CORRECTION NOTICE

OLT CASE NO(S).: OLT-21-001839

DECISION ISSUE DATE(S): October 27, 2023

CORRECTION NOTICE ISSUE DATE: November 02, 2023

RE: South Bracebridge Environmental Protection Group v. District Municipality of Muskoka (Municipality)

Correction to: In paragraph #198(1) should refer to s. 2(iv) not s. 2(i) of the ZBLA. Paragraph #198(2) of the decision should refer to s. 2(xvi)(b), not s. 2(xv)(b).

Originally:

Corrected to:

198The TRIBUNAL ORDERS that the proposed Zoning By-law Amendment is approved as set in Attachment 2 to this Order and Decision, which includes the following amendments:

1. s. 2(i) be amended to state that the setbacks from all wetlands and watercourses on the subject lands be no less than 30 m;

2. s. 2 (xv)(b) be amended to state that:

(xv) The Holding Symbol (H) may be removed on a precinct by precinct basis once the following have been completed for each precinct:

198The TRIBUNAL ORDERS that the proposed Zoning By-law Amendment is approved as set in Attachment 2 to this Order and Decision, which includes the following amendments:

1. s. 2(iv) be amended to state that the setbacks from all wetlands and watercourses on the subject lands be no less than 30 m;

2. s. 2 (xvi)(b) be amended to state that:

(xvi) The Holding Symbol (H) may be removed on a precinct by precinct basis once the following have been completed for each precinct:

b. a site-specific Environmental Impact Statement for each proposed precinct and adjoining road (and any applicable adjacent lands) on the subject lands is received to the satisfaction of the Town of Bracebridge, which, among other things, demonstrates:

i. by means of comprehensive amphibian breeding surveys that there will be no negative impact on amphibian breeding habitat as a result of the proposed development of that precinct and road; and

ii. by means of acoustic surveys and snag density surveys, the bat species present and demonstrates that there will be no negative impact on bats as a result of the proposed development of that precinct and road.

b. a site-specific Environmental Impact Statement for each proposed precinct and adjoining road (and any applicable adjacent lands) on the subject lands is received to the satisfaction of the Town of Bracebridge, which, among other things, demonstrates:

i. by means of comprehensive amphibian breeding surveys that there will be no negative impact on amphibian breeding habitat as a result of the proposed development of that precinct and road; and

ii. by means of acoustic surveys and snag density surveys, the bat species present and demonstrates that there will be no negative impact on bats as a result of the proposed development of that precinct and road.

“Euken Lui”

EUKEN LUI REGISTRAR

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.

ISSUE DATE:

October 27, 2023

CASE NO(S).:

OLT-21-001839

Formerly PL210241

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant:

South Bracebridge Environmental Protection Group

Subject:

Proposed Official Plan Amendment No. 8

Municipality:

Town of Bracebridge

OLT Case No.:

OLT-21-001839

Legacy Case No.:

PL210241

OLT Lead Case No.:

OLT-21-001839

Legacy Lead Case No.:

PL210241

OLT Case Name:

South Bracebridge Environmental Protection Group v. District Municipality of Muskoka (Municipality)

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

Appellant:

South Bracebridge Environmental Protection Group

Subject:

By-law No. BL 2021-005

Municipality:

Town of Bracebridge

OLT Case No.:

OLT-22-002072

Legacy Case No.:

PL210142

OLT Lead Case No.:

OLT-21-001839

Legacy Lead Case No.:

PL210241

Heard:

September 20-21 and 27-28, October 3-6, 11-14,

17-19, 2022 and January 12-13, 16-17, and 19, 2023 by video hearing

APPEARANCES:

Parties

Counsel

South Bracebridge Environmental Protection Group, Inc.

David Donnelly, Melanie Le Bouedec (student at law) and Monique Gill (student at law)

Muskoka Royale Development Inc.

Quinto Annibale and Brendan Ruddick

Town of Bracebridge

Harold Elston and Carly Emmett

DECISION DELIVERED BY HUGH S. WILKINS AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1On January 20, 2021, the Town of Bracebridge (“Town”) passed Official Plan No. 8 (“proposed Official Plan Amendment”) and Zoning By-law No. 2021-005 (“proposed Zoning By-law Amendment”) relating to the lands located at Lots 6, 7, and 8 and part lots 9 and 10, Concession 12 (“subject lands”) in the Town. The subject lands are 179 hectare (“ha”) in size. The proposed instruments facilitate the development of a privately-owned school complex, including an elementary school, secondary school, sports facility and student and staff residences. On March 18, 2021, the District of Muskoka (“District”) approved the proposed Official Plan Amendment without modification.

2The subject lands consist of varied terrain ranging from poorly drained lowlands to steeply sloped uplands. The lands are mostly forested with wetlands, watercourses, and rock barrens interspersed throughout. There is no development on the subject lands presently.

3The subject lands are designated as “Urban Centre” in Schedule A (on Settlement Pattern) and as “Future Service Area” in Schedule B (on Urban Service Areas) of the District’s Official Plan, 2014.

4Portions of the subject lands are currently designated “Urban Centre” under Schedule A (on Land Use) of the Town’s Official Plan, “Open Space” under Schedule B (on Urban Centre Land Use), and “Future Service Area” under Schedule D (on Service Areas). The proposed Official Plan Amendment would permit the extension of municipal services to the subject lands, re-designate portions of the existing Open Space area to “Institutional”, and change the “Future Service Area” designation to “Existing Service Area”. These changes would implement site-specific policies on servicing, transportation, and the environment and would permit school uses.

5The subject lands are currently zoned “Open Space 2” and Environmental Protection Wetland 1” under the Town’s Zoning By-law No. 2016-088. The proposed Zoning By-law Amendment would change the zoning to “Institutional Special - 17 Holding (I-17H)”, “Open Space One Special – 8 (OS1-8)”, and “Environmental Protection Wetland One Special 1 (EPW1-1)”.

6The proposed development would have five separate precincts, which would be built in stages. Precincts A, B, C would be built in the first phase and Precincts D and E would be built later. The precincts would consist of:

• Precinct A - secondary school

• Precinct B - sports complex

• Precinct C - student residence for the secondary school

• Precinct D - elementary school

• Precinct E - student residence for the elementary school

Below is a map of the subject lands marking the locations of the proposed precincts.

7The total capacity of the secondary school would be 1800 students and the total capacity of the elementary school would be 600 students. These would include up to 900 boarding students living in the proposed residences along with 30 to 50 staff living onsite. It is proposed that the complex would be used in the summer for children’s camps. The total gross floor area of the proposed development would be 57,500 square metres.

8Primary access to the proposed development would be from Highway 118 (Ecclestone Road). An internal road would be constructed through the subject lands, which would roughly follow the route of a proposed new public road called the West Transportation Corridor (“proposed Bracebridge West By-pass”). A class environmental assessment was completed in 2005 regarding the proposed By-pass, however, plans to move forward are not in place. As part of the proposed school development, an emergency access road would be built from Stephen’s Bay Road (to the west) to Precinct B. It would be for emergency use only and would not be accessible to the public.

9On April 8, 2021, the South Bracebridge Environmental Protection Group, Inc (“Appellant”) filed appeals regarding the proposed Official Plan and Zoning By-law Amendments.

10The hearing of the appeals was held by video hearing over 20 days. The first day was in September 2022 and the last in January 2023. A Tribunal site visit to the subject lands was held on September 29, 2022.

11For the reasons that follow, the Tribunal dismisses the Official Plan Amendment appeal and allows the Zoning By-law Amendment appeal, in part.

ISSUES

12The issues that the Tribunal must consider when adjudicating an official plan amendment appeal under s. 17(36) of the Planning Act include whether the proposed instrument:

• is consistent with the Provincial Policy Statement, 2020 (“PPS”);

• conforms with applicable provincial plans; and,

• represents good planning.

13The issues that the Tribunal must consider when adjudicating a zoning by-law amendment appeal under s. 34(19) of the Planning Act include whether the proposed instrument:

• is consistent with the PPS;

• conforms with applicable provincial plans;

• conforms with applicable official plans (in this case, the District’s Official Plan, 2014 and the Town’s Official Plan); and,

• represents good planning.

For each of the proposed instruments, the Tribunal must have regard to the matters of provincial interest set out in s. 2 of the Planning Act and have regard to the Town’s decisions adopting and passing the instruments and any information and materials that the Town’s council received in relation to the matters as required under under s. 2.1(2) of the Planning Act.

14The Tribunal notes that the version of the District Official Plan that was in effect at the time of the Applicant’s applications for the proposed instruments was the 2014 version of the District Official Plan. A new District Official Plan came into effect in 2019. In appeals of these types, the Tribunal’s practice is to determine whether there is conformity with the Official Plan that was in effect at the time when the planning

applications were filed. In the present case, that is the District Official Plan, 2014. In keeping with its practice, the Tribunal also will have regard to the District Official Plan, 2019 when adjudicating the appeal.

15The core issues to be adjudicated focus on the application of these statutory and policy requirements in relation to:

1. environmental issues;

2. stormwater management and servicing issues;

3. transportation and traffic issues; and

4. other planning issues.

16Each of these is addressed below.

EVIDENCE, SUBMISSIONS, AND FINDINGS

17The Applicant produced the following witnesses:

• Gord Nielsen - who the Tribunal qualified to provide opinion evidence in the area of ecology;

• Dirk Janas - who the Tribunal qualified to provide opinion evidence in the areas of ecology and species at risk;

• Timothy Harvey - who the Tribunal qualified to provide opinion evidence in the area of civil engineering;

• John Northcote - who the Tribunal qualified to provide opinion evidence in the area of transportation engineering; and

• Brandi Clement - who the Tribunal qualified to provide opinion evidence in the area of land use planning.

18The Town produced the following witnesses:

• Andrea Smith - who the Tribunal qualified to provide opinion evidence as an ecologist; and

• Matthew Holmes - who the Tribunal qualified to provide opinion evidence in the area of land use planning.

19The Appellant produced the following witnesses:

• Corey Stinson - who the Tribunal qualified to provide opinion evidence in the areas of ecology and wetlands evaluation;

• Mark Heaton - who the Tribunal qualified to provide opinion evidence in the discipline of ecology;

• Karine Beriault - who the Tribunal qualified to provide opinion evidence in the discipline of biology;

• Michael Tedesco - who the Tribunal qualified to provide opinion evidence in the discipline of traffic engineering; and

• Marie Poirier - who the Tribunal qualified to provide opinion evidence in the area of land use planning.

1. Environmental Issues Applicant’s Evidence and Submissions Gord Nielsen

20Mr. Nielsen stated that 85% of the subject lands are presently in a natural condition. He stated that he prepared an environmental impact assessment of the proposed development along with addenda to the assessment addressing comments received during peer review. The environmental impact assessment includes an overview of the proposed development and addresses the physiography and topography of the site, its flora and fauna, species habitat, and other environmental attributes. It also includes a species at risk assessment and provides a constraints analysis and recommendations. Its addenda address comments relating to, among other things, the footprint of the proposed development, use of the site plan process, buffer widths, the proposed Bracebridge West By-pass, and details on amphibian, breeding bird, deer, and bat surveys. He said recommendations in the addenda were added to the environmental impact assessment. These include recommendations that additional precinct-specific environmental impact assessments be prepared that contain information on how each of the assessment’s recommendations is implemented. They also address individual and cumulative impacts, buffer widths, additional aquatic, flora and bat surveys, and servicing details. He also said the additional recommendations address the timing of construction, bat habitat replacement, sedimentation and erosion controls, and stormwater management.

21Mr. Nielsen said most of the subject lands drain into the Henry Marsh, which is located in the northern section of the property, while a small area near the southwest corner drains to Lake Muskoka. He said the wetlands on the subject lands are all part of a larger wetlands complex. Due to limitations on access to adjoining properties preventing him from completing an assessment of the entire wetlands complex, he stated that he took a conservative approach and assumed that all wetlands on the

subject lands require protection and buffering. He said the proposed buffers are consistent with the buffers used for provincially significant wetlands. He said doing an actual provincially significant wetlands evaluation was considered, but it was determined to be unnecessary. Mr. Nielsen said, given the proposed buffers, a finding that the wetlands were provincially significant would have no effect on the proposed development plans. He also said development in each precinct would be subject to an additional environmental impact assessment before final approval. These assessments would further address, among other things, the wetlands and their buffers.

22Mr. Nielsen said he recommends a 30 metre (“m”) average buffer with a 15 m minimum around wetlands on the subject lands. He said the delineation of the shorter 15 m buffers would be made at the site plan approval stage. He said wetland buffers less than 30 m must be rationalized and should be rare. He said core habitat for species at risk would be buffered and protected. He also said there would be well more than a 100 m buffer around the Henry Marsh, which constitutes the largest and most complex part of the wetlands and the most important area for species at risk on the subject lands.

23Mr. Nielsen questioned the value of using the Natural Heritage Reference Manual for Natural Heritage Policies of the PPS 2005 (2d ed.) (Ontario Ministry of Natural Resources, March 18, 2010) (“Natural Heritage Reference Manual”) for determining buffers. He said it is out-of-date, does not align with the current PPS, and is solely a reference document. He referenced the Ecological Buffer Guideline Review (Beacon Environmental Ltd., December 2012) (“Beacon Report”), which was prepared for the Credit Valley Conservation Authority as, among other things, an assessment of the scientific literature on ecological buffers. It provides an overview of the policy context for buffers in southern Ontario. Based on the guidance in the Beacon Report, Mr. Nielsen stated that 15 m buffers can be used around wetlands and that variable widths can be appropriate. He acknowledged, however, that generally the Beacon Report states that the smaller the buffer, the greater the risk of environmental harm for

various types of environmental features. He agreed that generally the bigger the buffer, the better; but he emphasized that each situation is unique.

24Mr. Nielsen stated that parts of the southwest area of the subject lands have been identified by the Ministry of Natural Resources and Forestry (“MNRF”) as Stratum 2 wintering habitat for white-tailed deer. He opined that the subject lands can be developed while leaving much of this habitat undisturbed. He stated that the area is a connected landscape and the proposed development would not adversely impact deer wintering habitat on a general level. He said he had no concerns about the proposed development impacting or affecting the viability of the area’s deer population. Mr. Nielsen acknowledged that the last survey conducted by MNRF of the deer wintering habitat in the area was done by aerial assessment in the 1980s. He opined that deer use continues to be limited and no further surveys are needed.

25Mr. Nielsen stated that he addressed rock barrens and waterfowl nesting areas in the environmental impact assessment. He stated that additional survey work would be required at the site plan approval stage regarding watercourse crossings, rare flora, aquatic habitat, and bats in each proposed precinct. He said sediment and erosion controls would be employed during construction and would be regularly monitored and maintained in order to protect species. Mr. Nielsen stated that the layout of roads would be done so as to avoid encroaching on or impacting wetlands.

26Mr. Nielsen stated that breeding amphibian surveys were conducted in locations within the proposed precincts, including areas with vernal pools. He stated that some frog species may be found in woodland areas up to 240 m from wetlands, but he opined that a buffer for them was not necessary due to a lack of vernal pools and other suitable habitat in the buffer areas. He opined that these areas do not constitute significant wildlife habitat. He said that although the Natural Heritage Reference Manual requires an evaluation of lands within 120 m of amphibian habitat, the Manual only serves as guidance and the habitat on the subject lands does not warrant such an evaluation. He

emphasized that vernal pools in the proposed precincts were examined and none provides for amphibian breeding habitat.

27Mr. Nielsen stated that the best habitat on the subject lands for Blanding’s Turtle is the Henry Marsh, but he said the species may also migrate further across the property. He stated that the Applicant did not complete a field study of Blanding’s Turtle, but he assumed that the species is present. He opined that other wetlands on the subject lands beyond the Henry Marsh are not likely suitable habitat. He said physical constraints on the subject lands, including rock barrens and steep slopes, limit the amount of turtle wintering areas.

28Mr. Nielsen stated that the area around the subject lands consists of fairly low- quality bat habitat, but he said there are tree snags present that would be used by bat species. He stated that further bat surveys would be conducted at the site plan approval stage, in particular for Precinct E, which has several tree snags. He said bat boxes would be installed. He stated that he has no concerns regarding any losses in bat habitat and most tree snags would be maintained. He said the snags that are removed would be cut in the winter when bats are not in residence. He opined that local bats are not in decline because of habitat loss.

29Mr. Nielsen stated that the proposed development is consistent with the PPS. He opined that the proposed instruments are consistent with the significant wildlife habitat, fish habitat, and species at risk-related policies in PPS policy 2.1. Regarding the application of PPS policy 2.1.5(d) on significant wildlife habitat, he reviewed measures to be taken to protect the habitat of Blanding’s Turtle, Eastern Hognose snake, and bats, including buffering, construction methods, and staff training. As it is difficult to disprove the presence of species, he stated that he took a conservative approach and recommended measures to be taken regardless of proof of species presence. He opined that the proposed instruments are consistent with the water policies in PPS policy 2.2 through the proposed buffers, the layout of the proposed development, and proposed stormwater management mitigation strategies. He opined

that the subject lands are not hazardous. He said forested areas on the subject lands do not represent a significant fire hazard given the tree species that are present and their character. He added that the proposed development would provide fire protection infrastructure, including fire hydrants and access for local fire departments, which would reduce any risks.

30Mr. Nielsen stated that the proposed instruments conform with the District’s Official Plan, 2019. He stated that policy C.1 addresses the protection of environmental features, including significant wildlife habitat and deer yards. As noted above, he opined that based on the information available, there is not a significant concentration of deer using the subject lands for winter habitat and the Stratum 2 designation is accurate. He said policy C.1.3.2 addresses adjacent lands and the need for connections between natural features and policy C.1.6.3 addresses cumulative impacts. He said policy C.4 addresses functional servicing reports and the need for detailed storm water management plans and policy C.5 addresses watershed planning. He opined that each of these policies has been addressed.

31Mr. Nielsen reviewed policies A.7.4 and B.10.2 of the Town’s Official Plan regarding protection of environmental features and functions, including wetlands and adjacent lands, water quality and recharge, stormwater management, and species at risk. He opined that the proposed instruments conform with these policies. He said policy B.10.2.6 requires setbacks from streams and policy B.10.3.3 requires an environmental assessment for setbacks from natural features within 120 m from species at risk habitat and significant wildlife habitat. He said the buffers recommended in the environmental impact assessment address these policies in relation to the Henry Marsh. He said policy B.10.7.2 addresses the identification of provincially significant wetlands and policy B.10.7.3 requires an environmental impact assessment for development within 120 m of them. He said policy B.10.7.5 prohibits development within 30 m of a wetland without an environmental impact assessment and policy B.10.7.6 addresses restrictions for abutting lands. He said policy I.5.1 addresses the requirements for stormwater management plans. Mr. Nielsen stated that the proposed development

addresses all of the applicable policies in the Town’s Official Plan relating to the protection of the environment, water quality, and related matters. He reiterated that the site plan approval process will require that an environmental impact assessment be completed for each proposed precinct to ensure protection of the environment and water quality.

32Mr. Nielsen stated that the Appellant’s concerns regarding the age and sufficiency of his investigations, the absence of wetlands evaluations, and the absence of a more comprehensive significant wildlife habitat assessment have all been addressed by the conservative approach that he took. He said that many of the Appellant’s concerns were addressed in his addenda to the environmental impact assessment.

33In response to the Appellant’s wetlands-related planning concerns described by Ms. Poirier below, Mr. Nielsen stated that the proposed development would not be sandwiched between wetlands. He said the functions of the wetlands were properly evaluated in the environmental impact assessment and that a provincially significant wetlands evaluation was not necessary.

34In response to the Appellant’s concerns set out by its ecologist, Mr. Heaton, that the environmental impact assessment does not confirm no negative impacts on adjacent lands and does not properly assess wetlands, Mr. Nielsen stated that all of the wetlands are buffered and protected and that additional assessment and measures would be addressed at the site plan approval stage. He said Mr. Heaton’s concerns regarding species at risk, significant wildlife habitat, deer habitat, and bat snag surveys have been addressed. He said acoustic surveys to identify bats are unnecessary. He agreed that moose move through the subject lands, but he said the proposed buffers around the Henry Marsh accommodate these and other wildlife movements. He said amphibian movement and breeding and waterfowl nesting areas are accommodated through the preservation of the wetlands and buffers.

35Mr. Nielsen said the proposed development helps address climate change by creating small nodes of development and maintaining a leafy campus. He acknowledged that clearing trees does not assist in mitigating climate change, but he noted that given that the subject lands are located in an urban area, the trees would likely be cut in any event. He said he did not know how many trees would be cut, but he agreed that it could be over 36,000. He also acknowledged that there would be significant blasting and grading required for the proposed development, but he said wetlands would be preserved, sprawl would be limited, and heat islands would be minimized.

Dirk Janas

36Mr. Janas stated that he assessed the environmental features on the subject lands, including the wetlands, undertook a flora inventory, and completed wildlife and species at risk surveys. He said he also undertook tree snag, breeding bird, and amphibian surveys.

37Mr. Janas stated that the wetlands on the subject lands have been properly considered and there is no need for a provincially significant wetlands evaluation to be undertaken. He opined that the proposed development would have no negative impacts on the wetlands. Regarding buffers around wetlands, Mr. Janas stated that 30 m is the typical benchmark that is used. He said that, in the present case, a variable buffer approach is proposed with an average of 30 m buffers, but with as little as 15 m in specific areas to provide flexibility. He reviewed the criteria used for provincially significant wetlands evaluations and agreed that, based on Mr. Stinson’s work (who is one of the Appellant’s ecologists), the wetlands are provincially significant; but he opined that the landscape is resilient and he reiterated that a 30 m buffer is not needed. He acknowledged that the Beacon Report identified 15 m buffers as being of high risk for core habitat protection functions. He stated that at the site plan approval stage the Applicant would need to demonstrate that the proposed 15 m buffers will not cause

harm and will function with moderate risk. He agreed that the bigger the buffer, the better, but he said the degree depends on the situation.

38Mr. Janas opined that, with the proposed development, white-tailed deer would continue to use the area. He stated that moose travel through, but the subject lands are not ideal habitat. He acknowledged that the Applicant did not have any targeted moose surveys completed. He said his habitat assessment was done based on incidental observations and the best moose feeding habitat is the Henry Marsh.

39For the identification of waterfowl nesting areas, Mr. Janas stated that he used a habitat-based approach and completed a breeding bird survey. He said that, apart from the area around the Henry Marsh, he found few nesting areas and opined that the proposed development would not hinder waterfowl nesting functions. Mr. Janas stated that he assessed waterfowl habitat and numbers by doing a wandering survey with the opportunistic flushing out of birds. He also used transects. He again said the best habitat is around the Henry Marsh.

40Mr. Janas confirmed that Wood Thrush and Eastern Wood-Pewee have both been sighted in the subject lands’ forests. He opined that the amount of tree loss from the proposed development would not prevent the continuation of nesting in the area. He stated that the MNRF informed the Applicant that a permit under the Endangered Species Act is not required for species at risk on the subject lands.

41Mr. Janas stated that he did breeding amphibian surveys focused on upland forest and other areas in proximity to the proposed precincts. He said further amphibian surveying was completed in the southwestern portion of the subject lands in response to comments received during peer review. He said the surveys determined that the vernal pools in these areas do not support breeding amphibians and do not constitute significant wildlife habitat. He said nocturnal breeding survey stations were set up and daytime surveys were conducted as well.

42Regarding Blanding’s Turtle, Mr. Janas stated that he applied a habitat-based approach and assumed that the species is in the area, particularly around the Henry Marsh. Based on this, he said more detailed surveys were not needed. He stated that the turtles likely over-winter in the Henry Marsh, but they also may travel to the wetlands in the centre of the subject lands and into Precinct C. He said mitigation measures have been recommended, including fencing during construction.

43Regarding bats, Mr. Janas found that there are tree snags present that provide habitat for species at risk bats, but he noted that the main challenge for these species is white-nose syndrome and not the availability of snags. He opined that a loss in bat habitat caused by the proposed development would not impact those species.

44Mr. Janas said the rock barrens on the subject lands are insufficient for a strong presence of Eastern Massasauga Rattlesnake. He said Eastern Hognose Snake are widespread in the region, but at a low density.

45Mr. Janas stated that he undertook a thorough assessment of flora on the subject lands identifying close to 300 species of vascular plants permitting a proper assessment of their rarity and significance.

46Mr. Janas stated that he relies on the class environmental assessment done for the proposed Bracebridge West By-pass for much of his assessment of the roadways and infrastructure for the proposed development; but he acknowledged that there is discrepancy regarding the location of the road alignment. He also acknowledged that the route for a utilities corridor has not been finalized.

Town’s Evidence and Submissions

Andrea Smith

47Ms. Smith stated that she peer reviewed and provided comments and recommendations regarding the Applicant’s environmental impact assessment and addenda. She said her comments requested justification for 15 m buffers around wetlands and requested follow-up regarding, among other things, the impacts of the proposed internal roads, sufficiency of the Applicant’s amphibian surveys, the identification of aquatic habitats, the protection of Blanding’s Turtle habitat, and the identification of bat habitat.

48Regarding wetlands buffering, Ms. Smith said a 15 m buffer would represent a high risk of environmental harm to core habitat. She opined that a larger minimum buffer than 15 m would be appropriate. She stated that the larger the buffer, the better and that a 30 m buffer should be the minimum. She stated that she had never before come across the use of buffer averaging, as proposed by the Applicant, or environmental assessments being done at the site plan approval stage. She said the wetlands on the subject lands should be treated as provincially significant wetlands.

49Ms. Smith said an assessment of white-tailed deer wintering habitat generally should be undertaken over multiple years. She said the work is usually completed using MNRF aerial surveys and snow measurements. She said the deer wintering habitat on the subject lands is Stratum 2.

50Ms. Smith opined that the area around the Henry Marsh likely is, and other wetlands on the subject lands have the potential to be, waterfowl nesting habitat. She said the areas to the west are less optimal as there is normally no standing water there.

51Ms. Smith agreed that the area around the Henry Marsh is wetland amphibian habitat and partly woodland amphibian habitat, as identified by Mr. Heaton.

52Ms. Smith stated that the subject lands have high quality bat roosting habitat.

53Ms. Smith stated that there was no environmental impact assessment done for the adjacent eastern lands owned by the Applicant. She said the focus was on the subject lands. She was unsure whether the 2005 Class environmental assessment that was done for the proposed Bracebridge West By-pass is still valid. She also stated that climate change was likely considered but it is not spelled out in the Applicant’s environmental impact assessment.

54The Tribunal found Ms. Smith’s evidence to be credible and consistent with her opinions provided in her witness statement.

Appellant’s Evidence and Submissions

Corey Stinson

55Mr. Stinson stated that he reviewed existing data, consulted with MNRF, and conducted field work on adjacent properties (he did not have access to the subject lands themselves) assessing species at risk, significant wildlife habitat, and wetlands. He stated that he conducted a wetlands evaluation and, applying the Ontario Wetlands Evaluation System – Northern Manual, 2nd ed. (December 2022), he identified the wetlands on the subject lands as provincially significant. He opined that the proposed instruments would have substantial negative impacts on natural features and the landscape. He said the Applicant has failed to provide a sufficient basis for the proposed 30 m average buffers around wetlands. He opined that 120 m buffers are needed to ensure biological functioning.

56Mr. Stinson reviewed the components of his wetlands evaluation and his results. He discussed the wetland types, water flows, biodiversity, vegetation communities, social components (including human uses and benefits), landscape aesthetics,

educational uses and public access, Aboriginal values and cultural heritage, hydrological components, and other criteria. He discussed the species that are present, fish and wildlife habitat, and winter cover for wildlife. He also explained recent changes to the process for having an evaluation finalized. In the present case, he opined that a wetlands evaluation at the sub-watershed level is needed along with a further species at risk review. He reiterated that an average 30 m buffer around the wetlands on the subject lands would be insufficient and opined that there may be impacts from the proposed development on adjacent uplands. He also opined that further amphibian surveys are needed.

Mark Heaton

57Mr. Heaton stated that areas adjacent to the wetlands on the subject lands have not been properly evaluated and likely include significant wildlife habitat. He said the Applicant’s proposed 30 m average buffer is not supported by scientific data or any rationale to justify it. Given the lack of data, he said he is unable to opine on how large the buffer should be, but he said it could be as large as 300 m.

58Mr. Heaton stated that the Applicant has failed to demonstrate that there would be no negative impacts caused by the proposed development on natural heritage features as required under policy 2.1 of the PPS. He reviewed the methodology for conducting a white-tailed deer wintering habitat assessment and said the delineation of deer wintering habitat on the subject lands needs to be updated. He said the presence of moose feeding habitat, amphibian breeding areas, waterfowl nesting habitat, and rock barrens require further investigation. He said several species at risk have habitat in the area, which also requires further evaluation. He said the Natural Heritage Reference Manual recommends significant buffers from wetlands and significant wildlife habitat. He said a 30 m buffer may be appropriate for protecting fish habitat, but it is not sufficient for protecting other wetland dependent species. He stated that adjacent lands need to be better evaluated and significant wildlife habitat needs to be further assessed.

59Mr. Heaton described potential moose habitat on the subject lands. He stated that moose prefer undisturbed aquatic areas close to forests for feeding. He said a 120 m buffer would be needed to achieve this. He said the Applicant’s environmental impact assessment fails to demonstrate no negative impacts on moose habitat. In particular, he said Precinct C would be too close to possible habitat.

60Mr. Heaton stated that the Henry Marsh and the meadow marsh near Precinct D constitute waterfowl nesting habitat. He said the Applicant’s environmental impact assessment fails to demonstrate no negative impacts to this habitat and that a 30 m buffer would be insufficient to protect it. He said further studies are needed.

61Mr. Heaton opined that the Henry Marsh and nearby connected wetlands constitute amphibian breeding habitat. He said that more comprehensive amphibian surveys are needed. He expressed particular concern regarding the need to better identify breeding woodland amphibian habitat and amphibian corridors in the area. He discussed the likely presence of bull frog, western chorus frog, and wood frog. He said the Applicant’s environmental impact assessment fails to demonstrate no negative impacts to these species or their habitat.

62Mr. Heaton stated that additional studies and data are needed regarding the presence of species at risk bats. He stated that the proposed development would impact these species and that better snag surveys and acoustic monitoring are needed. He said least bittern have been spotted at the Henry Marsh, it is assumed that Blanding’s Turtle are present, and Eastern Hognose Snake may be on the subject lands. He said proper surveys for Blanding’s Turtle, Eastern Hognose Snake, and other reptiles are needed. Mr. Heaton stated that the rock barrens on the subject lands require further study in order to determine how they can be protected.

63Mr. Heaton stated that if 120 m buffers are applied around the likely significant wildlife features on the subject lands, the locations of several of the proposed precincts would need to be changed. He opined that Precinct B and part of Precinct A lie in deer

wintering habitat and further study regarding amphibian habitat around Precincts A and E are needed. He said that both short and long-term impacts must be considered.

64Mr. Heaton emphasized the importance of forests in mitigating climate change impacts through carbon storage and estimated that roughly 50,000 trees would be lost as a result of the proposed development. Mr. Heaton said the 2005 class environmental assessment for the proposed Bracebridge West Bypass expired after 10 years.

Karine Beriault

65Ms. Beriault is a biologist employed by the MNRF. She was summoned by the Appellant to provide evidence.

66Ms. Beriault said that since January 2023, the process for evaluating wetlands has changed and authority for addressing them has moved from MNRF to the Ministry of Environment, Conservation and Parks (“MECP”). She opined that under the old system (until January 2023), based on Mr. Stinson’s evaluation, wetlands on the subject lands would be considered provincially significant wetlands.

67Ms. Beriault stated that white-tailed deer habitat should be assessed based on what is currently happening on the ground. She stated that deer habitat in the District is generally assessed using Deer Habitat Assessment 101: Deer Wintering Areas and Deer Movement Corridors (“Deer Habitat Assessment 101”), which is an undated guidance document that was prepared by the Parry Sound MNRF District office. She said it provides a methodology for assessing both Stratum 1 and 2 deer habitat.

68Regarding assessing bat habitat, Ms. Beriault stated that the best practice is to undertake acoustic monitoring along with snag surveys.

Marie Poirier

69Ms. Poirier provided planning evidence on behalf of the Appellant. In regard to environmental issues, she stated that policies C.1, C.4, and C.5 in the District Official Plan, 2019 set out the requirements for environmental impact assessments, which she opined have not been satisfied by the Applicant. She stated that the proposed development would sandwich development between wetlands. She said it does not align with environmental principles as it fails to ensure that preventative actions are taken. She also said there is a lack of scientifically based studies supporting the proposed development. Ms. Poirier stated that the PPS and the District Official Plan, 2019 recognise climate change as a threat and encourage mitigation through land use controls and the protection of natural mitigation functions. In this regard, she stated that the flood attenuation functions of wetlands must be protected given the increased severity of storms and occurrence of flood events caused by climate change. She said there is no evidence that the Applicant has properly addressed these issues.

Participants’ Submissions

70The Participants, Muskoka Lakes Association, Michael Hart, and Laura Morton each submit that a wetlands evaluation and more fulsome environmental protection measures, such as a comprehensive assessment of species at risk on the subject lands, are needed. Bruce Kruger supports the proposed development. He submits that from an environmental perspective, the proposed development is better than many alternatives.

ANALYSIS AND FINDINGS ON ENVIRONMENTAL ISSUES

a. Wetlands

71PPS policy 6 defines “significant” wetlands as those that are provincially significant. Mr. Stinson, Mr. Heaton, and Ms. Beriault agreed that the wetlands

complex on the subject lands qualify as a provincially significant wetland. When taken through Mr. Stinson’s evaluation, Mr. Janas was unable to identify deficiencies which would lower its score to below the requisite threshold. Ms. Beriault stated that the government no longer designates wetlands and that evaluations are now simply filed with the Ministry. In the present case, the appliable paperwork has been filed. Based on the evidence before it, the Tribunal finds that the wetlands complex on the subject lands, including the watercourses connecting the wetlands, has the requisite qualities of a provincially significant wetland.

72PPS policy 2.1.4 addresses development in significant wetlands. It states:

2.1.4 Development and site alteration shall not be permitted in:

a) significant wetlands in Ecoregions 5E, 6E and 7E; […]

73In the present case, the proposed development is located in Ecoregion 5E. The development is not proposed in wetlands themselves; however, it would be located on lands nearby. PPS policy 2.1.8 addresses development on adjacent lands to wetlands. It states:

2.1.8 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 [including wetlands] 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.

74PPS policy 6 sets out the applicable definition of “adjacent lands” to be used when applying policy 2.1.8. It states that the extent of adjacent lands may be recommended by the Province or based on municipal approaches. It states (emphasis added):

Adjacent lands: means […]

b) for the purposes of policy 2.1.8, those lands contiguous to a specific natural heritage feature or area where it is likely that development or site alteration would have a negative impact on the feature or area. The extent of the adjacent lands

may be recommended by the Province or based on municipal approaches which achieve the same objectives;

75The Province’s recommendations in this regard are set out in the Natural Heritage Reference Manual. It recommends that adjacent lands include those that are within 120 m of wetlands. It states at s. 6.4 (emphasis added):

The Province recommends that adjacent lands are those lands within 120 metres of individual significant wetlands or significant coastal wetlands or, in the case of wetland complexes, within 120 metres of individual wetlands that make up the complex. This recommended adjacent lands width was chosen because it is known that a reasonable probability exists that developments within 120 metres of wetlands will affect the ecological functions of the wetlands that they surround, and because wetland species are often dependent on adjacent lands for activities such as nesting, resting, and feeding or for shelter (see section 4.4.1).

76The municipal approach used by the Town for assessing adjacent lands is set out in policy B10.7.3 of the Town’s Official Plan, which also states that development within 120 m of significant wetlands shall be subject to an environmental impact assessment to identify that the development will not have a negative impact on the wetlands. Policy B25.1 of the Town’s Official Plan then sets out the requirements and guidance for environmental impact assessments and policy B25.1.3(x) elaborates that the Town must be satisfied, based on the environmental impact assessment, that the proposed land use will not have a negative impact on the natural environmental features or ecological functions of a significant wetland or other natural environmental feature or function.

77Having regard to the District Official Plan, 2019, its policy C.1.1(b)(x) similarly sets out an objective to ensure that development applications proposed in or adjacent to natural heritage features and areas are properly assessed for potential impacts and its policy C.1.5 sets out environmental impact assessment requirements. Policy C.1.3.1(e) states that development and site alteration shall not be permitted on adjacent lands to the natural heritage features, including wetlands and significant wildlife habitat, 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. Policy C.1.3.2 identifies adjacent lands generally to be within 120

m of significant wetlands and wildlife habitat and again states that no development or site alteration shall be permitted on these lands unless the ecological function of the adjacent lands has been evaluated and it has been demonstrated, through an environmental impact assessment, that there will be no negative impact on the natural features or their ecological functions.

78These recommendations and approaches each recommend that an environmental impact assessment be conducted for the lands within 120 of significant wetlands. The proposed precincts in which the proposed development would be located lie within 120 m of the wetlands on the subject lands. As noted above, PPS policy 2.1.8 requires that the ecological function of the adjacent lands must be evaluated. The Tribunal interprets this to mean that all lands within 120 of the wetlands must be taken into consideration during the evaluation, not just the lands on which development is proposed.

79The focus of the evaluation is on the ecological functions of the adjacent lands and whether there will be no negative impacts of the proposed development on the wetlands or on their ecological functions. “Ecological function” is defined in PPS policy

6. It states:

Ecological function: means the natural processes, products or services that living and non-living environments provide or perform within or between species, ecosystems and landscapes. These may include biological, physical and socio-economic interactions.

80The Tribunal finds that, through its environmental impact assessment, the Applicant evaluated the ecological function of the lands within 120 m of the wetlands complex. The environmental impact assessment focused on, among other things, the environmental impacts that development in each proposed precinct would have on the wetlands and watercourses and includes an evaluation of the ecological functions of the lands adjacent to the wetlands in question. The study area of the assessment was the entirety of the subject lands. The assessment was based on studies examining surface water resources, water chemistry, stream temperatures, physical habitat conditions in surface drainage channels and watercourses, stream size, morphology, substrates, in-

stream cover characteristics, bank conditions, the presence of seepage, barriers to fish passage, and fish inventories and habitats. It also considered associated wildlife species and habitat on the adjacent lands (which is addressed in more detail in the next section of this Decision below).

81As noted above, the evaluation must address negative impacts. Negative impacts are defined in PPS policy 6. It focuses on “degradation” and the “health” and “integrity” of natural features or ecological functions as key factors in defining negative impacts. It defines “negative impacts” in the following manner in regard to natural heritage features and areas (emphasis added):

degradation that threatens the health and integrity of the natural features or ecological functions for which an area is identified due to single, multiple or successive development or site alteration activities.

In his witness statement, Mr. Janas defined the terms “degradation”, “health”, and integrity” in the context of the no negative impacts test. He stated:

Degradation: can be described as the deterioration of a natural feature through factors such as habitat loss/destruction, displacement of native species, loss or reduction of habitat connectivity and key environmental functions.

Health: is the condition of the environment/natural feature that can change from the result of many human activities, flooding, fire, severe weather and other reasons. In healthy systems, natural processes and flora/fauna communities are maintained.

Integrity: is a synonym to describe the level to which a natural feature is intact, carrying out ecological functions, and integrated with other natural areas in the landscape.

82Mr. Janas also referred to the Natural Heritage Reference Manual for guidance on how to apply the no negative impacts test. It stresses the need to consider cumulative impacts and current and future ecological functions. It states at s. 13.2:

To determine negative impacts on a significant natural heritage feature or area, the cumulative negative impacts from development or site alteration activities (e.g., impacts that adversely affect the stability of the feature and its ability to continue) must be considered against the integrity of the feature. The current and future ecological functions of the natural feature or area as they relate to the surrounding natural heritage system (e.g., connectivity) must be considered as well.

83Putting this all together, the Tribunal finds that the assessment of negative impacts can be undertaken in two stages. First, the Tribunal must assess whether the proposed development will result in “degradation”. In other words, whether there will be deterioration of the natural feature in question. Based on Mr. Janas’ evidence, this could include:

• habitat loss,

• species displacement,

• a reduction of habitat connectivity, or

• loss of key natural processes, products or services (ecological functions).

If the proposed development will have one of these types of impacts, the Tribunal must then assess whether the degradation will threaten the health and integrity of the natural feature or its ecological functions. In other words, will the degradation threaten or impact:

• the overall condition of the natural feature,

• the degree to which the natural feature remains intact or whole and not divided,

• the carrying out ecological functions, or

• the feature’s integration with other natural features or functions.

In assessing these factors, the Tribunal must consider:

• the cumulative impacts of development, and

• the current and future ecological functions of the natural feature as they relate to the surrounding natural heritage system.

84Using this framework to determine whether there will be no negative impacts to the wetlands, one must first assess whether there will be degradation of the wetlands. To make this determination, one must assess whether there will be deterioration of the wetlands in terms of habitat loss, species displacement, a reduction of habitat connectivity, or loss of key natural processes, products or services (ecological functions). The Applicant argues that with the implementation of the Applicant’s proposed buffers, there will be no deterioration of the wetlands. In response, the Appellant argues that more studies are needed to determine the necessary buffer sizes.

85Each of the environmental consultants who gave evidence before the Tribunal agreed that the bigger the buffer, the better to ensure no degradation of the feature in question. Mr. Nielsen opined that an average 30 m buffer around wetlands would be sufficient. He said the buffer area around the Henry Marsh would be over 100 m, but he acknowledged that other wetlands would have buffers as little as 15 m based on the proposed zoning setbacks. The Appellant argues that 30 m average buffers are insufficient and further study is required.

86The Applicant’s approach addresses buffers distinctly from setbacks. Based on the Applicant’s proposal, the setbacks, which are a zoning matter, would be set at 15 m. The buffers, on the other hand, would be addressed at the site plan approval stage based on a recommended 30 m average.

87In the Tribunal’s view, buffers should be delineated by zoning setbacks. The delineation of buffers through site plan approval alone does not ensure the level of protection envisioned under the PPS. As set out in s. 41 of the [Planning ]Act, the site plan approval stage is a mechanism for the consideration of plans showing the location of buildings and structures to be erected, the location of facilities and works, and the plan, elevation and cross-section views for each building to be erected. The delineation of buffers solely through the site plan approval process would not adequately ensure that buffered lands are used in a manner that protects the natural features in question. In fact, such an approach would contradict the recommendations made by Mr. Nielsen

in response to the Town’s environmental impact assessment peer review in which he said buffers would be zoned Environmental Protection and would be outside the proposed precincts. The proposed Official Plan Amendment itself similarly states that buffers are to be zoned Environmental Protection. The use of zoning setbacks to establish buffers should be supplemented with site plan approval tools (see the Natural Heritage Reference Manual, s. 12.4.3, District Official Plan, 2014, policy F.87, and Town Official Plan, policy B10.7.7), but the buffers should be delineated by zoning setbacks.

88Regarding buffer size, none of the literature or studies referred to by the Parties supports the use of 15 m buffers like those that would result from the proposed zoning setbacks. Neither Mr. Nielsen nor Mr. Janas were able to provide any scientific rationale, basis, or precedent for using 15 m buffers around wetlands of the type and quality of those on the subject lands. The document upon which they rely, the Beacon Report, states that a 11 m to 20 m buffer carries a moderate risk of not achieving the desired buffer function for water quality and a high risk of not achieving core habitat protection functions (see Beacon Report, Table 7 on Ranges for buffer widths to natural heritage features based on the current science, at 88). Mr. Stinson and Mr. Heaton, for the Appellant, both opined that 15 m buffers would cause harm. This opinion was shared by the Town’s experts.

89The Natural Heritage Reference Manual states that the extent of buffers around wetlands can vary and should be rationalized on the basis of their ability to protect the wetland feature in question and its associated functions. It states in Table C-2 on PPS Natural Heritage Features and Buffer Descriptions (emphasis added):

Wetland buffers can be critical for protection of wetland areas. Recommended widths may vary depending on the functions of the wetland and proposed adjacent land uses. The PPS provides specific protection for wetland features, which are defined using the provincial wetland evaluation procedures, but it does not provide any policy direction on the delineation or protection through use of buffers. However, many functions associated with wetlands involve lands adjacent to wetlands. Thus, in order to be consistent with PPS policy 2.1.6, which does not permit development or site alteration unless it can be determined that there will be no negative impacts on wetland features or functions, an

evaluation of adjacent lands is required with appropriate mitigation; for example, the delineation of buffers must be undertaken. Buffers must be determined and rationalized on the basis of their ability to protect the wetland feature and its associated functions. Buffer requirements are changing as the impacts of adjacent development become better understood through wetland ecology research. Thus, current literature must be consulted to review the potential impacts relevant to the wetland under consideration.

90The District and the Town Official Plans do not stipulate a required buffer size. Policy F.68 of the District’s Official Plan, 2014 simply states that regard must be given to the preservation and protection of wetland areas and policy C.1.1(b)(xv) of the District’s Official Plan, 2019 states that an objective of the Plan is to ensure that development is appropriately setback and buffered from natural heritage features and areas; but neither version of the District Official Plan addresses actual buffer size. The Town’s Official Plan policy A7.4.2.1 sets out the objective of preserving wetlands and protecting adjacent lands. Policy B10.7.6 states that wetlands may be subject to increased setbacks to ensure that development in adjacent zones does not cause deterioration in water quality or vegetative cover. They too do not set out a required buffer size.

91The Appellant submits that it is not possible to identify the appropriate buffer until the proper studies have been completed. It submits that there is no evidence that a minimum 15 m buffer around a provincially significant wetland, as proposed by the Applicant, is backed by science or policy. It submits that the Applicant’s own materials, namely the Beacon Report, states that a 15 m setback carries a high risk of not achieving all of its desired effects. Mr. Heaton stated that he could not opine what the minimum buffer should be without a proper assessment of adjacent lands and significant wildlife habitat being completed.

92The Appellant provided a comprehensive review of available studies and literature on appropriate buffer sizes for wetlands. In response, Mr. Janas stated that the necessary extent of buffers depends on the situation and that in the present case the landscape is resilient and a straight 30 m buffer is not needed. However, he did not provide any compelling rationale as to why the landscape is especially resilient or how a 15 m buffer would be adequate. In his witness statement, Mr. Nielsen agreed that a 30

m buffer is typically the standard, but he stated that the proposed development was different because it would generally only occur around a small portion of the perimeter of individual wetlands. However, he failed to provide any authority or rationale that buffer size depends on the amount of frontage on a wetland. The Applicant also submitted that because the subject lands are designated under the Town’s Official Plan as Urban Centre, smaller buffers would be appropriate; however, no authority was provided indicating that buffers should be determined based on official plan designations. In fact, such a finding would run counter to the principles of environmental assessment.

93As set out above, when determining whether there will be no negative impacts on natural features or their ecological functions, the Tribunal must assess whether the proposed development will result in the deterioration of a natural feature, such as habitat loss or a loss of key environmental functions, that threatens the condition and integrity of the natural feature or ecological functions. Based on the evidence before it, the Tribunal finds that the Applicant’s proposed 30 m average buffer around the wetlands with a 15 m minimum does not satisfactorily address these factors. Based on the Applicant’s own evidence, it would pose a moderate risk for water quality and a high risk for wetland core habitat protection functions. Taking into account the cumulative impacts of the proposed development, the Tribunal finds that a 15 m minimum buffer would result in deterioration of the wetlands in terms of habitat loss and the loss of key environmental functions, including water quality functions, that would threaten the overall condition and integrity of the wetlands. This is supported by the comprehensive literature review presented by the Appellant and its evidence regarding appropriate buffers for wetlands. Based on the literature presented and the evidence before the Tribunal, a 30 m buffer is the general minimum buffer that should be used for wetlands of the size and character of those on the subject lands, other than the Henry Marsh. The Tribunal finds that a 30 m buffer is appropriate in the present circumstances for those wetlands. In regard to the Henry Marsh, the evidence before the Tribunal is that it is the most important wetland on the subject lands and that a larger buffer is needed. In this respect, the Applicant submits that there would be no development within at least

100 m of the Marsh. Based on the aerial photographs provided by the Appellant and the supporting materials before the Tribunal, the distance between the Henry Marsh and the proposed development would be in fact at least 250 m (see, among other materials, Town of Bracebridge Special Planning and Development Committee Minutes (October 27, 2020), at paragraph 3.1.42). Based on this, and given that these intervening lands would be zoned “Environmental Protection” under the proposed Zoning By-law Amendment in which no development is permitted, the Tribunal finds that there is no need to stipulate specific buffers or setbacks from the Henry Marsh in this Decision; but it is implicit that a larger buffer than that for the other wetlands is needed around the Marsh.

94Subject to the significant wildlife habitat findings in the section below, the Tribunal finds that the environmental impact assessment together with the literature and evidence presented to the Tribunal demonstrate that, with a buffer delineated by a 30 m setback from the wetlands and watercourses (other than the Henry Marsh), there will not be deterioration that threatens the condition of the wetlands or which threatens the integrity of the wetlands or their ecological functions. In other words, the Tribunal finds that, subject to the significant wildlife habitat findings in the section below, with a buffer delineated by a 30 m setback from the wetlands and watercourses (other than the Henry Marsh), there will be no negative impacts on the wetlands or on their ecological functions.

95The Tribunal notes that the Applicant’s planner, Ms. Clement, acknowledged that development can be accommodated with a straight 30 m setback in all precincts. The Town’s planner, Mr. Holmes, agreed.

96Based on the foregoing, the Tribunal finds that in regard to wetlands on the subject property, with a 30 m setback from the watercourses and wetlands (apart from the Henry Marsh which requires larger buffers) along with additional protective measures to be determined at the site plan approval stage, the proposed instruments are consistent with the PPS and conform with the applicable District and Town Official

Plan policies. The Tribunal finds that the ecological function of the adjacent lands to the relevant wetlands has been evaluated and it has been demonstrated that, subject to its findings below on significant wildlife habitat, there will be no negative impacts on the wetlands or on their ecological functions.

b. Significant Wildlife Habitat

97PPS policy 2.1.5(d) prohibits development in significant wildlife habitat unless it has been demonstrated that there will be no negative impacts on the natural features or their ecological functions. Regarding adjacent lands, like for wetlands, PPS policy 2.1.8 permits development within areas adjacent to significant wildlife habitat provided that the ecological function of the adjacent lands has been evaluated and it is demonstrated that there will be no negative impacts on the natural features or their ecological functions.

98As noted above, “adjacent lands” is defined in the PPS as those lands that are contiguous to a specific natural heritage feature or area where it is likely that development would have a negative impact on the feature or area. Like in regard to wetlands, guidance on the application of these policies in relation to significant wildlife habitat can be found in the Natural Heritage Reference Manual and the District and Town Official Plans. The Natural Heritage Reference Manual recommends assessment of lands within 120 m of the habitat and states that buffer sizes can vary. The Manual states at s. 9.4 (emphasis added):

Adjacent lands are the lands relevant to which impacts must be considered and the compatibility of a development proposal must be addressed. The Province recommends that adjacent lands are those within a minimum of 120 metres of significant wildlife habitat (see section 4.4.1). As stated earlier, the Significant Wildlife Habitat Decision Support System is an important tool for a planning authority or proponent when working in or adjacent to significant wildlife habitat. This tool can help identify mitigation measures to consider when reviewing proposals and impact studies or when establishing conditions of approval (see appendix B.1.2).

In certain circumstances, the adjacent lands width will need to be expanded beyond the recommendations provided in the manual, and in some cases those expanded adjacent

lands widths will require a buffer to cover the entire area (see section 4.5). Planning authorities may wish to consider the following factors in determining alternative adjacent lands widths associated with significant wildlife habitat:

• potential for impacts during the construction phase of the development (e.g., type of construction activity, vegetation removal, time of year [relating to wildlife species’ activities])

• sensitivity of the species using the significant wildlife habitat

• maintenance of the identified wildlife and their habitats

• potential impacts on wildlife species using the significant wildlife habitat after the development is completed (e.g., change in microclimate; increase in nutrients or contaminants; increased traffic, light, noise and predation by pets; introduction of non‑native plant species; further removal of vegetation)

• potential for mitigation of temporary and long-term impacts.

Planning authorities may define adjacent lands using a variety of approaches, depending on site-specific conditions (see section 4.4.2). In all cases, these approaches should be justified relative to the overall objective of ensuring that there will be no negative impacts on significant wildlife habitat from incompatible development (see section 13).

99The District Official Plan, 2014 policy F.3 identifies the protection of significant wildlife habitat as an objective and policy F.87 requires the preparation of a site evaluation report in relation to applications for development within or immediately adjacent to significant wildlife habitat. In regard to District Official Plan, 2019, its policy C1.4.4.1(e) and (f) states that a site assessment may be required to identify significant wildlife habitat and policy C1.3.1(b) and (e) states that development shall not generally be permitted in such habitat or adjacent lands unless it has been demonstrated through an environmental impact study that there will be no negative impacts on natural features or their ecological functions. Policy C1.3.2 states that adjacent lands from provincially significant wildlife habitat are those within 120 m from it. The Town’s Official Plan contains similar policies relating to significant wildlife habitat. Its policy A7.4.2.3 sets out the objective of protecting and maintaining significant wildlife habitat, policy B10.2.7 states that significant wildlife habitat shall be protected from incompatible development, and policy B10.3.3 states that an environmental impact statement must be prepared for development proposed within 120 m of significant wildlife habitat to ensure that appropriate measures are taken to mitigate impacts.

100The Tribunal notes that the PPS has a separate policy that addresses endangered species habitat. PPS policy 2.1.7 states that development and site alteration shall not be permitted in habitat of endangered species and threatened species, except in accordance with provincial and federal requirements. In the present case, the Applicant submitted its Species at Risk Assessment report (dated October 2018) to the MNRF and was informed that a permit was not required. The MNRF and MECP have stated that the proposed development can proceed without violating the prohibitions in s. 9 and 10 of the Endangered Species Act on impacts to species at risk and their habitat. Although PPS policy 2.1.8 makes no reference to assessing lands adjacent to species at risk habitat, the Natural Heritage Reference Manual recommends assessment of lands within a minimum of 120 metres of such habitat as a starting point (see s. 5.4 of the Manual). The Tribunal finds that species at risk habitat constitutes significant wildlife habitat and the requirements in PPS policy 2.1.8 relating to lands adjacent to significant wildlife habitat apply.

101As discussed above, the focus when applying the no negative impact test should be on whether the proposed development will result in deterioration of the natural feature in terms of factors such as habitat loss, species displacement, a reduction of habitat connectivity or loss of key environmental functions that threatens the condition and integrity of the natural feature or ecological functions. The Tribunal notes that when assessing negative impacts in relation to wetlands, the factors that were considered include habitat loss and reduction of habitat connectivity. These factors overlap when assessing significant wildlife habitat. This section of the Decision provides a more specific analysis in this regard than was addressed above in relation to wetlands.

102The main question before the Tribunal in relation to significant wildlife habitat is whether there are sufficient buffers between the proposed precincts and the possible location of habitat. The Applicant submits that it has undertaken a landscape approach, has assumed that significant wildlife habitat exists, and argues that the habitat would be

adequately buffered and protected. In response, the Appellant submits that more focused comprehensive studies are needed.

103It can be more challenging to identify the location of adjacent lands to less prominent natural heritage features, such as the habitat of small or elusive species, than for more prominent features like wetlands. The identification of the lands that need to be assessed that are adjacent to significant wildlife habitat was a matter of contention at the hearing. The identification of white-tailed deer wintering habitat, moose feeding habitat, amphibian breeding habitat, snake habitat, turtle habitat, and bat habitat was each contested. Each is addressed below.

White-tailed Deer Wintering Habitat

104The Applicant submits that white-tailed deer wintering habitat is most appropriately addressed at a broad landscape level. It submits that such habitat in the area has been mapped by MNRF, which identifies Stratum 2 habitat on part of the subject lands. This is reflected in Schedule G on Sensitive Areas of the District Official Plan, 2014, Schedule C.2 on Natural Heritage Features and Areas of the District Official Plan, 2019, and Appendix A on Environmental Features and Constraints of the Town’s Official Plan. The Applicant submits that this mapping must be adhered to and there is no request before the Tribunal to amend the District or Town Official Plans to change the mapping.

105Deer Habitat Assessment 101 provides useful guidance on delineating deer wintering habitat in the area. It is valuable in that it provides locally specific knowledge and information regarding the assessment of white-tailed deer habitat and behaviour. It defines Stratum 1 and Stratum 2 deer wintering habitat in the following manner. It states in s. 1.1:

Stratum I habitat is critical habitat for deer survival when snow depth exceeds 50 cm. Stratum I habitat is areas dominated by coniferous trees (hemlock, cedar, spruce, balsam fir and pines) with canopy cover of more than 60%. The dense, mature conifer forest provides cover that functions to reduce snow depth

underneath, reduce wind chill, moderate severe temperatures, and provide protection from predators.

Stratum II habitat typically surrounds Stratum I habitat. Stratum II habitat is usually a mixed or deciduous forest with plenty of understorey shrubs and small trees which provide winter food. Deer occupy Stratum II areas early in winter when snow depth is less than 50 cm, and late in winter when crust conditions allow deer to move out of Stratum I habitat to access new food sources and begin late winter dispersal. In mild winters a proportion of deer may remain in the Stratum II area for the entire winter.

106The District Official Plan, 2014 sets out specific requirements regarding deer wintering habitat in policies F.79 to F.81. These policies state:

F.79 Major deer wintering areas are identified on Schedule G, Sensitive Areas. Deer wintering areas are locales in which deer annually congregate during the winter because of the availability of shelter and food. These areas include areas of significant conifer shelter, feeding areas, and travel corridors upon which deer depend for survival.

F.80 Development in identified deer wintering areas shall generally be subject to:

a) review and consultation with the Ministry of Natural Resources.

b) consideration and appropriate utilization of development control techniques to ensure the impact of the development is minimized such as zoning (increased lot sizes, increased building setbacks, and location of buildings and structures), site plan control (retention of vegetation); and subdivision control or other agreements.

F.81 Provision shall be included in a District By-law, authorized under the Trees Act, to promote the protection of significant vegetation contributing to deer habitat.

107The Town’s Official Plan also sets out specific requirements regarding deer wintering habitat. It states in policy B10.5:

B10.5.1 Critical Deer Wintering Areas provide critical winter habitat for deer and is characterized by dense, mature conifer forests, with ready access to young hardwood growth suitable for browsing. Development proposed in critical Deer Wintering Areas shall generally require the preparation of an Environmental Impact Statement in accordance with Section B25.1 of this Plan, as determined by Town.

B10.5.2 Lots proposed in critical Deer Wintering Areas may require increased lot areas and lot frontages, if recommended by the results of the Environmental Impact Statement.

B10.5.3 Development proposed in critical Deer Wintering Areas shall generally be subject to Site Plan Control.

108In the present case, the Applicant has prepared an environmental impact assessment to the satisfaction of the Town, which addresses, among other things, deer wintering habitat. On behalf of the Appellant, Mr. Heaton states that he has looked at aerial maps and the Applicant’s assessment and opines that the local deer wintering area extends further into the subject lands than the lands identified by MNRF. He opines that there is Stratum 1 deer habitat on the subject lands. The key issue before the Tribunal is whether the Applicant’s assessment of deer habitat was adequate.

109The Tribunal agrees that deer wintering habitat should be identified on a broad landscape level and that the mapping undertaken by MNRF is an important tool for identifying such habitat. But it is not the sole pronouncement on what is and what is not deer wintering habitat. It can be supplemented. To make a finding that an area contains deer wintering habitat would not require an amendment to the District or Town Official Plan. The Official Plans could be updated based on such a finding, if deemed necessary. As noted by Ms. Beriault, the most recent information should be used when determining habitat. Habitat can change with time and its identification must be periodically updated.

110In the environmental impact assessment, Mr. Nielsen states that, starting in 1999, he has had consultations with MNRF regarding the mapping of local deer wintering habitat. The environmental impact assessment states that a winter deer survey was undertaken in March 2018 at a time when tracks and scat were pronounced. The assessment states that 14 transects were done in both the area identified by MNRF and areas of the subject lands containing conifer cover that could support deer overwintering. They aimed to identify tree composition, tracks, scat, and evidence of browse use. It states that this was supplemented by further observations in April 2018. The environmental impact assessment concludes that there is good cover for deer within the area identified by MNRF and also further into the subject lands, but it states that there was very limited evidence of deer use in March and April 2018. It states that, although deer were in fact observed, there were limited tracks and scat and little

evidence of browse. However, the assessment noted that there may be more deer in other years. It states, at page 37:

That there was very limited evidence of track and scat for the winter of 2017/2018 does not guarantee that areas of suitable habitat are not better used in other years, although the limited evidence of browse in and adjacent to these areas provides a better sense that use is generally quite limited.

The environmental impact assessment states that there are abundant Stratum 2 deer yards in Muskoka, most of the deer yard in question lies outside of the subject lands, and that which lies within the subject lands would mostly be undisturbed by the proposed development. It concludes that the proposed development would maintain the property’s contribution to deer wintering habitat.

111In the Town’s peer review comments regarding the environmental impact assessment, the Town requested elaboration on the quality of the Stratum 2 deer wintering area adjacent to the subject lands and an assessment of its condition in terms of cumulative effects. Ms. Smith noted that Deer Habitat Assessment 101 states, among other things, that field surveys should be conducted over several winters to determine boundaries of Stratum 1 and 2 habitats within an average winter. Mr. Nielsen responded that there are substantial areas of good winter cover both inside and outside the subject lands. He suggested that deer access to these areas can be confirmed through site plan approval and that no further winter deer surveys are needed.

112In July 2019, a further survey of potential deer wintering habitat was undertaken, which confirmed the findings in the environmental impact assessment and found that there are many areas of high-quality deer habitat within or adjacent to the deer yard. It found that many of these areas are outside of the proposed precincts on the subject lands and that there would be sufficient deer movement corridors if the development proceeds.

113As noted above, PPS policy 2.1.5(d) states that development and site alteration shall not be permitted in significant wildlife habitat unless it has been demonstrated that

there will be no negative impacts on the natural features or their ecological functions. MNRF’s Significant Wildlife Habitat Mitigation Support Tool (MNRF, 2014) recognizes Stratum 1 habitat as significant wildlife habitat and the Significant Wildlife Habitat Criteria Schedules for Ecoregion 5E (MNRF, January, 2015) identifies Stratum 2 habitat as such habitat.

114Based on the Applicant’s assessment of the deer wintering habitat on the subject lands, the general distribution of deer in the surrounding area, and the layout of the proposed development, the environmental impact assessment finds that the proposed development would have no negative impact on this habitat. It finds that there would be a loss of local habitat, but there would be no negative impacts to landscape level representation of available habitat. It finds that the functional provision and quality of deer wintering habitat would be maintained and the proposed precincts would not interfere with deer movement.

115Deer Habitat Assessment 101 states in s. 1.2

For an area to function as a deer wintering area it requires:

• suitable vegetation conditions that provide thermal cover and food; and

• a history of use by deer

For these reasons, identifying or confirming deer habitat can be a multi-stage process.

116Having regard to Deer Habitat Assessment 101, the Tribunal finds that through its reliance on MNRF data and its multi-year assessments of the vegetation on the subject lands, the Applicant has identified the areas on the subject lands that provide suitable vegetation conditions for deer wintering habitat. The Tribunal also finds that through its observations over multiple years the Applicant has appropriate data on the history of deer use on the subject lands. Although Mr. Heaton identified vegetation conditions for deer wintering habitat, he provided no compelling evidence of a history of prevalent deer use in winter. With respect to consistency with PPS policies 2.1.5(d) and 2.1.8, the Tribunal finds that, based on the evidence before it, there would be no

species displacement, reduction of habitat connectivity, or loss of key ecological functions as a result of the proposed development. There would be habitat loss, but based on the environmental impact assessment and taking in account the cumulative impacts of development and the current and future ecological functions of the deer wintering habitat as they relate to the surrounding natural heritage system, this loss of habitat will not threaten the health or integrity of natural features or ecological functions. The Tribunal finds that environmental impact assessment studied the entire area of possible deer wintering habitat on the subject lands, including adjacent lands, and has demonstrated there will be no negative impacts on deer wintering habitat or on its ecological functions in accordance with PPS policy 2.1.8. Through the undertaking of the environmental impact assessment and based on its conclusions, the Tribunal finds that the proposed Zoning By-law Amendment is consistent with the PPS and is in conformity with the District Official Plans and the Town’s Official Plan in regard to development in and around deer wintering habitat.

Moose Habitat

117The Applicant submits that apart from the Henry Marsh, the subject lands experience only low density use by moose. The Appellant submits that moose travel through parts of the subject lands, but it did not provide compelling evidence that any part of the subject lands consists of significant moose habitat apart from the Marsh.

118The PPS provides guidance on the identification of significant wildlife habitat. PPS policy 6 defines “wildlife habitat” in the following manner (emphasis added):

Wildlife habitat: means areas where plants, animals and other organisms live, and find adequate amounts of food, water, shelter and space needed to sustain their populations. Specific wildlife habitats of concern may include areas where species concentrate at a vulnerable point in their annual or life cycle; and areas which are important to migratory or non-migratory species.

119PPS policy 6 defines “significant” in this regard in the following manner (emphasis added):

Significant: means […]

c) in regard to other features and areas in policy 2.1, ecologically important in terms of features, functions, representation or amount, and contributing to the quality and diversity of an identifiable geographic area or natural heritage system;

Criteria for determining significance for the resources identified in sections (c)-(d) are recommended by the Province, but municipal approaches that achieve or exceed the same objective may also be used.

While some significant resources may already be identified and inventoried by official sources, the significance of others can only be determined after evaluation.

120Applying these definitions, significant wildlife habitat for moose can be interpreted to be areas where moose live and find adequate amounts of food, water, shelter and space needed to sustain their populations that are ecologically important and contribute to the quality and diversity of the area or natural heritage system. Natural heritage system is defined in PPS policy 6 as “a system made up of natural heritage features and areas and linkages intended to provide connectivity (at the regional or site level) and support natural processes which are necessary to maintain biological and geological diversity, natural functions, viable populations of indigenous species, and ecosystems”.

121Having regard to the Natural Heritage Reference Manual, it states that an appropriate evaluation should be undertaken when identifying significant wildlife habitat. It states at s. 4.2 (emphasis added):

The definition for “significant” also states, “While some significant resources may already be identified and inventoried by official sources, the significance of others can only be determined after evaluation.” This statement identifies the need for a precautionary approach. Thus, prior to planning and development approval, there should be an appropriate level of evaluation of natural features that are present on the subject land and within the area that may constitute “adjacent lands” (see section 4.4) to determine whether the natural features are significant if their significance has not been determined previously. Planning authorities and/or proponents should require or prepare the appropriate studies if negative impacts could occur on these features, unless the features are being given protection outright.

122In the present case, the Tribunal finds that there has been an appropriate level of evaluation of moose habitat on the subject and adjacent lands. Apart from evidence regarding the Henry Marsh, there was no compelling evidence brought before the Tribunal that the subject lands provide habitat that is needed to sustain moose populations. The proposed Zoning By-law Amendment would result in 75% of the subject lands being zoned as Environmental Protection and Open Space. With the proposed development using precincts with forested lands between them, the Tribunal finds that, based on the evidence before it, the proposed precincts would not impede moose moving through the area or accessing the Henry Marsh. Based on the findings of the environmental impact assessment, the Tribunal finds that the Applicant has evaluated the subject and adjacent lands for moose habitat and that, outside of the Henry Marsh, there are no areas on the subject lands where moose live and find adequate amounts of food, water, shelter and space needed to sustain their populations that are ecologically important and contribute to the quality and diversity of the area or natural heritage system. Given that no development is proposed within 250 m of the Marsh and finding that adjacent lands are those within 120 m of significant wildlife habitat (as set out in policy B10.3.3 of the Town’s Official Plan and s. 9.4 of the Natural Heritage Reference Manual noted above), the Tribunal finds that the proposed development would not be located in moose feeding habitat or on lands adjacent to it.

In any event, based on the proposed zoning around the Henry Marsh and the spacing of the proposed precincts, the Tribunal finds that the proposed development would not cause the deterioration of moose habitat in terms of habitat loss, species displacement, reduction of habitat connectivity, or loss of key ecological functions. As a result, the Tribunal finds that the proposed development would not cause degradation or negative impacts on moose feeding habitat or movement corridors. In making this finding, the Tribunal has had regard to policy C1.4.4.3 of the District Official Plan, 2019, which sets out restrictions regarding development in moose feeding habitat. The Tribunal finds that the proposed instruments are consistent with the PPS and conform with the District and Town Official Plans in regard to development in the vicinity of moose feeding habitat.

Waterfowl Breeding Habitat

123The Applicant submits that waterfowl habitat centres around the Henry Marsh, which would be appropriately buffered. It submits that other wetlands on the subject lands lack sufficient standing water to be waterfowl habitat. The Appellant responds that significant wildlife habitat for waterfowl has not been comprehensively assessed. Mr. Heaton states that American Black Duck, Northern Pintail, Wood Duck, Teals and other waterfowl may be present. He states that upland areas surrounding wetlands must be assessed and protected for these species. Mr. Heaton states that most waterfowl nests are located within 120 m of water, but that they may be as far as 500 m away.

124Applying the definitions of “wildlife habitat” and “significant” in PPS policy 6 to the context of waterfowl, significant wildlife habitat for waterfowl can be interpreted to be areas where waterfowl live and find adequate amounts of food, water, shelter and space needed to sustain their populations that are ecologically important and contribute to the quality and diversity of the area or natural heritage system.

125Based on the evidence before it, the Tribunal finds that the only wetland that consistently has water levels at depths to be considered significant wildlife habitat for waterfowl is the Henry Marsh. As noted above, no development is proposed within at least 250 m of the Marsh. Based on the findings of the environmental impact assessment, the Tribunal finds that the Applicant has evaluated the subject lands for waterfowl habitat. Applying the definitions of “wildlife habitat” and “significant” in PPS policy 6 to the context of waterfowl, the Tribunal finds that, outside of the Henry Marsh, there are no areas on the subject lands where waterfowl live and find adequate amounts of food, water, shelter and space needed to sustain waterfowl populations that are ecologically important and contribute to the quality and diversity of the area or natural heritage system. The Tribunal notes that the proposed development would not be located within 120 m of the Henry Marsh. It finds, therefore, that the proposed development would not be located in waterfowl breeding habitat or on adjacent lands to

it. In any event, taking into account the conclusions of the environmental impact assessment, the Tribunal finds that the proposed development will not cause the deterioration of waterfowl habitat in terms of habitat loss, species displacement, reduction of habitat connectivity, or loss of key ecological functions. As a result, the Tribunal finds that the proposed development would not degrade or have negative impacts on waterfowl breeding habitat. The Tribunal finds that the proposed instruments are consistent with the PPS and conform with the District and Town’s Official Plans in regard to development in the vicinity of waterfowl breeding habitat.

Amphibian Breeding Habitat

126The Applicant submits that amphibian breeding habitat is found in the vicinity of the Henry Marsh and would be appropriately buffered. It states that if there is woodland amphibian habitat on the subject lands, any encroachment caused by the proposed development would not result in negative impacts as other woodland habitat would still be preserved. The Appellant submits that the Applicant has not sufficiently studied the areas surrounding the proposed precincts to determine whether amphibian breeding habitat exists. In particular, it submits that the wetlands near proposed Precincts A and C were not properly studied to determine what amphibian species may be present and its ecologist, Mr. Heaton, stated that proposed Precinct E includes woodlands consisting of significant habitat. In response, the Applicant’s ecologist, Mr. Janas stated that he found that the vernal pools on the subject lands, including those in proposed Precincts A and C, do not support breeding amphibians and do not constitute significant wildlife habitat. The Town raised similar concerns during the peer review process, but, based on the Applicant’s responses, it was satisfied that there is no amphibian breeding habitat in the vicinity of the proposed precincts and no further surveys were required.

127The Applicant undertook vernal pool surveys in proposed precincts A and B in May and June 2018 and in June 2019 and observed no amphibians, tadpoles or eggs. It determined that the vernal pools were too small or not deep enough to be designated as significant wildlife habitat. The Applicant states that surveys were not conducted in

proposed precincts C or D as those are generally well-drained and no functional vernal pools were identified there. The Applicant submits that surveys in proposed Precinct E will be conducted at the site plan approval stage.

128In reference to lands adjacent to wetlands, s. 6.4 of the Natural Heritage Reference Manual addresses significant habitat of wetlands-reliant species, including amphibians, and emphasizes the need to assess upland habitat. It states (emphasis added):

An important factor in determining the extent of adjacent lands on the basis of wildlife habitat function is upland habitat. Upland habitat areas used as nesting habitat by turtles and waterfowl can occur a considerable distance from a wetland. Upland habitat may include vernal pool habitat for breeding amphibians, many of which inhabit a variety of wooded or late successional habitat in the non-breeding season. Amphibians must be able to access upland habitat in the summer for foraging and in the winter for hibernating. The upland habitat must be assessed as potential adjacent lands to determine an appropriate distance that will account for its potential importance to amphibians, and other species including reptiles, in completing their life cycles.

As noted previously, in certain circumstances, the adjacent lands width will need to be expanded beyond the recommendations provided in the manual, and there may be cases in which those expanded adjacent lands widths will require a buffer to cover the entire area to ensure that no negative impacts on the significant wetland occur (see section 4.5). The plant communities and other ecological features of adjacent lands that are found to be critical to the function of a wetland (e.g., fields that provide displaying or foraging areas for wetland birds, banks that provide nesting areas for turtles, breeding habitat for woodland frogs) should be included in, and will at least partly determine, any required mitigation, including buffers.

129The Applicant’s environmental impact assessment demonstrates that there is no significant wildlife habitat for amphibians in the proposed precincts A to D. However, it does not demonstrate that there is no significant wildlife habitat for amphibians along the proposed route of the internal roads or in proposed Precinct E or that none of the areas to be developed is within 120 m of such habitat. As noted above, the Natural Heritage Reference Manual recommends that adjacent lands within 120 m of significant wildlife habitat should be assessed. Given that the possible locations of significant wildlife habitat for amphibians, if any, have not been fully assessed, the lands within 120 m of each proposed precinct must first be evaluated to determine if there is any such habitat. If the proposed development is within 120 m of such habitat, an evaluation should be undertaken to determine whether there will be no negative impacts.

130The Province’s recommendation, as set out in Table C-2 of the Natural Heritage Resource Manual, is that buffers to significant wildlife habitat should be determined on a case-by-case basis. To determine whether buffers are needed, the significant wildlife habitat, if any, needs to be identified.

131The Tribunal finds that the inclusion of an H holding symbol in the proposed Zoning By-law Amendment is necessary that may only be lifted after a separate environmental assessment is undertaken of each individual precinct and road that includes comprehensive amphibian breeding surveys identifying any significant wildlife habitat for amphibians and evaluating adjacent lands to any such habitat and demonstrating to the satisfaction of the Town that there will be no negative impacts on amphibian breeding habitat as a result of the proposed development of that precinct or road.

132With respect to the Applicant’s submission that amphibian surveys in proposed Precinct E would be conducted at the site plan approval stage, the Tribunal notes that the delineation of buffers is an issue that must be determined at the zoning stage through the setting of setbacks. In Moreau v. Georgian Bay (Twp.) 2022 CanLII 58202 (ON LT), at paragraphs 71-72 and 83, the Tribunal observed that s. 41(7) of the Planning Act does not include a provision for the preparation of ecological studies as a condition of site plan approval. Although s. 41 of the Planning Act refers to an applicant providing “any other information or material that the municipality considers it may need”, it does not specify the preparation of environmental impact assessments as part of the site plan approval process. Buffers may be supplemented by additional measures at the site plan approval stage, but the identification of environmental impacts and the delineation of buffers should be completed at the zoning stage.

Blanding’s Turtle Habitat

133The Appellant submits that proper surveys for Blanding’s Turtle have not been undertaken. Mr. Janas stated that he assumed that there are Blanding’s Turtle on the subject lands and that they likely over-winter in the Henry Marsh. He opined that some also may travel to wetlands in the centre of the subject lands. In her peer review, Ms. Smith stated that because the Henry Marsh had been identified as over-wintering habitat, the Henry Marsh should be identified as Category 1 Blanding’s Turtle habitat (known nesting sites or overwintering sites plus lands within 30 m of such areas) based on MNRF’s General Habitat Designation for Blanding’s Turtle (MNRF, 2013). She said the nearby wetlands, watercourses, and surrounding habitat may be used for other life processes, such as feeding, mating, thermo regulation, protection from predators, and movement and should be identified as Category 2 Blanding’s Turtle habitat (connected wetlands or waterbodies up to 2 kilometres from a known occurrence plus lands within 30 m of such areas).

134The Tribunal finds that, given its determination that a 30 m setback is required around all wetlands on the subject lands, Category 1 and 2 Blanding’s Turtle habitat will be protected and, based on the MNRF’s General Habitat Designation for Blanding’s Turtle, the Tribunal finds that the proposed development will have no negative impacts on significant wildlife habitat for Blanding’s Turtle in these areas. If the remaining areas of the subject lands are assumed to be Category 3 Blanding’s Turtle habitat (areas of between 30 m and 250 m around suitable wetlands identified in Category 2), based on the layout of the proposed development, the Tribunal finds that the proposed development still will have no negative impacts on significant wildlife habitat for Blanding’s Turtle given that Category 3 areas are deemed to have a high tolerance to alteration. The Tribunal finds that there will be no deterioration of Blanding’s Turtle habitat in terms of habitat loss, species displacement, a reduction of habitat connectivity, or loss of key natural processes, products or services (ecological functions). The Tribunal finds that the ecological function of the lands has been evaluated and it has been demonstrated that there will be no negative impacts on

Blanding’s Turtle habitat or its ecological functions in accordance with PPS policies 2.1.5(d) and 2.1.8. The Tribunal finds that the proposed instruments are consistent with the PPS and conform with the District and Town’s Official Plans in regard to Blanding’s Turtle significant wildlife habitat.

Bat Habitat

135Mr. Nielsen questioned the quality of the bat habitat on the subject lands; however, the Applicant’s own surveys demonstrated that the areas in which the proposed precincts are located constitute high quality habitat. Mr. Janas found that there are tree snags that provide habitat for species at risk bats on the subject lands, but he said the main challenge for these species is white nose syndrome, which has caused certain bat populations to decline precipitously. He said these falling populations are not due to a lack of available snags or habitat. He opined that the loss of tree snags resulting from the proposed development would have no negative impact on significant wildlife habitat for bats.

136As noted above, Mr. Janas stated that the availability of habitat is not the main challenge for many of the species at risk bat populations in the area. White nosed syndrome is their primary challenge. This may be true, but the Tribunal notes that the fact that a species is endangered due to disease, rather than habitat loss, does not mean that the relevant habitat cannot be significant. The focus of PPS policy 2.1.5(d) is on habitat and the Tribunal must determine whether significant wildlife habitat exists. This requires, among other things, a determination of what species are present. Ms. Beriault stated that acoustic bat surveys jointly accompanied by snag surveys are the best means for identifying bat species and their habitat. The question of whether a development will degrade habitat and thereby cause a negative impact resulting in population loss is a factor that the Tribunal must consider. The Tribunal finds that it is not possible to identify whether the areas in question are significant wildlife habitat for particular species of bats or demonstrate no negative impacts to those species without conducting surveys that identify the species that are present and determine possible

impacts on their population(s). The destruction or degradation of the habitat of resilient populations of species at risk bats could present significant challenges for the survival of those local populations. The Tribunal notes that no compelling evidence was presented to it demonstrating that the replacement of significant wildlife habitat for species at risk bats with bat boxes is an effective alternative.

137The Tribunal finds that an H holding symbol must be included in the proposed Zoning By-law Amendment that may only be lifted after the Applicant has undertaken a separate environmental impact assessment for each precinct and road on the subject lands and applicable adjacent lands with comprehensive acoustic monitoring and snag density surveys that identifies any bat species present and demonstrates, to the satisfaction of the Town, that there will be no negative impacts on bats as a result of the proposed development of that precinct or road.

Snake Habitat

138Mr. Janas said the rock barrens on the subject lands are covered to a significant degree with vegetation and are insufficient for the strong presence of Eastern Massasauga Rattlesnake. He said Eastern Hognose Snake are widespread in the region, but at a low density. The Appellant failed to produce any compelling evidence regarding the presence of these species in the area or on the sufficiency of the size of the rock barrens on the subject lands to support relevant populations. Given the evidence before the Tribunal regarding the lack of habitat for Eastern Massasauga Rattlesnake and given the low density of Eastern Hognose Snake and the layout of the proposed development, the Tribunal finds that there is no significant wildlife habitat for these species on the subject lands and there will be no negative impacts on these species. In this regard, the Tribunal finds that the proposed instruments are consistent with the PPS and conform with the District and Town’s Official Plans.

c. Other Natural Heritage Features

139There was little emphasis at the hearing on the fish habitat and species at risk policies set out in PPS policy 2.1.6 and 2.1.7, which state that development and site alteration shall not be permitted in fish habitat or in habitat of endangered species and threatened species, except in accordance with provincial and federal requirements. None of the development is proposed in fish habitat and, based on the recommendations set out in the Natural Heritage Reference Manual stating that adjacent lands are generally viewed as being 30 m from such habitat, the Tribunal finds that the required 30 m setbacks from wetlands and watercourses are consistent with PPS policy 2.1.6. The Tribunal finds that the habitat considerations addressed above regarding significant wildlife habitat and the resulting requirements in the proposed Zoning By-law Amendment are consistent with PPS policy 2.1.7.

d. Climate Change

140The Appellant submits that the Applicant failed to properly address climate change resilience and adaptation issues, which it submits must be considered on applications for official plan and zoning by-law amendment applications of this nature. The Applicant responds that the climate change impacts of the proposed development would be minimal. It submits that only 15% of the subject lands would be cleared or disturbed amounting to only 25.4 ha, which would be less than the disturbance resulting from the use of the lands as a golf course, which is currently a permitted use. Mr. Holmes stated that 75% of the subject would be left untouched with 50% zoned as Open Space and 25% as Environmental Protection. He stated that given that the subject lands are designated as Urban Centre and are slated for development, keeping 75% of the lands in a natural state represents effective climate change mitigation.

141The PPS makes multiple references to the need for addressing climate change mitigation and adaptation through the use of land use planning tools. It envisions efficient development patterns that permit adaptation to climate change and the

protection of health and safety from impacts. PPS policy 1.1.1(i) states that healthy, liveable and safe communities are sustained by preparing for climate change impacts and policy 1.1.3.2(c) and (d) states that land use patterns within settlement areas shall be based on densities and a mix of land uses that minimize climate change and prepare for climate change impacts. The PPS policies on infrastructure and public service facilities, stormwater management, energy, water protection, and natural hazards further all require consideration of climate change impacts.

142The District Official Plan, 2014 does not appear to include substantive policies on climate change, but the District Official Plan, 2019 does. Its guiding principles, set out in policy B2, state that growth and settlement patterns are to provide for climate change mitigation, adaptation and resiliency. Its natural heritage objectives in policy C1.1(b)(xii) include the need to improve the ability to adapt to and mitigate climate change by fostering resilient ecosystems and communities and policy C1.5.1(a)(vii) states that environmental impact assessments should consider climate change impacts where possible. Policy C3 sets out further general climate change policy objectives including the recognition that addressing climate change and ensuring resilient communities and ecosystems is needed and that the District will “work toward the implementation of a ‘climate change lens’ as the approval authority on Planning Act applications and as a commenting agency”. This includes the promotion of compact form and may result in, among other things, increased setbacks for development adjacent to wetlands, the retention of natural vegetation, and more stringent requirements for stormwater management.

143The Town’s Official Plan similarly includes general climate change mitigation and adaptation policies. Policy A7.4.2.8 sets out the objective to plan development in a manner that will minimize climate change related impacts and policy A7.13.2.3 encourages the minimization of climate change impacts through building design, site design, and development.

144The Tribunal agrees with the Appellant that the Applicant’s environmental impact assessment would have been more robust and convincing if it had comprehensively addressed climate change impacts to the environment that may be caused by the proposed development. Assessments of wetlands, water resources, significant wildlife habitat and other natural heritage features require a long-term focus, which includes addressing climate change and cumulative impacts. An assessment of a project’s impacts beyond the short-term necessitates consideration of the impacts of the project in the context of a changing climate.

145The Tribunal recognizes the need for climate change mitigation and adaptation and the importance of mitigating climate change through land use control. It finds that by maintaining 75% of the subject lands in a natural state, the proposed instruments facilitate a development that takes into account climate change mitigation considerations. In the present case, the subject lands are designated as Urban Centre, under which a golf course and other more intensive development is permitted. With 75% of the subject lands being preserved in a natural state, the approach taken is consistent with the consideration of climate change. On a cumulative basis a 15 or 25% reduction in forested lands across the Town would be a problem, but, given the current designation and zoning of the subject lands, this is an improvement over as-of-right and other alternatives. The Appellant suggests that the proposed development could all be put in one precinct and thereby reduce the number of trees that would be cut. However, based on the lot coverage, setback, and lay out requirements in the proposed Zoning By-law Amendment, and the proposed emphasis on tree preservation, the Tribunal finds that the proposed built form for each precinct is efficient and compact and takes into account climate change considerations. The Tribunal finds that the proposed instruments are consistent with the PPS and conform to the District Official Plan, 2014 and Town’s Official Plan in regard to the need to consider climate change impacts, mitigation and adaptation.

2. Stormwater Management and Servicing Issues

146Mr. Harvey was qualified to provide opinion evidence in the area of civil engineering on behalf of the Applicant. He identified design criteria for sewage, water, and storm water management and he examined the physical and regulatory constraints involved with the proposed development. He stated that his analysis was set out in his functional servicing report which was reviewed by both the Town and the District. Mr. Harvey stated that the subject lands are located within an area that is designated for municipal servicing and that the existing nearby municipal water and wastewater facilities have the capacity to accommodate the proposed development. He said water servicing would be provided by a connection to the existing watermain on Stephens Bay Road and private gravity sanitary sewers and force mains with private sewage pumping stations would be used to direct sewage to the municipal station at Highway 118. He said infrastructure would be built beside the proposed internal road connecting the proposed development to Highway 118.

147Mr. Harvey stated that as the precincts are developed, a separate stormwater management plan would be required as a condition of site plan approval for each precinct. He said quantity and quality control detention ponds would be used at each proposed precinct. He stated that during construction, erosion and sediment control measures would be applied as governed through the site plan approval process.

148Mr. Harvey stated that he did not perform a water balance exercise regarding the subject lands, but he did analyze the amount of run-off that would be likely generated from each proposed precinct. He said he determined peak flow rates and assessed whether the amount of water that is received into the environment would remain the same after the proposed development is completed. He said that the Applicant would need to mitigate any change in flows. For his modelling, he said he took into account an array of possible stormwater events and he stated that further assessment would be completed once design details are finalized to ensure that post-development peak flows match pre-development peak flows. He reiterated this would include ensuring that

wetland water levels pre- and post-development remain the same. He said water quality and quantity control of run-off would be ensured through pre-treatment in swales and ponds for attenuation.

149Mr. Harvey said the setbacks for the proposed stormwater management ponds take into account adjacent upland areas and deer wintering areas. He was unable to opine on impacts of the potential construction of the Bracebridge West By-pass on stormwater management and water flows, but he acknowledged that it would create changes to the local typography and drainage patterns. Mr. Harvey stated that at the detailed design stage, all MECP requirements would be addressed, including those related to the impacts of climate change. He stated that the Applicant’s stormwater management plan satisfies the applicable regulatory requirements.

150The Town supports the Applicant. Its land use planner, Mr. Holmes, opined that the criteria in the Town’s Official Plan policy I4.1.3 for changing a Future Service Area designation to Existing Service Area were satisfied. He opined that the criterion in policy I4.1.3(ii) requiring that development be in a compact urban form and comprised of a mix of densities is for residential uses and not institutional developments like the proposed development.

151The Appellant did not call an expert witness on stormwater management or servicing. It submits that, given the wetlands on the subject lands, a water balance study must be undertaken and the impacts assessed before the Tribunal makes a decision. It submits that the impacts of increased flooding that is projected due to climate change were not properly considered by the Applicant. It also submits that the Applicant failed to evaluate the environmental features and functions of the lands to the east and south of the of the proposed school site, which may be impacted by the proposed servicing.

Analysis and Findings

152Mr. Harvey opined that stormwater management facilities can be constructed on the subject lands to properly facilitate the proposed development. He determined peak flow rates and assessed whether the amount of water that is presently received into the environment would remain the same after the proposed development is completed. The Tribunal finds that this is a sufficient basis for concluding that the proposed development can be built in a manner that is consistent with the PPS and conforms with the District Official Plan, 2014 and the Town’s Official Plan. To require the completion of final studies and design plans before the final design details of the project are completed would be impractical. These should be finalized at the site plan approval stage as permitted under s. 41(7) of the Planning Act, which states that an applicant may be required to provide through site plan approval the grading and alteration in elevation or contour of the land and provision for the disposal of storm, surface and wastewater from the land and from any buildings or structures. This approach also conforms with the Town’s Official Plan policy J6.2, which states that site plan approval will be utilized to ensure, among other things, the provision of grading and site alterations to provide for site drainage.

153The Tribunal finds that the proposed instruments are consistent with the stormwater management policies in the PPS policy 1.6.6.7. The Tribunal finds that Mr. Harvey demonstrated that the proposed stormwater management plans would be integrated with planning for sewage and water services, minimize contaminant loads, minimize erosion and changes in water balance, and address climate change impacts. He demonstrated that the proposed stormwater management plans would include measures to prevent negative impacts on surface water quality. He also demonstrated that best management practices for stormwater management would be used and the effects of stormwater on receiving waterbodies, water quality and habitat would be addressed in conformity with policy H.31 of the District Official Plan, 2014. He further demonstrated that the proposed instruments conform with the stormwater management requirements in policies I5.0 of the Town’s Official Plan, including the preparation of a

stormwater management report. In conformity with policy I5.1.5 of the Town’s Official Plan, the Tribunal finds that Mr. Harvey demonstrated that the proposed development provides for the basis for stormwater management facilities that will address the protection of natural environmental features, blend with the surrounding environment, and be developed on the basis of best management practices.

154Having regard to the District Official Plan, 2019, the Tribunal finds that, based on Mr. Harvey’s evidence, the final stormwater management plans will be able to minimize changes in water balance and erosion, avoid risks to human health and safety and property damage, help address climate change impacts, control flooding, erosion and sedimentation, and protect water quality and the aquatic and other natural habitats. The Tribunal finds that the Applicant has established that the proposed development can be facilitated through effective stormwater management.

155Given that the final details of the development of each precinct will not be determined until the final design stage, the Tribunal finds that, as set out in the proposed draft Zoning By-law Amendment, it is appropriate to include an H holding symbol in the proposed Amendment requiring the Applicant to address the finalization of details regarding the provision of municipal water and sewer services to the satisfaction of the District.

156The Applicant seeks an official plan amendment to facilitate the servicing required for the proposed development. The Official Plan Amendment would change the applicable designation from Future Service Area to Existing Service Area. In this regard, the Tribunal finds that the proposed Official Plan Amendment is consistent with policy 1.6.6 of the PPS and conforms with the District Official Plan, 2014. It finds that each precinct, which is proposed to be developed separately, comprises compact urban form. The Tribunal finds that there is adequate municipal water and sewer capacity available adjacent to the subject lands to the north and to the west and the proposed development is adjacent to the Existing Service Area. Based on the opinion evidence of

Mr. Harvey, the Tribunal finds that the proposed development would make efficient use of municipal water and sewer services.

157Based on the evidence before it, the Tribunal finds that the proposed instruments are consistent with the PPS, conform with the District and Town Official Plans, and represent good planning in relation to stormwater management and servicing issues.

3. Transportation and Traffic Issues

Applicant’s Evidence and Submissions

158The Applicant’s transportation engineer, Mr. Northcote, stated that the proposed development would not cause operational issues or delays in the existing road network. He assessed the forecasted traffic flows in the area with and without the proposed development. He reviewed the proposed access points and speed limits. He provided an estimate on the volume of traffic that would be accessing the school at drop-off and pick-up times, discussed the methodology he used to come to these findings, and compared the results to traffic volumes at another private boarding school in Ontario. He opined that the resulting traffic would be accommodated provided that specific operational improvements are included with the proposed development. He said bussing would be an important component of the traffic solution.

159Mr. Northcote opined that the proposed Zoning By-law Amendment conforms to the District Official Plan, 2014 and the Town’s Official Plan in that the proposed development would facilitate alternate transportation, including school buses, it would provide infrastructure to support growth, be built in a phased manner, and facilitate active transportation with the construction of walking trails on-site. To address traffic concerns, he stated that the secondary school and the elementary school could have separate drop off and pick up times to reduce congestion. Regarding concerns related to students crossing the internal road or the proposed Bracebridge West Bypass to access the school’s proposed sports facility, Mr. Northcote stated that a traffic signal or

crossover could be warranted depending on traffic volumes. He stated that the traffic volume, regardless of whether the Bracebridge West Bypass is built, is difficult to estimate and he did not know whether a traffic signal would be required. He doubted that a pedestrian bridge over the road would be needed. He said there would likely be fencing placed beside the roadway to prevent students from crossing except at the designated crossing(s).

160Mr. Northcote stated that the proposed development would reduce greenhouse gas emissions by having students and staff either reside in residences close to the school or encouraging students to take a bus to school. He noted that the proposed sports facilities would be located close to the schools and connected by walking trails. For day students, he acknowledged that predicting the distance that they would travel to school is challenging given uncertainty over where each student would be coming from. He predicted that 46% of day students would travel by private vehicle to school and the remaining 54% would travel by school bus. He said this is based in part on the results of a survey done of students in parts of the Greater Toronto Area in 2011 (Metrolinx Greater Toronto and Hamilton Area School Travel Household Attitudinal Study Report (Harris-Decima, Fall 2011) (“Harris-Decima Survey”)). He stated that he was not sure if the schools in that case were public or private schools and he acknowledged that the Harris-Decima Survey focused on schools in urban rather than rural areas.

161Mr. Northcote described the sight line analyses that he undertook. He said that taking into account vehicle speed limits, the entrance to the proposed internal road from Highway 118 would be safe. He noted that his analyses were not based on the same alignment of the proposed Bracebridge West Bypass as was used when the class environmental assessment was completed in 2005. He did not know why there is a discrepancy regarding the proposed alignment or upon what the alignment that he applied was based; however, he stated that the other alignment does not alter his estimated traffic flows, sightline analyses, or conclusions.

Appellant’s Evidence and Submissions

162Mr. Tedesco stated that he peer reviewed Mr. Northcote’s traffic assessment and disagrees with him regarding the methodology that Mr. Northcote used. He said that traffic generation should be calculated over a short 15- or 30-minute period rather than the hourly period used by Mr. Northcote. He said this shorter period should then be averaged using an hourly flow rate. He said the differences in the approaches could lead to distinct results.

163Mr. Tedesco stated that although the drop-off and pick up times for the elementary and secondary schools could be staggered, both must be properly assessed. He stated that it would have been best to identify another school with similar attributes and to do a traffic study there as a model. He questioned the applicability of the Decima-Harris Survey given the different context of the urban public schools addressed in the survey from the rural private school nature of the proposed development. Mr. Tedesco opined that as the proposed school would be located in a rural area, more students would travel by car than in an urban setting. Given the school’s proposed location, he said none of the day students would be able to walk to school. He said that if the number of day students travelling to school is greater than Mr. Northcote’s 50% estimate, the difference in traffic could be significant. He reiterated that traffic issues experienced at another Ontario private boarding school should have been studied to estimate traffic associated with the proposed development.

164Regarding the proposed Bracebridge West By-pass, Mr. Tedesco stated that it would bisect the school campus resulting in students frequently crossing it. He said the Applicant did not fully assess the traffic safety implications of the proposed By-pass and a fully grade-separated crossing, such as a bridge or a tunnel, would be needed to ensure student safety. He said significant adjustments to the proposed development may be required if the proposed By-pass is built.

165Regarding the proposed entrance to the school’s internal road off Highway 118, Mr. Tedesco stated that a traffic signal or a left-hand turn lane would be required. He said the curve of the highway near the proposed intersection would otherwise make turning into the internal road dangerous.

166Mr. Tedesco stated that the proposed right of way depicted in the Applicant’s materials for the internal road is also inadequate from both safety and engineering perspectives. He stated, for instance, that vegetation needs to be cut back on turns to allow drivers a proper view and also the proposed Bypass would require a 36 m width when cutting through hills to allow space for side slopes. He said that a 6 m wide road, as proposed, would require a reduced maximum speed limit of 30 kilometres per hour.

167Mr. Tedesco stated that an H holding symbol would not adequately respond to the traffic safety issues of a campus that is bisected by a public road with no provisions for pedestrian crossing. He reiterated that putting a highway through a school site is not a good idea.

168Regarding the proposed Bracebridge West By-pass, the Appellant’s planner, Ms. Poirier, stated that a more robust transportation plan is needed. She opined that the placement of a road bisecting a school campus is not good planning and is inconsistent with the PPS. She said the proposed Bracebridge West By-pass requires an updated environment assessment, which should have been completed before the Applicant’s development application is considered. Regarding the placement of the driveway accessing the proposed development, the Appellant submits that the Applicant failed to consider its impacts and the impacts of its construction on adjacent wetlands. It submits that there would be significant blasting, cutting, and filling to construct the driveway, which would likely have impacts on the water balance.

Analysis and Findings on Transportation and Traffic Issues

169Mr. Northcote opined that the proposed development would not cause operational issues or delays in the existing road network, the sight lines on Highway 118 at the entrance to the proposed internal road were safe, and student crossing concerns would be properly addressed. Although Mr. Tedesco expressed doubts regarding the methodology and data used in Mr. Northcote’s analyses, the Tribunal finds that these concerns were addressed. The type of required pedestrian crossing can most appropriately be finalized once it is determined whether the proposed Bracebridge West By-pass will be built. The proposed precincts will be developed in phases allowing for continuing analyses of traffic impacts as the initial phases of the development progress. Staggered start times for the schools and the mandatory bussing of day students are tools that could be applied, if needed.

170The Tribunal finds that the proposed instruments are consistent with the PPS. They provide for the planning and protection of corridors and rights-of-way for infrastructure, including transportation, transit and electricity generation facilities and transmission systems to meet current and projected needs as required under PPS policy 1.6.8.1. Through the use of bussing, trails, and the layout of the proposed development, the Tribunal finds that the proposed instruments are consistent with the energy conservation, air quality, and climate change policies in PPS policy 1.8.1.

171The Tribunal finds that the proposed instruments conform with the District Official Plan, 2014 and the Town’s Official Plan. It finds that the proposed Zoning By-law Amendment facilitates alternate transportation by means of bussing and would provide infrastructure to support growth, be phased, and facilitate active transportation through the development of walking trails between facilities.

172Once the final plans for each proposed precinct are prepared, the draft proposed Zoning By-law Amendment requires that access and traffic matters must be fully

addressed to the satisfaction of the District before the proposed H holding symbol may be lifted.

173Based on the evidence before it, the Tribunal finds that the proposed instruments are consistent with the PPS, conform with the District and Town Official Plans, and represent good planning in relation to transportation and traffic issues.

4. Other Planning Issues

Applicant’s Evidence and Submissions

174Ms. Clement described the proposed Zoning By-law Amendment. She stated that the proposed zoning would include “Institutional Special – 17 Holding” for 25% of the subject lands, “Environmental Protection Wetland One Special – 1” for 26% of the lands, and “Open Space One Special – 8” for the remaining 49% of the subject lands. She stated that permitted uses in the Institutional area would include the school, sports facility, and a summer camp. It would require a minimum 30% landscaped space and a maximum coverage of 50% within each precinct. She stated that development, apart from roads and trails, is not permitted within 150 m of Stephens Bay Road. She also said the proposed zoning also includes height and parking regulations. She said the proposed Open Space zoning would limit permitted uses to parks, right of ways, trails, education facilities, and stormwater management. She said the Environmental Protection zoning would only permit limited passive uses, such as walking trails.

175Ms. Clement opined that the proposed instruments have regard to the matters of provincial interest set out in s. 2 of the Planning Act. She stated that the Applicant’s environmental impact assessment demonstrates that there is regard to the protection of ecological systems. She stated that municipal services are located close-by and are available. She opined that the proposed instruments would facilitate the orderly development of a safe and healthy community, provide for educational, health and social facilities, and provide employment opportunities. She said the subject lands are

not located in the flood plain and any risks posed by fire hazards can be mitigated. She said the subject lands lie within an urban area, which is an appropriate location for growth and development. She said most of the subject lands will remain in a natural state and, based on the proposed layout and preservation of trees, the proposed development would address climate change mitigation concerns.

176Ms. Clement opined that the proposed instruments are consistent with the PPS. She stated that they facilitate a development that would sustain a healthy, liveable community. She said the subject lands are adjacent to services and a built-up area and the proposed development would support local businesses, respect environmental constraints, and efficiently use planned infrastructure and roads. She stated that the subject lands are located in an urban settlement area and the proposed development would provide for employment opportunities and promote education and opportunities for learning about the environment in a natural setting. She stated that servicing, including water, sewage, and stormwater management concerns have been addressed as well as transportation issues. She said that environmental protection, cultural heritage, and natural hazard issues also have been addressed.

177Ms. Clement opined that the proposed instruments conform with the District Official Plan, 2014 under which the subject lands are designated “Urban Centre”. She said the proposed instruments would facilitate development that maintains the character and integrity of the area, protects the environment, improves the transportation network, and provides employment opportunities. She said the District Official Plan, 2014 promotes growth in urban centres at a scale that responds to the natural environment and surrounding area. She opined that the proposed development would do this. She said the proposed instruments conform with the policies in the District Official Plan, 2014 on the environment, natural hazards, deer wintering habitat, transportation, and stormwater management.

178Ms. Clement stated that given that the Official Plan and Zoning By-law Amendment applications were filed before the District’s Official Plan, 2019 came into

effect, that Plan does not apply. In any event, she opined that the proposed instruments conform with it. She reviewed the Plan’s applicable guiding principles and objectives and the applicable policies on efficient land use, the protection of the environment, development priorities, urban centres, highways, compatibility, and natural heritage features. She found that the proposed instruments conform with them.

179Ms. Clement opined that the proposed Zoning By-law Amendment conforms with the Town’s Official Plan. She reviewed the Official Plan’s policies on protecting the health and integrity of the environment and its objectives to preserve and protect wetlands and their functions. She said the Town’s Official Plan requires a proactive approach to environmental protection. She said the proposed development avoids sensitive environmental constraints and allows for the protection of environmental features and functions. She stated that stormwater management issues have been addressed with detailed plans to be finalized at the site plan approval stage. She reiterated that the subject lands are designated Urban Centre, which is intended as the primary location for growth and development in the Town. She stated that the proposed development would be compatible with other nearby uses and would not impact the character of the area. She opined that the proposed walking trail uses in the Open Space areas would conform with the Official Plan’s policies. She noted that the Official Plan’s transportation policies have been addressed and will be further considered at the site plan approval stage. She said the Town’s Design Guidelines in relation to access to Stephen’s Bay Road have been addressed as required under policy J.19.4 of the Town’s Official Plan.

Town’s Evidence and Submissions

180Mr. Holmes opined that the proposed instruments have regard to the matters of provincial interest set out in s. 2 of the Planning Act. He said the subject lands are located in an urban area, which is an appropriate place for growth and development and the proposed development would assist in the mitigation of greenhouse gas emissions by protecting large portions of the subject lands.

181Mr. Holmes opined that the proposed instruments are consistent with the PPS. He said the proposed development would provide a mix of institutional and residential uses adjacent to an existing built-up area. He said the proposed development would be located outside of identified natural hazard areas. He also said that where there may be wildfire hazards, risk mitigation measures can be taken.

182Mr. Holmes opined that the proposed instruments conform with both the 2014 and 2019 versions of the District’s Official Plan. In particular, he stated that the proposed instruments conform to their policies relating to the environment, stormwater management, roads, and municipal servicing. He opined that the proposed development would make efficient use of land and infrastructure and promote intensification by concentrating development in the precincts. He said the preparation of a comprehensive development plan was not necessary as the factors to be assessed in such a plan have already been addressed through the materials submitted by the Applicant.

183Mr. Holmes opined that the proposed instruments conform with the Town’s Official Plan, including its policies respecting natural features and functions and stormwater management. He said the proposed Zoning By-law Amendment would increase the amount of Environmental Protection lands and impose standards based on the recommendations in the environmental impact assessment. He said community facilities are permitted in the Urban Centre and the proposed uses are compatible with existing uses in the area. Mr. Holmes said the development in each precinct would represent compact form and would be properly serviced.

184The Tribunal found Mr. Holmes’ evidence to be consistent, genuine and credible.

Appellant’s Evidence and Submissions

185Ms. Poirier opined that the proposed instruments are not consistent with the PPS. She stated that the proposed precincts would not constitute compact or efficient development and the entire development could be built in one area to the east of the subject lands on property that is also owned by the Applicant. She said these lands would be more easily accessed and would be closer to services. She opined that the proposed development would have significant impacts on the environment, natural heritage features, and species at risk. She also stated that it would impact the Town’s social services and would be located close to a wildfire hazard area, which is an inappropriate place for a school.

186Ms. Poirier stated that the proposed instruments do not conform with District Official Plan, 2019. She said the proposed development constitutes of a “major land use change”, which, as a principle of good planning, requires a comprehensive development plan to be completed under policy D14.1.

187Ms. Poirier stated that the proposed instruments do not conform with Town’s Official Plan. Under policies B.15.1 and B.15.2 of the Official Plan, she stated that a character and compatibility study is required for a major development such as that being proposed. She opined that the proposed development would not be compatible with neighbouring uses and that a school is not a permitted use in Open Space zoned areas. She also said a feasibility and economic benefits analysis is required under policy J.17 as well as a proper wetlands study, economic impact and viability study, and a report on social services, even if the Town did not request them.

Participants’ Submissions

188Mr. Hart submits that the proposed development would not be in keeping with the character of the area, the proposed Bracebridge West Bypass would bisect the school causing safety issues, and the economic impact of the project would be limited given a

lack of demand for a boarding school in the area. He also raised concerns regarding the potential for flooding caused by the proposed development.

189Ms. Morton raised concerns that the class environmental assessment for the proposed Bracebridge West By-pass is out-of-date. She submits that traffic, flooding, and environmental protection issues need to be better addressed. She also raised concerns regarding impacts on the character of the area, local tourism, and the economy.

190Tom Ryder expressed concerns regarding the viability of the proposed development and the social and economic impacts on the Town.

Analysis and Findings on Planning Issues

191The Tribunal finds that the proposed Official Plan and Zoning By-law Amendments, with the amendments set out below, are consistent with the PPS. Although the proposed development would include five separate precincts, each precinct consists of compact built form and represents the efficient use of land. As determined above, the proposed development satisfies the applicable servicing and environmental policies in the PPS. The Town has available servicing capacity located close to the subject lands and the primary stormwater management plans for the proposed development form the basis for appropriate development.

192The Tribunal finds that the proposed Official Plan and Zoning By-law Amendments, with the amendments set out below, conform with both the District Official Plan, 2014 and Official Plan, 2019. Having regard to the District Official Plan, 2019 and its policies D14.1 and D14.2 on comprehensive development plans, the Tribunal finds the preparation of such plans is not necessary in the present case. The Tribunal finds that the contents of such plans have already been addressed through the Applicant’s filing of its environmental impact assessment, transportation and traffic studies, stormwater management report, functional servicing report, and other studies. Issues

regarding phasing, land use, the provision of parkland and amenities, and permitted uses have all been addressed. The Tribunal finds that the filing of a further development plan on these issues would be redundant.

193The Tribunal also finds that the proposed Zoning By-law Amendment, with the amendments set out below, conforms with the Town’s Official Plan. Policy J17.2 sets out criteria that must be considered on an official plan amendment application. The Tribunal finds that the proposed instruments conform with the vision, objectives and policies of the Town’s Official Plan. The Urban Centre area is intended to be the focus for growth and development in the Town. The proposed development will be surrounded by Open Space and Environmental Protection lands and will maintain the existing character and will be compatible with the surrounding area. Servicing for the proposed development is located and available close by and can be provided in an efficient and effective manner. Walking trails connecting the precincts will provide opportunities for active transportation. It will be compatible with neighbouring land uses and the impacts on natural heritage, municipal services, and infrastructure have been addressed. Regarding the need for and feasibility of the proposed use and the economic benefits and financial implications to the Town, the Tribunal finds that these have been considered by the Town. Given that 75% of the subject lands will be zoned Environmental Protection or Open Space and given that each precinct will be developed a considerable distance from neighbouring uses, the Tribunal finds that a character and compatibility study under policies B15.1 and B15.2 is not required. The Tribunal notes that the layout of the proposed development in a secluded natural setting located apart from neighbouring development will minimize noise, visual appearance, lighting, and other impacts.

CONCLUSIONS

194Based on the analyses above, the Tribunal finds that the proposed Official Plan Amendment is consistent with the PPS and conforms with the District’s Official Plan. It finds that, with the amendments set out in paragraph 198 below, the proposed Zoning

By-law Amendment is consistent with the PPS, conforms with the District Official Plans, 2014 and 2019, and conforms with the Town’s Official Plan. The Tribunal has had regard to the matters of provincial interest set out in s. 2 of the Planning Act and to the Town’s decisions adopting the proposed Official Plan Amendment and approving the proposed Zoning By-law Amendment as well as to the materials that the Town had before it when making those decisions.

195The Tribunal notes that the use of an H holding symbol under s. 36 of the Planning Act is to specify the uses to which lands, buildings or structures may be put at such time in the future as the holding symbol is removed. An H holding symbol only should be used where the proposed zoning is justified in principle. Based on the findings detailed in this Decision, the Tribunal finds that the proposed zoning is justified in principle subject to the completion to the satisfaction of the Town of the specified items described in paragraph 198 below. The necessary conditions for lifting the H symbol in the present case are properly defined and the lifting of the H symbol will confirm rather than determine the zoning.

ORDER

196The TRIBUNAL ORDERS that the appeal is allowed in part.

197The TRIBUNAL ORDERS that the proposed Official Plan Amendment is approved as set in Attachment 1 to this Order and Decision.

198The TRIBUNAL ORDERS that the proposed Zoning By-law Amendment is approved as set in Attachment 2 to this Order and Decision, which includes the following amendments:

1. s. 2(i) be amended to state that the setbacks from all wetlands and watercourses on the subject lands be no less than 30 m;

2. s. 2 (xv)(b) be amended to state that:

(xv) The Holding Symbol (H) may be removed on a precinct by precinct basis once the following have been completed for each precinct:

b. a site-specific Environmental Impact Statement for each proposed precinct and adjoining road (and any applicable adjacent lands) on the subject lands is received to the satisfaction of the Town of Bracebridge, which, among other things, demonstrates:

i. by means of comprehensive amphibian breeding surveys that there will be no negative impact on amphibian breeding habitat as a result of the proposed development of that precinct and road; and

ii. by means of acoustic surveys and snag density surveys, the bat species present and demonstrates that there will be no negative impact on bats as a result of the proposed development of that precinct and road.

“Hugh S. Wilkins”

HUGH S. WILKINS

VICE-CHAIR

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.

ATTACHMENT 1

ATTACHMENT 2

BY-LAW NO. 2021-005

A BY-LAW OF THE CORPORATION OF THE TOWN OF BRACEBRIDGE TO AMEND BY-LAW 2016-088, A LAND USE CONTROL BY-LAW TO REGULATE THE USE OF LAND IN THE TOWN OF BRACEBRIDGE

WHEREAS By-law No. 2016-088 was enacted to regulate land use in Muskoka North Ward, of the Town of Bracebridge, in the District Municipality of Muskoka.

AND WHEREAS it is deemed necessary to amend the said by-law by rezoning certain lands and by the addition of certain provisions;

AND WHEREAS by motions 21-PD-006 and 21-PD-007 the Council of The Corporation of the Town of Bracebridge deems it expedient to pass such a by-law;

NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE TOWN OF BRACEBRIDGE ENACTS AS FOLLOWS:

1. That Schedule “A” to By-law No. 2016-088 is hereby amended by rezoning the property described as Lots 7 and 8 and part of Lots 6, 9 and 10, Concession 12, Muskoka North Ward, Town of Bracebridge, from the present zone of Open Space Two (OS2) in part and Environmental Protection Wetland One (EPW1) zone in part to the following:

i. Institutional Special – 17 Holding (I-17H) in part, which lands are more particularly in red on Schedule “A” attached hereto;

ii. Open Space One Special – 8 (OS1-8) in part, which lands are more particularly in orange on Schedule “A” attached hereto; and

iii. Environmental Protection Wetland One Special – 1 (EPW1-1), which lands are more particularly in green on Schedule “A” attached hereto.

2. That Section 7.1.6: Institutional Zone Exceptions is hereby amended by the addition of the following:

Zone Permitted Uses

I- 7H In an Institutional Special – 17 Holding (I-17H) zone, the permitted uses shall be limited to existing uses only until such time as the Holding (H) is removed by by- law, at which time, permitted uses would include a public or private School, Arena, Assembly Hall, Dormitory with Accessory Dwelling Units, Summer Camps, Recreational Facilities with Accessory uses of Fitness Centre, Hospital, Library, Maintenance Shop, Medical Office and Place of Worship.

The following special provisions shall also apply to the Institutional Special – 17 (I- 17) zone:

i) The minimum landscaped area is 30% within each precinct area, as shown on Schedule ‘A’;

ii) The maximum lot coverage is 50% within each precinct area, as shown on Schedule ‘A’;

iii) Within 150.0 metres of Stephens Bay Road, the property must remain in a natural state except for trails, rights-of-ways or roadways;

iv) The minimum setback to a wetland or watercourse is 30.0 metres;

v) All uses shall be accessed by a year road municipally maintained road or a private road, which may be described through a condominium description;

vi) The maximum height of a dormitory is four (4) storeys;

vii) The maximum height of a school is three (3) storeys;

viii) The minimum number of parking spaces for an elementary school shall be one (1) space per classroom and one (1) space per office;

ix) The minimum number of parking spaces for a secondary school is one (1) space per classroom, one (1) space per office and one (1) space per ten

(10) students;

x) The minimum number of parking spaces for a dormitory shall be one (1) space per four (4) beds and the minimum number of parking spaces for a dwelling unit shall be one;

xi) The minimum number of parking spaces for a sports complex/recreational facility shall be one (1) space per office plus one (1) space per ten (10) people;

xii) General Provisions 4.21.1, 4.21.3 and 4

xiii) .21.4 shall not apply to any building or structure in this Zone;

xiv) Notwithstanding the definition of a Dormitory, a Dormitory accessory to a School may also contain self-contained Dwelling Units;

xv) A Medical Office will be required as part of any School; and

xvi) The Holding Symbol (H) may be removed on a precinct by precinct basis once the following have been completed for each precinct:

a. the provision of municipal water and sewer services and access/traffic matters are addressed to the satisfaction of the District of Muskoka; and

b. a site-specific Environmental Impact Statement for each proposed precinct and adjoining road (and any applicable adjacent lands) on the subject lands is received to the satisfaction of the Town of Bracebridge, which, among other things, demonstrates:

i. by means of comprehensive amphibian breeding surveys that there will be no negative impact on amphibian breeding habitat as a result of the proposed development of that precinct and road; and

ii. by means of acoustic surveys and snag density surveys, the bat species present and demonstrates that there will be no negative impact on bats as a result of the proposed development of that precinct and road.

The following definitions shall apply to the Institutional Special – 17 (I-17) zone:

SUMMER CAMP - Means a camp that is privately owned and operated, which provides accommodation to registered individuals for extended short-term stay during the summer months, including accommodation for

staff members, has common facilities for dining and recreation, and provides educational, social and cultural programs.

All other applicable provisions of the Institutional (I) zone shall continue to apply with respect to the lands located within the Institutional Special – 17 Holding (I-17H) zone.

3. That Section 7.1.8: Open Space Zone Exceptions is hereby amended by the addition of the following:

Zone Permitted Uses

OS1-8 In an Open Space One Special – 8 (OS1-8) zone, the permitted uses shall be limited to Private Park, Public Park, public or private right-of- ways, public or private trails, Educational Pavilions and, Stormwater Management facilities.

The following definitions shall apply to the Open Space One Special – 8 (OS1-8) zone:

i) Within 150.0 metres of Stephens Bay Road, the property must remain in a natural state except for trails, rights-of-ways or roadways; and

ii) General Provisions Section 4.21.1, and 4.21.3 shall not apply to any building or structure in the Open Space One Special – 8 (OS1-8) zone.

EDUCATIONAL PAVILION – Means a free standing, roofed, accessory structure which is not enclosed, except by means of screening or glass, is utilized for educational purposes in conjunction with a private school development and shall not exceed 75.0 square metres.

All other applicable provisions of the Open Space One (OS1) zone shall continue to apply with respect to the lands located within the Open Space One Special – 8 (OS1-8) zone.

4. That Section 7.1.9 Environmental Protection Zone Exemptions is hereby amended by the addition of the following:

Zone Permitted Uses

EPW1-1 In an Environmental Protection Wetland One Special – 1 (EPW1-1) zone, the permitted uses shall include all those uses permitted in the

Environmental Protection Wetland One (EPW1) zone including private rights-of-way and private trails. Notwithstanding any provisions to the contrary, no setbacks shall be applied from the limits of the Environmental Protection Wetland One Special – 1 (EPW1- 1).

The following definitions shall apply to the Environmental Protection Wetland One Special – 1 (EPW1-1) zone:

i) Within 150.0 metres of Stephens Bay Road, the property must remain in a natural state except for trails, rights-of-ways or roadways.

All other applicable provisions of the Environmental Protection Wetland One (EPW1) zone shall continue to apply with respect to the lands located within the Environmental Protection Wetland One Special – 1 (EPW1-1) zone.

5. That Schedule "A" attached hereto forms part of this by-law.