Ricci v. Brant (County), 2022 CanLII 73922

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 10, 2022

CASE NO(S).: OLT-22-002278

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

Applicant/Appellant: Mario and Lucia Ricci

Subject: Consent – Conditions of provisional consent

Description: Lot severance for new home

Reference Number: B54-21-DN

Property Address: 80 Blossom Avenue

Municipality/UT: Brantford/Brant

OLT Case No: OLT-22-002278

OLT Lead Case No: OLT-22-002278

OLT Case Name: Ricci v. Brant (County)

Heard: July 22, 2022 by Video Hearing

APPEARANCES:

Parties

Mario and Lucia Ricci (collectively the “Applicant” or the “Appellant”)

Representative

Robert Mercer, Agent

DECISION DELIVERED BY A. CORNACCHIA AND ORDER OF THE TRIBUNAL

BACKGROUND

1The Applicant is appealing two conditions imposed by the consent decision of the County of Brant’s Committee of Adjustment (“Committee”) approving the severance of land from the property known as Part Lot 3 Concession 3 WFC, municipally known as 80 Blossom Avenue, Former Township of Onondaga (“Subject Property”).

2The two conditions being appealed are:

The following conditions are completed to the satisfaction of the Environmental Planner, specifically:

That a subsequent consent application be submitted, approved by the Committee of Adjustment with all conditions satisfied with no appeals proposing to establish a 6-metre access easement over the proposed severed lands, benefiting the proposed retained lands, to provide for future, safe access outside of the identified hazard lands. (“Easement Consent Application Condition”)

That the Applicants be required to provide an Archeological Assessment to the satisfaction of the County of Brant by a licensed archaeologist who completed the assessment along with a copy of the acceptance letter issued by the Ministry of Tourism, Culture and Sport (MTCS). (“Archeological Assessment Condition”)

3The Subject Property fronts onto Blossom Avenue and backs onto Brant County Road No. 18. The consent granted by the Committee will create two lots, the retained lot which will continue to front onto Blossom Avenue where a single-family dwelling and storage building are located (“Retained Lot”) and a lot fronting onto Brant County Road No. 18 where a new single-family dwelling will be constructed (“Severed Lot”).

4One side of Blossom Avenue backs onto the Grand River and as a result is classified as hazard lands under the OP. A portion of the Subject Property which is located along Blossom Avenue is also included in the Hazard Lands.

5The staff report prepared for the Committee recommended that the consent application be approved subject to the conditions identified in the report, which included the Easement Consent Application Condition and the Archeological Assessment Condition (“Staff Report”). The Committee approved the consent application subject to all the recommended conditions. The Applicant filed an appeal of the Easement Consent Application Condition and the Archeological Assessment Condition included in the consent decision.

HEARING

6There were no status requests and no known issues with the notice given of the hearing. The Applicant was represented by an agent, Robert Mercer, who is a long-time neighbour of the Applicant and plans to purchase the Severed Lot. The County did not appear.

7Mr. Mercer has no legal training and was unfamiliar with the Tribunal. The Tribunal provided him with general guidance regarding the Tribunal and proceedings before it. He presented no evidence from planning witnesses to support his case. The only support for his case was found in various documents and oral evidence that he gave as part of his submissions.

8This is a hearing de novo of the two consent application conditions being appealed. The Tribunal is required by the Planning Act (“Act”) to have regard to the decision of the Committee and the Staff Report that was presented to the Committee but is not required to follow either of them. The Tribunal is required to hear the evidence and submissions of the Applicant regarding this application and decide the case by applying the applicable legal tests.

9The essence of the Applicant’s argument was that he believes that the Easement Consent Application Condition was unfair. According to Mr. Mercer’s evidence the property owner with land adjacent to the Severed Lot on Brant County Road No. 18 was granted a consent without the imposition of an Easement Consent Application Condition. Unfortunately, Mr. Mercer did not provide a copy of the decision of the Committee, the Municipal planning report and the evidence of a planning witness to explain the facts relating to the adjacent severance to support his case. Based on Mr. Mercer’s description of the adjacent lot, it has no frontage on Blossom Avenue, where the hazard zone exists. The Tribunal has no evidence on whether the Adjacent Lot is in the hazard zone for the Grand River, like the Subject Property.

10The Tribunal reviewed the Staff Report regarding the Easement Consent Application Condition which the Committee found to be persuasive. The PPS requires that development be generally directed away from hazardous lands adjacent to a river, like the Grand River, which is impacted by flooding or erosion hazards. A portion of the Subject Property which is immediately adjacent to Blossom Avenue is included in the hazard zone for the Grand River. Currently the Subject Property has two points of access to public roads, one at the front on Blossom Avenue and the other in the rear on Brant County Road No. 18. If the severance proceeds and two lots are created, the Retained Lot which is included in the hazardous lands, which are subject to erosion and flooding, will only have one access point to Blossom Avenue via the driveway that currently faces it. To address the issue of access for the Retained Lot the Staff Report recommended the Easement Consent Application Condition approved by the Committee. There was no reliable planning evidence showing that the additional access by means of an easement over the Severed Lot is unnecessary for the Retained Lot and the Tribunal finds that the Easement Consent Application Condition is justified and should not be removed.

Archeological Assessment Condition

11Similarly, the Applicant’s argument was that he believes that the Archeological Assessment Condition is unfair and unnecessary. Mr. Mercer gave evidence that an Archeological Assessment Condition was also imposed on the Adjacent Property owner when he completed his severance. An expert was engaged and prepared a report, the contents of which were unclear and the County permitted construction with the understanding that if artifacts are discovered during construction that the Ministry of Tourism, Culture and Sport would be called and construction would cease. Unfortunately, Mr. Mercer did not provide a copy of the decision of the Committee for the Adjacent Property, the Municipal planning report for the Adjacent Property, the Archeological report and the evidence of a planner and an archeological consultant to explain the facts relating to the adjacent severance to support his case.

12The Tribunal referred to the Staff Report regarding the Archeological Assessment Condition. Since the eastern portion of the retained lands is located within Areas of Potential Archaeological Resource due to the proximity to the Grand River, the Archeological Assessment Condition was recommended. There was no reliable evidence showing that the Archeological Assessment Condition imposed by the Consent Decision was unnecessary and the Tribunal finds that this condition is justified and should not be removed.

13In summary, the Tribunal was not convinced by the Applicant’s submissions that the two conditions being appealed should be removed. The Tribunal is of the view that based on the Staff Report, the conditions meet the criteria set out under section 51(25) of the Act and are reasonable having regard to the nature of the consent.

ORDER

14THE TRIBUNAL ORDERS that the appeal is dismissed and the conditions imposed on the provisional consent by the Decision of the Committee of Adjustment dated January 20, 2022 remain in effect.

“A. Cornacchia”

A. CornACCHIA

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.