Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 30, 2022

CASE NO(S).: OLT-22-002148

PROCEEDING COMMENCED UNDER section 51(43) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant: 1087086 Ontario Inc. Subject: Conditions of approval of draft plan of subdivision Description: Appeal of conditions for a 35 unit subdivision application Reference Number: 15T-86011 Property Address: 41 Wellington Street (41 Wellington Street) Municipality/UT: Township of Asphodel-Norwood/County of Peterborough OLT Case No: OLT-22-002148 Legacy Case No: PL190547 OLT Lead Case No: OLT-22-002148 Legacy Lead Case No: PL190547 OLT Case Name: 1807086 Ontario Inc. v. Asphodel-Norword (Town)

Heard: March 1 to 21, 2022 by video hearing

APPEARANCES:

Parties	Counsel
1087086 Ontario Inc.	Conrad Schickedanz
County of Peterborough	Jeffrey D. Lanctot

DECISION DELIVERED BY K.R. ANDREWS AND ORDER OF THE TRIBUNAL

INTRODUCTION

11087086 Ontario Inc. (“Applicant”) is appealing conditions associated with a Draft Plan of Subdivision (“DPS”) for the lands known municipally as 41 Wellington Street in the Township of Asphodel-Norwood (“Subject Property”). There is an extensive Tribunal history related to this appeal, the most relevant facts of which are provided in the previous Tribunal decisions issued on October 1, 2020, and February 16, April 26 and September 17, 2021.

2The County of Peterborough (“County”) is the approval authority for the DPS and DPS Conditions.

3A key factor in this case is the proximity of the proposed development to a unique geological feature known as the “Norwood Esker”, which includes the source of the Village of Norwood’s Municipal water supply. Protection of this water supply is an express priority and concern of the County.

4The Applicant’s appeal is largely concerned with allegations of excessive demands by the County respecting hydrogeological studies and more generally with regards to unreasonable delay/refusal to clear DPS Conditions. The Applicant also complains that the company used by the County to assess potential hydrogeological impacts and risk assessment of the development is acting in its own financial self-interests and seeks to have the Tribunal step in to exclude this company from the County’s process of clearing DPS conditions.

5The Applicant further makes various claims of negligence and/or unethical conduct against the company, inferring a conspiracy with the County to prevent final approval of the development. Finally, as another basis for the present appeal, the Applicant alleges that much of the additional hydrogeological work being demanded by the County is work that must be done by the County anyway, but is including it in the scope of work included in the DPS conditions as an apparent means to make the Applicant pay for such work on behalf of the local Township.

Background

6Approval of the DPS and original DPS conditions took place in 1987. Due to the legislation enacted at the time, the DPS and Conditions were not subject to a lapsing period until the conditions were slightly modified to introduce a lapsing period beginning February 1, 2017 (see Attachment 1). With that lapsing period soon set to expire, the Applicant brought various appeals to the Tribunal (see “extensive Tribunal history” referred to above).

7The present matter involves the Applicant appealing all 14 DPS conditions, asking the Tribunal to clear or delete all 14 conditions and, in particular, the conditions regarding hydrogeology studies/work (Condition No. 6 of Attachment 1) and storm water management (Condition No. 9 of Attachment 1) on the grounds that such conditions are unreasonable, irrelevant, unnecessary, or inequitable. In the alternative, the Applicant requested an Order extending the lapsing date referenced in those Conditions.

Nature of Dispute

8Early in the proceedings, it became clear to the Tribunal that much of the dispute between the parties was a result of differing interpretations of what is required to clear the various conditions under appeal. Of particular note, there was a different understanding of the scope of work required to clear the conditions relating to hydrogeological studies/work.

9The Tribunal found the differing viewpoints to be, at least in part, a result of attempting to apply conditions principally drafted in 1987 to today’s expectations, standards and norms for a development of this kind. As a means to simplify the proceedings, and better particularize the demands of the County with respect to the DPS conditions, the Tribunal requested and the parties agreed to have the County re-draft the conditions to put a ‘finer point’ on the terms. The result is a 15-point list of conditions with several subpoints (Attachment 2). Furthermore, the County outlined the specific scope of work expected with respect to hydrogeology studies/work, appending it as “Schedule 1” (Attachment 3) and referencing it at condition 9(b) (collectively, Attachments 2 and 3 are hereinafter referred to as the “County’s Revised Conditions”).

10It is noteworthy that the County’s Revised Conditions include a new lapsing period, adding three years beginning on the date of this decision. This concession by the County is particularly noteworthy because it essentially sets aside the issues between the parties respecting the purported unreasonableness of the conditions for not giving the Applicant enough time to satisfy.

11In addition, the Tribunal notes that part of the Applicant’s stated issues involve a perception that the County’s expectations are constantly changing as it relates to the scope of hydrogeological work being demanded. This, from their standpoint, frustrated their efforts to clear such conditions. The Tribunal found that these issues were also substantially set aside as a result of the production of Schedule 1, given that Schedule 1 particularizes the scope of hydrogeological work expected by the County in great detail.

12As the hearing progressed and evidence was tendered by the parties, it further became obvious to the Tribunal that issues had further narrowed respecting which particular conditions remained contested. As a means to confirm the narrowing of these issues, the Tribunal requested that the Applicant would submit a revised draft of the County’s Revised Conditions, being a version that it considers to be reasonable with changes tracked to show which particular elements of the County’s Revised Conditions are still contested/unconsented. The parties agreed and the Applicant provided a revised set of DPS conditions (Attachment 4) and Schedule 1 (Attachment 5).

13The Tribunal notes that the Applicant’s revised DPS conditions showed that only Condition no. 9 was still at issue, and by the end of the proceedings, following the Applicant’s own witness confirming that the County’s version of Condition 9(a) was reasonable, the Applicant conceded that only 9(b) remained at issue.

14For ease of reference, the County’s proposed Condition 9(b) is copied below, followed by the Applicant’s proposed revision:

County version

That the hydrogeological works identified in Schedule 1 to these draft plan conditions shall be undertaken by the owner to the satisfaction of the municipality’s third-party peer reviewer prior to final approval. All costs associated with the works and associated peer review will be borne by the owner. If a transport pathway is determined to be created through this proposed plan, mitigation measures must be identified and contained in the Subdivision Agreement.

Applicant’s version

The Owner will provide:

(i) a statement from a qualified person that the subdivision proposed in the draft plan will not create a transport pathway; or

(ii) a statement from a qualified person stating that the proposal will not significantly increase the vulnerability of the municipal water source to being contaminated by land-based activities. In this event, the Subdivision Agreement will contain mitigation measures in compliance with provincial guidelines.

The costs associated with either (b)(i) or (b)(ii), and any third-party peer review will be at the Owner’s expense.

15The Tribunal notes that, as illustrated in the Applicant’s version of 9(b) where reference to Schedule 1 is deleted, the Applicant takes the position that Schedule 1 should be eliminated altogether. However, in the alternative, if the Tribunal finds that a scope of work is reasonable to include in the conditions, then the Applicant proposes that Schedule 1 be amended in accordance with its version.

16Upon receipt of the above-described conditions from both parties, the Tribunal elected to proceed with the appeal focussing on the contested Condition of 9(b) and the associated Schedule 1. This case has therefore become a question of reasonableness respecting the County’s Revised Conditions, and 9(b) / Schedule 1 in particular.

17As confirmed by the Applicant in its closing submissions, it takes the position that the impugned conditions are unreasonable contrary to s. 51(25) of the Planning Act (“Act”) for being unnecessary, inequitable and irrelevant. The Applicant’s position is principally premised on two key claims:

1. That sufficient hydrogeological work has already been done, and further work being requested, as set out in Schedule 1, is unnecessary. Regarding this point, the Applicant also takes exception with the County’s choice of peer reviewer.

2. That it is inequitable and irrelevant to require the Applicant to perform and pay for certain hydrogeological works that it claims are for a broader public purpose to serve the needs of the Village of Norwood.

18The Tribunal finds, as a means to determine this appeal, it must consider the impugned DPS Conditions from a land use planning perspective as principally informed by the parties’ respective hydrogeological experts. As a result, the Tribunal will first consider the parties’ opposing hydrogeology evidence, followed by an assessment of the impugned conditions in the context of provincial and municipal policies associated with source water protection.

19The Tribunal notes that there is no contest between the parties regarding the merit of taking precautions to protect municipal water supplies from a general policy perspective, so this case principally turns on hydrogeology evidence and what measures are necessary to protect the subject municipal water supply. As will be discussed in greater detail below, the County wants greater measures taken as part of a “precautionary approach” to protect the subject municipal water supply, while the Applicant contends that fewer measures should be satisfactory.

20As will be covered in greater detail below, each party’s experts’ opinions support their respective positions. Due to the Tribunal’s heavy reliance on the opinions of these experts, the case ultimately turns on the Tribunal’s preference for one party’s expert(s) over the other’s.

Witnesses

21Expert evidence was provided by the following witnesses, proffered by the parties as indicated below. The Tribunal qualified the following individuals as experts capable of providing opinion evidence in the areas indicated below:

• Applicant – Michael Bingham – Geoscience, Hydrogeology and Risk Management under the Ontario’s Clean Water Act;
• County – Iain Mudd – Land Use Planning
• County – Ian Ames – Geoscience and Hydrogeology
• County – David Ruttan – Hydrogeology and Computer Modelling of Ground Water Systems; and
• County – Terri Cox – Risk Management Official and Inspector under Ontario’s Clean Water Act.

22In addition, the Applicant called two witnesses who provided non-opinion factual evidence:

• Bruno Schickendanz – President of the Applicant company
• Berardo Mascioli – Land Use Planner employed by the Applicant company

23The Tribunal notes that the Applicant wished to have Mr. Schickendanz qualified as an expert in real estate development. The County objected on the grounds that he is neither qualified nor non-partisan. The Tribunal found that Mr. Schickendanz could not be qualified as an expert as requested due to his obvious partisan role in the matter, as the President of the Applicant company.

24The Tribunal also notes that while Mr. Mascioli presented himself as a professional land use planner, he was not proffered by the Applicant as an expert in his field. As a result, his evidence was limited to factual evidence which primarily described the Applicant’s unsuccessful efforts to work with the County.

Analysis of Hydrogeology Evidence

The Norwood Esker and Location of the Norwood Municipal Wells

25Mr. Ames provided a detailed description of the Norwood Esker (“Esker”) and municipal wells. He testified that the Esker is a glacial landform created at the end of the last ice age that is comprised of a long stretch of highly permeable sediment deposits. Heavier coarse-grained materials (i.e., gravel, cobbles, and boulders) generally form the ‘core’ of the Esker, and lighter fine-grained materials (i.e., silt, sand and finer gravel) generally form the ‘flanks’. These facts are not fundamentally challenged.

26The Esker is understood to be relatively long and thin, transecting the Village of Norwood. Critically important is the fact that the Esker area within the village, at or near the proposed development, contains an aquifer which is the source of the Village of Norwood’s water supply and well field. Due to the highly permeable nature of the Esker and location of the municipal wells thereon, great care must be taken to not negatively disturb the structure of the Esker, nor otherwise negatively impact the quantity or quality of the water supply through works on or in the vicinity of the Esker. These facts are also not fundamentally challenged.

Transport Pathways and Additional Hydrogeological Studies/Work Sought by the County

27The following is provided in the Township of Asphodel-Norwood’s Transport Pathway By-law No. 2015-73:

2. Definitions

a) Transport pathway means a condition of land resulting from human activity that increases the vulnerability of the raw water supply for a municipal drinking water system to being contaminated by land-based activities by means of the condition acting as a conduit for contaminants; including but not limited to:

i) Wells, including geothermal;

ii) Storm drainage infrastructure (e.g., storm sewer lines, culverts, ditches); and

iii) Tile drain systems

3. Prohibition of Future Transport Pathways

The municipality shall not approve a proposal to construct a transport pathway in Wellhead Protection Area A unless the application includes a statement from a qualified person stating that the proposal will not significantly increase the vulnerability of the municipal water source to being contaminated by land-based activities. The statement from the qualified person and any background information may be subject to review by a third party peer review. The cost of the required statement and the peer review will be at the applicant's expense.

28The definition of a transport pathway is also provided in Ontario Regulation 287/07: GENERAL, under the Clean Water Act, 2006, S.O. 2006, c.22, as follows:

“transport pathway” means a condition of land resulting from human activity that increases the vulnerability of a raw water supply of a drinking water system set out in clause 15 (2) (e) of the Act.

29The Township’s by-law is clearly designed to avoid creating ‘pathways’ for contaminants to reach the village’s water supply.

30Mr. Bingham testified that the Applicant’s plan does not contravene the Township’s Transport Pathway By-law because it does not contemplate excavation of any kind within “Wellhead Protection Area A”. He testified that, in these areas, the development will only build on top of the existing grade.

31However, on cross examination, Mr. Bingham acknowledged that the plans do in fact include some excavation within the protected area for “infiltration trenches” and possibly also a basement for one of the proposed lots, and admitted that his statements and opinions were formerly based on an assumption that there would be no excavation within the protected area. Despite this acknowledgement, Mr. Bingham further testified that these facts do not change his opinions and the proposed development does not create a transport pathway contrary to the Township’s by-law.

32Mr. Bingham further opined that the bore holes being proposed by the County, as part of the proposed scope of work in Schedule 1, have the potential to create transport pathways contrary to the Township’s Transport Pathway By-law. In response, Mr. Ames testified that properly constructed bore holes would not pose a risk to the water supply and can be decommissioned safely.

33According to Mr. Ames, the current understanding of the Esker geology and hydrogeology in the vicinity of the Norwood Municipal Well Field has largely been determined through the drilling and construction of municipal wells, hydraulic testing, and groundwater modelling, as detailed in a number of reports cited by him. Based on what is known to date, he acknowledges that a conceptual model of the Esker aquifer has been established and the Esker deposits (core and flanks) are assumed to be symmetrical and therefore predictable. However, no investigative work has been completed to definitively confirm this assumed symmetry or otherwise conclusively validate the conceptual models. As a result, Mr. Ames opined, more work needs to be done to determine the underground characteristics of the Esker, especially as it exists on or near the Subject Lands, and, relatedly, the risks and potential impact of the proposed development on the aquifer.

34This is where the parties’ hydrogeology experts principally differ in their views, with Mr. Bingham taking the position that the County already has sufficient information to make these determinations, so no more hydrogeological work needs to be done.

35Mr. Bingham noted that the Applicant’s plan is to treat the vulnerability of the water supply to be “high”, being the greatest vulnerability scoring possible for the site. As a result, he opined, more investigative work to assess the Esker’s characterization would be pointless because the plan already involves implementing the greatest mitigation measures that could be required (i.e., prohibiting the underground storage of fuel and aboveground storage of salt-laden snow).

36Between Mr. Ames and Mr. Ruttan, the County’s witnesses opined that the protection of the Norwood water supply is not as simple as applying the greatest vulnerability scoring available and employing standard risk-mitigation measures. A more comprehensive understanding of the area’s hydrogeology is critical to assess whether the proposed development, more generally, imposes an unacceptable risk to the water supply. They opined that mitigation measures are not so easily categorized, and the specific conditions of the site must be considered to properly assess what constitutes acceptable risks and potential impacts. Mr. Ruttan also suggested that it may be found, through additional hydrogeological studies/work, that no mitigation measures will be sufficient to protect the water supply from impacts caused by the proposed development.

37Mr. Ames also noted that, even if the Applicant’s proposal does not involve any excavation and only involves infill on the site, thereby ensuring that infiltration speed to the aquifer is not increased, it might do the opposite by slowing it down and affect the regeneration capabilities of the water supply. He testified that this is just another unknown consequence of the development that should be more thoroughly investigated through additional hydrogeological studies/work to better understand the characteristics of the Esker.

Hydrogeology Experts’ Opinions re: the Parties’ Versions of Condition 9(b)

38Mr. Bingham’s testimony supports the Applicant’s version of Condition 9(b), insofar as the Applicant’s version includes no need for additional hydrogeological studies. He contends that the existing hydrogeological information is already at hand for a hydrogeologist to confirm:

• whether the proposal will create a transport pathway;
• whether the proposal will significantly increase the vulnerability of the municipal water source to being contaminated by land-based activities; and
• if it is determined that the proposal will significantly increase the vulnerability of the municipal water source, what mitigation measures are appropriate to include in a Subdivision Agreement.

39As stated above, Mr. Ames and Mr. Ruttan both concur that more hydrogeological work needs to be done before properly assessing whether the proposal will significantly increase risk to and vulnerability of the village’s water source. As a result, they conclude that the scope of work set out in the County’s Revised Conditions is necessary.

40As it relates to the parties’ proposed scope of work set out in Schedule 1, Mr. Bingham testified that there are already enough bore holes in place to conduct any field work that may be necessary. As a result, the Applicant’s version of Schedule 1 omits requirements to drill three new test wells (see items 3, 4 and 5 of Schedule 1, appended hereto as Attachment 5). Furthermore, Mr. Bingham testified that there is already enough information at hand to map out the core and flank deposits of the Esker, so the mapping requirements of the County’s version of Schedule 1 are also unnecessary and should be omitted (see items 13, 14, 15, and 16 of Schedule 1, appended hereto as Attachment 5).

41Mr. Ames and Mr. Ruttan disagreed with these conclusions, opining that that the locations of the Esker’s core and flank deposits have yet to be conclusively determined. In order to definitively determine these characteristics of the Esker, and correspondingly properly assess the potential risks of impacting the vulnerability of the water supply, they opined that three additional bore holes are necessary and the information produced therefrom will contribute to more definitive mapping.

Tribunal’s Hydrogeology findings

42Upon considering the evidence of each of the hydrogeology experts, the Tribunal prefers the evidence of the County’s experts and accordingly finds that the scope of work set out in the County’s version of Schedule 1 is necessary and therefore reasonable. While the respective experts all seem to concur that the existing mapping and current understanding of the Esker might be accurate already, the Tribunal prefers the County’s precautionary approach towards being more certain about the characteristics of the esker. To put it another way, the stakes are simply too high to assume. The issue involves the protection of an entire village’s water supply, so no stone should be left unturned.

43On the subject of the Applicant’s issue/complaint about the County’s choice of peer reviewer, insofar as the Applicant takes the position that the company should be disqualified from acting in such a role due to a prospect of financial gain from recommending the added hydrogeological work, the Tribunal does not accept the Applicant’s submissions. The Tribunal will not disqualify the subject company from performing peer review work on behalf of the County for the following reasons.

44The Tribunal has considered the caselaw presented by the Applicant on this point, but does not find that it applies in the given circumstances. The Tribunal finds that it is imperative that the County be free to entrust the peer review process to a person or company of its choice, given the County’s duty and responsibility to act in the best interests of the public. To take away the County’s options would be akin to denying it the ability to serve the public’s interest in the best way it deems fit. It is noteworthy that the County will undoubtedly be held to account if Norwood’s water supply is damaged due to any perceived shortcomings with such peer review. It would therefore be unfair to deny the County its choices at the same time as it is to be held to account for such choices.

45With respect to the Applicant’s claims of negligence and/or unethical conduct against the company, and inference that the company and County are engaged in some sort of conspiracy to improperly prevent the final approval of the development, the Tribunal summarily finds these allegations unsubstantiated due to a lack of evidence and will therefore disregard such claims.

46The Tribunal has further considered the Applicant’s submissions insofar as the Applicant claims that much of the requested scope of work outlined in Schedule 1 is for a greater purpose beyond that which is directly associated with the proposed development. The Applicant asserts that such works must be undertaken by the municipality regardless of whether or not the development proceeds. The Applicant contends, therefore, that the proposed scope of work is unreasonable for being inequitable (for requiring the Applicant to pay for works that benefit the larger community) and irrelevant (for not being directly related to the proposed development).

47On this point, the Tribunal is unconvinced. Not only was this claim denied by the County’s experts, the evidence of whom is preferred by the Tribunal, the Tribunal received no satisfactory evidence to support the claim beyond mere speculation. The Applicant’s reference to Mr. Ruttan being paid to model the Wellhead Protection Area in November 2018 is not enough to suggest that further modelling is not warranted to assess the potential impacts of the proposed development.

48The Tribunal accordingly finds that the scope of work proposed by the County is both equitable and relevant since it is directly related to assessing potential impacts of the proposed development and not solely for a larger purpose.

Planning Analysis

49Notwithstanding the above-described findings of the Tribunal respecting Hydrogeology and the associated need for more studies/work to better understand the characteristics of the Esker, the question before the Tribunal is whether or not the County’s Revised Conditions are reasonable in accordance with s. 51(25) of the Act. Sections 2, 2.1, 3(5) and 51(24) of the Act also direct the ultimate findings of the Tribunal in this regard.

50Mr. Mudd, the County’s Expert in Land Use Planning, provided the only land use planning evidence for the Tribunal to consider. He testified as follows.

The Test for Reasonableness

51Section 51(25) of the Act states the following:

The approval authority may impose such conditions to the approval of a plan of subdivision as in the opinion of the approval authority are reasonable, having regard to the nature of the development proposed for the subdivision […]

52The Tribunal notes that the County, through its submissions, framed the analysis as a contest between the parties’ respective versions of the impugned conditions. However, this is not the correct analysis to be followed in accordance with the Act.

53The question that the Tribunal must answer is squarely on whether or not the municipality’s conditions are reasonable (i.e., relevant, necessary and equitable). If they are, then the analysis ends there and the appeal must fail. However, if the municipality’s condition(s) are found to be unreasonable, then the Tribunal can assess the reasonableness of the Appellant’s proposed version of the conditions and, if satisfied, approve those conditions.

54Put another way, where the Tribunal is presented with two competing versions of conditions, such as the present case, the Tribunal will defer to the municipality’s version even if it finds that both options are reasonable in accordance with s. 51(25) of the Act.

55As cited by the Applicant, this principle was followed in 952849 Ontario Ltd. v. Brighton (Municipality) 2019 CarswellOnt 4133, O.M.T.R. 498 (“Brighton”), where the developer and municipality could not agree on the type of sewage system to install. The Tribunal found that both of the parties’ proposed systems (as set out in their respective versions of the conditions) would adequately serve the needs of the subdivision, and so both versions of their respective conditions were reasonable. However, the Tribunal concluded that it must approve the Municipality’s version of the conditions because the Appellant failed to demonstrate that it is unreasonable.

56The Tribunal notes that s. 2.1(1) of the Act compels the Tribunal to “have regard to […] any decision that is made […] by a municipal council or by an approval authority”. The Tribunal finds that this section of the Act stipulates a degree of deference in favour of the municipality when both parties present reasonable DPS conditions.

57The Tribunal notes that the Applicant cited the correct test found in Brighton, but submitted that it is distinguishable from the present case because it involves conditions that “do not involve […] typical areas of responsibility of a municipality in clearing conditions [because the] County’s scope of work insists on the implementation of work for the benefit of all of the residents of the Township, and not just the future residents of the proposed development”. As an example, the Applicant claims that the County’s Revised Conditions saddle it with the responsibility and cost of “remodeling to regenerate the Wellhead Protection Areas” and alleges that the Township is already required to remodel its Wellhead Protection Areas pursuant to O. Reg. 287/07 s. 4. of the Clean Water Act. The Applicant submits that, as a result, “the impugned conditions are not necessary for, or relevant to the development”.

58As already stated above, the Tribunal does not come to the same conclusion. The Tribunal has not received satisfactory evidence that any of the conditions being proposed by the County include works that are unrelated to the development, or would otherwise be done even if the development does not proceed. Based on the evidence before it, the Tribunal is satisfied that the scope of work contained in Schedule 1 is associated with the proposed development.

Provincial and Municipal Policies re: Source Water Protection

59Section 3(5) of the Act requires that a decision of the Tribunal be consistent with the Provincial Policy Statement 2020 (“PPS”). The PPS encourages the establishment of healthy, liveable and safe communities and requires that sufficient land be made available to accommodate an appropriate range and mix of land uses to meet projected intensification targets of the community.

60Mr. Mudd testified that the PPS mandates that planning authorities protect, improve and restore the quality and quantity of water by, among other things, minimizing potential negative impacts, evaluating and preparing for impacts of a changing climate on water resource systems at the watershed level, implementing necessary restrictions on development or site alteration to protect all municipal drinking water supplies, and designate vulnerable areas and planning for sustained water quality.

61Section 3(5) of the Act requires that a decision of the Tribunal also conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“Growth Plan”). The Growth Plan is a long-term plan that works with other provincial plans to provide a framework for growth management in the Greater Golden Horseshoe region.

62Mr. Mudd testified that section 4.2.1 of the Growth Plan provides policy direction that Water Resource Systems be identified to provide for long-term protection of key hydrologic features, such as the aquifer contained in the Esker.

63Section 51(24) of the Act sets out criteria that the Tribunal shall have regard for when considering a DPS. This includes regard for conformity with the Municipal Official Plan (“OP”).

64Mr. Mudd testified that the County’s OP provides policy direction related to Source Water Protection that requires development applications to be in conformity with the policies of the Trent Source Protection Plan and allow lower-tier municipalities, including the Township of Asphodel-Norwood, to establish a by-law prohibiting the approval of a proposal to engage in an activity that will result in the creation of a new transport pathway within a vulnerable area.

65He further testified that these policies are reflected in the Township’s Zoning By-law which acknowledges that source water protection planning is the first line of defence in a multi-barrier approach that seeks to prevent the contamination or overuse of surface water and groundwater sources of municipal drinking water. This can be achieved, he testified, through evaluating threats to municipal drinking water sources.

66He further testified that the Township’s Transport Pathway By-law is a further reflection of these policies, which prohibits the municipality from approving a proposal to construct a transport pathway unless the application includes a statement from a qualified person stating that the proposal will not significantly increase the vulnerability of the municipal water source to contamination by land-based activities, all of which is subject to peer review. Once again, he opined, the County’s Revised Conditions support this By-law.

Land Use Planning Summary and Conclusion

67As it relates to the above noted policies and associated by-laws, Mr. Mudd opined that the County’s Revised Conditions, and Condition 9(b) and Schedule 1 in particular, are consistent with the PPS, conform with the Growth Plan and County OP, and support the Township’s Zoning By-law and Transport Pathway By-law as it relates to source water protection. In summary, he opined that the County’s Revised Conditions will serve to protect the quality and quantity of municipal drinking water by minimizing negative impacts, evaluating impacts in advance, and to implement restrictions on the proposed development if necessary. More broadly, he opined that the objective of the conditions are to provide for future long-term protection of the village’s water source.

68The Tribunal accepts the above land use planning evidence and accordingly finds that the County’s Revised Conditions, including the County’s proposed Condition 9(b) and Schedule 1, are consistent with the PPS, conform with the Growth Plan and County OP, and support By-laws designed for source water protection. The Tribunal further finds that the County’s Revised Conditions otherwise have sufficient regard for matters of public interest in accordance with s. 2 of the Act, including source water protection, and represent good planning in the public interest.

69Combining the Tribunal’s acceptance of Mr. Mudd’s evidence with its preference for the County’s Hydrogeological experts’ evidence, the Tribunal finds that the County’s Revised Conditions are reasonable for being necessary, equitable and relevant, in accordance with s. 51(25) of the Act. The appeal must therefore fail.

DPS Conditions Proposed by the Applicant

70While the Tribunal’s analysis does not require an examination of the reasonableness of the Applicant’s versions of Condition 9(b) or Schedule 1, the Tribunal nevertheless finds the Applicant’s versions to be unreasonable.

71This finding is premised principally on the Tribunal’s preference for the evidence of the County as it relates to the necessity of the scope of work set out in its version of Schedule 1.

72Simply put, the Tribunal does not find the Applicant’s version of the conditions to be reasonable because it does not propose enough study or work to confirm, to a sufficient degree, the characteristics of the Esker and related risks and potential impacts on the vulnerability of the subject water source contained therein. Such a shortcoming is not supported by the policies of the PPS, Growth Plan or County OP associated with source water protection, nor does it have sufficient regard for matters of provincial interest as set out in s. 2 or is otherwise good planning in the public interest.

ORDER

73THE TRIBUNAL ORDERS that the appeal is dismissed and the Conditions set out in Attachments 2 and 3 to this Order are approved.

“K.R. Andrews”

k.r. andrews

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.