Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 23, 2023

CASE NO(S).: OLT-23-000127

PROCEEDING COMMENCED UNDER subsection 85(1) of the Funeral, Burial and Cremation Services Act, 2002, S.O. 2002, c.33

Applicant and Appellant: Ummati Cemetery

Subject: Establishment of Cemetery or Crematorium

Description: To establish, maintain and support a cemetery with services conducted in accordance with the tenets and doctrines of the Islamic faith

Reference Number: S09-CEM-06-19

Property Address: Part Lot 18, Concession 3 (Lake Road)

Municipality/UT: Cramahe/Northumberland

OLT Case No.: OLT-23-000127

OLT Lead Case No.: OLT-23-000127

OLT Case Name: Ummati Cemetery v. Cramahe (Township)

Heard: September 14 and 15, 2023 by video hearing and by written submissions September 25, 2023

APPEARANCES:

Parties	Counsel
Ummati Cemetery (“Ummati/Applicant/Appellant”)	Laura Gurr Afolabi Lucas
Township of Cramahe (“Township”)	Tony Fleming Spencer Putnam

DECISION DELIVERED BY T.F. NG AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1Ummati Cemetery (“Ummati/Applicant/Appellant”) is a federally registered charity established in 2019. Nooruddin Ghauri is the principal of Ummati which charitable purpose, Mr. Ghauri stated, is to establish, maintain and support a cemetery with service conducted in accordance with the Islamic faith. The Applicant, according to Mr. Ghauri, has relationships with several local mosques with members numbering over 25,000 in those congregations.

2The Applicant acquired the land municipally known as 360 Lake Road, (“subject lands”), approximately 43.8 acres of vacant land in the Township of Cramahe (“Township”).

3Ummati applied for municipal approval for the establishment of a cemetery on the subject lands pursuant to Section 83(1) of the Funeral, Burial and Cremation Services Act (“FBCSA”).

4On or about February 16, 2023, Mr. Ghauri received the Municipality’s Notice of Decision which stated:

“Under section 84 (1) of the FBCSA, a local municipality that receives a request for an approval to establish, alter or increase the capacity of a cemetery in the municipality…. shall grant the approval if, in the municipality’s opinion, it is in the public interest”; at the Council in Committee Meeting held January 28th, 2020, the following was determined:

i. The request was not within the Public’s Interest.

ii. The subject lands are designated as Agricultural in the Township’s Official Plan; therefore, an application for a cemetery would not conform with the Planning Act.

5This appeal by Ummati pursuant to s. 85(1) of the FBCSA from the Township’s rejection of its application to establish a cemetery on the subject lands was held over two days.

6The proposed cemetery is for the expressed purpose of providing a suitable burial facility for individuals of the Muslim faith.

Issue

7The Tribunal views that the Issue is essentially the following:

1. Is establishing the proposed cemetery on the subject lands, in the public interest?

Witnesses

8The Applicant called Mr. Ghauri and two expert witnesses while the Township called one expert.

Applicant

1. Robert Clark – Land use planner
2. Hafiz Ahmad – Geotechnical engineer
3. Nooruddin Ghauri

Township

1. Jamie Robinson – Land use planner

9The Tribunal qualified experts in their respective specializations.

10The Tribunal finds against the establishment of the cemetery as it is not in the public interest. The reasons follow after careful consideration of the legislative and policy framework, the appeal documents, the evidence and parties’ submissions.

Site Context

11The subject lands are 43.8 acres in area, currently vacant, have rolling topography, divided into cultivated fields by treed rows that extend along the road frontage, and zoned Agriculture (A) on Schedule "A", Map 11 of the Township Zoning By-law No. 08-18 (“ZBL 08-18”). Section 6.1 states that a cemetery is a permitted use in the Agricultural (A) Zone.

12The subject lands are designated Agricultural on Schedule A in the Township’s Official Plan (“OP”).

13The County of Northumberland Official Plan (“COP”) designates the subject lands as Agricultural.

Proposed Cemetery and Applications

14The cemetery proposal for the subject lands was made under s. 83(1) of the FBCSA. It is not in dispute that the following sections of the FBCSA are applicable and the Applicant’s appeal has been properly filed at the Tribunal which appeal is now heard de novo.

1. S. 83 (1) If this Act or the regulations require the registrar’s consent for establishing, altering or increasing the capacity of a cemetery, no person shall do so without obtaining the registrar’s consent and, (a) the approval of the local municipality, if the cemetery is situated in a local municipality or if it is proposed to establish the cemetery in the local municipality or to enlarge the cemetery to include land of a local municipality within the cemetery;

2. S. 84 (1) A local municipality that receives a request for an approval to establish, alter or increase the capacity of a cemetery in the municipality shall grant the approval if, in the municipality’s opinion, it is in the public interest.

(2) A local municipality may hold a public hearing to determine if the approval is in the public interest.

(3) A local municipality shall give or refuse its approval within a reasonable time after receiving a request for an approval.

(4) Upon deciding to approve or refuse a request for an approval, a local municipality shall,

(a) send a copy of the decision together with the reasons for it to the registrar and to the person making the request; and

(b) publish notice of the decision in a local newspaper.

3. S. 85 (1) The applicant, registrar or any person with an interest in a decision of a local municipality under section 84 may appeal the decision to the Ontario Land Tribunal within,

(a) 15 days after the day of publication in a local newspaper; or

(b) if the appeal is brought by the applicant or registrar and that person receives a copy of the municipality’s decision after the day it was published in a local newspaper, 15 days after the day the applicant or registrar, as the case may be, receives a copy of the decision.

(2) The Ontario Land Tribunal shall hold a hearing and the registrar is entitled to make representations at any such hearing.

(3) The Ontario Land Tribunal may reverse the decision appealed from and substitute its own decision which is final.

Issue

1. Is establishing the proposed cemetery on the subject lands, in the public interest?

Applicant’s Position

15The Applicant stated that, in making its determinations on public interest, the scope of the Tribunal’s analysis is not limited to land use planning considerations, but it must consider what is in the interest of the public for the purpose of the FBCSA.

16The Tribunal should consider the agreed facts and issues, the circumstances of the Applicant’s search and purchase of the subject lands, the inquiry made by the Applicant of municipality staff of zoning and permitted use of the subject lands, the Applicant’s fulfilment of the application requirements, suitability of soil type for the proposal and the manner of rejection by the council through a resolution at a council meeting.

17The Applicant explained that the two reasons given for the rejection are incorrect. No Public Hearing was held to determine the public interest. The Applicant and the representatives of the Muslim community were not given an opportunity to make submissions to Council, and further, in the Applicant’s submission, the application is within the public’s interest.

18The Applicant added that the use of the site as a cemetery will conform with the OP, as set out in the evidence of Mr. Clark, and further, in the alternative, since the ZBL permits the use of a cemetery, this “shall be conclusively deemed to be in conformity with the official plan” under s. 24(4) of the Planning Act and, therefore, this use would also conform with the Planning Act.

19Counsel, Ms. Gurr submitted that the members of the Muslim community are part of the public and that their interests should be taken into consideration when determining whether the application is within the “public interest” for the purposes of the FBCSA.

20Mr. Ghauri provided testimony of the significance of the proposed cemetery for the Muslim community and the religious/cultural significance of a burial resting place for the said community. He cited the availability of commercial cemeteries burial plots for sale at what he considered as high costs per plot e.g., in Ottawa and Toronto, hence the need to purchase the subject lands to service the Islamic faithful at reasonable economic costs.

21Counsel for the Applicant reiterated that regard for s. 2(i) of the Planning Act will mean a Muslim cemetery is a social and cultural facility to consider for its provision and distribution. The Applicant reached out to the Township before purchasing subject lands to confirm that the proposed use complies with the ZBL and would be a permitted use. It is not disputed that the Applicant consulted with the Township’s planning department staff before the purchase of the subject lands. Staff confirmed among other things:

i. That in the current zoning under permitted use s.6.1.5, a cemetery would be a permitted use on the subject lands.

ii. That there was no zoning by-law review in process.

iii. That the subject lands are not designated under the Ontario Heritage Act.

22Furthermore, Counsel contended that, in the Compatibility Report prepared by Mr. Clark, it was concluded that the conversion of the subject lands to a cemetery is consistent with Provincial, County and Local Policy and is currently a permitted use in accordance with the ZBL. Section 6.1.5. of that ZBL states unequivocally that a cemetery is a permitted use on an Agricultural zoned land.

23The Applicant submitted that Mr. Clark provided evidence confirming compliance with the OP. Further, the OP does not prohibit the use of a cemetery in the Agricultural zone.

24Notwithstanding Mr. Clark’s report, the Applicant further submits that s. 24(4) of the Planning Act applies and the use of the site as a cemetery is “conclusively deemed” to conform with the OP (see IN8 (The Capitol) Developments Inc. v. Building Kingston’s Future Inc. & Anor (2020) ONSC 6151 at paragraph 13, where the Divisional Court considered the importance of a Zoning By-law in the planning hierarchy) and explained it as follows:

“Zoning By-law are the third tier of the planning hierarchy. Zoning by-laws may be passed by a municipal council to restrict the use of land and the erecting, locating or using of buildings in defined areas within the municipality. Zoning by-laws under s. 34 of the Planning Act may also regulate the construction, spacing, character and use of building or structures. Under s. 24(1) of the Planning Act, where an official plan is in effect, zoning by-laws must conform to the official plan. Once a zoning by-law comes into force, it is deemed to conform to the official plan (s. 24(4)) …”.

25Counsel submitted that the ZBL of the Township permits the establishment of a cemetery on the subject lands, and as the Divisional Court held in the Aon Inc. v. Peterborough (City) (1999) O.J. No.1225 at paragraph 17 of the case:

“The two documents are meant to be inter-related in that, by s. 24, the zoning by-law must conform with the Official Plan. By s. 24(4), when a zoning by-law comes into effect, it is "conclusively deemed" to be in conformity with the Official Plan.”

26Ms. Gurr added that Mr. Ahmad, the Applicant’s geotechnical engineer witness, had testified that the subject lands are suitable in terms of the soil requirements, the type of soil and the requirement of a seven feet depth of soil for cemetery use. This soil type and suitability was supported by Mr. Clark meaning that agricultural land type soil is required and suitable for use by the cemetery. Mr. Clark noted that there is a compatibility between the lands that are suitable for a cemetery and the agricultural capability classification. Soils deep enough and flat enough for a cemetery will inevitably fall into a Class 3 or better capability classification, meaning that in the OP they will be designated as agricultural lands and not rural. (note: Rural lands in the Township are designated as permitting “community facility” use, e.g. cemeteries, s. 5.3.1 of OP).

27The Applicant submitted that unlike in JAAS Holdings Inc. Re, (“JAAS Holding Inc.”) [1998] CarswellOnt 8608, [1998] O.M.B.D. No 706, where the Board upheld the refusal of an application despite compliance with the ZBL and where there was insufficient information about the cemetery, the instant matter before this Tribunal is different since the Applicant has invested considerable time and money and provided sufficient particulars and necessary information about the application.

28It is the Applicant’s position that based on the rationale of the Board in the JAAS Holding Inc. decision, and the growing Muslim population in the Township and region, a Muslim cemetery is not only essential, but it is in the public interest.

29The Applicant contended that the Township did not consider the needs of the Muslim community. It requested the Tribunal to consider the Clark’s Compatibility Report and to substitute its decision instead of the Council’s.

Township’s Position

30The Township submitted that the proposal is not in the public interest as it fails to respect the provincially recognized public interest in protecting Prime Agricultural Land for the long-term use for agriculture.

31The Appellant’s situation is not unique. Many proponents of industrial, commercial and affordable housing developments have difficulty finding land that is zoned for their desired use, meets their individual locational requirements, and that they can afford. That difficulty does not warrant consuming Prime Agricultural Lands where it is not demonstrably necessary. The Province has created strong protections for Prime Agricultural Land that only permit non-agricultural uses where there is a demonstrated “need” and an absence of reasonable “locations” outside of Prime Agricultural Lands. The Appellant has not demonstrated either and relies instead on individual, economic considerations.

32Counsel, Mr. Fleming submitted it is not in the public interest to allow a cemetery to eliminate the agricultural use of otherwise Prime Agricultural Lands.

33Counsel emphasized that in JAAS Holdings Inc., the Ontario Municipal Board found that a proposed cemetery and mausoleum on agricultural lands were not in the public interest because the cemetery would result in loss of farmland and there was a lack of evidence of need for it (at paragraph 14, JAAS Holdings Inc., case).

34“Need” must be demonstrated. In finding there was insufficient evidence of need in JAAS Holding Inc., the Board relied on the opinion of a planner (who concluded that there was no determined need for new cemeteries in the study area) who had considered population, household and employment data and undertaken firsthand investigations into the capacity of all existing municipal and private cemeteries in the study area in determining whether the existing supply of cemetery lands was sufficient to meet forecasted demands (at paragraph 9 of the case).

35The Township reiterated that zoning is not determinative of the public interest and that land use planning considerations are important to understand and assess the public interest. The proposal in this case is inconsistent with the clear provincial and municipal planning directions protecting agricultural lands and therefore is not in the public interest.

36The public interest is set out in the Provincial Policy Statement, the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”), and both levels of Official Plans. These policy statements were developed with extensive public input and reflect the broad consensus as to what is in the public interest.

37By contrast, a zoning by-law is not a statement of the public interest, but rather a tool used to regulate land use planning. This is why the FBCSA includes a stand-alone public interest test. Taking zoning as a statement of the public interest leads to circular, reasoning.

38Counsel, Mr. Fleming submitted that the IN8 (the Capitol) Developments decision and the Aon Inc. v. Peterborough decision simply confirmed that section 24(4) deems a zoning by-law to conform with the official plan. The facts in both cases are entirely dissimilar to the case before the Tribunal and the proposition related to section 24(4) is unhelpful. The Township agrees that section 24(4) deems zoning to conform with official plans. The Township disagrees that section 24(4) speaks to the public interest.

39Section 24(4) does not override the Official Plans of the County and Township or amend those documents to permit a cemetery in the Agricultural Designation – that use is not permitted in the Official Plans and section 24(4) cannot alter that undisputed fact.

40Neither of the cases cited by the Appellant stands for the proposition that section 24(4) establishes what is in the public interest. Section 24(4) is nothing more than a legislative tool to implement zoning and address possible disputes about conformity with the Official Plan.

Analysis

41Mr. Ghauri agreed under cross-examination that the Appellant did not have any “needs” analysis conducted by a qualified person, and that the Appellant undertook no assessment of demographic data or the factors described in JAAS Holdings Inc. at paragraph 9 of the case.

42Mr. Ghauri confirmed that there had been no assessment of how much land is currently designated for cemetery use within the area serviced by the Appellant.

43No studies on other suitable lands have been done either within the Rural designated lands in the Township or in neighbouring Township, or elsewhere in the otherwise undefined area served by Ummati Cemetery.

44Mr. Ghauri testified that other sites exist that will allow burials to take place, but economics and locational criteria motivated the desire to establish a cemetery on the subject lands.

45The evidence of Mr. Ghauri was that private cemeteries make designated areas available, but the price at $5000 per plot is too high. This evidence demonstrates that there are available lands designated to accommodate the proposed cemetery use for the Muslim community. However, the available land comes at a higher cost than desired.

46Even if the Appellant could demonstrate that there are insufficient non-agricultural lands designated for cemeteries – which it has not done – the test will then require a demonstration that there are no other lands that could be used in lower priority agricultural lands (i.e. not Prime Agricultural Lands). This was also not demonstrated by the Appellant.

47It was clear from Mr. Ghauri’s evidence that the assessment undertaken by the Appellant was a land purchase assessment. It identified properties based on individual land use requirements, such as the requirement to be near the Highway 401 and the price. These locational requirements were presented at the end of cross- examination and as an afterthought. It is entirely a private (not public) consideration.

48There was no evidence produced by the Applicant before the Tribunal to show that there are no other lands in the Rural area (not Prime Agricultural land) that could accommodate the use proposed.

49The Appellant’s private assessment criteria are not sufficient to meet the test in section 2.3.6.1 of the Provincial Policy Statement (“PPS”). The economic considerations of the Appellant are not an assessment of the public interest.

50Mr. Ahmad testified that the subject lands have suitable geotechnical conditions for a cemetery. The Township does not dispute this. However, Mr. Ahmad’s evidence is of little assistance in deciding the issue on this appeal.

51He was not asked to, and therefore did not, consider any other sites except the subject lands. Mr. Ahmad agreed in cross-examination that there may be many other sites in the Township with soils suitable for a cemetery.

52Mr. Ahmad’s evidence therefore did not support the argument made by the Appellant in its closing arguments, that a cemetery can only be developed on Prime Agricultural Lands.

53Mr. Clark provided land use planning evidence on behalf of the Appellant. He agreed that the proposed cemetery did not comply with section 2.3.1 of the PPS, which requires protecting agricultural areas for long-term use for agriculture.

54Nonetheless, he concluded that the subject lands could be removed from the Prime Agricultural designation. His conclusion was unreasonable, because:

1. He agreed that he undertook no “needs” analysis required by section 2.3.6.1(b).3 of the PPS.

2. He agreed that he undertook no “alternative location” analysis required by section 2.3.6.1(b).4 of the PPS, having conducted no assessment of other available rural or lower priority agricultural lands; and

3. He relied entirely on the subject lands’ zoning as being indicative of the public interest, despite conceding in cross-examination that zoning is not a surrogate or substitute for the public interest.

55Mr. Clark’s compatibility analysis was not relevant to or persuasive on the issue of public interest. Compatibility is not demonstrative of the public interest. Compatibility is necessary for the development of a non-agricultural use on Prime Agricultural Land, but it is not sufficient. It does not replace or minimize the importance of the test under s. 2.3.6 of the PPS, which is designed to protect Prime Agricultural Land from non-agricultural development in the first place.

Findings/Decision

56The Ontario Municipal Board considered a similar issue (a crematorium), in its decision in 2020151 Ontario Inc (Creek View Crematorium) v. Norfolk (County), [2017] CarswellOnt 15116 3 O.M.B.R. (2d) 433. It stated at paragraph 12, that,

“The Board has considered a variety of items under the 'public interest' umbrella in these types of cases. Traditional land use planning matters, including compatibility, adverse impact, and aesthetic considerations, have often formed the basis for the Board's analysis of the public interest in these cases. The scope of the Board's analysis of the public interest under the FBCSA, however, is not limited to land use planning considerations. The Board has, for example, refused to grant approval for a crematorium where the need for the facility was not established, it would result in loss of farmland, and there was a lack of information about the proposal”.

57In the instant matter before the Tribunal, it notes that the Public Interest is not defined. This necessitates the determination, first under the FBCSA identification of the identified public interest, and second, the policy considerations that ground the public interest.

58Since, the Tribunal is hearing the application anew, both parties were afforded a public hearing with witnesses. As such, despite the concern by the Applicant that it was not afforded a public hearing when the application was at the municipality, that concern is eliminated. (Nonetheless, under FBCSA, the public hearing by the municipality was not a mandatory requirement). Thus, the appeal hearing is not a review of the municipality’s decision, but an adjudication of the proposed cemetery with the Tribunal as the deciding authority.

59Black’s Law Dictionary defines public interest as “Something in which the public, the community at large, has some financial interest, or some interest by which their legal rights or liabilities are affected”.

60The Tribunal discerns that there are two matters of interest in this dispute: the subject lands and the proposed cemetery.

61The Applicant identifies the proposed cemetery as of public interest to a section of the community in particular, the Islamic faithful that it serves in the general area. The Applicant cites s. 2(i) of the Planning Act: the Tribunal shall have regard to “the adequate provision and distribution of educational, health, social, cultural and recreational facilities”. The emphasis is on the provision of the proposed cemetery, as a cultural facility for the Muslim community that the Applicant will serve.

62The Township identifies the subject agricultural lands as of public interest to the province as a whole. It cites s. 2(b): the Tribunal shall have regard to the protection of the agricultural resources of the Province. The argument being the subject prime agricultural farmlands must be protected for the long term for the benefit of the Province.

63The Tribunal finds that in land use matters, in particular this proposed change in agricultural use to a cemetery burial use, the Planning Act is engaged directly and regard must be had to s. 2 of the Planning Act. In doing so, the Policy framework of the Province is invoked.

64The public interest is directed to a wider community in the public sphere and in the province. Although regard is given to s. 2(i), in the specific circumstance of this matter that pertains to a prime agricultural land, the cultural aspect and section of this Muslim community does not prevail over the s. 2(b) provincial interest which demands the said agricultural resource be preserved for the whole Province. In balancing the competing interests, the Tribunal will favour the paramount interest identified as the agricultural resource to be preserved i.e. the subject lands.

65Hence, having identified the matter of public interest, the Tribunal will evaluate the policy framework and policies that buttress the public interest in preserving the prime agricultural land, the subject lands, from being removed from the agricultural system.

66To put it another way, it is not in the public interest to allow the proposed cemetery (in the particular circumstances of this case) to be established on the subject lands, in effect, depriving the Province of productive prime farmlands and the agricultural crops derived to feed the citizenry of the Province. The Applicant must provide persuasive evidence to support the proposal for the Tribunal to do so.

67The Tribunal prefers the opinion evidence of the Township’s witness Mr. Robinson over those contrary opinions on the Applicant’s side.

The Provincial Policy Statement 2020 (“PPS”)

68The PPS sets out policies to govern land use change and development within the Province of Ontario. Decisions made by approval authorities, for applications filed under the Planning Act. Approval must be consistent with the policies of the PPS. Section 2.3.3 Permitted Uses of the PPS states:

In prime agricultural areas, permitted uses and activities are: agricultural uses, agriculture-related uses and on-farm diversified uses. Proposed agriculture-related uses and on-farm diversified uses shall be compatible with, and shall not hinder, surrounding agricultural operations. Criteria for these uses may be based on guidelines developed by the Province or municipal approaches, as set out in municipal planning documents, which achieve the same objectives.

69A cemetery is a non-agricultural use and is not permitted on prime agricultural lands according to the PPS. Any development on the subject property that requires a Planning application to be filed must be measured against this policy. A decision to approve the application would be contrary to section 2.3.3 of the PPS.

Non-agricultural Uses in Prime Agricultural Areas

70Section 2.3.6.1 of the PPS provide for two scenarios where non-agricultural uses may be permitted in Prime Agricultural Areas. Section 2.3.6.1 a) permits extraction of minerals, petroleum resources and mineral aggregate resources. Section 2.3.6.1 b) permits limited non-residential uses, provided that all of the following are demonstrated:

1. the land does not comprise a specialty crop area;

2. the proposed use complies with the minimum distance separation formulae;

3. there is an identified need within the planning horizon provided for in policy 1.1.2 for additional land to be designated to accommodate the proposed use; and

4. alternative locations have been evaluated, and

i. there are no reasonable alternative locations which avoid prime agricultural areas; and

ii. there are no reasonable alternative locations in prime agricultural areas with lower priority agricultural lands.

71Although there is no requirement for a planning approval to establish the cemetery on the subject lands, there are concerns that future development of the site (construction of buildings, structure, parking areas) would require approvals under the Planning Act. Any decision by the approval authority in this regard would have to be consistent with the PPS.

72Ummati provided a Report that attempts to demonstrate consistency with section 2.3.6.1b) of the PPS. Clark Consulting Services (“CCS”) prepared an Agricultural Impact Assessment and Minimum Distance Separation report. CCS submitted a report entitled Agricultural Impact Assessment and Minimum Distance Separation on November 1, 2019, to address Section 2.6.3.1 of the PPS. The CCS Report provides a discussion with respect to Section 2.3.6.1 b) summarized below:

• the land does not comprise a specialty crop area;

73According to the CCS, the subject lands comprised sandy loam soils with limitations due to slope. The soils are well drained. Soils Mapping identifies the CLI classification for agriculture of the property as 3T. Accordingly, the report states sandy loam soils are “used chiefly for mixed farming with oats, mixed grains, hay and pasture”. As such, these lands do not comprise a specialty crop area, thereby satisfying Section 2.3.6.1 b) 1.

• the proposed use complies with the minimum distance separation formulae;

74The MDS Report submitted by CCS confirmed that a cemetery is classified as a Type B Land Use for purposes of an MDS 1 calculation. The Report identified an MDS arc which has the effect of excluding that portion of the proposed cemetery within 55 metres of a livestock facility at 345 Lake Road. The site plan sketch identifies the MDS arc. On this basis the CCS report states that section 2.3.6.1b) 2 is satisfied.

• there is an identified need within the planning horizon provided for in policy 1.1.2 for additional land to be designated to accommodate the proposed use;

75In response to subsection 3, the CCS Report simply states “The proposed cemetery is a permitted use in the applicable zoning by-law.” Thus, the Township’s expert Mr. Robinson opined that this comment does not fully address the intent of subsection 3 in terms of section 1.1.2 of the PPS. Section 1.1.2 requires that sufficient lands should be made available (and designated for these future uses in an Official Plan) to accommodate an appropriate range and mix of land uses to meet the projected needs of the community for a time horizon of up to 20 years. The current zoning on the property is not relevant to policy 1.1.2.

• alternative locations have been evaluated, and there are no reasonable alternative locations which avoid prime agricultural areas; and there are no reasonable alternative locations in prime agricultural areas with lower priority agricultural lands.

76In response to subsection 2.3.6.1 b) 4., the CCS Report states that “Although the proponent has conducted an extensive review of available sites and determined that the site is appropriate, the existing zoning permits the proposed use and thus the consideration of an alternate location is not warranted.” Mr. Robinson’s opinion is that the Report fails to demonstrate that alternative locations have been investigated. There is no documentation provided of the ‘extensive review’ of available sites. The comment by Mr. Clark, suggests that the proponent is not required to provide this information.

77The Tribunal finds that the Applicant did not undertake a need analysis, nor a locational analysis that comply with s. 2.3.6.1 b) 3 and 4 of the PPS section.

78As regards an “identified need” requirement, for additional land to be designated for the proposed use of the cemetery, there is simply no “need analysis” by the Applicant or the Applicant’s planner. Mr. Ghauri’s statement of the many mosques and the 25,000 members of those congregations are just statements made (although the Tribunal does not doubt his good faith), unsupported by any documents, reports, congregation registers or legal certificates, documentary records or public data or census (as is often, necessary supportive documents in Tribunal proceedings).

79Although Mr. Ghauri did in cross-examination, attempt to orally answer counsel’s questions on the mortality and interment rate of the Islamic faithfuls, that does not amount to verifiable evidence. To be sure, there is no public or private records or studies from the Applicant or the several mosques to show the annual mortality rates of the Province, in particular the mortality rates of the Muslim faithful, whether monthly or annually or a forecast of interment rates that could assist the Tribunal to determine the reported need of the proposed cemetery. There is no study or record provided of the number of Muslims that are interred on a monthly basis or annual basis in the commercial cemeteries in the Province or in particular sites such as Ottawa or Toronto. The Tribunal finds that there is no evidence provided that it could determine the need for a cemetery on the subject lands.

80As for the location analysis, there is no evidence that the Applicant had studied alternative suitable sites for the proposed cemetery. Rural lands are where a cemetery may be located. The Official Plan allows rural lands to be used for a community facility purpose, of which, a cemetery is such a use. Neither the Applicant nor the planner for the Applicant nor the geotechnical engineer, produced evidence that there were studies on other possible lands that the proposed cemetery could be located. The geotechnical study was done for the subject lands by Mr. Ahmad. Mr. Ahmad confirmed in cross-examination that he did not and was not asked to do any study on any other lands in the municipality. Mr. Ahmad also confirmed that there could be other suitable lands for the cemetery, but he was not engaged to do any further studies. Mr. Clark confirmed in cross-examination that he did not consider other lands in the municipality, since in his opinion, the zoning of the subject lands permits a cemetery and that settled the matter and he did present a report on the subject lands.

81The Tribunal finds that without an analysis of the need for a cemetery on the subject lands, (i.e. studies on the population, household, employment, demographics data; investigations into the capacity of municipal and private cemeteries to determine existing supply of cemetery lands to meet forecasted demands) coupled with a lack of evidence of analysis on location, to demonstrate that there is no other suitable alternative land apart from the subject lands, the development of a cemetery on the subject lands does not meet the tests of section 2.3.6.1 b) of the PPS. Thus, due to the significant lack of analysis and evidence proving the need of the proposed cemetery and the lack of evidence of studies that no other lands are suitable for the said cemetery purpose, the Tribunal finds that the establishment of a cemetery at this location is not consistent with the policies of the PPS and would be contrary to section 2.3.3 of the PPS.

The Growth Plan for the Greater Golden Horseshoe 2020

82In terms of the Growth Plan, one of the guiding principles of Section 1.2.1 is to:

“Support and enhance the long-term viability and productivity of agriculture by protecting prime agricultural areas and the agri-food network.”

83Section 4.2.6.1 contains policies regarding the establishment of an Agricultural System. The Agricultural System comprises lands designated Agricultural Area in the County OP. The Subject Lands are part of the Agricultural System of the Growth Plan.

84Section 4.2.6.2 requires Prime Agricultural Areas to be designated for their long- term use for agriculture. The Agricultural Area Designation in the County OP and Agricultural Designation in the Township OP implements this policy.

85The Tribunal finds that the proposed Cemetery does not conform to the Growth Plan as it introduces a use that is not related to agriculture and that does not support and enhance the long-term viability and productivity of agriculture or protect prime agricultural areas or the agri-food network.

86The proposed establishment of a Cemetery does not have regard to the matters of Provincial Interest outlined in Section 2 of the Planning Act, and specifically the protection of the agricultural resources of the Province.

COP

87The subject lands are designated: Agricultural Areas designation on Schedule “A” to the COP.

88Section C3.1 of the COP sets out the Objectives established for lands within the Agricultural Area designation. Section C3.1 states:

It is the objective of this land use designation to:

a. Recognize agriculture as the primary activity and land use;

b. Maintain and preserve the agricultural resource base of the County;

c. Protect the County’s prime agricultural area from fragmentation, development and land uses unrelated to agriculture;

d. Promote normal farm practices and to protect the right to farm;

e. Promote a diverse, innovative and economically strong agricultural industry and associated activities by enhancing their capacity to contribute to the economy of the County; and,

f. Preserve and promote the agricultural character of the County and its local communities.

89Section C3.3 Permitted uses in the Agricultural Area designation are:

a. Agricultural uses,

b. Agricultural-related uses in accordance with Section C3.5 of this Plan;

c. On-farm diversified uses in accordance with Section C3.6 of this Plan;

d. Bed and breakfast establishments that are located on a non-farm property in accordance with Section C3.7 of this Plan;

e. Accessory accommodation subject to Section C3.8 of this Plan;

f. A single detached dwelling in conjunction with an agricultural use;

g. A single detached dwelling on an existing vacant lot, subject to the policies of the local Official Plan; and provided the lot is not subject to Section C3.4a)ii) of this Plan;

h. Home occupations;

i. Home industries that are accessory to a residential use on a non-farm property subject to Section C3.9 of this Plan

j. Conservation uses that do not include development; and,

k. Mineral aggregate operations, subject to the approval of a local Official Plan Amendment and subject to Section D5 of this Plan.

90It is recognized that certain lands within the Agricultural Area designation shown on Schedule A have received approvals for non-agricultural uses by the local Official Plan. At those locations, those specific uses may continue and would also be subject to corresponding policies of the local Official Plan.

91The Tribunal agrees with Mr. Robinson that a cemetery is not identified as a permitted use on lands designated Agricultural Area on Schedule “A” to the COP. The Tribunal finds that the proposed cemetery is not permitted by the County’s land use planning policies.

OP

92The lands are designated Agricultural on Schedule “A” to the Official Plan for the Township. The Canada Land Inventory for Agriculture (“CLI-AG”) classifies these lands as CLI-Class 2-3. Class1-3 lands are considered Prime Agricultural Lands. The OP does not permit the establishment of a cemetery on lands designated Agricultural or Rural. Cemeteries are only permitted in the Community Facility designation, as per s. 5.3.1, permitted uses in the Rural designation.

93Mr. Robinson opined and the Tribunal agrees that the proposed cemetery is not a permitted use on lands designated Agricultural on Schedule “A” to the OP. If an application were filed for any approval under the Planning Act, a decision to approve the application would not be consistent with the PPS, the COP or the OP.

ZBL

94The Township Comprehensive ZBL 08-18 recognizes a cemetery as a permitted use in the Agriculture (A) Zone. The lands are zoned, the A Zone on Schedule “A”- Map 11 to the ZBL. A cemetery is defined as “land that is set apart or used as a place for the interment of the dead or in which human bodies have been buried, within the meaning of the Cemeteries Act, as amended. A cemetery may include such accessory uses as mausoleums, crematoriums and columbariums.”

95The construction of buildings or structures or establishment of a parking lot associated with the cemetery would be subject to Site Plan Control.

96The Township’s Site Plan Control By-law is applicable on the subject property for Approval of subject lands. The filing of a Building Permit for construction of a building or structure or the development of a commercial parking lot on the property would be considered ‘development’ under Section 41 of the Planning Act (Site Plan Approval) and would trigger a requirement for Site Plan Approval.

97It is Mr. Robinson’s opinion that a decision of Council concerning an application for Site Plan approval is required to be consistent with the PPS and the COP and OP. A decision consistent with the PPS would mean that Site Plan Approval could not be granted.

CONCLUSION

98The Tribunal considered s. 2(i) of the Planning Act - the adequate provision and distribution of cultural facilities. Despite having regard to the cultural distribution of a Muslim cemetery, the paramount consideration of s. 2(b) - the protection of the agricultural resources of the Province weighs heavily in this decision. The Tribunal finds that it is in the public interest to preserve this prime agricultural land for the long term instead of taking the subject lands permanently out of the agricultural system.

99The Tribunal notes that there is no dispute that the subject lands are designated Agricultural in the COP and OP.

100The Tribunal finds that there is no comprehensive studies and reports by the Applicant or the Applicant’s expert witnesses to adequately address a need and locational analysis to place the proposed cemetery on the subject lands. It has not been demonstrated that the subject lands are the only location for the cemetery. There has not been any evaluation of the Rural lands in the Township (or nearby Townships that the Applicant services its community) where a cemetery can be located. The Tribunal is not satisfied that there is no alternative land to place the proposed cemetery or that this subject land is the only location for such cemetery. The fact that a prime agricultural land will be permanently removed from productive agricultural use is a stark proposition. Without demonstrating that this prime agricultural land is needed for a public interest use over that of the prime agricultural use for the province, the Tribunal will be slow to do so. Furthermore, the Applicant has the option to locate the cemetery and burial on a Rural designated land or on a lower priority agricultural land (Rural land), at the commercial cemeteries, or at the Muslim cemeteries in Ottawa and Toronto until a suitable land is found.

101The Tribunal finds that it is not in the public interest for the proposed cemetery to be established. The ZBL purpose is to implement the OP policies. Zoning is not a public interest statement and cannot be elevated as such. The decision in IN8 supports the interpretation that “the ZBL does not supersede the OP” (paragraph 33 of IN8) and that “the plain meaning of the text (is to be interpreted) within the context of the OP as a whole” (paragraph 30 of IN8). Hence, the Tribunal is to be guided by the objective and intent of the policies in the official plans in the municipality and the county.

102The Tribunal is satisfied that the proposed cemetery is not an appropriate use on the prime agricultural land i.e. the subject lands.

103The Tribunal finds, upon the preferred evidence presented by Mr. Robinson, that the proposed cemetery does not have appropriate regard for the matters of provincial interest set out in s. 2(b) of the Planning Act; is not consistent with the PPS 2020; does not conform with the Growth Plan, COP and OP.

104For all the above reasons, the Tribunal finds that establishing the proposed cemetery on the subject lands is not in the public interest.

ORDER

105THE TRIBUNAL ORDERS that the Appeal is dismissed.

“T.F. Ng”

T.F. NG

MEMBER

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.