the existing grade at the Waldies properties. There should be sufficient space to blend the new grade on a stable slope, and/or a retaining wall should be constructed (not included in the plan). This constitutes a significant error in the grading plan for the development.
FINDINGS AND OPINION
The Requesters’ Evidence
22While Mr. Day provided useful illustrations of his objection to the degree of slope caused by the construction of the ESB site, he had last visited it in March 2021. He had not contacted the County’s engineers earlier, as he had not been requested to do this. Nor did he know why the owners did not agree to provide access to the County for fill removal from the portion proposed to be expropriated. Respecting a suggested boundary wall, he saw one on the south boundary. However, he had not done soil analysis where the proposed wall was suggested, as it was a concept only. No costing had been done for the same reason. There had been fill placed along the west boundary of the site itself as well, now removed.
23On the issues 2 to 5 in the Issues List, Mr. Day provided almost no opinions. Thus the Tribunal accepts his expert opinion that the fill presently on the portion proposed to be expropriated is not properly graded. However, in the Tribunal’s opinion, this appears to argue in favour of the County’s solution, that of taking this portion of the Waldie lands to ameliorate this situation. The owners would not cooperate in resolving this issue by allowing access for removal of the spills, and/or proper grading to be addressed. The proposed taking is next to essential public infrastructure. The ability to both remove excess soil and also create an additional noise and pollution buffer on undeveloped land adjacent to it makes very good sense.
24Mr. Fleming submitted for the owners that since expropriation is the most invasive tool that a public authority has, other means must be sought to rectify perceived errors of design or construction. He said it was unfair to place the burden of correcting these errors on his clients. There is no proven “need” for this portion as buffer land to permit the ESB to operate, which is the main test in subsection 7(5) of the Act. He saw two issues, first the fill improperly dumped on the Waldie lands, and second, the alleged need for a buffer to permit the proper operation of the facility. Ms. Marshall’s evidence did not justify this argument respecting noise and traffic, he argued. Nearby residences already exist, and this taking would not mitigate such perceived problems. Vacant Waldie properties nearby had no reasonable nexus to the operation of the ESB. There was no perceived inference with the driveway operation, and thus no connection to the proposed taking on this ground. A possible solution on Mr. Day’s evidence for stormwater management issues is that control measures could be built within the station grounds. Snow storage is not an issue. A buffer is not needed for the septic system, as it had been built to the Building Code standards.
25He concluded that the only real issue is the failure to account for the differential in the grades. He argued that this could be rectified without expropriation. The amount of land proposed greatly exceeded the amount needed to “correct the design issues”.
26The Tribunal finds that no reasonable alternative was proposed by the owners, as is one of the principal purposes of a hearing of necessity. There is an admitted problem, the existence of an inadvertent spill of excess soil onto the Waldie properties. There was no evidence of the reason that the owners were later unwilling to permit access to this spill in order to remove it. On Ms. Marshall’s evidence, the spilled materials may be able to be left in place on the portion expropriated. Proper grading, if not now present, may have to involve this portion. The owners therefore have left the County with no choice for rectifying this acknowledged problem other than the proposed expropriation.
Procedure for Adoption of Decision to Expropriate
27There were objections to the procedure for adopting the decision to expropriate, as this appeared to occur during a closed session of Council. The Tribunal has no jurisdiction to consider procedures, only the merits of the actual taking. The statutory test is contained in s. 7(5):
(5) At the hearing, the Tribunal shall inquire into whether the taking of the lands or any part of the lands of an owner or of more than one owner of the same lands is fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority.
28This requires the Tribunal to inquire into the rationale for the proposed expropriation, but not the methodology.
29Ms. Marshall was also challenged on the fact that no plan was prepared for fill removal, as it was not indicated on the original plans. This does not address the problem of the existing spillage. The present owners of the subject land seem unwilling to permit the County to ameliorate this without the proposed expropriation. This means that the owners themselves effectively created the rationale, the reasonable necessity, for the proposed taking.
Procedure in Preparation for a Hearing of Necessity
30Respecting the documents prepared for such a Hearing, in the Tribunal’s opinion, it would be of greater assistance to merely follow the Act’s requirement to serve on the owner a Notice of Grounds, rather than attempting to reach an agreed Issues List. Such a Notice of Grounds is a statutory requirement, as in s. 7(4) of the Act. The grounds provided by the Authority are explicit reasons for the proposed taking, and not merely an agreed list of issues to be addressed at the hearing. Effectively, they guide the evidence for both parties in a more concrete manner, and are a better guide for the Member hearing the matter.
Recording the Hearing
31There had been a request by Mr. Fleming for the requesters to record the hearing. The Tribunal pointed out the very limited circumstances in which recording of hearings are permitted under Tribunal’s Rules of Practice and Procedure, Rule 22. The usual rule is for no recording (only if no disruption or prejudice – Rule 22.5). A verbatim recording is not required for the Hearing of Necessity, as it used to be under the Act for expropriation appeals. Verbatim recordings are dealt with in Tribunal Rule 22.8. Mr. Ewart did not object to recording the proceedings. An attempt was made to record it on the GoToMeetings platform (there is a recording function there). This proved impossible in the circumstances, as it would necessitate making Mr. Fleming an organizer for the Hearing, which is not possible under the Tribunal Rules governing online hearings.
32The Tribunal does not approve of any other electronic means of recording the hearing, such as by a third party, since the Rules do not ensure that the Tribunal receives a copy as with a transcript (Rule 22.9). The Tribunal also cautioned the parties that any GTM recordings or similar are not to be used as a transcript of the hearing, nor are they to be part of the evidentiary record. This is an informal “hearing of inquiry” only, followed by a Report to the County as the Authority. It is not a final decision affecting rights. Any recording can therefore be used only as an aide-memoire.
CONCLUSION
33After considering all the evidence and arguments, the Tribunal concludes that the proposal meets the test in the Act and the summation of it as set out by the courts. The test in s. 7(5) of the Act is whether the proposed taking is “fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority”. Court decisions such as Re: Parkins and the Queen (1977), 13 L.C.R. 327 (O.C.A.) conclude that the test that the inquiry officer (now Tribunal member) must apply can be expressed as whether the proposal is “reasonably defensible in the achievement of the authority’s objectives”.
34For the reasons given above, the Tribunal finds that the proposed taking of Part 1 on Plan 39R-14038, part of PIN 51121-0216, is reasonably defensible in the achievement of the County of Northumberland’s objective of ensuring “the efficient, proper and uninterrupted operation and maintenance of the Roseneath Emergency Services Base”.
“G. Burton”
G. burton
VICE-CHAIR
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.