Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 13, 2022
CASE NO(S).: OLT-21-001472
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant: Michael Mels
Subject: Minor Variance
Property Address/Description: 35246 Fourth Line
Variance from By-law: 2011-14
Municipality: Township of Southwold
Municipal File No.: MV 2021-06
OLT Lead Case No.: OLT-21-001472
OLT Case No.: OLT-21-001472
OLT Case Name: Mels v. Southwold (Township)
Heard: March 23, 2022 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Michael Mels | Self-represented |
| Brad and John Fife and Fife Farms | Paula Lombardi |
| Township of Southwold | Paula Lombardi |
DECISION DELIVERED BY JATINDER BHULLAR AND P. TOMILIN AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Michael Mels (“Applicant/Appellant”) owns a property located in the Township of Southwold (“Township”). The property is municipally known as 35246 Fourth Line in the Township (“Subject Property”). The Applicant/Appellant sought a minor variance from Section 3.2 of Zoning By-law No 2011-14 for reduced 300 metres Minimum Distance Separation 1 (“MDS”) to build a residential dwelling on the Subject Property where he presently operates a farm. The neighbouring larger farm owned and operated collectively Brad and John Fife and Fife Farms (“Fifes”) has a liquid nutrient management tank (“LNMT”), and planning instruments require that any proposed dwelling shall comply with the appropriately determined distance per the MDS in the order of 537.4 metres. The minor variance with respect to the reduced distance from the LNMT was denied by the Committee of Adjustment for the Township and this denial forms the basis for appeal before the Tribunal under Section 45(12) of the Act.
2The Fifes requested party status as being neighbours with direct interest in the matter and they were granted party status with consent of the Township and the Applicant/Appellant.
3The notice of the hearing was served by the Tribunal.
WITNESSES
4The Applicant/Appellant did not call any witnesses and was self represented and cross-examined witnesses as well as made submissions.
5The Township, and Brad and John Fife and Fife Farms (“Fifes”) jointly called three witnesses.
6All witnesses were solemnly affirmed/sworn per their choice and were qualified with consent and per their acknowledgement of expert’s duty obligations.
7The qualification of the witnesses was as follows:
a. Dana Kieffer, to provided expert opinion in the area of land use planning with expertise in rural planning;
b. Jeff Bannerman, to provide expert opinion evidence in the preparation of nutrient management plans and in the siting of nutrient management facilities; and
c. William Pol, to provide expert opinion evidence in the area of land use planning.
EXHIBITS
8The following Exhibits were marked at the hearing:
a. Exhibit 1: Document Book;
b. Exhibit 2: CV and Acknowledgement of Ms. Kieffer;
c. Exhibit 3: CV and Acknowledgement of Mr. Bannerman;
d. Exhibit 4: Witness Statement of Mr. Pol; and
e. Exhibit 5: Visual Exhibits Fifes
EVIDENCE
9Ms. Kieffer reviewed policy 2.3.3.3 of the Provincial Policy Statement 2020 (“PPS”) which states:
New land uses in prime agricultural areas, including the creation of lots and new or expanding livestock facilities, shall comply with the minimum distance separation formulae.
10Ms. Kieffer opined that the PPS direction is prescriptive and the proposed minor variance does not conform with the required MDS requirements.
11Under re-examination, Ms. Kieffer clarified for the Applicant/Appellant that a farmhouse on a farm lot with the same farm, the MDS does not apply but establishing a dwelling within the MDS distance of an existing farm where a barn, LNMT, etc., are present then the MDS is applicable.
12Mr. Bannerman also opined that with current capacity of the LNMT a minimum distance under MDS-1 formulae for the requested dwelling is no less than 528 metres whereas the Applicant/Appellant seeks a permission to locate such dwelling around 300 metres.
13Mr. Bannerman further opined that LNMT provide for efficient utilization and recycling of agricultural and cattle waste products. He added that the Fifes utilize the facility for their own farms as well as service other farms in the farming community.
14The Applicant/Appellant questioned Mr. Bannerman if mitigation measures could not be deployed for LNMT deployment including use of straw, a floating cover or a domed cover. Mr. Bannerman, based on his expertise in nutrient management practices opined that such measures would be exorbitant to implement for the size of the LNMT facility operated by the Fifes.
15Mr. Pol provided detailed expert land use planning opinion evidence based on his witness statement (Exhibit 4). Mr. Pol opined that the request is not consistent with the PPS policy 2.3.3.3 as also opined by Ms. Kieffer.
16Mr. Pol reviewed the Elgin County Official Plan and opined that there is no basis to not conform with the required direction in this plan for conformity with requirements for Prime Agricultural Area on Schedule “A” of the plan. He further added that the surrounding area is generally all agricultural lands.
17Mr. Pol reviewed the Southwold Official Plan and opined that Section 4.1 Agricultural policy needs to be conformed with and the application fails to do so as it does not meet the MDS-1 requirements.
18Mr. Pol reviewed and opined as follows in review of the Southwold Zoning By-law:
The Subject Lands are zoned Agriculture 1 (A1) Zone on Schedule “A” Map 2 of the Zoning By-law Maps. The Agriculture 1 (A1) Zone regulations are found in Section 5.0 of the By-law. The Subject Lands are subject to Section 3.0 General Provisions Section 3.20 regarding the application of the MDS-1 provisions to all lands in the Township.
19Mr. Pol concluded that the Applicant/Appellant request fails the statutory tests for approval of a minor variance. Namely:
The variance is not minor (Exhibit 4, para 6.7.1.a);
The minor variance does not maintain the general intent and purpose of the official plans (Exhibit 4, para 6.7.1. b);
The minor variance does not maintain the general intent and purpose of the Zoning By-law (Exhibit 4, para 6.7.1. c); and
The minor variance is not desirable for the appropriate development or use of the land (Exhibit 4, para 6.7.1. d).
ANALYSIS
20The Applicant/Appellant referred to Township staff reports to base his case. He called no witnesses and only made opening and closing submissions plus cross-examined the Township and Fifes witnesses.
21The Tribunal finds that the expert opinion evidence presented at the hearing by Ms. Kieffer, Mr. Bannerman and Mr. Pol was uncontroverted. Their evidence was not shaken as a result of cross-examination by the Applicant/Appellant.
22The Tribunal having regard for all the material on file, the material that was before the approval authority when they refused the requested minor variance and the uncontroverted expert opinion evidence of Ms. Kieffer, Mr. Bannerman and Mr. Pol finds that the Applicant/Appellant failed to establish evidence sufficient to satisfy the four tests set out in s. 45(1) of the Act, or to satisfy the Tribunal that Provincial interests will be sufficiently considered or addressed. The Tribunal finds that the application is not consistent with the PPS, does not maintain the general intent and purpose of the Official Plan, does not maintain the general intent and purpose of the Zoning By-law, is not desirable for the appropriate development or use of the land and is not minor in nature.
ORDER
23The Tribunal Orders that the appeal is dismissed and the variance to By-law 2011-14 is not authorized.
“Jatinder Bhullar”
JATINDER BHULLAR MEMBER
“P. Tomilin”
P. TOMILIN 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.