Ministry of Natural Resources and Forestry

Office of the Minister

99 Wellesley Street West Room 6630, Whitney Block Toronto ON M7A 1W3 Tel: 416-314-2301

Ministère des Richesses naturelles et des Forêts

Bureau du ministre

99, rue Wellesley Ouest Bureau 6630, Édifice Whitney Toronto ON M7A 1W3

Tél.: 416 314-2301

93-2023-938

January 15, 2024 Andrew Biggart

abiggart@ritchieketcheson.com

NOTICE OF DECISION

made under the provisions of the Niagara Escarpment Planning and Development Act, R.S.O. 1990

Niagara Escarpment Hearing Office Case No. OLT-21-001643

NEC File No.: S/A/2020-2021/469

Dear Andrew Biggart:

Re: Phil Dyment, Mark Wallace, John MacDonald and Jill Kantelberg appellants against the Niagara Escarpment Commission’s conditional approval of an application for a development permit made by Rainbow Water Farms Inc. (OLT- 21-001643) for an on-farm diversified use (Agri-tourism and sale value-added products) on an existing lot, a new shed to process the crop and host visitors, and a 50-car parking area on the property known municipally as 2752 Concession 8, Nottawasaga South, Township of Clearview.

Pursuant to section 25 of the Niagara Escarpment Planning and Development Act, a panel of the Ontario Land Tribunal, in its role as the Niagara Escarpment Hearing Office (the “HO”), has conducted a hearing at which representations were made respecting the NEC’s decision on the above-noted application. The HO has reported to me a summary of the representations together with their opinion on the merits of the decision.

After considering the HO’s report (copy attached), I refuse the Development Permit application.

Sincerely,

The Honourable Graydon Smith

Minister of Natural Resources and Forestry Attachment

c: Ian Thornton, Acting Manager, Niagara Escarpment Commission ian.thornton@ontario.ca

Trevor Griffin, Acting Director, Niagara Escarpment Commission trevor.griffin@ontario.ca

Rainbow Water Farms Inc. jimmuzyka@rogers.com

Konstantine Stavrakos stavrakos@omh.ca

David Bronskill dbronskill@goodmans.ca

Phil Dyment phil.dyment@gmail.com

John MacDonald jmacdonald@morganbay.com

Mark Wallace mark.wallace@cority.com

Jill Kantelberg jill@kantelbergco.com

ISSUE DATE:

February 21, 2023

CASE NO(S).:

OLT-21-001643

PROCEEDING COMMENCED UNDER subsection 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended

Appellant:

Phil Dyment (File No. 001829)

Appellant:

John MacDonald (File No. 001830)

Appellant:

Mark Wallace (File No. 001831)

Appellant:

Jill Kantelberg (File No. 001832)

Applicant:

Rainbow Water Farms Inc.

Respondent:

Niagara Escarpment Commission

Subject of Appeal:

Approval of a Development Permit Application for an on-farm diversified use, (agri-tourism and sale of value-added products) on an existing lot for planting lavender and roses, a new shed to process the crop and host visitors and 50-car parking area

Reference No.:

S/A/2020-2021/469

Property Address/Description:

2752 Concession 8 Nottawasaga South

Municipality:

Township of Clearview

Upper Tier:

County of Simcoe

OLT Case No.:

OLT-21-001643

OLT Case Name:

Dyment v. Ontario (Niagara Escarpment Commission)

Heard:

January 9 to 20, 2023 by video hearing

APPEARANCES:

Parties

Counsel

Phil Dyment

Konstantine Stavrakos

Mark Wallace

John MacDonald

Jill Kantelberg

David Bronskill

Rainbow Water Farms Inc.

R. Andrew Biggart

REPORT DELIVERED BY C. HARDY AND C.I. MOLINARI AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Recommendation arises from a hearing brought before the Ontario Land Tribunal, in its role as the Niagara Escarpment Hearings Office (“Hearing Office”), regarding an appeal brought pursuant to s. 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended (“Act”).

2The Niagara Escarpment Commission (“NEC”) conditionally approved a Development Permit Application No. S/A/2020-2021/469 (“Permit”) relating to the property located at 2752 Concession 8 Nottawasaga South, Township of Clearview (“Subject Property”). Rainbow Water Farms Inc. (“Applicant”) applied for the Permit for an on-farm diversified use (agri-tourism and sale of value-added products) (“OFDU”) on an existing lot for planting lavender and roses, a new shed to process the crop and host visitors and a 50- car parking area described in more detail below (“Proposal”).

3Phil Dyment, Mark Wallace, John MacDonald and Jill Kantelberg (collectively, the “Appellants”) are all owners of separate properties in close proximity to the Subject Property. The Appellants are unified in their opposition to the Proposal and the Permit application.

4The matter was previously the subject of a Case Management Conference (“CMC”) and has been governed by a Procedural Order (“PO”) and Issues List. On consent of the Parties, the Applicant was granted Party status at the CMC.

SUBJECT PROPERTY

5The Subject Property is approximately 40.5 hectares (“ha”) bounded by agricultural lands to the north, west and south and Concession 8 to the east. The Subject Property has an existing driveway connection to Concession 8. The Subject Property mainly consists of undulating topographic conditions and contains lavender and hay crops, a shed and the foundation of a historical barn. There is a watercourse bisecting the central portion of the Subject Property.

6The Subject Property is designated as Escarpment Protection Area and Escarpment Natural Area by the Niagara Escarpment Plan (“NEP”). It slopes upwards to the west with the western steeply sloped forested portion designated Escarpment Natural Area. The remainder of the Subject Property is designated Escarpment Protection Area and is where the proposed OFDU is to be located.

7The Subject Property is identified within the Niagara Escarpment Plan Area (“NEP Area”) by the County of Simcoe Official Plan (“County OP”) and the Township of Clearview Official Plan (“Township OP”) and both OPs apply the same designations to the Subject Property as the NEP. Ontario Regulation 59/05 of the Greenbelt Act designates the Subject Property within the Greenbelt Area. The provincial Agricultural System land base mapping of prime agricultural areas issued by the Province on February 9, 2018, does not designate the property as Prime Agricultural Area (“PAA”).

PROPOSAL AND APPLICATIONS

8As set out in the NEC Notice of Decision, the Proposal before the NEC was for development and a change in use of the Subject Property to:

1. Establish a lavender and rose cultivation farm and OFDU;

2. Allow paying visitors to visit the farm on a limited basis (9 a.m. to 6 p.m., June, July and August), to tour, observe processing and purchase products produced with the farm’s crops in the retail outlet (beverage sale limited to lavender-scented lemonade and bottled water);

3. Employ 4 full-time and a dozen seasonal employees;

4. Repair/renovate the existing +/- 325.5 square metre (“m2”) (+/- 3,500 square feet (“ft2”) agricultural shed to be used to store equipment and crops in support of the agricultural use;

5. Construct a +/- 1,350 m2 (+/- 14,486 ft2) visitor parking area to be surfaced with gravel, with capacity for 50 cars;

6. Construct a single storey 130 m2 (1,400 ft2) visitor/processing shed to support the OFDU;

7. Regrade and widen the existing driveway and surface with gravel;

8. Secure existing barn foundation remains as a landscape feature.

9The NEC Staff Report dated July 15, 2021, and Addendum dated August 31, 2021, both recommended refusal of the Permit application for the OFDU portion of the application. On September 16, 2021, the NEC approved the application with conditions and on October 4, 2021, the NEC issued a Notice of Decision conditionally approving the Permit application.

HEARING

10Prior to the commencement of the hearing, the Hearing Office was notified by the NEC that they would not attend the hearing and would rely on the NEC Staff analysis and the NEC meeting minutes which provide reasons for the conditional approval of the Permit application.

11Phil Dyment, Mark Wallace and John MacDonald were represented by Konstantine Stavrakos. Jill Kantelberg was represented by David Bronskill. The Appellants were aligned in their opposition to the NEC conditional approval of the Permit application and worked together in the appeal, but for retaining their own Land Use Planning Experts.

Issues

12An appeal of a development permit requires the Hearing Office to make a determination whether the decision of the NEC to conditionally approve the Permit was “correct and should not be changed”, as specified in s. 25(12)(a) of the Act. In making this determination, the Hearing Office must consider whether the Permit conforms with the Niagara Escarpment Plan, 2017 (“NEP”), is consistent with policy documents including the Provincial Policy Statement, 2020 (“PPS”) and conforms with provincial plans including A Place to Grow: Growth Plan for the Greater Golden Horseshoe 2019, as amended (“Growth Plan”).

13There were a number of sub-issues identified by the Parties on an Issues List, which was attached to the PO and filed with the Hearing Office prior to the commencement of the hearing. During the course of the hearing, it became apparent that the main dispute between the Parties is whether the Subject Property could be considered Prime Agricultural Land (“PAL”) and located in a PAA without being mapped as such in the provincial Agricultural System mapping. The Tribunal must determine whether the decision of the NEP to grant the Permit is correct and should not be changed, taking into account the need for compliance with the Act, conformity with the NEP and Growth Plan, and consistency with the PPS, and if not, whether the addition of revised terms and conditions would make it so that the decision is correct and should not be changed.

14Prior to the commencement of the hearing, the Parties advised the Hearing Office that there would be no experts called related to servicing and that servicing issues on the Issues List would not be addressed.

Discussion and Analysis

15Throughout the course of the hearing, the Hearing Office heard oral submissions from counsel, all of whom referenced a comprehensive Joint Document Book, Joint Witness Statement Book and Supplementary Joint Document Book, which were entered into the record as Exhibits 1, 2 and 3 respectively.

16Opinion evidence was heard from the following witnesses, all of whom were qualified without objection:

• For the Applicants:

• Alexander Fleming, Transportation Engineering and Transportation Planning

• Edward Mozuraitis, Agrology

• Andrew Pascuzzo, Land Use Planning

• For the Appellants:

• Michael Cullip, Transportation

• Michael Hoffman, Agrology

• Michael Wynia, Land Use Planning (on behalf of Mr. Dyment, Mr. Wallace and Mr. MacDonald)

• Steve Edwards, Land Use Planning (on behalf of Ms. Kantelberg).

17The Hearing Office takes note of the fact that the County of Simcoe (“County”) is currently in the process of a Municipal Comprehensive Review (“MCR”) and refining the provincial agricultural land base mapping as part of this process. As mentioned by all Parties, this process has been started but is not complete.

Relevant Legislation

18The relevant provisions in s. 25 of the Act are as follows:

Report

25(11) Within 30 days after the conclusion of the hearing or within such longer period as the Minister may permit, the officer appointed shall report to the Minister a summary of the representations made, together with his or her opinion on the merits of the decision.

Deemed confirmation

(12) The decision of the delegate shall be deemed to be confirmed if,

(a) the opinion of the officer expressed in his or her report under subsection (11) is that the decision of the delegate was correct and should not be changed; and

(b) the decision of the delegate was not appealed by a municipality.

Power of Minister

(14) If the decision of the delegate has not been deemed to be confirmed under subsection (8.3), (9), (10.2), (12) or (12.1), the Minister, after giving consideration to the report of the officer, may confirm the decision or may vary the decision or make any other decision that in his or her opinion ought to have been made and the decision of the Minister under this section is final.

Evidence and Submissions

Applicant Submissions

19The Applicant submitted that development permits are unique within the NEP Area and are intended to ensure development complies with the purpose and objectives of the NEP. NEC Staff found that the proposed OFDU does not negatively impact the Niagara Escarpment environment and complies with the overall purpose and objectives of the NEP. The Applicant argued that the Permit application should be assessed against the definition found in the NEP. The Applicant further submitted that the determination of whether an area is a PAA is a question of fact and one that the Hearing Office should make with respect to the Subject Property.

20At the commencement of the hearing, Mr. Pascuzzo provided a non-opinion factual overview of the history of the Permit application and the appeal.

21With respect to transportation matters, Mr. Fleming opined that the Proposal was supportable from a traffic operations perspective. Mr. Fleming explained that the Subject Property’s driveway connects to Concession 8, which is a north-south local paved road with one lane in each direction. Concession 8 has granular shoulders and the posted speed limit is 80 kilometres per hour (“km/h”). The Subject Property is approximately at the midpoint of Concession 8, between County Road 124 to the north and County Road 9 to the south.

22Mr. Fleming testified that there were two considerations with respect to traffic safety. First, a driver on Concession 8 must have sufficient sight distance to see a stopped vehicle or other obstruction at the Subject Property driveway. Second, a driver leaving the Subject Property must have sufficient sight distance to see what is coming from the north and the south prior to entering Concession 8 from the driveway. Mr. Fleming went into a detailed analysis in his testimony and concluded that there were no sight distance concerns arising from the Proposal.

23In addition, Mr. Fleming testified that there are no traffic operational concerns associated with the proposed development, that all trip generation methods resulted in a Level of Service “A” and that site traffic volumes, beyond what was assessed, could be accommodated by the transportation network.

24With respect to parking, the Permit contained conditions which included a maximum parking capacity of 50 cars for staff and visitors, a maximum of 120 cars per day and a reservation system to limit the number of visitors and control traffic flow. Mr. Fleming opined that these restrictions are appropriate and will restrict visitation to a level that will not cause undue traffic impacts to the transportation network.

25In cross-examination, Mr. Fleming agreed that his analysis of using a public park as a comparison was imperfect but was the best comparable. Mr. Fleming testified that based upon the information that he was provided, he was unsure what would happen if guests arrived without a reservation, where the check-in process would occur and whether a reservation was required to attend to the property to buy lavender product but not tour the site. These questions were put to Mr. Fleming on cross-examination to question whether these situations would result in a queuing of vehicles on Concession 8 or a lack of parking spaces. Mr. Fleming answered that he did not know what system the Applicant would develop to control these situations.

26Mr. Mozuraitis testified that he was retained by the Applicant to review the agricultural soil capability of the Subject Property. He opined that the Permit is consistent with the PPS, does not conflict with the NEP and conforms to the GP, Simcoe OP and Township OP and determined that the Permit conditions as imposed by the NEC were enforceable and appropriate.

27Prior to submitting the Permit application, the Applicant had been advised that the Subject Property’s soil was rated Class 7T, meaning no capability for arable agriculture or permanent pasture, limited by topography. The Applicant questioned the rating and retained Mr. Mozuraitis to conduct a soil study which included a visit to the Subject Property. Mr. Mozuraitis testified that when he reviewed air photography of the area, the rectangular fields indicated that the soils would be at a minimum Class 4.

28Mr. Mozuraitis took the Hearing Office to the definitions of PAA and PAL in the NEP:

Prime agricultural area: An area where prime agricultural lands predominate. This includes areas of prime agricultural lands and associated Canada Land Inventory Class 4 through 7 lands, and additional areas where there is a local concentration of farms that exhibit characteristics of ongoing agriculture. Prime agricultural areas may be identified by the Ontario Ministry of Agriculture and Food using guidelines developed by the Province as amended from time to time. A prime agricultural area may also be identified through an alternative agricultural land evaluation system approved by the Province (Provincial Policy Statement, 2014).

Prime agricultural land: Speciality crop areas and/or Canada Land Inventory Class 1, 2 and 3 lands, as amended from time to time, in this order of priority for protection (Provincial Policy Statement, 2014).

29Mr. Mozuraitis explained that the Canada Land Inventory (“CLI”) is a system that evaluates categories of soils and classifies them into seven groups according to their potentials and limitations. Class 1 is considered to have no limits for agricultural production and Class 7 is considered to have no capability for agricultural production.

30Mr. Mozuraitis concluded that 64% of the Subject Property contains PAL and opined that the existing mapping is incorrect and requires refinement. He testified that the Subject Property does not contain Class 7 soils. The results of his Soil Survey dated June 25, 2021 determined that the Subject property is made up of Classes 1 through 6 soils.

31Based on the results of his analysis, Mr. Mozuraitis determined that a review of the broader area should be conducted in order to ensure the Subject Property is not an anomaly. He testified that this subsequent study was done remotely using geological and slope information since permission was not obtained to enter on surrounding properties generally within the concession block surrounding the property (“Study Area”). Mr. Mozuraitis explained that he did not find any Class 7 soils in the Study Area and grouped Class 1-3 soils and Class 4-7 soils together. He testified that, based on his analysis, the Study Area had large swaths of PAL with a lack of land fragmentation.

32Mr. Mozuraitis noted that the NEP permits OFDUs in the Escarpment Protection Area but only in PAAs. Mr. Mozuraitis’ study concluded that the soil capability for agriculture in the Study Area was much higher than demonstrated in the CLI mapping and as such, he opined that the Study Area should be classified as a PAA.

33Mr. Mozuraitis testified that it is uncontested that the portion of the Subject Property where the proposed OFDU is to be located is designated as Escarpment Protection Area. He noted that PAAs can contain some Class 7 soils, but that Classes 1-3 soils must predominate. He opined that OFDUs should be permitted on the Subject Property as the soil study and the historical photos (Exhibits 4A – 4D) show that on-going agriculture has been occurring on the Subject Property and both demonstrate that the Subject Property and the Study Area meet the NEP definition of PAA. The Applicant argued that this alone meets the definition of PAA and the Hearing Office need not conduct any further analysis nor look to the provincial mapping.

34In cross-examination, Mr. Mozuraitis acknowledged that s. 2.3.2 of the PPS states that PAAs are to be designated by planning authorities such as municipalities and the Province, not by individuals and once identified, shall be protected. He further acknowledged that s. 4.2.6.2 of the Growth Plan states that PAAs will be designated in accordance with mapping identified by the Province and once designated, will be protected for long-term use. Mr. Mozuraitis responded that the provincial mapping for the Study Area is wrong based on his soil study and as such, he used the NEP definition of PAA to identify the Subject Property. When questioned further, Mr. Mozuraitis agreed that one cannot ignore the Province and that individuals cannot change designations. He agreed that his study was provided to the County in the hopes that they will refine the mapping during the MCR process and further agreed that designations and mapping are ultimately municipal decisions.

35Mr. Mozuraitis was questioned on the consequences flowing from a PAA designation pursuant to the GP and PPS in terms of limits on permissions. He agreed that one of the reasons PAA land designations are public processes is to allow landowners to have input and in this case, his study was not circulated to surrounding landowners who would have limitations imposed on their lands if they are in the Study Area and designated PAA.

36In terms of a Land Evaluation and Area Review (“LEAR”) study, Mr. Mozuraitis agreed in cross-examination that his study was not a LEAR study because he did not complete the two required components (Land Evaluation and Area Review) and as such, it was a CLI study. He further agreed that the Province does not state that PAAs can be determined on the basis of a CLI study, but requires a LEAR study if not already identified by the Province. However, the Applicant argued that a LEAR study is only required when seeking to designate land as within PAAs. In this case, the Applicant is not seeking a designation that this is PAA, and as such, Mr. Mozuraitis’ study is sufficient to demonstrate that the Subject Property is already within a PAA as defined in the NEP and a development permit should be issued.

37Mr. Pascuzzo was retained by the Applicant to provide land use planning services related to the Permit application and the appeal. Mr. Pascuzzo reviewed how the proposed OFDU would operate. The online reservation system would use a ticketing app that would allow scheduling five days per week during June, July and August only. There would be three two-hour visitation periods which would limit the number of cars on site to 40 per period and 120 vehicles per day, which would allow 10 parking spaces for employees. There is a gate located at the driveway entrance off of Concession 8 where vehicles will be met by employees who will check them in and direct them to the parking lot.

38Mr. Pascuzzo opined that the Proposal is consistent with the PPS, does not conflict with the NEP and conforms to the GP, Simcoe OP and Township OP and recommended that the Hearing Office find that the decision of the NEC to approve the Permit was correct, however, he proposed amended wording of the conditions, discussed below.

39Mr. Pascuzzo’s opinion is that the Permit allowing the OFDU is in keeping with the purpose and objectives of the NEP as it will allow enjoyment of the natural areas without causing any harm. Mr. Pascuzzo noted the importance of ongoing agricultural activities taking place on the Subject Property and surrounding area. His policy review primarily focused on policies found in the NEP and the Growth Plan.

40Mr. Pascuzzo reviewed the purpose and objectives of the NEP and opined that the proposed OFDU conforms with the purpose of the NEP as the Proposal is compatible with the natural environment. The objectives of the NEP are:

1. To protect unique ecologic and historic areas;

2. To maintain and enhance the quality and character of natural streams and water supplies;

3. To provide adequate opportunities for outdoor recreation;

4. To maintain and enhance the open landscape character of the Niagara Escarpment in so far as possible, by such means as compatible farming or forestry and by preserving the natural scenery;

5. To ensure that all new development is compatible with the purpose of the Plan;

6. To provide for adequate public access to the Niagara Escarpment; and,

7. To support municipalities within the Niagara Escarpment Plan Area in their exercise of the planning functions conferred upon them by the Planning Act.

41Mr. Pascuzzo opined that the proposed OFDU meets objectives 3, 4, 5 and 6 as it will allow the public to walk on the property and access the views and scenery of the Niagara Escarpment and the proposed lavender production facility will be small in scale and hidden from view. He further opined that the proposed OFDU does not conflict with 1, 2 and 7 as there is no reason to believe that there are any unique ecological or historic areas where the proposed lavender production facility will be located and the watercourse bisecting the property will not be negatively impacted.

42Mr. Pascuzzo reviewed the NEP and explained that Part 1 contains land use policies that include land use designations and Part 2 contains development criteria that determine how a proposed development should be carried out. If the proposed development is not a permitted use and does not meet Part 1, then there is no need to review Part 2.

43Mr. Pascuzzo went on to review s. 1.4 in the NEP relating to the Escarpment Protection Area as this is the land designation on the Subject Property where the proposed OFDU will operate. Section 1.4.3 sets out permitted uses in the Escarpment Protection Area and Mr. Pascuzzo opined that the Subject Property currently complies with s. 1.4.3.1, which permits agricultural uses, as lavender and hay are existing crops. Section 1.4.3.2 permits “(A)griculture-related uses and on-farm diversified uses, in prime agricultural areas”. Mr. Pascuzzo reviewed the definition of PAA in the NEP (see paragraph 28 above) and was of the opinion that the Subject Property meets the first two sentences as Mr. Mozuraitis concluded that 64% of the Subject Property contained PAL and he observed ongoing agriculture during his site visit. He encouraged the Hearing Office to find as a fact that the lands are in a PAA as defined in the NEP and opined that this finding would not impact the planning policies in the Province, County or Township, nor the MCR process currently underway in the County. He further opined that by meeting the first two sentences of the definition of PAA, there was no need to refer to the remainder of the definition.

44During cross-examination, Mr. Pascuzzo agreed that the Applicant was asking the Hearing Office to make a factual finding that the Study Area is in a PAA. He agreed that Mr. Mozuraitis’ second study and conclusions had not been provided to surrounding landowners but had been provided to the County as input to the MCR. He further agreed that this approach could result in adjacent properties in the Study Area having different designations (some PAA and some non-PAA). Mr. Pascuzzo agreed that s. 1.4.3.2 was not met and that the NEC cannot issue a development permit if the proposal is not a permitted use. However, he maintained that it is his opinion that a factual finding can be made by the Hearing Office that the Subject Property is within a PAA and therefore, the use is permitted.

45Mr. Pascuzzo testified that there is no requirement to complete the MCR and refine the mapping in order to grant the Permit because the lands are in a PAA as defined in the NEP and as such, no mapping exercise is required. He referred to the NEC Staff Report dated November 17, 2021, which he testified shows that the NEC acknowledges “there is an issue and they are dealing with it”. Mr. Pascuzzo noted that one of the summary recommendations in that report emerged from concerns related to OFDUs and NEC Staff recommend removing the restriction only permitting OFDUs in PAAs. He is of the opinion that the Subject Property can be identified as being within a PAA under the NEP for the purpose of granting a development permit.

46Mr. Pascuzzo opined that the proposed OFDU is a permitted use under Part 1 of the NEP and continued to a review of s. 2.8.7 development criteria (Part 2). Section 2.8.7 states:

On-farm diversified uses are subject to the following criteria:

a) The use is located on a farm that is actively in agricultural use;

b) The use is secondary to the principal agricultural uses of the farm;

c) The use shall be compatible with and shall not hinder surrounding agricultural operations and other land uses;

d) The use is appropriate to available rural services and infrastructure;

e) The use maintains the agricultural/rural character of the area;

f) The impact of multiple uses in prime agricultural areas is limited and does not undermine the agricultural nature of the area;

g) The use is limited in area to up to two (2) per cent of a farm lot, to a maximum of 10,000 square metres;

h) The gross floor area of buildings used for on-farm diversified uses is limited to 20 per cent of the maximum area allowed for on-farm diversified use as set out in s. 2.8.7(g);

i) Existing buildings, structures or facilities on the property, that are no longer needed to support agricultural uses, should be used where possible;

j) All buildings, structures and facilities, including parking areas, associated with the use shall be designed and located to have minimal impact on agricultural uses in the area and the Escarpment’s open landscape character; and

k) The land supporting the use shall not be severed from the farm lot exclusively for the on-farm diversified use.

47Mr. Pascuzzo concluded that the existing lavender farm and proposed OFDU are not in conflict with any of the development criteria. In cross-examination, Mr. Pascuzzo was questioned about his interpretation of (g) total area and (h) building size restrictions. He disagreed that the total area proposed for the OFDU is 13.5 ha as the provincial Guidelines on Permitted Uses in Ontario’s Prime Agricultural Areas (“Guidelines”) state that harvestable crop is not included in the calculation. He noted that the reservation system will limit the number of guests and vehicles but did note that he was not aware of any planning instrument that sought to impose a use area limit using this approach. It is Mr. Pascuzzo’s opinion that the proposed OFDU meets both Parts 1 and 2 of the NEP. Mr. Pascuzzo acknowledged that the reference in the Guidelines he referred the Hearing Office to was with respect to ‘intermittent uses’ but that the proposed use could be interpreted as an intermittent use as it was only to operate annually for three months during the summer.

48Mr. Pascuzzo reviewed s. 4.2.6 in the Growth Plan relating to the Agricultural System. He testified that he agreed with Mr. Mozuraitis’ conclusion that the Subject Property is located in a PAA based on the soil study’s determination that 64% of the soils are PAL and there are existing agricultural uses in the area. Mr. Pascuzzo testified that the provincial mapping is meant as a roadmap for future designation of lands in upper- and lower- tier Official Plans and does not prohibit the finding by the Hearing Office that the Subject Property is located in a PAA as defined in the NEP. The mapping can be further refined during the MCR exercise that the County is currently undergoing. He advised that Mr. Mozuraitis’ reports and mapping have been submitted to the County to be considered as part of the MCR. Mr. Pascuzzo reiterated his opinion that if the Hearing Office finds the Subject Property is within a PAA as defined in the NEP, this will not pre-determine the outcome of the MCR. These are land use designations that will occur at a later date and are independent of this hearing.

49During cross-examination, Mr. Pascuzzo acknowledged that the draft mapping released by the County as part of the ongoing MCR process does not include the Subject Property in the proposed PAA, however, he noted that this remains draft data and it appears that the Applicant’s request to be included in the PAA has not yet been considered. He further agreed that within the Greenbelt Area, the provincial agricultural land base mapping applies and land use planning decisions must conform to the mapping until refined through an OP review or MCR as approved by the Province. Mr. Pascuzzo agreed that refinements to mapping cannot be accomplished through this hearing and that the Hearing Office must look to the provincial agricultural land base mapping to determine if the Subject Property is in a PAA.

50During his testimony, Mr. Pascuzzo reviewed the conditions imposed by the NEC and opined that he would recommend amendments. He recommended that the conditions extend in perpetuity so long as the Applicant was the owner of the Subject Property, rather than expire within three years or once the development is completed. He also recommended changing the use of the word “cars” to the more general term “vehicles”. During cross-examination, Mr. Pascuzzo agreed that he does not have any knowledge of a NEC development permit being approved with conditions that have no expiry and noted that he did not consult with the NEC to determine whether such a condition would be enforceable.

51The Applicant submitted that it is not seeking to amend any of the conditions in the Permit and is asking the Hearing Office to deny the appeal outright, despite the testimony of the Applicant’s planner recommending changes to the conditions.

52The Applicant argued that it is in an untenable situation since the County and Township have not completed an MCR and refined the mapping to include the Subject Property in a PAA which would permit the OFDU use. The evidence has shown that the Subject Property is located in a PAA and the issuance of a development permit will not cause the redesignation of land nor impact the land use permissions of surrounding landowners.

Appellants’ Submissions

53The Appellants were aligned in their position that the appeal should be allowed and the decision of the NEC should be deemed incorrect and should be changed. The Appellants argue that the policy structure in the Province is not optional and cannot be waived based on an individual landowner’s desire.

54The Appellants argue that the majority of the Subject Property is designated as Escarpment Protection Area, which allows, among other things, agricultural uses but OFDUs are only permitted on lands within a PAA and the Subject Property has not been identified as such. The Hearing Office is being asked by the Applicant to ignore the provincial mapping that is in force and by-pass the refinement process that is in place. The Appellants argue that the Hearing Office is further being asked by the Applicant to recommend approval of a Permit with incoherent conditions, some of which are unenforceable.

55With respect to transportation matters, Mr. Cullip reviewed the studies completed by Mr. Fleming and concluded that there were incorrect assumptions made and as such, he conducted his own studies. Rather than using a public park as a comparison, he looked at three lavender farm proxy sites, which are lavender farms of similar size currently in operation. He also considered vehicles arriving without a reservation. Mr. Cullip noted that the proposed OFDU will have a restriction of 120 vehicles per day, however, noted that it is unclear how this will be controlled. The proxy sites he examined demonstrated that there is potential that numbers could exceed what is set out in the Permit and he testified that appropriate controls need to be implemented to ensure restrictions are adhered to and impose further restrictions if they are not. On cross-examination, Mr. Cullip acknowledged that he did not know if the information provided to him related to visitation numbers for the proxy sites are accurate as shown in Table 1 of his witness statement, nor if any restrictions or reservation systems are in place for the proxy sites.

56Mr. Cullip agreed with Mr. Fleming that the sight lines are acceptable. Mr. Cullip agreed in cross-examination that if the proposed OFDU is operated in accordance with the Permit, there will be no road capacity issues and access to the Subject Property will be acceptable.

57With respect to agrology matters, Mr. Hoffman was retained by the Appellants in September 2022 and reviewed the Ontario Ministry of Agriculture, Food and Rural Affairs (“OMAFRA”) mapping and confirmed that the Subject Property was not located in a PAA. He opined that the study conducted by Mr. Mozuraitis cannot be used to identify the Subject Property or Study Area as part of a PAA. Mr. Mozuraitis combined Classes 1, 2 and 3 soils and Mr. Hoffman opined that the problem with this approach is that the relative proportion of class 1 vs. class 2 vs. class 3 soils is relevant and this data is lost when the three classes are combined.

58Mr. Hoffman testified that Mr. Mozuraitis’ study did not use the LEAR method, which is recommended by OMAFRA. In Mr. Mozuraitis’ study, the Land Evaluation (“LE”) component was limited and the Area Review (“AR”) component was not included. Mr. Hoffman took the Hearing Office through a detailed review of his mapping process and explained that approximately 57% of the area is non-prime agricultural land. In cross- examination, Mr. Hoffman acknowledged that he had not conducted a site visit, however, maintained that a site visit was not required to test the methodology used by Mr. Mozuraitis, nor was it feasible since the Study Area is approximately 400 ha.

59Mr. Hoffman agreed with Mr. Mozuraitis that not all of the soils on the Subject Property are Class 7. However, Mr. Mozuraitis’ study is limited, does not follow provincial methods and cannot be used to identify lands as part of a PAA. For this reason, it is Mr. Hoffman’s opinion that the proposed OFDU is not a permitted use and as such, does not satisfy the requirements in Part 1 of the NEP as the Subject Property is not part of a PAA.

60Mr. Hoffman reviewed the development criteria related to OFDUs set out in s. 2.8.7 of the NEP (set out in paragraph 45 above). He opined that s. 2.8.7(c) regarding compatibility with surrounding land uses is not met because the principal uses in the Township are livestock and common field crop production and determined that there would be compatibility issues with the OFDU. Mr. Hoffman further opined that s. 2.8.7(g) regarding the maximum size of the OFDU has not been met. The proposed OFDU is too large as the public area is proposed to be 13.5 ha, which is approximately 33% of the farm lot. In cross-examination, Mr. Hoffman agreed that NEC Staff did not find that the scale was too large, but he maintained that he disagreed with NEC Staff regarding the scale. It was Mr. Hoffman’s opinion that the proposed OFDU does not meet either Part 1 or Part 2 of the NEP.

61During cross-examination, Mr. Hoffman agreed that PAAs are not dependent on a designation on a map, but rather depend on whether they have been identified. He agreed that this is a factual question. However, he noted that identification is based on agricultural variables that have been measured and rated. Mr. Hoffman also acknowledged that, based on data included in his witness statement, there is active farming occurring on 74.5% of the Study Area lands and this is approximately three times more farming activity than what occurs as a percentage of lands within the entire NEP Area.

62With respect to land use planning matters, Mr. Wynia was retained by Mr. Dyment, Mr. Wallace and Mr. MacDonald to provide an opinion on the Permit application. He noted that OMAFRA’s Implementation Procedures for the Agricultural System in Ontario’s Greater Golden Horseshoe (“Implementation Procedures”) make an important distinction between lands located inside and outside the Greenbelt Area. He testified that the NEP is located within the Greenbelt Area and according to the Implementation Procedures the provincial mapping is in effect and can only be changed if the proper process is followed and ultimately, approved by the Province. He testified that the Province wants to maintain control over PAAs and this is evident in the Implementation Procedures which state that it is a collaborative process between upper- and single- tier municipalities and the Province to refine PAAs through MCRs but, in the end, such MCRs must be approved by the Province.

63It is Mr. Wynia’s opinion that mapping is in place for the NEP Area and there is a municipal process that must be followed if adjustments to the mapping are to be made. This process allows for public input, coordination between the Province, NEC and municipalities and the ultimate approval by the Province. There is no process that contemplates private amendments or a piecemeal approach like the one that the Applicant is proposing.

64Mr. Edwards was retained after the appeal was filed to provide additional land use planning opinion on the Permit application. He agreed with Mr. Wynia that a private amendment is not permitted to refine the PAA mapping. He noted the importance of s. 4.2.6.2 in the Growth Plan to this Permit application which states “[p]rime agricultural areas, including specialty crop areas, will be designated in accordance with mapping identified by the Province and these areas will be protected for long-term use for agriculture”. He went further to s. 4.2.6.9 and testified that this section states that municipalities may refine provincial mapping through an MCR process, but reiterated that the MCR process is not yet complete so the mapping prepared by the Province is in effect for the Subject Property by virtue of it being located in the Greenbelt Area.

65Mr. Wynia’s testimony focused on the NEP as he explained that it is the governing document regarding whether a development permit should be issued. Further, he took the Hearing Office to Part III of the PPS which states that provincial plans, including the NEP, take precedence over the policies of the PPS to the extent of any conflict. As such, the NEP policy that limits OFDUs to PAAs in the Escarpment Protection Area designation takes precedence over the PPS policy allowing OFDUs more broadly on rural lands. Mr. Wynia opined that the proposed OFDU does not meet Part 1 or Part 2 of the NEP.

66Mr. Edwards agreed with Mr. Pascuzzo that the proposed use would not offend most of the NEP objectives (set out at paragraph 40 above), however, noted that the OFDU would not meet objective 4 related to maintaining the open landscape character of the Niagara Escarpment. As the proposed use in not permitted on the Subject Property by the NEP, as discussed below, it was Mr. Edwards’ opinion that objective 4 cannot be met.

67With respect to Part 1 of the NEP, Mr. Wynia testified that agricultural uses are permitted within the Escarpment Protection Area subject to satisfying the development criteria set out in Part 2. The agri-tourism aspect of the Proposal is considered an OFDU and as such, a development permit is required. Mr. Wynia and Mr. Edwards agree with NEC Staff that the Subject Property is not mapped as PAA and as such, OFDUs are not permitted uses. They both further agree that if the proposed use is not permitted, it is grounds for refusal on that basis (Part 1) alone and no further evaluation is required (Part 2).

68Mr. Wynia opined that whether or not the Subject Property could be considered part of a PAA based on Mr. Mozuraitis’ study is irrelevant, the lands are not designated as PAA by relevant planning authorities. He agreed that Mr. Mozuraitis’ study could be considered by the County in its refinement process, however, it cannot be considered in isolation, nor can be used to ignore the Implementation Procedures. Mr. Wynia agreed in cross- examination that the Study Area has a local concentration of farms exhibiting characteristics of ongoing agriculture and that is part of the definition of PAA in the NEP. However, he maintained that one cannot divorce the definition of PAA from the intent of the NEP policies. There is a municipal and provincial process to determine whether lands are part of a PAA, this is not done on an application-by-application basis using solely the definition in the NEP.

69Regarding the maximum size requirement for OFDUs, in cross-examination, Mr. Wynia was presented with documents relating to the Kelso lavender farm (“Kelso”) located in the Town of Milton (Exhibits 7 and 8) where, similar to this Permit application, NEC Staff recommended refusal and the NEC ultimately approved a conditional development permit. Mr. Wynia agreed that the treatment of Kelso by NEC Staff and the NEC was similar, but the proposal was different as Kelso was proposing a pick-your-own lavender operation and as such, the size calculations are different as per the Guidelines.

70Mr. Wynia went on to review the development criteria set out in Part 2 of the NEP (set out in paragraph 45 above) to complete his analysis, but maintained that his opinion is that the use is not permitted under Part 1 and as such, a review of Part 2 is not required. After a review of the development criteria, Mr. Wynia found that the proposed OFDU does not conform to all of the criteria and as such, fails to conform to Part 2 of the NEP.

71Mr. Wynia opined that there is insufficient information to conclude that the use is compatible with surrounding land uses and as such, could not conclude that the NEP Part 2 development criteria in s. 2.8.7(e) is met. He testified that the potential for guests to get “out of hand” cannot be discounted.

72In Mr. Wynia’s opinion, the OFDU occupies approximately 32% of the farm lot which significantly exceeds the 2% permitted area pursuant to s. 2.8.7(g). He disagreed with the Appellant’s experts and opined that 32% of the farm lot will be accessed by the public because the farm tour area does not involve harvesting like it would in a “pick your own” operation. Mr. Wynia agreed in cross-examination that if guests were permitted to pick the lavender, this would amount to harvesting and the crop areas would not be included in the calculation.

73Mr. Edwards agreed with Mr. Wynia and questioned whether the Proposal could meet the development criteria. He testified that the NEC Staff Report dated July 15, 2021 noted that the public access area is 13.5 ha which Mr. Edwards opined would be too large. However, when referred to s. 2.3.1.3 of the Guidelines, Mr. Edwards agreed during cross- examination that guests walking in the crop area would result in the crop area being excluded from the calculation limiting OFDU areas to 2%, however, he clarified that the paths or trails upon which they walk should be included.

74Mr. Wynia opined that certain conditions imposed by the NEC in the Permit relate to the operation of the OFDU and are not appropriate to be included in a development permit, which is meant to control the development of the site, not the continued use of it. He noted that the more appropriate way to manage operational considerations on the Subject Property is to either incorporate the conditions into an NEP amendment or enter into a development agreement with the landowner.

75Mr. Edwards agreed with Mr. Wynia and opined that many conditions relate to the ongoing management of the OFDU and a development permit is not the proper way to control operations.

76During cross-examination, Mr. Wynia was taken to an NEC Staff Report dated November 16, 2022 (Exhibit 11) relating to an NEC initiated proposed amendment to the NEP to allow OFDUs outside of PAAs. Mr. Wynia agreed that the NEC voted to proceed to process the proposed amendment. However, he noted that the staff report is not an endorsement by NEC staff as noted in the body of the report. Rather, NEC staff will review and comment on the proposed amendment after it goes through the proper process, including public consultation. He further noted that NEC staff state in the report that not all municipalities in the NEP Area include PAA mapping in their OPs and that the NEC cannot do this on a site-specific application basis.

77The Appellants argue that a site-specific determination that the Subject Property is within a PAA has implications for surrounding landowners who have not had the opportunity to have input into the process. Further, this will set a precedent for other site- specific applications to come forward when landowners do not want to wait for the mapping refinement process to take place. The PPS mandates that planning authorities shall designate PAAs and the Province has issued Implementation Procedures on how this is accomplished and nowhere in the Implementation Procedures does it state that it can be done on a site-specific basis.

Findings

78The issue before the Hearing Office is whether the decision of the NEC in conditionally approving the Permit was correct and should not be changed. The Hearing Office finds that the evidence demonstrated that the decision of the NEC was incorrect and should be changed.

79The fundamental question is whether the Subject Property is within a PAA, this is the crux of the issue. In determining this issue, the Hearing Office must look to provincial plans and policies. In this case, the relevant documents are the PPS, Growth Plan and NEP as well as issued provincial Guidelines and Implementation Procedures. These documents cannot be ignored.

80Regarding transportation and traffic, the Hearing Office finds that the Proposal will not result in an increase in traffic to a level that would create safety concerns or issues. The Hearing Office determines that no transportation or traffic issues will arise from the Proposal as approved in the Permit. This finding is largely supported by the Agreed Statement of Facts (Exhibit 1, Tab 21) where Mr. Fleming and Mr. Cullip agree that if traffic / visitation is consistent with the maximum 120 vehicles per day as set out in the Permit:

1. The development would be acceptable from a traffic operations perspective; and,

2. There would be no undue traffic impacts on the surrounding area.

81The Hearing Office heard the evidence of both Mr. Mozuraitis and Mr. Hoffman agreeing that the Subject Property is located in an area with a local concentration of farms exhibiting ongoing agriculture. However, the Hearing Office does not agree with the Applicant that, even with a potential factual finding that the Subject Property is PAL and in a PAA, the analysis stops there. Mr. Wynia opined that the Province does not allow mapping refinements on a site-specific basis nor through a development permit application due in part to the potential implications this would have on other landowners, on the planning process as a whole and to maintain consistency using a systems approach to the protection of PAAs throughout the Greater Golden Horseshoe.

82The Hearing Office accepts the evidence of the Appellants that the studies conducted by both Agrologists demonstrate that the exercise is complex and that it should be done in consultation with the Province. Mr. Wynia proffered that the Province tightly controls the mapping process, including the retention of final approval, because changes and/or potential errors can have significant consequences and need to be considered using a systems approach.

83The Applicant’s planning witness, Mr. Pascuzzo, acknowledged during cross-examination that the provincial mapping does not include the Subject Property in a PAA and as such, the requirements set out in the NEP that OFDU uses must be located in a PAA have not been met. In this regard, all of the Planners agree that Part 1 of the NEP has not been met by the Proposal and the Hearing Office agrees. As such, the Permit application must be denied on this basis alone and the NEC was incorrect in approving the Permit.

84Despite finding that the proposed use does not meet Part 1 of the NEP and is not permitted on the Subject Property, the Hearing Office reviewed the evidence relating to development criteria set out in Part 2 of the NEP. The Hearing Office agrees with the Appellants that, based on available information, it is not clear that all of the criteria have been satisfied. For example, the Hearing Office finds that there is a lack of clarity regarding how much of the Subject Property would be part of the proposed OFDU. Where the guests would be permitted to go, whether pathways are required to be included in the OFDU area calculations, whether there would be harvesting of the lavender by the guests and if that is a requirement to determine the OFDU area calculation, these are all questions that remain. As such, it is not clear on the evidence that the proposed OFDU use will be limited in area to 2% of the Subject Property or what the requirements are to determine the OFDU area calculation.

85The Hearing Office finds that the Applicant’s assertion that the Subject Property is within a PAA pursuant to the NEP definition is incorrect. The Hearing Office agrees that, based on the evidence, the Subject Property meets the first part of the definition based on the agrology studies undertaken. However, when the definition is read in its entirety, it fails to meet the second part given that the Province has issued the Implementation Procedures with clear guidance on how PAAs are to be determined. There was no evidence presented that the methodology used in Mr. Mozuraitis’ study is “an alternative agricultural land evaluation system approved by the Province”.

86The Hearing Office finds that even if the Proposal met provincial policies, there is a lack of clarity as demonstrated above which must be remedied prior to the issuance of a development permit and any associated conditions. In terms of transportation and traffic, the Hearing Officer has found that no traffic safety issues will result from the Proposal. However, it is to be noted that Mr. Fleming admitted during cross-examination that a system should be implemented to deal with the location of guest check-in, guests arriving without a reservation and vehicles arriving to just purchase lavender products. Further, the Hearing Office agrees with the Appellants that some of the conditions relate to operational considerations and are not appropriately dealt with through a development permit. These are just some of the factors that demonstrate that the Proposal has not been well thought out and cannot be permitted through the Development Permit.

87The Hearing Office agrees with the Appellants that the appropriate way to implement controls of the operational aspects of the OFDU is either through a NEP amendment or a development agreement.

88The case law presented by the Appellant Parties helps to underscore the authority of the provincial Agricultural System mapping. The Appellant Parties submit that Venerus v. Puslinch (Township), 2018 CanLII 78951 (ON LPAT) is determinative with respect to the provincial mapping, where the Tribunal found that “[t]he PPS prime agriculture policies are invoked by the AS [Agricultural System] mapping released by the province under the GP [Growth Plan]. The definition of prime agricultural area in the PPS includes such areas identified by the Province. The Province did so through the AS.”

89The Appellant Parties further directed the Hearing Office to 1045901 Ontario Limited v. Simcoe (County), 2020 CanLII 62544 (ON LPAT) where the Tribunal found that in reviewing the Implementation Procedures “[s]ection 3.3.1 goes on to explain the importance of a collaborative refinement process, involving consultation with adjoining municipalities, agricultural advisory committees, and other relevant stakeholders.” The Tribunal further found that:

In reviewing the Implementation Procedures, the Tribunal finds that if the subject lands are in a prime agricultural area, then refinements can occur only as set out in the Implementation Procedures. Refinements can only occur before a municipal comprehensive review if they are undertaken for one or more lower- tier municipalities, or for the County as a whole. The Implementation Procedures do not contemplate refinements for individual properties. Additionally, the refinements for either lower-tier or upper-tier municipalities must follow the process outlined in the Implementation Procedures, which requires consultation and Provincial approval.

90It is the Appellant Parties’ submission that these cases illustrate that there is no question, it is simple, easy and clear, to determine that the Agricultural System mapping must be applied. The Hearing Office agrees with this determination and finds that it is not sufficient to just apply a portion of the definition of Prime Agricultural Areas in the NEP in isolation of the plethora of policy directives from the Province including the prescriptive directions in the Implementation Procedures as to how the policies are to be applied. The methodology in the Implementation Procedures must be followed and the Subject Property cannot be determined to be a PAA based on a site-specific agrology assessment.

91The Hearing Office cannot make a recommendation that the decision of the NEC was correct when that decision offends provincial policies currently in force. The wrong process was pursued by the Applicant and to agree with the NEC’s conditional approval of the Permit would create a precedent encouraging other landowners to seek site-specific development permits which offend provincial policy. This site-specific approach leads to inconsistent planning and is contrary to the principles of good planning. The Applicant must await the outcome of the County MCR similar to other landowners or await the outcome of the NEC initiated proposed amendment to the NEP to allow OFDUs outside of PAAs.

RECOMMENDATION

92THE HEARING OFFICERS CONCLUDE that the Niagara Escarpment Commission decision to issue Development Permit No. S/A/2020-2021/469 is incorrect and should be changed. The Niagara Escarpment Commission’s decision is therefore not confirmed, pursuant to s. 25(12) of the Niagara Escarpment Planning and Development Act.

The Hearing Officers recommend refusal of Niagara Escarpment Plan Development Permit Application No. S/A/2020-2021/469.

NEC Decision Not Confirmed

“C. Hardy”

C. HARDY HEARING OFFICER

“C. Molinari”

C. MOLINARI HEARING OFFICER

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.