Chris Lang Farm Inc. v. St. Clair (Township), 2023 CanLII 123190

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 18, 2023

CASE NO(S).: OLT-23-000608

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

Applicant and Appellant: Chris Lang Farm Inc.

Subject: Consent

Description: To sever a farm lot to be merged with adjoining lands

Reference Number: B-07/23

Property Address: 2504 Telfer Road

Municipality/UT: St. Clair/County of Lambton

OLT Case No.: OLT-23-000608

OLT Lead Case No.: OLT-23-000608

OLT Case Name: Chris Lang Farm Inc. v. St. Clair (Township)

Heard: October 27, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
Chris Lang Farm Inc.	Wallace Lang
Township of St. Clair	Ken Strong

DECISION DELIVERED BY C. I. Molinari AND FINAL ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION AND BACKGROUND

1The Tribunal convened a settlement hearing on an appeal filed by Chris Lang Farm Inc. (“Applicant”) under s. 53(19) of the Planning Act (“Act”) against the conditions (“Conditions”) imposed by the Township of St. Clair (“Township”) Committee of Adjustment (“CofA”) on the approval of an Application for Consent (“Application”). The Application affects the lands known municipally as 2504 Telfer Road (“Property”).

2The Property is approximately 19.97 hectares (“ha”) with approximately 670 metres (“m”) of frontage on Telford Road, a depth of approximately 300 m, and is developed with a single-detached dwelling with an attached garage in the northwest corner of the Property. The southern approximately half of the Property exhibits natural features, with the remainder of the Property in active agricultural operation.

3The Property is designated ‘Agriculture’ in the County of Lambton (“County”) Official Plan (“COP”), designated ‘Agricultural’ and ‘Hazard and Environmental Protection’ in the Township Official Plan (“TOP”), and zoned 'Agricultural - 1 (A1)’ and ‘Environmental Protection - Woodlot (EP-W)’ in the Township Comprehensive Zoning By-law 17 of 2003 (“ZBL”).

4The Application sought to sever a 0.80 ha parcel at the northwest corner of the Property containing the single-detached dwelling, which the Township considered to be the severed lands (“Severed Lands”), with the approximately 19 ha retained parcel (“Retained Lands”) to be merged with the adjacent property to the east.

5The Application was approved by the CofA as an application made under section 1.12(d) of the TOP, with the Conditions requiring, among other things, that:

“the retained lands of Consent B-07-23 be merged with the adjacent farm parcel to the east, municipally known as 2219 Oil Springs Line”,
“the proponents apply for and obtain a Zoning By-law Amendment for both the severed and retained parcels to conform to Provincial policy”, and
“a septic system permit be obtained and a new septic system be installed”.

6The Applicant appealed the Conditions on the basis that the Application was made under section 1.9(e) of the TOP, which provides for the creation of new farm lots, whereas the CofA applied the Conditions on the basis of section 1.12(d) of the TOP, which provides for a severance to create a new non-farm lot to dispose of a surplus farm residence, subject to a site-specific Zoning By-law Amendment (“ZBA”) and the proposed non-farm lot meeting the requirements regarding water supply and sewage disposal.

7As such, the Applicant posited that:

the condition requiring a septic system permit to be obtained and a new septic system to be installed is invalid and unnecessary, and
the condition requiring a ZBA for both the severed and retained parcels is invalid and unnecessary since it is not a surplus farm residence severance.

8The Tribunal was advised in advance of the hearing that the Parties had settled the issues, subject to signed Minutes of Settlement (“Settlement Proposal”) and, as such, in accordance with Rule 12 of the Tribunal’s Rules of Practice and Procedure, the Tribunal convened the proceedings as a hearing on the terms of the Settlement Proposal.

LEGISLATIVE FRAMEWORK

9In considering a planning matter, the Tribunal must have regard to the relevant matters of provincial interest as set in s. 2 of the Act and, in accordance with s. 2.1(1) of the Act, to the decision of the CofA and the information and material that was considered by the CofA when making its decision.

10Further, s. 3(5) of the Act requires decisions of the Tribunal affecting planning matters to be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform to, or not conflict with, any applicable provincial plans. In this instance, there are no applicable provincial plans. The Tribunal must also be satisfied that the Application conforms with the COP and the TOP.

11When considering an appeal filed pursuant to s. 53(19) of the Act, the Tribunal must be satisfied that a plan of subdivision is not necessary for the proper and orderly development of the municipality, as required by s. 53(1) of the Act.

12Pursuant to s. 53(12) of the Act, the Tribunal shall also have regard to the matters under s. 51(24) of the Act and may impose such conditions as are determined to be reasonable, having regard to the nature of the proposed consent.

13Finally, in consideration of the statutory requirements set out above, the Tribunal must also be satisfied that the Application represents good planning and is in the public interest.

THE SETTLEMENT

14In the Settlement Proposal, the Applicant agreed that, among other things, a new septic system permit be obtained, a new septic system be installed to service the Severed Lands, and a ZBA be obtained for the Severed Lands, and that the consent be subject to the following Conditions:

That such additional severance fees, as required by the Township, are paid in full.
That the drainage assessment on the severed and retained parcels be reapportioned according to the agreement signed by the respective property owners and provided by the Municipality. If the parties cannot agree to the apportionment or if the Municipality does not approve, the applicant shall pay the engineering fees incurred by the engineer selected by the Municipality. The fees will be paid prior to stamping of the deeds.
That the retained lands of Consent B-07-23 be merged with the adjacent farm parcel to the east, municipally known as 2219 Oil Springs Line.
That the proponents apply for and obtain a Zoning By-law Amendment for the severed parcel to conform to Provincial policy.
That, if either the severed or the retained lots do not have an access culvert after the consent, then the Owners are responsible for submitting entrance permit applications, the installation and costs associated with the same.
That a septic system permit be obtained, and a new septic system be installed.
That the septic system location be included on the survey (plotted on a copy by the owner), and a copy provided to the County of Lambton Building Services Department.
That a new deed and survey is submitted to the Secretary-Treasurer showing the new lot dimensions in a form suitable for registration.

15Prior to the commencement of the hearing, the Tribunal received the Witness Statement of Corinne Nauta, who was in support of the Settlement Proposal. The Tribunal qualified Ms. Nauta, on consent, to provide opinion evidence on this matter as an expert in the Ontario Building Code (“OBC”) and sewage systems in Ontario.

16Ms. Nauta provided her professional opinion on Conditions 6 and 7 as imposed by the CofA, which wording remains unchanged in the Settlement Proposal, namely, for the Severed Lands, that a septic system permit be obtained, a new septic system be installed, and the location of the septic system be included on the survey, a copy of which is to be provided to the County.

17It was Ms. Nauta’s submission that the existing septic system, including the septic tank and weeping bed, was installed with an underdrain relief outlet connected to a ditch that outlets outside the boundary of the Severed Lands and which allows for the septic effluent to be discharged beyond the Severed Lands and further to a watercourse. Ms. Nauta proffered that this is in contravention of the Building Code Act (“BCA”).

18As explained by Ms. Nauta, s. 10.1 of the BCA states that “[n]o person shall operate or maintain a sewage system or permit a sewage system to be operated or maintained except in accordance with this Act and the building code”. Further, such a sewage system is defined in the BCA as “a leaching bed system” with a “design capacity of 10,000 litres per day or less” and “located wholly within the boundaries of the lot or parcel of land on which is located the building or buildings they serve”.

19Ms. Nauta submitted that the existing septic system has a design capacity of less than 10,000 litres per day and that, once the Property is severed, the system would no longer be permitted or approved for use under the OBC, as it would not operate in conformance with the applicable BCA and OBC provisions, including being wholly within the lot boundaries.

20Further, in her opinion, the elimination of the underdrain relief outlet would not rectify the situation, as its removal would then result in the failure of the existing system due to the presence of clay soils on the Property, as confirmed on the ‘Septic Use Permit No. 77-47’ issued for the Property in 1977.

21It was Ms. Nauta’s opinion that imposing Conditions 6 and 7 would ensure that the Severed Property is adequately serviced by a “legal private septic system” and that the “required documentation of the private septic system location is retained in the County of Lambton property records database”.

22Prior to the commencement of the hearing, the Tribunal received the Witness Statement of Kenneth Melanson, who was in support of the Settlement Proposal. The Tribunal qualified Mr. Melanson, on consent, to provide expert opinion evidence pertaining to this matter in the area of land use planning.

23Mr. Melanson provided information on the history and processing of the Application and provided a review of the policy framework applicable to the Application.

24Mr. Melanson proffered that, although he did not author the Township staff report (“Staff Report”) to the CofA, he conducted his own independent review of the Application and concurred with the author of the Staff Report, who is a member of his staff. He further proffered that he provided his own opinion on the Application and had reviewed the Act, the PPS, the COP, the TOP, the ZBL, the Staff Report, the Application package, and the appeal documents. In addition, he advised that he undertook a site visit.

Policy Framework

25Mr. Melanson opined that the Application, with the Conditions as modified through the Settlement Proposal, has regard for matters of provincial interest, is consistent with the policies of the PPS, and maintains the intent and purpose of, and conforms to, both the COP and the TOP.

The [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

26With respect to Section 2 of the Act, Mr. Melanson opined that the Application, with the Conditions as modified through the Settlement Proposal, has regard for the relevant matters of provincial interest, namely s. 2(b), 2(h), 2(j) and 2(o), in that it:

“helps to protect agricultural resources (2b) by allowing farmable areas to be consolidated with an adjacent farm parcel, while allowing a dwelling to be retained to support rural population (2j).”, and
“ensures the orderly development of safe and healthy communities by ensuring sewage disposal is properly disposed of and a lotting pattern that is consistent with a rural area (2h). Public Health and safety is protected by applying conditions to ensure proper sewage disposal and inspection is carried out (2o)”.

27Further, Mr. Melanson added that the septic system would be an OBC-compliant sewage system, supporting a healthy community, and that the severance of the existing dwelling would help to retain the rural population in the Township.

PPS

28Mr. Melanson opined that the Application, with the Conditions as modified through the Settlement Proposal, is consistent with the PPS as it meets policy 1.1.1 related to healthy, livable, and safe communities, policy 1.1.4 related to rural areas, policy 1.6.6 related to sewage services, and policy 2.3.4 related to lot creation. It was his opinion that these policies are met by:

“retaining a dwelling unit which can then be sold at market rate, providing much needed rural housing”, and ensuring “proper sewage disposal systems are provided”,
“allowing development that buildings upon the rural character and promotes regeneration (which can include reuse) of existing development”,
imposing Conditions 6 and 7 regarding requiring a new septic system, and
“allow[ing] a severance for a residence surplus to a farming operation”, requiring a rezoning of the Severed Lands “to conform to Provincial policy”, and requiring the Retained Lands to be merged with the adjacent farm property to the east.

COP

29With respect to the COP, Mr. Melanson advised that all areas designated ‘Agriculture’ are considered ‘Prime Agricultural Areas’ as per policy 3.2.5. He proffered that the Application, with the Conditions as modified through the Settlement Proposal, meets the policies of the COP. It was his opinion that these policies are met by:

imposing Conditions 6 and 7 regarding requiring a new septic system,
allowing the severance for a surplus farm dwelling and limiting the size of the Severed Lands to the minimum size needed to accommodate the use, and
requiring a rezoning of the Severed Lands.

TOP

30Mr. Melanson provided some background to the assertion by the Applicant, and the basis for the Appeal, that the Application was made under policy 1.9 of the TOP.

31Policy 1.9 of the TOP provides for the creation of ‘new farm lots’ and permits them subject to five compulsory requirements, including that “the severed and retained lots are of sufficient size for agricultural use” and the Severed Lands be a minimum of 40 ha. Mr. Melanson advised that this policy cannot be met by the Application since the Severed Lands will not contain farmland and will not meet the minimum lot area requirement.

32Mr. Melanson advised that policy 1.12(d)(i) of the TOP permits a consent to create a new non-farm residential lot in the Agricultural designation in order to dispose of a surplus farm residence if the following criteria, among others, are met:

“the surplus farm residence is one of two or more existing habitable farm residences built prior to 1978 and is surplus to the farm”, or
the surplus farm residence is “an existing farm residence that is rendered surplus as a result of farm consolidation, meaning the acquisition of additional farm parcels to be operated as one farm operation”.

33Mr. Melanson proffered that the Application must be considered under policy 1.12(d) and that the Application, with the Conditions as modified through the Settlement Proposal, meets the policies of the TOP, which permits a consent to create a new non-farm residential lot in the Agricultural area in order to dispose of a surplus farm residence if certain criteria are met. It was his opinion that the policies and criteria are met as the Application is for one surplus farm lot and by:

requiring a rezoning of the Severed Lands,
imposing Conditions 6 and 7 regarding requiring a new septic system,
ensuring that the Severed Lands meet the Province’s Minimum Distance Separation setback requirements from livestock facilities,
ensuring that the Severed Lands has direct access to Telford Road, which is a municipally maintained public road, and
limiting the size of the Severed Lands to minimize the amount of land taken out of agricultural use and ensuring that the lot conforms to the lot size requirements of the ZBL as a surplus farm residence.

34Mr. Melanson opined that the Application, with the Conditions as modified through the Settlement Proposal, achieves the policies of the TOP as a surplus farm residence.

ZBL

35Mr. Melanson confirmed that the Application, with the Conditions as modified through the Settlement Proposal, meets the requirements of the ZBL provided that the Severed Lands is rezoned to the ‘Agricultural A1-R (Non-Farm Rural Residential) Zone’ and the Retained Lands is merged with the adjacent agricultural property to the east.

Conditions

36Mr. Melanson advised that the Conditions imposed through the Settlement Proposal are “reasonable, relevant, necessary, and equitable to achieve sound planning and protect the public interest in achieving good development” and are consistent for a severance for a surplus farm residence. He clarified that the CofA condition requiring a rezoning of the Retained Lands is unnecessary since it will be consolidated with an adjacent agricultural property, and that the corresponding condition in the Settlement Proposal requiring only the rezoning of the Severed Lands is appropriate.

Conclusions

37It was Mr. Melanson’s submission that the Application, with the Conditions as modified through the Settlement Proposal, is consistent with the applicable policies of the PPS, conforms to the policies of the COP and TOP, and represents good planning.

ANALYSIS AND FINDINGS

38The Tribunal accepts the uncontroverted evidence of Ms. Nauta related to the OBC and sewage systems in Ontario and the inclusion of Conditions 6 and 7, and the planning opinion evidence of Mr. Melanson in support of the Settlement Proposal.

39In consideration of the evidence of both Ms. Nauta and Mr. Melanson and the revisions to the Conditions resulting in the settlement of the appeal, the Tribunal is satisfied that the Application, with the Conditions as modified through the Settlement Proposal, has sufficient and proper regard for the applicable matters of provincial interest as set out in s. 2 of the Act, is consistent with the PPS, and conforms to the policies of both the COP and the TOP.

40Accordingly, the Tribunal approves the Conditions, as modified.

ORDER

41THE TRIBUNAL ORDERS that the appeal is allowed and the conditions to the Decision of the Township of St. Clair Committee of Adjustment dated May 29, 2023 are amended as set out in Attachment 1 to this Order. Such conditions are to be completed within two years from the date of this Decision.

“C. I. Molinari”

C. I. MOLINARI

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.

ATTACHMENT 1