Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 21, 2023
CASE NO(S).: OLT-23-000990
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Galibier Materials Inc.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the expansion of the existing mineral aggregate operation (Lewis Pit)
Reference Number: OP-2022-002
Property Address: Lot 15 Concession 9 Vespra
Municipality/UT: Township of Springwater/ Simcoe County
OLT Case No.: OLT-23-000990
OLT Lead Case No.: OLT-23-000990
OLT Case Name: Galibier Materials Inc. v. Springwater (Township)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Galibier Materials Inc.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the expansion of the existing mineral aggregate operation (Lewis Pit)
Reference Number: ZB-2022-016
Property Address: Lot 15 Concession 9 Vespra
Municipality/UT: Township of Springwater/ Simcoe County
OLT Case No.: OLT-23-000991
OLT Lead Case No.: OLT-23-000990
Heard: December 15, 2023 by video hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Galibier Materials Inc. | Marc Kemerer |
| Township of Springwater | Bruce Engell |
| County of Simcoe | Samantha Trottola*, Zarah Walpole (in absentia) |
| Springwater Green Community Coalition Inc. | David Donnelly |
MEMORANDUM OF ORAL DECISION DELIVERED BY C. HARDY ON DECEMBER 15, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This first Case Management Conference (“CMC”) relates to an appeal brought pursuant to s. 22(7) and s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”) from the failure of the Township of Springwater (“Township”) to render decisions within the statutory timeframes of the Act with respect to applications for an Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) to permit the expansion of an existing mineral aggregate operation (“Lewis Pit”). The appeal has been filed by Galibier Materials Inc. (“Appellant”) regarding its property legally described as West Part of Lot 15, Concession 9, in the former Township of Vespra, now the Township of Springwater (“Subject Property”).
2A portion of the Subject Property currently contains the Lewis Pit which has a licenced area of approximately 20.16 hectares (“ha”). The proposed expansion area is largely forested lands and covers approximately 21.1 ha, with extraction proposed on approximately 17.5 ha. Surrounding property uses include: the Springwater Township gravel pit to the north; agricultural uses to the south and west; and an existing residential subdivision to the east. In addition, there is a closed landfill site located to the west of the Subject Property which is currently used as a scenic lookout.
3Counsel for the Appellant provided the Tribunal with a helpful summary of the background leading up to the appeals.
4In December 2021, the Appellant submitted an application with the Ministry of Natural Resources and Forestry (“MNRF”) for an above-water table Class ‘A’ Category 3 License (“ARA Application”). In November 2022, the Appellant submitted applications to the Township for an OPA and ZBA. The proposed OPA would redesignate the Subject Property from Settlement Area – Agriculture to Mineral Extractive. The proposed ZBA would rezone the Subject Property from Agriculture (A) to Mineral Extractive (ME). The applications would permit the expansion of the existing Lewis Pit.
5The proposed OPA and ZBA were deemed complete by the Township in December 2022 and a statutory public meeting was held on April 12, 2023. The Appellant also set up a “drop-in centre” at the Subject Property to allow the public to gain an understanding of the applications and the proposal.
6Township Council considered the OPA and ZBA applications at meetings held on April 12, 2023 and September 6, 2023 and following each consideration, deferred any decision. In September, 2023 the Appellant appealed the non-decision on the OPA and ZBA applications to the Tribunal. The ARA Application remains with MNRF and as of the date of this CMC has not been referred to the Tribunal. Counsel for the Appellant advised the Tribunal that it was anticipated that the ARA Application would be referred to the Tribunal by March, 2024 and there were currently 7 objectors remaining who were all members of Springwater Green Community Coalition Inc. (“SGCC”).
PROCEDURAL MATTERS
7The Tribunal confirmed with the Parties that there were no issues with service of Notice for the CMC and as such, no further notice is required. The Tribunal was in receipt of the Affidavit of Service of Jenny Gillegean sworn November 14, 2023, which was marked as Exhibit 1.
REQUESTS FOR STATUS
8Prior to the CMC, the Tribunal received two written requests for Party status from the County of Simcoe (“County”) and from SGCC.
9In its written request form, the County submitted that it is the upper tier municipality regarding the appeal and that the Subject Property is located directly adjacent to the County’s closed landfill site. The County noted that it would be requesting completion and implementation of a D4 study plan and requested status to ensure that its interests are met during the appeal process.
10The Township did not object to the Party status request of the County. Counsel for the Appellant did not consent to the granting of Party status to the County and submitted that, based on the submissions of the County, a D4 study was not appropriate in this case and the participation of the County would not assist the Tribunal in determining the appeal.
11Upon considering the submissions of the Parties, the Tribunal granted the request having determined that the County does have a genuine and direct interest in the matter and will assist the Tribunal in fully and effectively adjudicating the matter.
12In its written request form, SGCC explained that it is a coalition of local residents concerned about impacts to environmental quality and community compatibility arising from the proposed OPA and ZBA. Many of the SGCC members are nearby residents to the Subject Property who came together and incorporated SGCC to ensure their concerns would be considered. In his submissions, Counsel for SGCC confirmed that SGCC was an incorporated entity.
13The Appellant and the Township were supportive of the Party status request of SGCC and the Tribunal granted the request having determined that SGCC has an obvious interest in the outcome of the appeal and the Tribunal will benefit from SGCC’s involvement as a Party.
14In response to the Tribunal’s inquiry, there were no other persons or entities present at the CMC requesting Party or Participant status.
PROCEDURAL ORDER AND ISSUES LIST
15In advance of the CMC, the Parties submitted a draft Procedural Order (“PO”) with the Tribunal. Counsel for the Appellant advised that the PO would be revised to include the added Parties and the Issues List of SGCC.
16On the eve of the CMC, SGCC submitted an Issues List to the Tribunal. Given the insufficient time to review the Issues List submitted by SGCC, the absence of an Issues List from any other Party, and the outstanding ARA Application, the Tribunal was unable to approve the PO or Issues List of SGCC.
17The Tribunal encouraged the Parties to work together and submit a revised PO and complete Issues List for all Parties for review and approval on or before Tuesday, April 16, 2024.
SETTLEMENT OPPORTUNITIES
18The Tribunal recognized that given the addition of Parties at this CMC and the lack of a full and complete list of issues from the Parties, discussions regarding settlement or mediation opportunities would be premature. However, the Parties did advise that they were open to having discussions and opportunities for discussions would likely present themselves as issues get solidified.
NEXT STEPS
19Counsel for the Appellant requested that a second CMC be scheduled in April 2024 following the anticipated referral of the ARA Application. In addition, he requested that the matter be scheduled for a merit hearing in the fall, 2024 noting that the Tribunal regularly sets hearing dates in advance of a referral of an ARA matter from MNRF. The number of hearing dates requested was amended during his submissions from 10 days to 15 days “out of an abundance of caution” and it was submitted that delaying the scheduling of a hearing would prejudice the Appellant.
20All Parties were in agreement that a second CMC would be appropriate. However, Counsel for the Township and SGCC objected to the scheduling of hearing dates noting the absence of Issues Lists from all Parties and the associated unknowns of the number and disciplines of witnesses which may be called and the number of hearing days required. The Representative for the County took no position on the scheduling of a hearing.
21The Tribunal also heard submissions from the Appellant, Township and SGCC regarding the impacts of scheduling hearing dates given the anticipated ARA Application referral and its potential consolidation with the OPA and ZBA appeal. In summary, Counsel for the Appellant submitted that the Tribunal’s practice has been to schedule hearing dates in advance of an ARA referral and if the referral does not materialize, the hearing can proceed in the fall, 2024 as a planning appeal. Counsel for the Township and SGCC disagreed with this approach and submitted that if the referral occurs, the issues associated with the ARA Application need to be integrated with the planning issues and will impact the witnesses and number of days required. It was further submitted that hearing the planning appeal on its own would lead to duplication in time and resources and potentially inconsistent results.
22The Tribunal scheduled a second CMC but declined to schedule hearing dates for a number of reasons including the addition of new Parties, the lack of Issues Lists for all Parties, the lack of clarity regarding the number and disciplines of anticipated witnesses and the uncertainty in the number of days required for the hearing. For these reasons, the Tribunal determined that it was premature to set hearing dates and as such, did not need to render a decision on the appropriateness of scheduling hearing dates in the absence of the ARA Application referral.
23After canvassing the availability of Counsel, the Tribunal scheduled a second CMC by video hearing commencing at 10 a.m. on Friday, April 19, 2024. Counsel for the Appellant noted a potential conflict and the Parties agreed that if the conflict cannot be resolved, the Parties could make a request through the Case Coordinator to commence the second CMC at 9 a.m.
24The hearing is scheduled to proceed by video on Friday, April 19, 2024 at 10 a.m.
25Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
https://global.gotomeeting.com/join/709076365
Access code: 709-076-365
26Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html
27Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: +1 (647) 497-9373 or Toll Free 1-888-299-1889. The access code is 709-076-365.
28Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
1In the interest of ensuring that the second CMC is productive and efficient, the Tribunal directed the Parties to submit a draft PO and fulsome Issues Lists on or before Tuesday, April 16, 2024. Should there be disputes amongst the Parties regarding the proposed issues, the Tribunal directed the Parties to provide a list of contentious issues and their respective submissions on the contentious issues, including alternative wording if appropriate, in order to assist the presiding Member at the second CMC to be in a position to provide direction on the issues. The Tribunal directed that the list of contentious issues with submissions be submitted to the Tribunal on or before Tuesday, April 16, 2024.
ORDER
2The Tribunal orders as follows:
a) the County of Simcoe and Springwater Green Community Coalition Inc. are Parties in this proceeding;
a second Case Management Conference in this matter be held by video hearing on Friday, April 19, 2024 at 10 a.m.;
the Parties shall submit a revised draft Procedural Order and Issues Lists in accordance with the directions provided in paragraph 24.
3The Member is not seized, however, will remain available for case management subject to the Tribunal’s calendar.
4No further notice will be given.
“C. Hardy”
C. Hardy
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.