Escarpment Biosphere Conservancy Inc v. N. Bruce (Mun.), 2022 CanLII 492

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

January 07, 2022

CASE NO(S).:

PL200241

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant:

Escarpment Biosphere Conservancy, Inc.

Subject:

By-law No. BL 2020-09

Municipality:

Northern Bruce Peninsula

OLT Case No.:

PL200241

OLT File No.:

PL200241

OLT Case Name:

Escarpment Biosphere Conservancy Inc v. N. Bruce (Mun.)

Heard:

September 7 to 10, 13 to 17 and 30, 2021 by video hearing

APPEARANCES:

Parties

Counsel

Municipality of Northern Bruce

Nicholas Lovell

Peninsula

Escarpment Biosphere Conservancy,

Derek Ground

Inc.

Michael Browne

Michael Melling

Zachery Fleisher

DECISION DELIVERED BY WILLIAM R. MIDDLETON AND ORDER OF THE TRIBUNAL

Introduction

1This video hearing (“VH”) was convened by the Ontario Land Tribunal (“OLT” or the “Tribunal”) on September 7, 2021, for a period of 10 hearing days, concluding with final oral argument on September 30, 2021.

2This case concerns an appeal by Escarpment Biosphere Conservancy Inc. (“EBC”) of the decision of the Council of the Municipality of Northern Bruce Peninsula (“Northern Bruce” or “Municipality”) to approve the adoption of Zoning By-law Amendment No. Z-35-19.66 (“ZBLA”) which occurred on June 8, 2020. The ZBLA arises from an application made by the Applicant submitted on May 1, 2019 (“Application”).

3The ZBLA applies to the Subject Lands municipally known as 75 Sadler Creek Road in the Municipality. The lands consist of approximately 2.3 hectares bounded by Sadler Creek Road to the west, Lake Huron to the east, lands owned by the EBC to the south (“Harkin’s Reserve”), and a waterfront residential lot to the north containing a detached dwelling and garage.

4The Subject Lands have been in the Applicant’s family since they were purchased 70 years ago. There are currently no structures on them; the only development is a driveway providing access from Sadler Creek Road. The Subject Lands are within the Zinkan Island Cove Area of Natural and Scientific Interest (“Zinkan ANSI”), which is Provincially significant and contains Dwarf Shrub Alvar (Ecological Land Classification (“ELC”) ALSI 1-2).

5The Application sought to permit development of a cottage, detached garage, and septic system within a defined building envelope located within a previously disturbed area comprising approximately 15% of the Subject Lands (“Proposal”). Specifically, the Application proposed to change the zoning of the Subject Lands from “Planned Development (PD)” to “Resort Residential Special (R2-09-2020a and R2-09-2020b)” and “Environmental Hazard (EH)”

6The two-storey cottage planned under the Proposal would have a total gross floor area (“GFA”) of 189.9 square metres, and the detached garage is proposed to have a GFA of 66.9 square metres. Under the Proposal, all new development, grading, and deposition of fill must occur with the building envelope described in paragraph [5] above (“Envelope”), with the 85% remainder of the Subject Lands proposed to be protected.

7Under the Provincial Policy Statement, 2020 (“PPS”), development and site alteration are not permitted in the Zinkan ANSI unless there are “no negative impacts on the natural features or their ecological functions”. This is set out in the PPS as follows:

2.1.5 Development and site alteration shall not be permitted in:

d) significant wildlife habitat;

e) significant areas of natural and scientific interest;

unless it has been demonstrated that there will be no negative impacts on the natural features or their ecological functions. (emphasis added)

8Policy 2.1.8 states that:

Development and site alteration shall not be permitted on adjacent lands to the natural heritage features and areas identified in policies 2.1.4, 2.1.5, and 2.1.6 unless the ecological function of the adjacent lands has been evaluated and it has been demonstrated that there will be no negative impacts on the natural features or on their ecological functions.

9The Applicant’s position is that they have undertaken extensive environmental studies and analysis to conclude that there will be no negative impacts on the Zinkan ANSI’s natural features and ecological functions. This position is concurred in and supported by the Municipality.

10The Applicant’s counsel points out that this same conclusion was accepted by the Municipality (Council and staff), the County of Bruce (Council and staff (“County”), the Grey Sauble Conservation Authority (“GSCA”), the Ministry of Natural Resources and Forestry (“MNRF”), and the Ministry of the Environment, Conservation and Parks (“MECP”).

11The Applicant’s counsel further argues that the Proposal includes a number of mitigation and enhancement measures to help ensure that no negative environmental or other impacts result – all of which were reviewed and endorsed by the MNRF, MECP, County, and the Municipality.

12By contrast, the Appellant’s counsel argues that it appears that the Applicant is seeking to, in effect, derive a benefit from the land already being disturbed. He maintains that this is analogous to have broken windows in a heritage building and proposing tear it down rather than fixing the windows. In the view of the EBC’s counsel, this essentially rewards the Applicant for ignoring the sensitivity of the site, if they were even aware of it at the time.

13More concretely, the Appellant’s counsel apparently agrees with the Applicant’s position that the "no negative impacts" standard under the PPS as described in paragraphs [7] and [8] above applies (“No Negative Impacts Test”). However, the EBC counsel maintains that the burden is on the Applicant to demonstrate this and that they have failed to do so.

14The Tribunal notes that it must be satisfied that the Proposal has satisfactory regard for all applicable statutory and policy requirements, and that the Applicant (or the Municipality) must establish that the No Negative Impacts Test has been met. However, the evidentiary burden then shifts to the EBC to raise a credible legal and evidentiary basis for its contention that the Proposal fails to meet the No Negative Impacts Test.

Materials before the Tribunal

15The following materials were tendered to the Tribunal:

Agreed Filings

(a) Agreed Statement of Facts and Remaining Issues: Ecology and Alvars (31 pages);

(b) Agreed Statement of Facts and Remaining Issues: Land Use Planning (31 pages);

(c) Joint Document Book, comprising 132 tabs and 1,589 pages.

Applicant’s Materials

(a) Witness Statement (“WS”) of Dr. Paul J. Richardson (61 pages);

(b) WS of Linda Liisa Sober (52 pages);

(c) WS of Raymond Duhamel (50 pages);

(d) Reply WS of Dr. Paul J. Richardson (7 pages);

(e) Reply WS of Linda Liisa Sober (33 pages);

(f) Reply WS of Linda Liisa Sober to Justin Kestler (10 pages);

(g) Reply WS of Raymond Duhamel (13 pages);

(h) Sur Reply WS of Linda Liisa Sober (11 pages);

(i) Sur Reply WS of Raymond Duhamel (3 pages); and

(j) Final Written Submissions of Michael Browne.

EBC Materials

(k) WS of Jarmo Jalava (36 pages);

(l) WS of Justin Kestler (5 pages);

(m) WS of John Urquhart (33 pages);

(n) WS of Mark Dorfman (65 pages);

(o) Reply WS of Mark Dorfman (4 pages);

(p) Response of Jarmo Jalava (28 pages);

(q) Response of John Urquhart (20 pages);

(r) WS of Philip van Wassenaer (21 pages);

(s) Outline of Robert Barnett (4 pages); and

(t) Final Submissions of the Appellant Escarpment Biosphere Conservancy

Northern Bruce Material

(a) WS of Jakob Van Dorp (12 pages); and

(b) Written Submissions of the Municipality.

Evidence and Analysis

1. Lack of Reliable Evidence that No Negative Impacts Test Not Met

16The Appellant called 5 witnesses to provide opinion evidence, as well as 1 representative of EBC who gave fact evidence, Mr. Barnett.

17Mr. Barnett is the Executive Director of EBC. The EBC owns a ‘nature conservancy reserve’ directly adjacent to the south of the Subject Lands. Mr. Barnett provided an ‘outline’ of anecdotal information concerning the EBC and its activities but did not provide expert opinion evidence. His outline and testimony consisted of many partisan statements lauding the EBC’s activities replete with strong disapprovals of the Proposal that were unfortunately not directly linked to any expert evidence put before the Tribunal.

18Certainly, the Tribunal noted Mr. Barnett’s passionate concern for the protection of the Zinkan ANSI upon which both the EBC reserve and the Subject Lands are located. However, Mr. Barnett’s evidence did not assist the Tribunal in assessing whether the No Negative Impacts Test had been met.

19Mr. Urquhart was called by EBC’s counsel to provide opinion evidence on ecology matters. In 2004, he obtained a Honour Bachelor of Environmental Science majoring in Ecology with an emphasis in Environmental Impact Assessment (“EIA”) and in 2008, a Master of Science in Zoology.

20In his WS, Reply WS and oral testimony, despite his experience and significant academic credentials, Mr. Urquhart did not seem to fully understand the No Negative Impacts Test; nor did he apply it in order to reach his opinions. Unfortunately, Mr. Urquhart’s orientation, at least in his WS and Reply WS, seemed misdirected as an unhelpful ‘peer review’ of Ms. Sober’s work and report (discussed below in Part 2).

21Moreover, as the result of an effective cross-examination conducted by the Applicant’s counsel, Mr. Urquhart had to concede that most of his critiques were unreasonable and excessive. As well, Mr. Urquhart displayed a tendency toward partisanship and environmental advocacy in his evidence and did not seem to appreciate his duties as an independent expert witness assisting the Tribunal. This was perhaps due in part to his inexperience before the OLT and its predecessors.

22As pointed out by the Applicant’s counsel in final argument, Mr. Urquhart admitted that he did not know the definition of “negative impacts” in the PPS even existed until his cross-examination. He also did not understand that the test referred to negative impacts on natural features and ecological functions, stating at one point in his testimony that he would view the removal of a single tree as a negative impact.

23The Tribunal agrees with the Applicant’s counsel and was unable to accept any of the conclusions expressed by Mr. Urquhart in either his written statements or testimony at the VH.

24Another key witness tendered by EBC’s counsel to provide opinion evidence was Mr. Jalava. Mr. Jalava was a personable and well-intentioned witness, who has an apparent specialty in the study of alvars such as those present on the Zinkan ANSI. Surprisingly, he actually has no formal training in environmental science although he is the author of a leading text about alvars and has worked in the past as an ecologist for the MNRF in Ontario.

25Regrettably, like Mr. Urquhart, Mr. Jalava came across in his written and oral evidence as more of an environmental advocate rather than as an independent expert. In fact, neither Mr. Jalava nor Mr. Urquhart received any fees from EBC for their efforts and seemed satisfied with the opportunity to assist the Appellant with what they viewed as a significant effort aimed at preserving what they assumed to be highly sensitive lands.

26Once again, Mr. Jalava had no familiarity with the No Negative Impacts Test in terms of how it is set out in the PPS. He also did not know that several important phrases set out in the PPS and the Test are actually specific defined terms, until that was pointed out during his cross-examination. Thus, as was the case for Mr. Urquhart, Mr. Jalava was unable to properly assess or apply the No Negative Impacts Test.

27The Tribunal further agrees with the contention of the Applicant’s counsel that: (a) Mr. Jalava’s evidence was based on his opinion of what should be the criteria for identifying alvars as significant, with respect both to their wildlife habitat and presence in an ANSI; and (b) that he criticized the Provincial criteria for assessing significance of alvar wildlife habitat, relying heavily on an unpublished, non-peer-reviewed article submitted as a thesis for a bachelor degree by a person not called as a witness or asked to provide a WS and on his second-hand reporting of opinions from other non-witnesses.

28The Tribunal declines to draw the conclusion that Mr. Jalava (or Mr. Urquhart for that matter) intentionally ignored his duties as an expert witness before the Tribunal. However, neither his WS’s nor his oral testimony were helpful to the Tribunal in determining whether the No Negative Impacts Test had been met by the Applicant in relation to the Proposal. In addition, the Tribunal did not find his criticisms of the evidence of the Applicant’s witnesses (discussed in Part 2 below) to be well-informed or credible.

29Mr. Kestler was called by EBC to provide opinion evidence concerning the possible presence of endangered bird species on the Zinkan ANSI or near the Subject Lands (he did not attend upon the Subject Lands) based on a unique perspective. Mr. Kestler has experience in conducting audio recordings to investigate the possible existence of certain avian species. For that purpose, he installed equipment on the EBC reserve lands next door, but not on the Subject Lands. Unfortunately, the evidence he provided was weak and unconvincing, as noted by counsel for the Applicant:

The recording device’s auditory data was fed through a computer algorithm whose designers did not testify, and the species identified by the algorithm were not confirmed at the Hearing by any qualified expert witness…Mr. Kestler acknowledged that he could not tell from the data or the algorithm’s output the location of any of the birds vis-à-vis the Subject Lands…

30The final witness called by EBC provided opinion evidence concerning arboricultural matters. Mr. van Wassenaer holds a Master degree in Urban Forest Conservation and a Bachelor degree in Environmental Science and has over 29 years of experience in the areas of arboriculture and urban forestry. He was asked to investigate the presence of “ancient” and possibly endangered cedar trees (an issue identified by EBC for this hearing) on the neighbouring EBC reserve. However, like the other EBC witnesses, he never conducted an inspection of the Subject Lands.

31Mr. van Wassenaer inspected the EBC lands and took core samples from 9 different cedar trees located there. He then sent core samples for expert analysis by the University of Guelph. That analysis revealed a minimum age range for those trees of between 60 and 273 years. He suggested that the cedars he could see across on the Subject Lands were similar to those he sampled on the EBC reserve. His resultant opinion was:

The exact impact on individual trees…[on the Subject Lands]…cannot be determined based on the preliminary nature of the plans provided and in the absence of a detailed tree inventory and arboricultural impact assessment. However, it is safe to say that if trees are removed, damaged or otherwise impacted by the proposed changes to the site and their long-term effects, the opportunity for those trees to become very old or ancient will certainly be lost

32Although Mr. van Wassenaer was an interesting and articulate witness, his evidence was once again of marginal utility to the Tribunal. His conclusions do not directly bear upon the No Negative Impacts Test as it must be applied to the Proposal. Counsel for the Applicant noted that EBC’s witnesses acknowledged that there is no standard in any policy or guideline document for what “ancient” means for cedars. The Tribunal agrees that the alleged and unproven presence of “ancient” cedars was never tied by the EBC’s witness to any actual legislative or policy provision relevant to the matters before the OLT on this appeal. Moreover, trees ‘tested’ were not on the Subject Lands at all.

33The Tribunal further agrees with the submission of counsel for Northern Bruce that:

Taken at its best most of the EBC’s concerns are speculative. No endangered or threatened species were found on the Subject Lands...Accordingly, the Municipality submits that there is simply no evidence that any endangered or threatened species habitat will be lost…such concerns were addressed directly by the Ministry of the Environment, Conservation and Parks who were satisfied that the development was unlikely to contravene the Endangered Species Act, 2007 (“ESA”)…it is ultimately not the Tribunal’s role to determine where development contravenes the ESA or whether a development requires an overall benefit permit. If the Application is granted, the applicability of the ESA is to be determined by the appropriate Ministry.

34Importantly, it must be kept in mind that the EBC’s witnesses were unaware that the No Negative Impacts Test does not apply to the habitat of endangered and threatened species, which is subject to analysis “in accordance with provincial and federal requirements”, being the ESA and the Species at Risk Act (S.C. 2002, c. 29). Moreover, the test for development and site alteration in the habitat of endangered and threatened species is different from the test for development and site alteration within an ANSI and an area of significant wildlife habitat (“SWH”).

2. The Applicant’s Evidence Satisfied the No Negative Impacts Test

35The Applicant’s counsel tendered opinion evidence from the following witnesses concerning the No Negative Impacts Test as it relates to the Proposal and the Subject Lands: Ms. Sober and Dr. Richardson. Ms. Sober was qualified without objection to provide expert opinion evidence on matters relating to biology, ecology and related environmental policy. Dr. Richardson was qualified to provide opinion evidence on matters relating to alvar ecology.

36The Tribunal preferred the expert evidence of Ms. Sober and Dr. Richardson as described in paragraphs [37] to [41] below wherever it conflicted with the evidence of the EBC witnesses for the reasons as set out in Part 1 above. Moreover, the work carried out by Ms. Sober and Dr. Richardson, and the opinion evidence they provided to the Tribunal, was thorough, detailed and was never successfully challenged in any relevant or material way during cross-examination.

37Ms. Sober is a Senior Biologist and Principal with the firm SAAR Environmental Limited (“SAAR”); having been with SAAR from 1991 to 2014, and from 2017 to present. She has a Bachelor of Science (Honours) degree in Biology from York University and is a qualified Provincial Wetland Evaluator under the Ontario Wetland Evaluation System. Ms. Sober has conducted, authored and reviewed numerous EIAs both as an employee in the public sector, and as a consulting biologist for both public and private sector clients. She has also conducted and authored field research to inform harvest and conservation limits, long term wildlife management plans, environmental constraint areas, land use applications and has participated in regional life science inventory programs.

38Ms. Sober has broad experience identifying SWH, including terrestrial crayfish, woodland amphibian breeding habitat, wetland amphibian breeding habitat, amphibian movement corridors, black bear movement corridors, alvar, deer winter congregation areas, bald eagle nesting habitat, colonially nesting bird breeding habitat, marsh breeding bird habitat, area sensitive bird breeding habitat, woodland raptor nesting habitat, and rare vegetation communities, as well as the habitat of endangered and threatened species including the Eastern Massasauga Rattlesnake (“EMR”, both Georgian Bay and Bruce Peninsula populations) and Hill’s Thistle.

39In summary, in her WS, Reply WS and oral testimony, Ms. Sober’s evidence was:

(a) She spent a total of 18 days on the Subject Lands at various points in 2018, 2019, 2020 and 2021;

(b) Ms. Sober specifically studied the alvar within and beyond the Envelope, which she correctly characterized (according to all experts for both the Applicant, Northern Bruce and EBC) as Dwarf Shrub Alvar, characterized by a shrubby layer of creeping juniper (juniperus horizontalis), which she informally referred to as alvar “carpet”;

(c) Ms. Sober also surveyed for the habitat of endangered and threatened species and found that there was none on the Subject Lands. Nevertheless, her EIA recommended mitigation measures due to her observations of Hill’s Thistle and EMR;

(d) Ms. Sober’s field work identified two alvar (carex crawei and eleocharis compressa), meaning that the alvar is not SWH since in order to be considered “significant”, an alvar must contain four of five alvar indicator species. Ms. Sober’s EIA was reviewed by the MNRF and the County, both of whom arrived at the same conclusion;

(e) Ms. Sober found two Hill’s Thistle stems on the EBC lands to the south in preparing her original EIA, and on a recent site visit on July 4, 2021, observed three young Hill’s Thistle basal rosettes near the southeast corner of the Subject Lands;

(f) While a 50-metre setback from the proposed construction was initially recommended by Ms. Sober and accepted by the MECP, this recommendation exceeded the recommended 30-metres setback in the Hill’s Thistle Recovery Strategy, under the Ontario Regulation. Ms. Sober subsequently revised her recommendation to a 30-metre setback from the proposed construction, which she determined to be sufficient;

(g) Ms. Sober did not find any evidence of breeding birds on the Subject Lands, in particular no visual or auditory evidence of the Whip-Poor-Will, including breeding or migration, contrary to the flawed conclusions reached by the EBC’s witness Mr. Kestler as described above in paragraph [29]; while she observed the Common Nighthawk during migration, she concluded that it did not breed on the Subject Lands and that any of its migration stopovers would not be impeded by the Proposal;

(h) Ms. Sober documented the Eastern Wood-Pewee in the forested backlot east of Sadler Creek Road, but noted that the Subject Lands does not provide optimal breeding habitat and that the Proposal would not affect the habitat she identified. She also made auditory detections of the Canada Warbler in the vicinity of the Subject Lands, but did not detect any evidence of breeding and was of the view that the Proposal would be highly unlikely to affect the Canada Warbler;

(i) Ms. Sober is the only expert who conducted actual surveys and undertook a detailed assessment of the species on the Subject Lands, which she did over 18 different site visits in a four-year period;

(j) The Proposed Development would not cause any negative impacts on any identified natural heritage features and functions, provided that certain mitigation measures are implemented;

(k) The identified Envelope for the Proposal has been located in a portion of the Subject Lands that is previously disturbed from the existing driveway. Site access will be through the existing driveway to prevent any additional disturbance. The Envelope area does not support features characteristic of the alvar or Zinkan ANSI. Particularly, soil depths are greater in this area than typical for alvar, making the area suitable for the construction of the proposed residential dwelling and septic system, and less suitable for alvar habitat;

(l) The ZBLA protects the lands outside of the Envelope by placing the lands along the shoreline and within the 100 years flood elevation within the Environmental Hazard (EH) Zone and prohibiting development, including grading and site alteration on the remainder of the lands outside of the building envelope;

(m) The Proposal will not adversely impact the representation of geological themes or landform-vegetation features of the Zinkan ANSI and will not adversely impact the diversity on the Subject Lands or in the ANSI more broadly, given the high quality habitat features for which the Zinkan ANSI was identified are inland features associated with the protected bay mouth from Zinkan Island Cove inland to the extensive marsh and pavement alvars of the interior;

(n) The Proposal, as implemented through the ZBLA, recommended mitigation measures and site plan control, will avoid causing environmental concerns, and will conserve biodiversity on the Subject Lands and the surrounding area;

(o) The Proposal will have no negative impact on the natural heritage features on the Subject Lands and surrounding lands, or on natural heritage functions, particularly the habitat of the threatened EMR and Hill’s Thistle, the alvars, and the Zinkan ANSI; and

(p) Given the development controls that proposed through the ZBLA and site plan control, including the implementation of mitigation measures, the Proposal will not cause any environmental concerns. Natural features on the Subject Lands will be protected for the long term through the ZBLA, which restricts development on 85% of the Subject Lands, permitting construction only in the identified Envelope which is located in an already disturbed area.

40Dr. Richardson has a Bachelor of Science (Honours) in Biology from McMaster University (2003) and a Ph.D. in Integrative Biology from the University of Guelph (2009). As noted above in paragraph [35], he provided opinion evidence on ecology matters in particular concerning alvars. The scope of his assessment was fundamentally qualitative, specifically the degree to which various possible vegetation and habitat feature characteristic of alvars are present on the Subject Lands.

41Dr. Richardson’s opinions were:

(a) The Subject Lands lie within the Zinkan ANSI. The Province designated it based on descriptions of the Region by Cuddy et al. (1976) and follow-up exploration by regional botanist Joe Johnson;

(b) The Subject Lands are located in the southwestern quadrant of the Zinkan ANSI, extending eastward with an irregular shape from the Lake Huron coast (including approximately 480 metres of shoreline frontage). The property is approximately 2.3 hectares in size, amounting to 0.55% of the total ANSI area;

(c) The EIA produced by Ms. Sober, which was foundational to the Applicant’s Proposal, is thorough and accurate in locating and evaluating the condition of alvar habitat and vegetation, EMR habitat, the fen-like patch, drainage patterns and other features;

(d) The placement of the Envelope as shown in the Proposal minimizes the likelihood of negative impacts on alvar and other valued features to a negligible level;

(e) There is a fundamental mismatch in scale between the Proposal and the actions that would be required to significantly damage the Sadler Creek Road Alvar or other natural assets of the ANSI. The maximum area likely to be impacted by cottage construction and use corresponds to the 0.34 hectares building envelope. Even if that entire Envelope consisted of high-quality alvar (which it does not), this would amount to less than 6% of the local alvar landform if belongs to and less than 0.06% of the ANSI;

(f) Only a small portion of the Envelope currently supports undisturbed alvar habitat features and characteristic vegetation. Planned mitigation measures would provide opportunities to restore and enhance alvar ecosystems that could thrive around the buildings and amenities within the building envelope. Provided mitigation measures are in place, causing the necessary scale of damage by permitting the Proposal is highly unlikely;

(g) In contrast, in reliance on Mr. Duhamel’s planning evidence, he opined that the likelihood that some uses currently permitted as-of-right on the Subject Lands could damage local ecosystems is at least moderate. This is because such uses include agriculture, which could alter important environmental filters or species pools controlling the local alvar ecosystems;

(h) The Proposal is highly unlikely to alter the chief filters governing the alvars and other ecosystems onsite, as it does not have capacity to alter soil, flooding and drought conditions at the scale that would be required. Constructing small buildings within a small envelope relative to the area of the Subject Lands (approximately 15%) could likely only result in hyperlocal, superficial changes to the habitat features controlling the ecosystem;

(i) There is no plausible mechanism by which the Proposal could cause impacts to any relevant species pools (e.g. stress-tolerant alvar plants in the landscape). All of the characteristic alvar vegetation and other organisms surrounding the Subject Lands will likely continue to operate at the same capacity regardless of construction or cottage use;

(j) Factors related to the ecology of species invasions offers, perhaps the most realistic mechanism by which any construction project or home could potentially influence species pools at a scale that could affect ecosystems. However, the Proposal submitted by the Applicant, and the EIA that supported it, identified this risk and included mitigation strategies that are likely to be effective in preventing any negative impacts;

(k) The risk of facilitating a species invasion by creating a pulse of unused resources for plants with construction fill is dependent on the scale and location of construction, which in this case consists of a 2,000 square foot cottage, accessory garage, and septic tank. The mitigation measures recommended include a construction clean-up phase involving planting (carex eburnia) on areas of clean fill that may remain exposed around the buildings including the septic bed (ref. “d” or Appendix “D”). This species is characteristic of alvars in the region and likely to grow well under expected moisture conditions, the planned mitigation step would likely result in negligible opportunity for potentially invasive species to establish;

(l) There are no apparent “ancient cedars” (a term that has no accepted, precise definition) on the Subject Lands and the Proposal would be highly unlikely to affect any trees outside of the Envelope, regardless of age, for all of the same reasons that the activities are unlikely to alter any other aspect of the ecosystem. The most likely way to negatively impact any potentially ancient tree is to change the environmental filters or its ecosystem. If one deprives a cedar of stress and occasional extreme disturbance, it may not get the chance to grow ancient. As the Proposal would leave the critical environmental filters maintaining the alvar untouched, it would be unlikely to influence any trees on the Subject Lands outside of the Envelope;

(m) It is highly unlikely that proceeding with the Proposal could negatively impact alvar vegetation, the alvar ecosystem, the fen-like patch, or ancient cedars on the Subject Lands. Any possible impacts from the Proposal would most likely remain confined to the Envelope;

(n) None of the important ecological controls of alvar biodiversity and functioning are likely to be meaningfully or negatively impacted by the Proposal as the primary changes would be visual, not ecological, and constrained to a small area (e.g. the appearance of an approximately 2,000 square foot cottage where presently there is not one). Most ecological considerations, such as the distribution and abundance of the characteristic alvar habitat features and communities, are more likely to show an improved condition as an outcome, due to the mitigation and enhancement measures, such as planting alvar vegetation to preclude colonization by unwanted species; and

(o) The important forms of diversity throughout the Subject Lands and surroundings are highly unlikely to sustain negative impacts from the Proposal.

3. The Planning Evidence Supports the Approval of the ZBLA

42The Applicant’s counsel called Mr. Duhamel to provide planning evidence concerning the Proposal, while counsel for Northern Bruce called Mr. Van Dorp who had carriage of the planning file related to the Application.

43Mr. Duhamel has a Master Degree in City Planning from the University of Manitoba, a Honour Bachelor of Arts Degree in Geography from Wilfrid Laurier University, has been a partner with The Jones Consulting Group Ltd. since 2006, and is a member of the Canadian Institute of Planners and the Ontario Professional Planners Institute, and is a registered professional planner. He was qualified to provide opinion evidence to the OLT on land use planning matters.

44Mr. Van Dorp is a registered professional planner employed by Northern Bruce since 2009 in various roles which include Planner, Senior Planner, and Manager of Land Use Planning. He obtained a Bachelor of Science in Environmental Studies from Redeemer University (2006) and a Master in Urban and Regional Planning from Queen’s University (2008). Mr. Van Dorp is responsible for providing planning advice and services to the 8 local municipalities in Bruce County and he had been involved in this matter since it was filed by the Applicant on August 12, 2019. He was qualified to provide opinion evidence on land use planning before the Tribunal.

45The responding planning evidence from EBC was provided by Mr. Dorfman, who is also a well-respected registered professional planner with many years of relevant experience. He too was qualified to provide expert opinion evidence to the Tribunal on land use planning matters.

46In summary, the Tribunal accepts the opinions and conclusions reached by Messrs. Duhamel and Van Dorp, which were never shaken during their cross-examination. On the other hand, despite his obvious credentials and considerable expertise, Mr. Dorfman’s contrary evidence is not accepted by the Tribunal. As pointed out by counsel for the Applicant and counsel for Northern Bruce during final submissions:

(a) Mr. Duhamel, relying on Dr. Richardson and Ms. Sober’s testimony, applied the correct test for “no negative impacts” based on the definition in the PPS. Mr. Dorfman relied entirely on the opinions of Messrs. Jalava and Urquhart, who did not conduct any analysis of negative impacts in the context of the PPS definition;

(b) A major flaw in the EBC’s case, particularly Mr. Dorfman’s planning analysis, is the lack of consideration and analysis of as-of-right permissions, i.e. the “baseline” against which a proposed planning change should be judged. The Subject Lands are designated Rural Recreational and zoned Planned Development. Yet neither Mr. Dorfman nor any other EBC witness considered what uses and activities would be permitted on the Subject Lands with these in place;

(c) Even Mr. Dorfman, a much more experienced witness, did not know until his cross-examinations that the test for development and site alteration in the habitat of endangered and threatened species is different from the test for development and site alteration within an ANSI and SWH;

(d) Unlike Messrs. Duhamel and Van Dorp, Mr. Dorfman did not even visit the area, let alone the Subject Lands, which he admitted in cross-examination was unusual for him;

(e) Careful review of the Proposal was undertaken including multiple revisions to the EIA prepared by Ms. Sober, reviewed by the County staff, including but not limited to Mr. Van Dorp, agency comments from the GSCA (despite the Subject Lands being outside their jurisdiction), the MNRF, the Saugeen Ojibway Nation, the MECP, and public consultation;

(f) As with the PPS, Mr. Dorfman lists several areas where the Application is alleged not to be in conformity with the County Official Plan. Predominantly, his stated reason for non-conformity was that there is “inconclusive demonstration of no negative impacts that the natural heritage areas are protected and preserved”. However, “no negative impacts” is not the correct test under the Northern Bruce Official Plan, where a change of use is considered in an ANSI, the Application must show “minimal impacts” on the ANSI; and

(g) As the Application has no negative impacts and is compliant with the PPS, it is in the Provincial interest. The only issue noted by Mr. Dorfman was the negative impacts, but since there is no proven negative impact, then consequently the Application satisfies the Provincial interest.

47Messrs. Duhamel and Van Dorp concluded in their WSs and opined during their testimony that the Proposal, the ZBLA and the conditions imposed upon the Applicant by the decision of the Northern Bruce Council to approve the ZBLA and in its Site Plan Control Agreement with the Applicant:

(a) The application has demonstrated that the proposed development, with associated mitigation measures, implemented through the ZBLA and related Site Plan Control Agreement, has no adverse impacts to environmental features and functions and is good land use planning;

(b) Based upon the evidence of Ms. Sober and Dr. Richardson the ZBLA, subject to the modifications outlined by Northern Bruce in its decision to approve the Application, has regard to matters of Provincial interest under the Planning Act, is consistent with the PPS, conforms to the County Official Plan and represents good planning;

(c) The Subject Lands have been planned for development, and in fact zoned “Planned Development (PD)” at least since 1990, as evidenced by the former Township of Lindsay Zoning By-law No. 1286-90;

(d) The existing PD zoning permits as-of-right uses that are not subject to site plan approval, and that would do less to protect and enhance the environmental features on and off-site than the outcome of approving the ZBLA. The proposed ZBLA includes restrictions on site alteration and development on the majority of the Subject Lands, specific natural hazard and natural heritage mitigation measures, and the establishment of a defined building envelope. Examples of existing as-of-right permitted uses in the PD zone that do not require a rezoning or site plan approval include private parks, boat launching and docking, forestry, agricultural uses, and specialized agricultural uses;

(e) Of the 2.3-hectares lot, 85% of the area is protected/restricted from any form of development and grading. Only 0.34 hectares (15%) of the Subject Lands are proposed for new development, and only 0.13 hectares (5.7%) of the Subject Lands would be used for the construction of a new residential dwelling, garage, private septic/well and grading;

(f) The effect of the ZBLA would be to protect approximately 85% of the Subject Lands from site alteration and development, which includes alvar habitat, and to prohibit current as-of-right uses that are inappropriate on this Subject Lands because they could result in negative environmental impacts and the potential for alteration of a significant portion of the Subject Lands;

(g) The ZBLA balances the development of an appropriately sized shoreline residential dwelling and detached garage on a parcel of land that has long been planned for development through the applicable PD zoning and the construction of Sadler Creek Road (which the previous owners contributed to), with the need to ensure that natural heritage features are protected for future generations;

(h) The Proposal and the ZBLA will not result in growth exceeding the carrying capacity of the natural environment present upon and adjacent to the Subject Lands;

(i) The proposed form of development, being an appropriately sized residential dwelling, detached garage and services, is appropriate for the Subject Lands, and is suitably located in area that is already partially disturbed and which is adequately set back from the shoreline and other natural heritage features including provincially significant wetlands, SWH and habitat of threatened species. Further, the Proposal is less invasive and impactful to the Zinkan ANSI than other as-of-right permitted uses; and

(j) Pursuant to the ZBLA, the Subject Lands will be protected by the requirements associated with the approval by Council for Northern Bruce, including the delineation of a building envelope, the reduction in the number of permitted uses, the prohibition on development and site alteration on approximately 85% of the Applicant’s lands, and the implementation of site plan control.

4. Conclusions and Orders

48Based on the evidence of the Applicant’s witnesses as described above in paragraphs [35] to [47], as accepted by the Tribunal, and based on the evidence of EBC witnesses as rejected by the Tribunal and outlined in paragraphs [16] to [34] of this Decision, the Tribunal agrees with the submissions made by counsel for the Applicant and counsel for Northern Bruce that:

(a) The Proposal and the ZBLA satisfy all relevant provisions of sections 1, 2 and 3 of the Planning Act, R.S.O. 1990, c. P.13, as amended;

(b) Are consistent with all applicable provisions of the PPS, 2020;

(c) Conform with the relevant provisions of the Northern Bruce Official Plan; and

(d) Respect and implement principles of good planning.

ORDERS

49The Tribunal dismisses this appeal.

“William R. Middleton”

WILLIAM R. MIDDLETON

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.