Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 21, 2023

CASE NO(S).: OLT-23-000770

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

Applicant/Appellant: Arie and Christina Schep

Subject: Proposed Official Plan Amendment

Description: To permit an electrical service shop within an existing accessory building

Reference Number: BA OPA 2-23

Property Address: 14077 Bayham Drive

Municipality/UT: Bayham/Elgin

OLT Case No.: OLT-23-000770

OLT Lead Case No.: OLT-23-000770

OLT Case Name: Schep v. Elgin (County)

Heard: December 14, 2023 by video hearing

APPEARANCES:

Parties	Counsel
Arie and Christina Schep	Colin Leger
County of Elgin	Nicholas Loeb

MEMORANDUM OF ORAL DECISION DELIVERED BY C. Hardy ON DECEMBER 14, 2023 AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This appeal was brought by Arie and Christina Schep (“Appellant”) relating to the refusal of an application for an Official Plan Amendment (“OPA”) by the County of Elgin (“County”) for land municipally described as 14077 Bayham Drive, Bayham (“Subject Property”).

2The appeal was originally brought by the Appellant pursuant to s. 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”). Counsel for the Appellant notified the Tribunal that reference to s. 22(7) of the Act on the Appeal Form was made in error and the Appellant was pursuing the appeal pursuant to s. 17(36) of the Act. Counsel for the County did not raise any objection to the correction.

3The OPA was submitted in conjunction with an application for a Zoning By-law Amendment (“ZBA”) to permit the use of an existing building on the Subject Property as an electrical services business (“business”). The OPA would add a site-specific provision, Policy 2.1.5.2, to the Municipality of Bayham Official Plan (“Bayham OP”), permitting the business as an on-farm diversified use and secondary use to the primary agricultural use on the Subject Property.

4Bayham Council held two public meetings relating to the OPA and ZBA applications, and at the second meeting held on April 20, 2023, Bayham Council approved the OPA application and adopted Official Plan Amendment 32 (“OPA 32”), subject to approval from the upper tier approval authority, Elgin County Council. A decision on the ZBA application by Bayham Council is pending the County’s approval of OPA 32.

5County Council held two meetings relating to OPA 32, and at the second meeting held on June 27, 2023, County Council refused OPA 32, despite a recommendation of approval from County staff. The County issued a Notice of Decision dated July 7, 2023, which did not contain an explanation or reasons for the refusal. The Appellant appealed the County’s refusal to the Tribunal.

PRELIMINARY MATTERS

6The matter was originally set for a one-day Merit Hearing on December 14, 2023. Shortly before the scheduled Hearing, the Parties notified the Tribunal that a settlement had been reached that resolves the appeal. Accordingly, the Parties requested that the date for the Merit Hearing be converted to a one-day Settlement Hearing to present the proposed settlement to the Tribunal.

7The Settlement Hearing was the first and only hearing event in the proceedings, and the Tribunal confirmed that proper Notice had been provided and marked the Affidavit of Service of Nicholas Loeb affirmed December 5, 2023, as Exhibit 1. The Tribunal confirmed with Counsel that they were not aware of any requests for Party or Participant status. In addition, there were no individuals or entities present at the Settlement Hearing seeking status in the proceedings.

SUBJECT LANDS AND SETTLEMENT PROPOSAL

8The Subject Property is approximately 15.8 hectares in total area and is used for crop cultivation and residential use. It currently contains a single-detached dwelling and the business building.

9The Subject Property is surrounded by agricultural and natural heritage uses and is accessed by a local gravel road (Bayham Drive). There is a shared driveway providing access from Bayham Drive to the residential dwelling and the business building.

10The business building was constructed in 2019 and the business currently operates without municipal planning approvals. OPA 32 is part of the process that the Appellant is undertaking to bring the business into compliance. OPA 32 is site-specific and does not include the entire Subject Property, rather, it only pertains to the business.

EVIDENCE AND ANALYSIS

11Counsel for the Appellant submitted that the Parties were jointly requesting that the Tribunal allow the appeal and approve OPA 32 as adopted by Bayham Council. Counsel for the Appellant confirmed that OPA 32, which is before the Tribunal in this Settlement Hearing, remains unchanged since its approval by Bayham Council.

12The uncontested evidence in support of the proposed settlement was provided by Adam Moote, a Registered Professional Planner and full member of the Canadian Institute of Planners and the Ontario Professional Planners Institute, who was qualified by the Tribunal to provide expert opinion evidence in land use planning. In addition to providing the Tribunal with viva voce evidence, Mr. Moote provided written evidence, in the form of an Affidavit sworn December 12, 2023, which was marked as Exhibit 2.

13Mr. Moote opined that OPA 32 satisfies all legislative tests under the Act, is consistent with the Provincial Policy Statement, 2020 (“PPS”), conforms to the County of Elgin Official Plan (“County OP”) and Bayham OP and represents good planning. Mr. Moote’s recommendation to the Tribunal was to allow the appeal and approve OPA 32.

14In support of his overall conclusions, Mr. Moote reviewed the legislative tests in detail in his written affidavit. He noted that the Subject Property is located in a Prime Agricultural Area under the PPS, which permits on-farm diversified uses that are secondary to the principal agricultural use and are limited in area. Mr. Moote reviewed The Guidelines on Permitted Uses in Ontario’s Prime Agricultural Areas and the criteria setting out what constitutes an on-farm diversified use and concluded that the business satisfies the criteria and constitutes a permitted on-farm diversified use. He opined that the principal use of the Subject Property will remain agricultural and that the proposed use is consistent with the PPS.

15The Subject Property is located within the Agricultural Area designation of the County OP, which permits agricultural and secondary uses. Mr. Moote testified that the County OP lists home industries as secondary uses, and it was his opinion that the proposed use constitutes a home industry use. He took the Tribunal through a similar review of the criteria set out in Policy 2.7.1 of the County OP, setting out what constitutes a secondary use, and Policy 2.7.2, setting out what constitutes a home industry. Mr. Moote concluded that the business constitutes a secondary use and a home industry use, both of which are permitted uses, and as such, it was his opinion that the proposed use conforms with the County OP.

16Mr. Moote testified that the majority of the Subject Property, including the location of the business, is designated Agriculture under the Bayham OP. Mr. Moote reviewed the key policies of the Bayham OP that pertain to the Agriculture designation and testified that Policy 2.1.5.1 was of particular importance in this case. He opined that OPA 32 responds to this policy on a site-specific basis by permitting the business as a non-resource based secondary use and on-farm diversified use that is limited in scale and will have no impacts on surrounding agricultural uses. Mr. Moote opined that OPA 32 conforms with the Bayham OP.

FINDINGS AND DISPOSITION

17The Tribunal accepts the uncontested planning evidence and opinions of Mr. Moote and finds that the proposed use, and the planning instrument to implement this use, satisfy all legislative tests as reviewed above.

18The PPS permits on-farm diversified use as a secondary use, the County OP permits home occupation and home industries as secondary uses, and the Bayham OP permits limited non-resource secondary uses in rural areas. After reviewing the submitted materials and hearing Mr. Moote’s viva voce evidence, the Tribunal finds that the business satisfies all relevant criteria and policies, and is a permitted on-farm diversified use, secondary to the principle agricultural use of the Subject Property, and will not cause any negative impacts to the surrounding agricultural uses.

19The Tribunal is satisfied that the site-specific policies enshrined in OPA 32 will permit the proposed use, which is supportive of the overall agricultural use of the Subject Property.

ORDER

20THE TRIBUNAL ORDERS THAT the appeal is allowed, and further Orders that Amendment No. 32 to the Official Plan for the Municipality of Bayham is modified, as set out in Schedule A to this Order. The Tribunal Orders that Amendment No. 32 to the Official Plan is approved as modified.

“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.

SCHEDULE A

AMENDMENT NUMBER 32 TO THE OFFICIAL PLAN OF THE MUNICIPALITY OF BAYHAM

SUBJECT: Arie and Christina Schep 14077 Bayham Drive

The following text constitutes Amendment Number 32 to the Official Plan of the Municipality of Bayham

OFFICIAL PLAN OF THE MUNICIPALITY OF BAYHAM

THIS Amendment was adopted by the Council of the Corporation of the Municipality of Bayham by By-law No. 2023-030, in accordance with Section 17 of the PLANNING ACT, on the 20th day of April 2023.

This By-law comes into force in accordance with the issuance of the Decision of the Ontario Land Tribunal dated _______________, in OLT Case No. OLT-23-000770.

OFFICIAL PLAN OF THE MUNICIPALITY OF BAYHAM

AMENDMENT NO. 32

PURPOSE

The purpose of the Official Plan Amendment is to permit an oversized home occupation workshop as a non-resource based secondary use and an On-farm Diversified use for an electrical services business contained on a portion of subject lands and operating out of an existing building and gravel yard, specific to the subject lands. The amendment includes adding a new policy in Section 2.1.5.2 specific to the subject lands to permit the electrical services business as an on-farm diversified use.

The Official Plan Amendment would facilitate the concurrent Zoning By-law Amendment to change the zoning from site specific Agriculture (A1-29) to a modified A1-29 zone to permit a Service Shop use within the defined area of 2,700 square metres comprising the barn and parking area for the electrical business, in Zoning By-law Z456-2003.

LOCATION

The Official Plan Amendment will be applicable to lands known as BAYHAM CON 10 PT LOT 21 RP; 11R10370 PART 2 and known municipally as 14077 Bayham Drive.

BASIS OF THE AMENDMENT

The subject lands are characterized as an agricultural lot used for crop cultivation (leased to a local farmer) and residential use and comprises a single-detached dwelling and secondary use building used for material and work vehicle storage for an electrical services business. The dwelling is serviced by private water and sewer services. The subject lands are located on the south side of Bayham Drive, south of Highway 3. The property has lot frontage of 432.44 m (1,418.76 ft.) and varying lot depth, with one driveway access to Bayham Drive for the residential and business use.

Surrounding uses are agricultural and natural heritage in all directions. The farmed area, dwelling and electrical services building are located on the north and central areas of the subject lands, approximately 150 m (500 ft.) south of Bayham Drive and are accessed by one driveway from Bayham Drive.

The Provincial Policy Statement, 2020 permits on-farm diversified use as secondary use in the rural agricultural area. The Elgin County Official Plan permits home occupation and home industries as secondary uses. The Bayham Official Plan permits limited non-resource use in the rural area. The proposed Zoning By-law Amendment would bring the subject lands into conformity to the Zoning By-law. The proposed amendment is consistent to the PPS and in conformity to the Elgin County and Bayham Official Plans and the Zoning By-law.

DETAILS OF THE AMENDMENT

a) Section 2.1.5.2 of the Official Plan of the Municipality of Bayham is hereby amended to add the following subsection:

2.1.5.2 Notwithstanding Section 2.1.5.1 policy for on-farm diversified use the establishment of agri-tourism, farm related home occupations, farm related home industries and uses that produce value added agricultural products, the subject lands located at BAYHAM CON 10 PT LOT 21 RP; 11R10370 PART 2, and municipally known as 14077 Bayham Drive may have a secondary use with commercial and industrial characteristics for the operation of an electrical services business use as an on-farm diversified use to be operated within a building with maximum floor area of 520 square metres and adjacent parking and circulation yard.

The subject lands subject to this Amendment as designated “Agriculture” may be used, developed, and zoned to permit an oversized home occupation workshop as a non-resource based secondary use and an On-farm Diversified use in accordance to Section 2.1.5.2 of the Official Plan, as amended.