Brock Development Group v. London (City), 2022 CanLII 90983

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

September 28, 2022

CASE NO(S).:

OLT-22-002053

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

Applicant and Appellant:

Brock Development Group

Subject:

Consent

Property Address/Description:

2624 Woodhull Road

Municipality:

City of London

Municipal File No.:

B.008/21

OLT Lead Case No.:

OLT-22-002053

OLT Case No.:

OLT-22-002053

OLT Case Name:

Brock Development Group v. London (City)

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant:

Brock Development Group

Subject:

Minor Variance

Property Address/Description:

2624 Woodhull Road

Variance from By-law:

By-law Z.-1

Municipality:

City of London

Municipal File No.:

A.146/21

OLT Lead Case No.:

OLT-22-002053

OLT Case No.:

OLT-22-002054

Heard:

June 20, 2022 by Video Hearing

APPEARANCES:

Parties

Representative

Brock Development Group (“Applicant” / “Appellant”)

A. Baroudi

City of London (“City”)

A. Anderson

C. McCreery

DECISION DELIVERED BY A. CORNACCHIA AND ORDER OF THE TRIBUNAL

BACKGROUND

1This is an appeal of the decision of the City’s Committee of Adjustment (“Committee”) denying a consent application and the decision refusing to authorize a minor variance application for the property municipally known as 2598 Woodbull Road (“Subject Property”).

2Prior to the hearing, the parties entered into a settlement agreement and the Appellant withdrew its minor variance application. The only application before the Tribunal is the consent application. The consent application, if allowed, will result in a lot boundary adjustment. It will reduce the lot area of the Subject Property and increase the lot area of the adjacent lot of record at the neighbouring property located at 2624 Woodbull Road (“Adjacent Property”) to form a larger lot which is utilizable for residential development (“Adjusted Adjacent Property”). The Applicant proposes constructing a new single detached non-agricultural dwelling and an accessory structure (chicken house) on the Adjusted Adjacent Property. The Appellant presented its case for the severance application with the support of the City.

3At the time of the original application in February 2021, the City of London Official Plan (“OP”) was in place. It was later replaced by the London Plan which was fully approved in May 2022 (“London Plan”).

4The Subject Property is located in the former Township of London. The front third of the Subject Property is a manicured lawn, and the rear two-thirds are open space and back onto Dingman Creek. The front portion gently slopes from Woodhull Road to the end of the grassed area. The rear portion of the property experiences significant grade differences as it drops down to the Dingman Creek. The surrounding area is comprised of several rural residential, single-family homes, including that owned by one of the Participants Mr. Gowanlock.

5The Subject Property is designated as Agricultural on the front portion of the property and Open Space for the rear portion of the property in the OP. The London Plan designates the front portion of the Subject Property as Farmland place type and Green Space for the rear portion of the property. Both the OP and the London Plan permit residential uses or single detached dwellings on existing lots of record provided certain criteria are met.

6The Zoning By-law (“ZB”) zones the front portion of the property Agricultural and holding Agricultural (AG2, h-4-AG2) while the rear portion of the Subject Property is zoned OS4, intended for conservation and resources. The Adjusted Adjacent Property follows the same official plan designations and zoning.

7After reviewing both applications, the City’s planning department prepared reports recommending against the approval of the consent application and authorization of the minor variance application (“City Planning Report”). Based on this report, the Committee denied both applications. The Applicant appealed the Committee decisions. Prior to this hearing the minor variance appeal was withdrawn, leaving only the consent appeal before the Tribunal.

8This appeal is a hearing de novo of the consent application. The Tribunal must have regard to the decision of the Committee but is not bound by it.

9At the hearing, the Tribunal was advised that there were no issues with notice and Participant status was granted to Mr. Gowanlock and Mr. and Mrs. Inculet, without objection from the parties. Michelle Doornbosch was engaged by and called by the Applicant to testify on land use planning matters (“Applicant’s Planner” or “Ms. Doornbosch”) and was properly qualified as expert witness in this field. The Tribunal found her evidence to be credible and she answered all questions posed clearly.

CONSENT APPLICATION- SECTION 51(24) OF THE PLANNING ACT (“ACT”)

10The Tribunal is required to review the consent application based on the requirements of subsection 51(24) of the Act. The conformity of the consent application to the OP is the most significant.

11The Applicant’s Planner reviewed the City’s Planning Report relating to the consent application. She identified that the City’s Planning Report included numerous conflicting statements. She explained the City’s planning department did not recommend approval of the consent application due to concerns regarding the minor variance application. The City’s planning department believes that the zoning of the property should not be addressed as a minor variance but as a zoning by-law amendment application before City Council.

12The Applicant’s Planner then provided her own review and analysis of the consent application under the Provincial Policy Statement 2020 (“PPS”), the OP and Section 51(24) of the Act.

SUBJECT PROPERTY CONTEXT

13The planning evidence confirmed that the Subject Property is within the City of London limits but outside of the urban growth area. It has the following characteristics:

a. an existing single detached dwelling and a detached garage;

b. a frontage of 99.6 metre (“m”) (326.8 feet);

c. a lot area of 1.13 hectare (“ha”) (2.8 acre);

d. The front third of the property is manicured lawn sloping to Woodhull Road and the back two-thirds are open space, backing onto Dingman Creek experiencing significant grading differences as it drops down to the creek.

14The Adjacent Property is immediately south of the Subject Property with an existing lot of record at 2624 Woodhull Road. This parcel has a width of 20.2 m (66.2 feet) and lot area of 0.21 ha (0.51 acre). The Adjacent Property currently sits empty and to become utilizable for any purpose more land is required.

15To be developed for residential uses, the Adjusted Adjacent Property will require well water and an on-site septic system since there are no municipal water or sanitary services. The Adjacent Property cannot accommodate an on-site sanitary sewage system without the additional property that will be added by the proposed severance and boundary adjustment with the Subject Property.

16The surrounding area is comprised of several rural residential, single-family homes, including at 2648 Woodhull Road, owned by Kevin Gowanlock, a Participant.

17To the east are open space lands surrounding the Dingman Creek.

18The Lands to west are comprised of single-family homes and a farm dwelling located at 2649 Woodhull Road where a farm is actively operating. The owners of 2649 Woodhull Road are the Participants, Richard and Nancy Inculet.

agricultural land

19The evidence identified that the PPS includes policies for the protection of prime agricultural land, like the Subject Property. The PPS permits residential development where it is locally appropriate. Lot adjustments are permitted for minor boundary adjustments, as in this case, provided that they do not result in the creation of a new lot. The PPS also protects the natural heritage features in the Open Space lands on the Subject Property. Development is to be directed away from hazardous lands. There is no plan to use the Open Space lands for the development of the property. The Tribunal finds that the consent application is consistent with the PPS.

20At the time the application was submitted in February 2021, the OP was in force. This plan was replaced by the London Plan which was fully approved in May 2022. The OP and the London Plan have policies which support the PPS objective of protecting agricultural land. The OP focuses on limiting non-farm residential development due to its incompatibility with agricultural uses. However, there is an exception in the OP for non-farm residential development in a situation where a lot correction is desirable. Lot corrections are permitted for minor adjustments to lot boundaries under policy 9.2.14.5 provided that the correction does not lead to the creation of a lot which is undersized for its use, and the severed lands will be owned by the same owner as the lands to which they are being added. The resulting severed and retained parcels must also conform to the consent criteria in policy 19.7.1 of the OP.

21The planning evidence made it clear that the consent application is for a lot boundary correction. The severed lands will be added to the Adjacent Property so that it can be used for the proposed development and will be owned by the same owner. The Retained Parcel will continue to house the single-family dwelling located on the property which is located on the portion of the property zoned Agricultural and holding Agricultural. The holding Open Space portion of the lands front onto the riverbank and will not be used. The same zoning applies to the Adjusted Adjacent Parcel. The portion abutting the road is zoned Agricultural and holding Agricultural while the rear abutting the creek with significant grade adjustments is zoned Open Space and holding Open Space.

22The Severed Parcel will be added to the Adjacent Property and create larger table lands to be used for the proposed development.

consent application- Section 51(24) of the Act

23The planning department reviewed the consent application based on the requirements of subsection 51(24) of the Act as well as the consent criteria included in the OP and the London Plan (“Planning Evidence”).

24Before presenting her evidence reviewing compliance with the consent criteria set out under the Act and the OP, Ms. Doornbosch highlighted the following proposed conditions to the consent application included in Appendix B to this Decision:

1. An ecologist consultant will complete an assessment of the significant environmental features and functions found on the lands due to the natural heritage features and recommend risk mitigation measures in an Environmental Impact Study (“EIS”). The Applicant is to follow any recommended risk mitigation measures in the EIS.

2. A geotechnical assessment is to be completed to assess slope stability for the lands that slope down into the Dingman Creek (“Geotechnical Assessment”). The Applicant is to follow any recommended risk mitigation measures in the Geotechnical Assessment.

3. A Stage 1-2 archeological assessment will be completed on the Subject Property. (“Archaeological Assessment”). The Applicant is to follow any recommendations as to further site-specific assessment required should archaeological resources of sufficient cultural heritage value or interest be found.

4. The proposed use will be resolved in the context of a zoning by-law amendment application before Council.

25To summarize, the Planning Evidence was that the EIS and Geotechnical Assessment will ensure that the natural heritage features in the Open Space on the lands are protected and the Archaeological Assessment will address any concerns relating to the possible existence of archaeological resources. The ZBA will address use of the Adjusted Adjacent Property and the other variances sought in the minor variance application.

26With respect to the consent criteria under s. 51(24) of the Act, the Planning Evidence identified the following:

1. The consent conditions requiring an Archeological Assessment, Geotechnical Study and EIS will ensure that matters of Provincial Policy and public interest are assessed and addressed prior to any development occurring.

2. The existing lot is suitable for a single detached dwelling.

3. The new lot dimensions of the Adjusted Adjacent Property will be more appropriate and bring the property to a size that is more consistent with the existing neighbouring lots.

4. Any required restrictions on the development of the new Adjusted Adjacent Property will be addressed through the ZBA application process before Council.

5. The conservation of natural resources will be addressed through the EIS and the condition requiring compliance with the proposed mitigation strategies recommended by the EIS.

6. All proposed servicing of the property by private well and septic system will be vetted through Ministry of the Environment, Conservation and Parks (“MEPC”).

7. There are local schools available.

27The Tribunal finds that the consent application complies with the criteria under section 51(24) of the Act.

consent criteria under the op

28The Planning Evidence confirmed that the consent application conforms with the consent criteria set out for agricultural land in section 9.2.14.1 of the OP. The following evidence was presented regarding the OP consent criteria:

9.2.14.1 CONSENT CRITERIA

PLANNING EVIDENCE

i)

An uneconomic extension of any major municipal service will not be required.

Extension of municipal services are not required since the lot will be serviced by well water and a septic system.

ii)

That ribbon development of any type along highways or major roads will be discouraged.

The property does not front onto a highway or major road.

iii)

As a condition of a consent being granted, proof must be provided that adequate potable water is available on the site or can be made available.

A condition is proposed for well water.

iv)

As a condition of a consent being granted, soils shall be suitable or made suitable to support an individual on-site wastewater treatment system subject to the approval of the authority having jurisdiction.

The septic system design is covered by conditions 12 and 13.

v)

All parcels must have access to a public highway.

The property fronts onto a public road.

vi)

The Minimum Distance Separation requirements referred to in policy 9.2.10. are complied with.

The Minimum Distance Separation requirements must be fulfilled before a building permit will be issued.

vii)

Both the severed and retained parcels created by the consent would conform to the provisions of the Zoning By-law and are appropriate for the use proposed.

A ZBA application is required by condition 10.

viii)

The proposed consent will not detract from or result in the loss of area of any wetland woodlot or other environmental feature shown on Schedule "B".

An EIS is required by the conditions for severance to address any environmental concerns as it relates to the Open Space lands.

ix)

Both the severed and retained parcels would conform to the criteria set out in policy 19.7.1 of this Plan, where applicable.

The analysis of these criteria follows below.

29The consent also complies with the requirements of 9.2.14.2 of the OP which restricts severances in the agricultural designation to particular circumstances, one of them being a lot correction. The lot border adjustment for the Adjusted Adjacent Property qualifies under this exception.

30The consent criteria for agricultural land also requires compliance with the general consent criteria under 19.7.1 of the OP. The following planning evidence was presented by Ms. Doornbosch regarding the consent application’s compliance with these criteria.

19.7.1 Consent Criteria

Planning Evidence

a)

that any lot(s) to be created would conform to the provisions of the Official Plan, Zoning By-law, and any applicable area study or guideline document;

Condition 10 requires a Zoning By-law Amendment application to address the use on the property.

b)

that the matters which, according to the Planning Act, are to be regarded in the review of a draft plan of subdivision have been taken into account;

A draft plan of subdivision is not required.

c)

that the size and shape of any lot(s) to be created would be appropriate for the intended use, and would generally conform to adjacent development and to any development agreements registered against the title of the subject land;

The proposed severance will increase the size of the existing lot of record bringing it to a size that is more consistent with existing surrounding properties.

d)

that the creation of any lot(s) would have the effect of infilling an existing developed area where the pattern of land use has been established, and would not have the effect of extending a developed area;

No new lots will be created. The severance allows for the use of an existing lot of record that is currently underutilized

e)

that the proposed lot(s) would front on, or have access to, an existing public road and would not involve the opening or extension of a public road;

The property fronts onto a public road.

f)

that the proposed lot(s) would not unduly reduce the accessibility of abutting lands suitable for development;

The adjacent properties already contain existing single-family homes. The increase in size of the existing lot of record does not reduce the accessibility of adjacent lots.

19.7.1 Consent Criteria

Planning Evidence

g)

that access to the proposed lot(s) would not create traffic problems or hazards and that Official Plan policies regarding road access would be complied with;

The severance does not create any traffic problems. No new lots are being proposed. There is a legal right to access the public road fronting the property.

h)

that adequate municipal services and utilities would be available;

Hydro is available and a well and septic system will need to be installed.

i)

for a consent application pertaining to lands within the Agriculture or Urban Reserve designations, that the lot to be created would conform to policy 9.2.14.; and

The consent complies with OP policies 9.2.14 as outlined above.

j)

for a consent application pertaining to natural features designated as "Open Space" or "Environmental Review" the potential impacts resulting from fragmentation of natural features corridors and linkages will be taken into consideration.

An EIS is required by consent condition 7.

k)

that potential impacts on components of the Natural Heritage System will be addressed in accordance with the provisions of Section 15.5.

An EIS is required by consent condition 7 and a geotechnical report required by condition 8.

Where individual on-site wastewater treatment systems proposed, the Consent Authority shall also consider the following criteria:

(a) the proposed development is consistent with the surrounding area in terms of pattern and size;

(b) the proposed development does not represent an extension to an area for existing development on individual services; and

(c) the proposed development would not create a precedent for future similar applications on adjacent or nearby lots.

The consent brings the existing lot of record to a size that is more consistent with surrounding lot sizes

b) The severance allows for the development of an existing lot of record

c) the consent will not set a precedent as the lot is already existing.

31The Planning Evidence with respect to the application of the London Plan was that it simply repeats many of the original criteria set out under the OP. The Applicant Planner’s evidence was that the consent application also complies with the criteria set out under the London Plan. The Tribunal accepts this evidence and finds that the application also complies with the consent criteria under the London Plan.

32The proposed conditions for the consent application are identified in Appendix B. The Planning Evidence confirmed that they are all reasonable and typical for a consent application.

33Numerous concerns were raised by the two Participants in their Participant Statements regarding the consent application. They were concerned with the use of the property for residential purposes, land stability, and setback requirements. The geotechnical assessment will address the land stability concerns, and setback and use concerns will be addressed in the ZBA application.

34In summary, the Tribunal accepts the planning evidence relating to the consent application and finds that it meets the requirements of s.51(24) of the Act, the PPS, the OP, and the London Plan and should be allowed subject to the conditions identified in Appendix B.

ORDER

35THE TRIBUNAL ORDERS that the Consent for the severance shown in the sketch in Appendix A attached hereto is provisionally granted, subject to the conditions attached as Appendix B.

“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.

APPENDIX A

Sketch

APPENDIX B

Conditions

1. That, pursuant to Section 53(41) of the Planning Act, if the applicant has not, within a period of two years after notice was given under subsection 53(17) or (24), whichever is later (“Lapse Date”), fulfilled the conditions, the application for consent shall be deemed to be refused but, if there is an appeal under subsection 53(14), (19) or (27), the application for consent shall not be deemed to be refused for failure to fulfil the conditions until the expiry of two years from the date of the order of the Tribunal issued in respect of the appeal or from the date of a notice issued by the Tribunal under subsection (29) or (33).

2. The Owner shall pay a certificate fee at the London Consent Authority’s office in the amount current at the time of the issuance of the Consent Authority’s Certificate.

3. The Owner shall, at a minimum of ten (10) working days in advance of the Lapse Date, file with Planning and Development Staff, a complete submission consisting of all required clearances, fees, draft transfer(s) and final plans, and to advise in writing how each of the conditions of provisional approval has been, or will be, satisfied. The Owner acknowledges that, in the event that the final approval package does not include the complete information required by the Consent Authority, such submission will be returned to the Owner without detailed review by the City.

4. The Owner shall pay in full all financial obligations/encumbrances owing to the City on the said lands, including property taxes and local improvement charges.

5. The Owner shall have an Ontario Land Surveyor submit to the City for review and acceptance a copy of the draft reference plan identifying the severed and retained parcels and road widening, all to the satisfaction of the City. Upon acceptance by the Chief Surveyor, Planning and Development, and the Upper Thames River Conservation Authority, this reference plan is to be registered on title of the subject lands.

6. The Owner shall provide to the City a Right-of-way dedication of 18.0 m from the centre line along Woodhull Road.

7. The Owner shall pay to the City for street tree planting purposes, a fee based at $25.00 per lineal metre of frontage for all lots, in accordance with the City of London’s Tree Planting Guidelines and approved user fee.

8. The Owner shall obtain any approvals necessary to ensure that the severed and retained lands comply with the regulations of the Z.-1 Zoning By-law, inclusive of obtaining the necessary zoning by-law amendment approval to permit the proposed use on the severed and retained lands, and to implement any required changes to the existing zone boundaries and appropriate ecological buffers informed through the EIS/SLSR and geotechnical studies. The above shall be at no cost to the City, and this condition or the provisional consent approval shall not have the effect of limiting Council’s discretion in any way when considering any subsequent planning approvals. The zoning shall be in full force and effect prior to the issuance of the consent certificate.

9. The Owner shall retain a consultant ecologist to carry out an SLSR/EIS in accordance with policies of the London Plan for the lands identified during the zoning by-law amendment process, and shall implement all recommendations to mitigate adverse impacts to any significant environmental features and functions that are found, to the satisfaction of the City.

10. The Owner shall attend a scoping meeting and site visit with a City Ecologist and the Upper Thames River Conservation Authority to review and confirm the EIS scope. The Owner or an agent on their behalf is required to complete the EIS Issues Scoping Checklist as a draft for submission to the City in advance of the scoping meeting. Once all comments regarding the draft Checklist have been received and finalized, the City of London will send written approval.

11. The Owner shall submit a geotechnical assessment, including a slope stability assessment, prepared by a qualified engineer, to the satisfaction of the UTRCA.

12. The Owner shall provide confirmation that the Ministry of Heritage, Sport, Culture and Tourism has completed a review of the Stage 1-2 archaeological assessment for both the severed portion of 2598 Woodhull Rd and full property at 2624 Woodhull Rd and follow through on recommendations to mitigate, through preservation or resource removal and documentation, adverse impacts to any significant archaeological resources found (Stages 3-4).

13. The Owner shall ensure that no soil disturbance occurs arising from demolition, construction, or any other activity until the EIS is approved by Planning & Development, and Planning & Development has received a compliance letter from the Ontario Ministry of Heritage, Sport, Tourism and Culture indicating that all archaeological licensing and technical requirements have been satisfied.

14. The Owner shall submit a solicitor’s Letter of Undertaking confirming that the proposed severed parcel shall become joined to and be placed in the same title as the abutting lands known municipally as 2624 Woodhull Road. Regarding the proposed severed parcel, Section 50(3) and/or 50(5) of the Planning Act, R.S.O. 1990, shall apply to the subsequent conveyance and shall be accompanied by a copy of the deed belonging to the portion of the lands to which the severed lot will be added at the time of the certification of the deeds.

15. The Owner shall submit a solicitor’s Letter of Undertaking confirming that prior to the construction of any septic or well systems on-site, the current or future owner of the property will be responsible for obtaining any/ all required approvals from the Ministry of the Environment, Conservation and Parks (MECP) for the above noted works.

16. The Owner shall submit a Professional Engineer’s private servicing layout plan demonstrating that the retained and consolidated parcels can accommodate the separation requirements, area and setbacks for septic systems and wells, all in accordance with the Ontario Building Code (OBC) and the MECP requirements for individual on-site sewage systems and all to the satisfaction of the City. If the existing septic and well do not meet OBC requirements, then the Owner will be required to re-locate the septic system and well. Any new and/or relocation of existing infrastructure will be at the applicant’s expense, maintaining safe clearances from L.H. infrastructure is mandatory.

17. The Consent Certificate shall lapse after 2 years of issuance if the transaction has not been completed, in accordance with subsection 53(43) of the Planning Act.