Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 07, 2023 CASE NO(S).: OLT-22-002956 (Formerly PL200240)

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellants: Bill and Frank Pearce Subject: By-law No. 2020-069 Municipality: Township of Uxbridge OLT Case No.: OLT-22-002956 Legacy Case No.: PL200240 OLT Lead Case No.: OLT-22-002956 Legacy Lead Case No.: PL200240 OLT Case Name: Pearce v. Uxbridge (Township)

Heard: November 22, 2022 by Video Hearing ("VH")

APPEARANCES:

Parties	Counsel/ Representative*
Bill Pearce and Frank Pearce ("Appellants")	Bill Pearce* representing himself and Frank Pearce
Grainboys Holdings Inc. ("Applicant")	David Germain and Katyrina Zielinski
Township of Uxbridge ("Township")	Quinto Annibale

MEMORANDUM OF ORAL DECISION DELIVERED BY K.R. ANDREWS ON NOVEMBER 22, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Appellants (the "Pearce brothers") oppose the Applicant’s plan to construct a milling, seed-cleaning, and flour/grain blending operation with associated storage (the "proposed development") at 3469 York-Durham Line (the "subject property"). The subject property is situated within an agricultural zone and adjacent to the Pearce brothers’ recreational property (which includes a dwelling). The Appellants complain that the proposal involves an industrial use that should be located in an industrial zone away from their property. The Pearce brothers’ appeal arises following the Township’s passing of By-law No. 2020-069 ("the ZBA"), a site-specific amendment to the Township’s comprehensive zoning by-law which was specifically approved to facilitate development of the Applicant’s proposed operations.

2The Pearce brothers’ appeal is principally premised on legal arguments associated with jurisdiction of the Tribunal, plus submissions concerning the correct (as they see it) interpretation/application of specific local and provincial policies. The Appellant, Bill Pearce (hereinafter referred to as "Mr. Pearce"), was identified as a retired lawyer and he represented both himself and his brother throughout the proceedings. While Mr. Pearce did not purport to attend the proceedings as counsel, the Tribunal found him to be knowledgeable about legal proceedings in general, including as it relates to the expectations and obligations of a party.

3It is noteworthy that the Appellants tendered no evidence in support of their appeal after they unexpectantly declined to call their planning expert, who was to be their only witness. The Pearce brothers’ case therefore rests on challenges to the other Parties’ evidence through cross-examination and through their legal submissions.

4The Township made it clear that it supports the Applicant’s development plan, as demonstrated through supporting evidence and submissions, as well as through its concerted effort to amend its Official Plan (the "Township OP") through Official Plan Amendment No. 65 ("OPA 65"). OPA 65 provides site specific policy objectives in support of the development. While the Regional Municipality of Durham ("the Region") did not participate in the proceedings, it also clearly supports the proposed development as demonstrated through its own particular effort to amend its Official Plan ("the Region OP") through Official Plan Amendment No. 185 ("ROPA 185"). ROPA 185 provides similar site specific policy objectives in support of the proposed development.

5For the reasons that follow, the Tribunal rejects the submissions of the Appellants and dismisses their appeal.

Preliminary Issues

Scoping of issues

6At the outset of the hearing, the Pearce brothers confirmed that they no longer question issues pertaining to air-quality, and also that they will not contest the Applicant’s evidence associated with anticipated noise impacts from the proposed development. The Tribunal was informed that the Appellants notified the other Parties that they would be scoping their issues just one week prior to the hearing and, notably, after the Applicant had retained experts in air-quality (Brian Sulley) and acoustic engineering (Andrew Dobson) and prepared associated witness statements for the purposes of responding to the Appellants’ identified concerns. As a result, counsel for the Applicant informed the Tribunal that they would not need to call Mr. Sulley to testify, and Mr. Dobson would provide only brief testimony to confirm that the appropriate studies have been completed and the proposed facility is not expected to produce noise at levels which might materially impact surrounding land uses.

7Mr. Pearce further confirmed at the outset of the hearing that their challenge of the other Parties’ evidence would focus on land use planning concerns, principally about conformity with the Township and Region OPs (collectively, the "Municipalities’ OPs") and whether or not the Applicant’s proposed use of the subject property constitutes an "agriculture-related use" pursuant to Provincial policies.

8The Tribunal notes that Mr. Pearce also raised the spectra of environmental concerns, but this issue was never meaningfully pursued through evidence nor through the Appellants’ submissions.

9Mr. Pearce further confirmed at the outset of the hearing that the Appellants’ policy-related submissions would largely hinge on the application (or not) of OPA 65 and ROPA 185 (collectively, "the amending OPAs"). As stated above, the amending OPAs were both passed to provide site specific OP policies in support of the proposed development. More specifically, the Applicant and the Township confirmed that these OPAs were passed "out of an abundance of caution" to ensure no ambiguity with respect to conformity of the proposed ZBA with the Municipalities’ OPs pursuant to s. 24 of the Planning Act (the "Act"). As addressed in greater detail below, the Tribunal found it to be prudent to determine this question, regarding the application (or not) of OPA 65 and ROPA 185, at the outset of the hearing as a means to scope the planning evidence and submissions to be tendered by the Parties. The following is an account of the Parties’ submissions and the Tribunal’s findings in this regard.

Application of OPA 65 and ROPA 185

10At the previous Case Management Conferences ("CMC") of this matter, the Parties confirmed that OPA 65 and ROPA 185 were passed after approval of the subject ZBA.

11The Tribunal notes that the Applicant and the Township have both steadfastly held that the subject ZBA conforms with the Municipalities’ OPs both prior to the passing of the amending OPAs and after. As previously stated, the Applicant and the Township both submit that the amending OPAs were pursued "out of an abundance of caution" to ensure that there is no ambiguity regarding conformity of the contested ZBA

12As was noted in the CMC decision issued September 13, 2022, this case was previously adjourned pending a possible appeal of OPA 65 and ROPA 185 by the Pearce brothers. At the second CMC, the Parties confirmed that the Appellants chose not to appeal the amending OPAs and so both are now fully enacted and in effect.

13The Tribunal notes that part of Issue 1 of this matter’s Issues List concerns whether or not OPA 65 and ROPA 185 are applicable to an analysis to determine conformity of the subject ZBA. The Pearce brothers submit that the amending OPAs are not applicable to any such analysis. This apparently explains their decision to not appeal OPA 65 and/or ROPA 185, having believed that any OPA passed after approval of the subject ZBA does not apply to the analysis, nor may it play any role in the present hearing.

14Consistent with this belief, the Appellants submit that the Tribunal is statutorily barred from considering any amendments to the relevant OPs which occurred following the passing of the subject ZBA. This is, they submit, by virtue of the language of s. 24 of the Act, which states:

24 (1) Despite any other general or special Act, where an official plan is in effect, no public work shall be undertaken and, except as provided in subsections (2) and (4), no by-law shall be passed for any purpose that does not conform therewith.

(2) If a council or a planning board has adopted an amendment to an official plan, the council of any municipality or the planning board of any planning area to which the plan or any part of the plan applies may, before the amendment to the official plan comes into effect, pass a by-law that does not conform with the official plan but will conform with it if the amendment comes into effect.

15Through their arguments, the Appellants drew the Tribunal’s attention to the words "in effect" within s. 24(1) of the Act and submitted that this means that the only OPs that can be considered as part of the Tribunal’s present analysis are the Municipalities’ OPs that were in effect at the time when council approved the ZBA. The Appellants argued that it is a "rule of law that an OPA must come before a ZBA application [as per s. 24(1) of the Act], or at the same time [as per s. 24(2) of the Act], if it is going to be considered as part of an appeal to the Tribunal".

16The Tribunal asked Mr. Pearce if he was familiar with the Clergy principle and if he was, in effect, submitting that the Clergy Principle should apply insofar as he was arguing that the OPs that were in effect at the time when the ZBA application was initially made should be the version of the OPs that are considered when determining conformity pursuant to s. 24 of the Act. Mr. Pearce claimed that he was aware of and understood the nature of the Clergy principle, but unequivocally submitted that "no, the Clergy principle does not apply because it would conflict with s. 24 of the Act".

17Mr. Pearce went on to cite para. 17 of Dittmer v. London (City) (Re), 2016 CanLII 15653 (ON LPAT) (PL140043) ("Dittmer") in an effort to support his position:

[17] What we have in this case is not simply a determination as to whether, from a planning perspective, the Clergy principle should be applied, but rather, whether the provisions of s. 4.1 of the [current version of the] PPS and s. 3(5) of the Act should be cast aside. Even though the Clergy principle continues to be relevant in some circumstances, it cannot, in this case, override the clear and unambiguous statutory and policy language of the Act and the [current version of the] PPS. If we were to rule otherwise, we would be effectively inserting language in s. 4.1 and s. 3(5) which does not exist.

18The Tribunal notes that the legal question considered in Dittmer relates to the applicability of the then current policies of the Provincial Policy Statement ("PPS"), versus former policies of the PPS which were in effect at the time when the application was initially made. As recognized in Dittmer, it is well established that the Clergy principle (or a variation thereof) does not apply to supplant current policies of the PPS with former PPS policies by virtue of s. 3(5) of the Act.

19Mr. Pearce nevertheless firmly contends that the legal principle recognized in Dittmer similarly restrains the Tribunal, by law, from having the discretion to employ the Clergy principle as it relates to a ZBA application by virtue of s. 24 of the Act. Mr. Pearce further argues that the words "in effect" within s. 24 of the Act must mean "in effect" at the time when a municipality first considers a matter.

20The Tribunal notes that, upon review of Dittmer and the legal questions addressed therein, Mr. Pearce’s arguments defeat his own position. If the Tribunal accepts his arguments and finds that the language of s. 24 of the Act ousts the Clergy principle by operation of law, the corresponding outcome would be that the current version of the OPs would apply, not the former versions as proposed by Mr. Pearce. Such was the finding in Dittmer as it relates to policies of the PPS.

21Despite the confusing and self-defeating nature of the Appellants’ arguments, it remains clear that the Appellants take the position that only the versions of the Municipalities’ OPs that were in effect at the time when the subject ZBA application was initially made should be considered when assessing conformity pursuant to s. 24 of the Act. Despite the Appellants claim to the contrary, the Tribunal finds that this argument is very ‘Clergy-like’ in principle.

22As a quick summary, the Tribunal notes that the Clergy principle is an oft-followed discretionary principle employed by the Tribunal to address the inherent unfairness of Applicants having to deal with a ‘moving target’ while their development proposals work through a generally vigorous and often lengthy approval process. It is commonly understood that development applications are frequently defended while underling municipal planning instruments may be subject to change. As a result, the Clergy principle arose as a matter of procedural fairness to secure development rights that existed at the time when an application was initially submitted to a municipality. It is well understood that the Clergy principle is not law, but rather a discretionary tool available to the Tribunal to deal with procedural fairness issues.

23Such procedural fairness rationale is addressed at para. 34 of James Dick Construction Ltd. V. Caledon (Town), 2003 CarswellOnt 6221, which found that "an applicant cannot be put to a standard imposed after the date of the application which would have the effect of defeating the application. This principle protects proponents from policy changes that are meant simply to frustrate an application retroactively".

24Notably, in the present case, the Appellants are attempting to use a ‘Clergy-like’ principle as a sword rather than a shield to defeat the proposed ZBA application. The Tribunal finds that such a use of the principle starkly deviates from the procedural fairness justification which has been widely accepted by the Tribunal.

25The concept of the Clergy principle working exclusively as a benefit to developers is recognized at para. 7 of Greenspace Alliance of Canada’s Capital v. Ottawa (City), 2006 CarswellOnt 1106, which found that "[the Clergy principle] is only applicable in cases where more restrictive planning policies were put into place by a municipality following an application for development approvals".

26In addition to the Appellant’s other submissions outlined above, Mr. Pearce also submits that the Tribunal is generally prohibited from considering any evidence that was not before the municipality when it initially approved the subject ZBA, and that "the Tribunal’s jurisdiction is limited to determining whether or not the Township’s decision was validly made". He makes this statement in support of his contention that the Tribunal can only look at OP policies that were available to consider at the time when the municipality previously approved the subject application.

27In response to the totality of the Pearce brothers’ submissions, the Applicant submitted that the "fatal flaw" in their arguments is a failure to recognize that a hearing before the Tribunal is a hearing de novo. As this relates to the language contained in s. 24 of the Act, the Applicant submitted that any reference to "in effect" assumes inclusion of those OPs in effect at the time of the Tribunal’s de novo hearing, not solely when council considered the application nor when the application was initially made.

28The Applicant further submitted that the Tribunal generally recognizes that updated and geographically specific policies are to be preferred over older and more general policies (albeit sometimes subject to the Clergy principle), as noted in Maynard v. Mississippi Mills (Town), 2021 CarswellOnt 15401 at para. 28:

[i]t is a generally accepted principle that updated polices (i.e. OPA 21 in the present case) are to be preferred over policies of older OPs, in the event of a conflict, because they reflect new, better informed planning ideas. While not invalidating older plans, they may have also been tested against newer provincial policy documents. Similarly, it is also a generally accepted principle that geographically specific policies (i.e. OPA 26 in the present case) are preferred over more general policies, in the event of a conflict, because it reflects policies specifically tailored to specific conditions and context of a particular site.

29Such an understanding is reflected in the Preamble and Implementation sections of the PPS, which states that OPs are the main vehicle for the implementation of the PPS, and "Planning authorities shall keep their Zoning and Development Permit By-laws up-to-date with their Official Plans and this Provincial Policy Statement".

30In addition, while taking the position that the Clergy principle has no operation in the present hearing because the amending OPs include more permissive policies, counsel for the Applicant made it clear that he does not agree with the Appellants’ submission that s. 24 of the Act has the effect of ousting the Clergy principle. To accept such a position, he submitted, it would be akin to finding that the Tribunal has been stripped of its tools necessary to ensure procedural fairness.

31In response to the Appellant’s specific contention that "the Tribunal’s jurisdiction is limited to determining whether or not the Township’s decision was validly made", the Applicant cited Goldlist Properties Inc. v. Toronto (City), 2003 CanLII 50084 (ON CA), 2003 CarswellOnt 3965 at paras. 14 and 15, where the Court of Appeal confirmed that "the [Tribunal] does not have a free-standing jurisdiction, as a court does, to determine that a by-law is invalid". Rather, the Applicant submitted, the Tribunal is charged with determining whether or not a development application has merit on planning grounds. The Applicant further noted that s. 273 of the Municipal Act provides authority to the Superior Court of Justice, not the Tribunal, "[to] quash a by-law of a municipality in whole or in part for illegality".

32The Township also made submissions responding to the Pearce brothers’ arguments, concurring with all of the Applicant’s above submissions and confirming that the Clergy principle is not recognized as law, but is instead invoked by the Tribunal on a discretionary basis for fairness purposes.

33The Township further submits that it would be egregiously inefficient to accept the Appellants’ position (that OPA 65 and ROPA 185 cannot be considered in the present appeal) because, if it is accepted that only the former more restrictive land use planning policies should be considered, it would force the Applicant to re-apply for the same ZBA simply as a means to re-set the application date. While such a remedy may be straightforward, it is unnecessarily time-consuming and a waste of resources given that the Tribunal is in an immediate position to finally determine the matter via a de novo hearing.

34On this last point, the Tribunal asked Mr. Pearce if he agrees that the Applicant could rely on the amended OP policies if they simply re-apply for the ZBA. He confirmed "yes", defending their stance as being insistent upon "proper procedure". Mr. Pearce could not meaningfully explain how, however, this would make any sense from an efficiency standpoint.

35Upon considering the Parties’ above-described submissions and for the reasons that follow, the Tribunal finds that the present ZBA application will be assessed for conformity while employing the current versions of the Municipalities’ OPs, as amended by OPA 65 and ROPA 185, not the former as suggested by the Pearce brothers.

36The Tribunal finds that there is no question that a hearing before it is a hearing de novo. Mr. Pearce appears to have confused the nature of an appeal before the Tribunal with that of a conventional appellant court which typically relies on a hearing record and provides great deference to the lower courts’ findings of facts based on the evidence that it heard directly. By contrast, the Tribunal hears the Parties’ evidence and submissions fresh and direct. The Tribunal further finds that there are no restrictions on a party regarding how a case is presented to the Tribunal in terms of arguments, as there might be at a conventional appellant court, and a party may rightly deviate substantially from that which was presented at the municipal level.

37With the nature of a Tribunal hearing being de novo, the Tribunal does not accept the Pearce brothers’ interpretation of s. 24 of the Act insofar as they contend that "in effect" must mean only in effect at the time when council made its decision. A de novo hearing can clearly consider new updated planning instruments; subject, of course, to the possible application of the Clergy principle.

38The Tribunal acknowledges that s. 24 of the Act does not expressly state whether "in effect" means in effect at the time when the application was initially made, or in effect at the time of a Tribunal hearing/decision (noting, by contrast with respect to the PPS, that s. 3(5)(a) of the Act specifically states "in effect on the date of the [Tribunal] decision" [emphasis added] – language that does not appear in s. 24). However, with a matter before the Tribunal being a hearing de novo in every other respect, it follows that an amended OP in effect at the time of a Tribunal hearing may be considered as it relates to a s. 24 analysis.

39Furthermore, the Tribunal accepts the Township’s position insofar as it would be egregiously inefficient to demand that Applicants must re-submit an application, when more permissive policies are enacted, simply as a means to re-set an application date. The Tribunal notes that it has been conferred broad-reaching statutory jurisdiction to ensure that the issues in dispute are disposed of in the fairest, just, expeditious and most cost-effective manner.

40Insofar as the Clergy principle is concerned, the Tribunal finds that it has no operation in the present case. While the arguments made by Mr. Pearce suggest a desire to apply a ‘Clergy-like’ principle in an effort to defeat the application, despite his expressed contention that s. 24 of the Act has the effect of ousting the principle, it is widely accepted that the Clergy principle was never intended to work against an applicant to apply former, more restrictive municipal planning policies.

41The Tribunal confirms that the Clergy principle stands as a procedural fairness tool to the exclusive benefit of an Applicant. It is available, at the discretion of the Tribunal, to ensure that a municipality cannot retroactively pass planning instruments (intentionally or by happenstance) which have the effect of defeating an otherwise meritorious planning/development application.

42While the Tribunal has found that the Clergy principle has no operation in the present case, it is compelled to respond to the Appellants’ proposition that s. 24 of the Act works to statutorily oust the principle. The Tribunal does not come to the same conclusion. While the Dittmer case stands for the premise that s. 3(5) of the Act has the effect of ousting a ‘Clergy-like’ principle in relation to policies of the PPS, it is distinguishable from the Appellants’ argument due to its distinctively different statutory-context and, more particularly, Dittmer deals with provincial policy of the PPS, whereas s. 24 deals with municipal policy of an OP.

43PPS policy is distinctive from municipal OP policies insofar as it provides provincial policy objectives of a more general nature which are, in turn, delivered through provincial plans and municipal OPs. As stated in the preamble of the PPS, "[the PPS] provides policy direction on matters of provincial interest related to land use planning and development. As a key part of Ontario’s policy-led planning system, the Provincial Policy Statement sets the policy foundation for regulating the development and use of land." Through the language of s. 3(5)(a) of the Act, it is also clear that the legislature has directed the Tribunal to make decisions which remain consistent with the most up-to-date version of the PPS.

44The same explicit direction is not set out in s. 24 of the Act, insofar as the section does not expressly direct the Tribunal to make decisions which conform with only the OP policies in effect at the time when the Tribunal’s decision is made. The Tribunal therefore finds that the legislature has afforded some flexibility to apply either the OP policies in effect at the time of the decision, or, when procedural fairness demands it, in effect at the time when the application was initially made. In the present case, there is therefore nothing limiting the Tribunal from considering conformity with the OPs as amended by the amending OPAs that are now in force and have not been appealed.

45The Tribunal finds that such flexibility provides the necessary safeguards to avoid allowing a municipality to undermine the merits of an application by changing the underlying planning instruments after an application is initially made but before it is capable of working its way to a conclusion.

46In summary on this point, procedural fairness demands that an applicant must have access to a steady and predictable policy target. Correspondingly, the Tribunal must also have access to adequate adjudicative tools, such as that which the Clergy principle provides, as a means to preserve procedural fairness. If s. 24 of the Act could be interpreted as ousting the Clergy principle, it would effectively strip the Tribunal of such domain necessary to ensure procedural fairness in some cases.

47For the reasons set out above, the Tribunal finds that the Municipalities’ OPs, as amended by OPA 65 and ROPA 185, shall apply and be considered as part of the Tribunal’s analysis regarding the question of conformity pursuant to s. 24 of the Act. As a result, the evidence proffered by the witnesses of the Parties, and the submissions of the Parties, shall be scoped accordingly.

48As it relates to the Appellants’ other submissions suggesting that the Tribunal is generally prohibited from considering new evidence that was not before the municipality, and that the Tribunal’s jurisdiction is limited to determining whether or not a municipality’s decision was validly made, the Tribunal finds that neither argument is supported by the applicable legislation nor the consistent findings of this Tribunal and the appellant courts.

49With the above legal issues disposed of, the Tribunal carried on with a hearing on the merits of the subject Application.

Grainboys Business

50Kyle Petrovich testified as a principal of Port Royal Mills Ltd. and Grainboys Holdings Inc. He provided an overview of the businesses as they currently operate and how they will operate if the proposed development is approved. The following is an account of Mr. Petrovich’s evidence.

51Port Royal Mills Ltd. is the operating company of the milling, seed-cleaning, and flour/grain blending business that is proposed to be located at the subject property. Grainboys Holdings Inc. is the land operating company of Port Royal Mills Ltd. and it owns the subject property (Port Royal Mills Ltd. and Grainboys Holdings Inc. are hereafter collectively referred to as "Grainboys").

52Grainboys was founded in 1987 and the business focuses on milling, seed-cleaning, and blending grains and flour. The cleaning business produces cleaned grain, the milling business produces a variety of flours, and the blending business produces mixed flours, grain mixtures and combinations thereof, which are generally sold for food production (i.e. bakeries).

53Currently, Grainboys operates from an industrial unit in Aurora. Their plan is to relocate to a new specially designed facility at the subject property. The move is being proposed because the current facility does not provide enough storage capacity (which limits farm suppliers, marketing opportunities, and production capacity), does not provide enough production space to efficiently keep up with production demand, and it cannot accommodate certain types of farm delivery trucks.

54Grainboys currently has storage silos capable of holding a total of 420 metric tonnes, while the company’s average annual output is approximately 9,000 metric tonnes. Its current storage capacity limitations restricts Grainboys’ ability to take in full fields of crops, which requires area farmers to store some grain in their own bins (if they have any). This fact also means that Grainboys can only deal directly with farmers that have their own storage facilities or, in some cases, a ‘middleman’ (if available) is required to provide storage until Grainboys has the space to accept delivery and process farmers’ products.

55By contrast, the proposed facility will be capable of providing 1,400 metric tonnes of storage (over three times their current capacity). This will provide the opportunity to work directly with more farmers, including those that do not have any or enough storage to house their own grain.

56Grainboys’ current facility is also limited to roughly 15,000 square feet of warehouse and production space, which inefficiently limits their production capacity to approximately two tonnes per hour and one production run at a time. By contrast, the proposed new facility will be capable of operating at six to eight tonnes per hour and multiple production runs.

57Furthermore, Grainboys’ current facility cannot accommodate a ‘dump elevator’ to receive grain, which means that grain deliveries must be ‘blown-in’ with specialized blower trucks. This further limits which farms can sell products to Grainboys since the company currently can only receive product from farmers who have access to trucks with blowers.

58By contrast, the Applicant’s proposed facility will include an "open bottom dump" to allow grain to be unloaded from any type of dump farming truck or grain truck. This will again make it easier to obtain grain directly from farmers who don’t have access to specialized blower trucks.

59In addition to the above, the proposed facility will have the advantage of being closer to many farmers, being in an agricultural area, thus cutting down on transportation costs and greenhouse gas emissions involved with getting the grain from farmers to their facility. This will again facilitate Grainboys’ ability to deal directly with more farmers in the area.

60The Tribunal asked Mr. Petrovich why his business does not simply move to a larger alternative industrial site, rather than propose to locate it in an agricultural area. He answered that local industrial sites cannot accommodate the proposed facility, due to size and necessary setbacks from other uses, including residential uses. Local industrial areas would also force them to bring large trucks through residential areas of local towns. Mills are also inherently susceptible to fire risks, he stated, which is obviously not compatible with adjoining industrial or residential uses. He notes that they had previously explored the possibility of locating their new facility in the town of Goodwood, but they could not adequately distance the facility from other uses.

61While larger industrial-zoned lands are presumably available elsewhere in Ontario, Mr. Petrovich testified that nothing is available locally in order to continue direct dealings with area farmers. Mr. Petrovich maintains that the most important consideration regarding their plan is to locate it in the subject area to allow them to carry on their business while maintaining proximity with area farmers.

62Mr. Petrovich further explained that they chose the specific location of the subject property because it is directly adjacent to a large-scale grain elevator to the south (St. Lawrence Grains and Farm Supply), meaning that their facility will fit into the surrounding agricultural character of the area. He noted that these other elevators feature storage silos which are approximately four-times the size of their proposed facility, meaning that their facility will not constitute the dominant farm-related industrial feature in the immediate area. Additionally, on account of the proximity of St. Lawrence Grains and Farm Supply, the area’s rural roads are already travelled by trucks containing grain shipments, meaning that they are not introducing new impacts in terms of traffic.

63Mr. Petrovich testified that the company’s milling and cleaning lines use 95% grains sourced from Ontario farmers including rye, hard wheat, barley, malt barley, triticale, spelt, corn, red fife, buckwheat, soft wheat and durum. Grainboys cleans and mills these ingredients to be sold either as final products, or to be used in their multi-grain/flour blends. The majority of the company’s blending operations’ outputs are purchased by bakeries, who often request custom blends of different grains/flours.

64Mr. Petrovich acknowledges that some of the custom blends produced by Grainboys include grains that do not grow locally, including sunflower, millet, sesame, quinoa and amaranth, so not every input is grown in Ontario. However, the above listed inputs constitute the only grains imported by Grainboys, accounting for slightly less than 15% of the inputs used to produce their products.

65Mr. Petrovich further testified that, in their most recent year (ending July 2022), about 60% of Grainboys’ inputs for their cleaning and milling lines came from the immediate local area, including York and Durham Regions and the Lake Simcoe Watershed, while approximately 35% came from elsewhere in Ontario, including the Kawarthas, the Kitchener area and Thunder Bay. Of the remaining 5% of inputs (principally, red fife and kamut), most had to be imported from Saskatchewan.

66Answering questions from the Tribunal, Mr. Petrovich confirmed that Grainboys receives grain from 50-75 farmers directly, most of which are from Durham and York Regions and the Lake Simcoe Watershed, and approximately 25% of their suppliers are within 25 kilometres. On cross-examination, Mr. Petrovich confirmed that approximately 63% of the 50-75 farmers who ship grain to them directly are from Durham and York Regions, and the Lake Simcoe Watershed, which are between 15 and 50 kilometres away from the proposed facility.

67As it relates to Grainboys’ blending operation line, Mr. Petrovich testified that they blend different types of flour and seeds to create blends for various uses (i.e. custom multi-grain seed mixtures or flours for bakeries). He confirmed that most of their inputs come from their milling and seed-cleaning business, but they must source some inputs that are not grown in Ontario from Western Canada (23%) and the US or overseas (15%), plus some milled oats from another milling business in Ontario (5%).

68In terms of benefits provided to area farmers, Mr. Petrovich testified that Grainboys’ milling, seed-cleaning, and blending operations add value to local farm products and help such farmers realize the maximum value for their crops. Their business also provides a local market for high valued specialty crops, contributing to economic development and a diversification of local farm production. Letters from area farmers and Grain Farmers of Ontario (an industry group) were provided by Mr. Petrovich as evidence purporting to confirm such benefits.

Overview of the Proposed development and subject property

69Steven Edwards testified on behalf of the Applicant and Elizabeth Howson testified on behalf of the Township, both as experts in Land Use Planning (qualified by the Tribunal on consent). In addition to their opinions regarding the merits of the ZBA application, they provided a succinct overview of the proposed development and characteristics of the subject property. The following is an account of Mr. Edwards’ and Ms. Howson’s uncontroverted evidence in this regard.

70The subject property is located within Part of Lot 12, Concession 1 in the Township of Uxbridge, with a municipal address of 3469 York-Durham Line. The property is 36.3 hectares (89.66 acres) in size, with vehicular access by way of a driveway from York-Durham Line.

71The subject property is currently farmed, most recently growing rye and clover in alternating years. Some portions of the property are not cultivated, including an area supporting a detached dwelling. There are also two small ponds on the property and two small wooded areas. Mr. Edwards noted that the wooded area at the eastern property limit is adjacent to wooded areas on the Appellants’ lands, as well as a large woodland feature to the southeast.

72Mr. Edwards opined that the subject property constitutes prime agricultural lands and confirmed that it is within the Prime Agricultural Area as mapped in the Provincial Agricultural Land Base that was completed and published in 2018.

73The location of the Applicant’s proposed development is in the south-west quadrant of the subject property. The building to be constructed as part of the proposed development will be approximately 5,000 square metres ("m²") in size, with associated asphalt driveways and parking areas covering an area of approximately 7,100 m², as well as concrete pads covering an area of approximately 1,800 m², for a total ‘impervious area’ of 13,900 m² (3.44 acres). The overall building coverage area will constitute 1.4% of the total property, and the total impervious area (including the building) will cover an area of 3.8% of the total property.

74The Tribunal questioned Mr. Edwards with respect to how much agricultural land will be lost as a result of the proposed development. Mr. Edwards calculated that the area to be occupied by the total impervious area, plus lands occupying septic and storm-water management facilities, plus surrounding lands which will become impractical to cultivate as a result of the development, will be approximately 3.7 hectares (9.14 acres), or ~10% of the total subject property.

75The uses surrounding the subject property are as follows:

South

• St. Lawrence Grains and Farm Supply Ltd.;
• Railway tracks owned by Metrolinx for the Stouffville GO line; and,
• Granite Golf Club.

West

• Vacant residential home; and,
• York-Durham Line, a Type ‘B’ Arterial Road that connects to Regional Highway 47 (note: this road provides vehicular access to the subject property).

East

• A residential dwelling owned by the Appellants (note: the development is proposed to be located 683 metres ("m") (2,240 feet ("ft")) from the Appellant’s property line, and 793 m (2,600 ft) from the Appellants’ residential dwelling); and,
• Woodlot, agriculture and non-agriculture related dwellings.

North

• Rural Employment Lands (note: the property directly north of the subject property, occupied by Terra View Driving Range, was recently approved to permit rural employment uses. Other lands, to the north of these lands, already permit rural employment uses); and,
• Regional Highway 47, a Type ‘A’ Arterial Road.

the subject ZBA

76The subject ZBA was adopted by Township Council on June 19, 2020 and was subsequently appealed by the Pearce brothers.

77Mr. Edwards testified that the ZBA has several components, but its fundamental purpose is to permit the proposed development. The ZBA is designed with a holding provision which, once removed, will permit (among other uses) "[a] dry grain processing plant including processing tower, surge bins, related office and other uses" and "[a]ccessory uses to the permitted uses".

78The By-law also contains several yard dimensions which limit the area provided for in the preliminary site plan of the proposed facility, and a provision providing for a maximum floor space which coincides with the proposed site plan.

79The ZBA provides that the aforementioned holding symbol shall not be removed until various conditions are satisfied by the Applicant, including delivery of the following to the satisfaction of the Township:

• Detailed plans including a landscape plan and processes to mitigate the spread of noxious weeds;
• Detailed site plan for the facility;
• Verification that the findings of the noise impact study are valid and acceptable sound levels are maintained at off-site receptors;
• Additional plans addressing water and sewage, stormwater management plan, well monitoring, lighting, and best practices that aid in minimizing the impacts of emissions;
• A landform conservation plan;
• Clearance letter for archeological assessment;
• Regional reliance letter for environmental work; and,
• Any agreements required with the Region.

80As it relates to the holding provision specifically, both Mr. Edwards and Ms. Howson testified that it provides the municipality with additional power to control the eventual development of the subject property, insofar as the proposed use of the property will not be authorized without the prescribed conditions being satisfied.

Issues and Analysis

81The following analysis begins with the remaining issues identified on the Issues List. Following that, the Tribunal examines other considerations prescribed by the Act which were not raised by the Appellants.

Remaining issues identified on the Issues List

82Following the Appellants’ decision to abandon its concerns associated with air quality, and upon the Tribunal’s finding that OPA 65 and ROPA 185 apply for the purpose of assessing conformity of the subject ZBA, the remaining issues outlined in the Issues List are as follows:

• Issue 1 – Does the ZBA conform to the local and regional official plans as amended by OPA 65 and ROPA 185?
• Issue 2 – Does the proposed use constitute an agriculture-related use and is it consistent with PPS Policy s. 2.3.3.1?
• Issue 3 – Has the potential for noise impacts on surrounding land uses been adequately addressed?

Issue 1: Does the ZBA conform to the Region and Township OPs?

83As it relates to Issue 1, the Pearce brothers’ position was narrowly focussed on a very technical argument. Noting that the subject property is located within a "natural linkage area", as identified within the Region OP, the Appellants submit that the subject ZBA does not conform with the Region OP because ROPA 185 only amended Policy s. 9.A.2.3 (re: Agricultural-related uses) and failed to amend Policy s. 10.B.2.1 which outlines Regional policies to be applied within natural linkage areas of the Oak Ridges Moraine designation (being where the subject property is located).

84The Tribunal notes that Policy s. 9.A.2.3 states:

Agricultural-related uses, such as grain drying and storage for farm produce may be permitted, provided such uses are small in scale and exclusively devoted to the farm operation. Severances for agricultural-related uses shall not be granted.

and ROPA 185 provides the following site-specific exception:

Notwithstanding Policy 9A.2.3, a grain milling, blending and storage facility, including the accessory sales of finished products, is permitted on [the subject property].

85The Appellants do not dispute conformity with Policy s. 9.A.2.3 of the Region OP, as amended by ROPA 185. However, Mr. Pearce highlighted that ss. (b) of Policy s. 10.B.2.1 limits new uses within natural linkage areas to home businesses, home industries, bed and breakfast establishments, farm vacation homes, as well as low intensity recreation, un-serviced parks, agricultural uses and accessory uses thereto, as well as mineral aggregate operations and wayside pits and accessory uses. Conspicuously absent from this list, Mr. Pearce notes, is agricultural-related uses which, he submits, are therefore not permitted.

86In addressing how to proceed with an analysis when one section of the OP explicitly permits the proposed use of the property, while another section does not include the proposed use within a list of permitted uses, Mr. Pearce submitted that the subject proposal must conform with each and every individual section of the OP to be permitted, and the proposed use is therefore not permitted because it fails to conform with Policy s. 10.B.2.1 by not being included on the list.

87When the same question was posed to Mr. Edwards and Ms. Howson, they both provided a similar reply. They stated that individual policies of an OP must always be read together with all of the policies of the OP in order to assess their meanings and intent. In the case of the Region OP, it would be improper to read Policy s. 10.B.2.1 in isolation while ignoring or without considering the explicit language of Policy s. 9.A.2.3, as amended by ROPA 185. Put succinctly, they concurred that there is no conflict between the two policy provisions because they are supposed to be read together, and when read together the obvious implication is that the municipality intended to permit the proposed development on the subject property.

88The Tribunal accepts this opinion, and similarly finds that there is no conflict within the Region OP, as amended. It is widely understood that policy instruments are to be read as a whole, with a broad and liberal interpretation when determining the intent of the policy makers. Clearly, given ROPA 185’s site and use specific language, the Region’s policy makers intended to permit the proposed development and it was passed to ensure no ambiguity with respect to conformity of the proposed ZBA. The Tribunal therefore finds it unreasonable, when reading the Region OP as a whole, as amended by ROPA 185, to conclude that the subject ZBA is anything but in conformity with it.

89While the Appellants did not pursue any other avenue of submissions with regards to the conformity (or lack thereof) of the ZBA with the applicable OPs, Mr. Edwards and Ms. Howson nevertheless provided a more comprehensive analysis of Issue 1 with respect to other relevant policies of the Municipalities’ OPs. The following is an account of their uncontested analysis.

Regional Municipality of Durham Official Plan

90Mr. Edwards confirmed that the subject site is designated in the Region OP as "Oak Ridges Moraine Areas" in Schedule A, Map A2 Regional Structure, and "Natural Linkage Area" on Schedule B, Map B3 - Oak Ridges Land Use.

91As it relates to the subject property being designated "Prime Agricultural Areas", Mr. Edwards acknowledges that it is not shown as Prime Agriculture in Schedule B, Map B3 of the Region OP. However, Mr. Edwards notes that the subject property is designated as a Prime Agricultural Area in Provincial mapping that was completed in 2018, and the Region’s mapping has yet to be updated. As a result, Mr. Edwards opines that the subject property should be treated as being located in a Prime Agricultural Area for policy purposes at the present time. The Appellants did not contest this.

92The Region OP includes policies related to Prime Agricultural Lands in Policy s. 9A Prime Agricultural Areas. This section indicates that agricultural, agricultural-related, and secondary uses are permitted within prime agricultural areas. As noted above, Policy s. 9.A.2.3 contains criteria for agricultural related uses insofar as they are to be small in scale and exclusively devoted to the farm operation. Mr. Edwards testified that Agricultural-related uses, such as grain drying and storage for farm produce may be permitted (prior to the passing of ROPA 185), provided that such uses are small in scale and exclusively devoted to the farm operation.

93As noted above, Mr. Edwards recognizes that ROPA 185 was added to provide site specific policy in favour of the Applicant’s proposed facility. The Tribunal finds that the most obvious question that previously existed, in relation to Policy s. 9.A.2.3 before the passing of ROPA 185, was whether or not the proposed facility is sufficiently "small in scale" and/or "exclusively devoted to the farm operation" to conform to the Region OP. Given the implementation of ROPA 185, this is no longer a question.

94Mr. Edwards notes that Schedule B, Map B2 of the Region OP shows High Aquifer Vulnerability and Wellhead Protection Areas, and there is an indication of aquifer vulnerability affecting the western portion of the subject property adjacent to York-Durham Line. The Region OP indicates that, outside of designated urban areas, uses identified as high risk are prohibited within High Aquifer Vulnerability and Wellhead Protection Areas. The Region OP correspondingly provides land use groups that range in nature from high risk to low risk. Mr. Edwards notes that manufacturing uses associated with food processing is considered a low-risk land use, and so the Applicant’s proposed use is not prohibited.

95Mr. Edwards concludes that the land uses permitted pursuant to the proposed ZBA, and specifically, a dry grain processing plant (including the processing tower, surge bins, related office and other uses), conform with the Region OP, as amended.

96Ms. Howson’s evidence closely follows Mr. Edwards evidence, as she similarly opines that the zoning by-law conforms to the Region OP as amended by ROPA 185. She confirms that the amendment was specifically approved out of an abundance of caution to ensure that there is no ambiguity with respect to conformity of the proposed use and related ZBA with the Region OP.

97The Tribunal accepts the evidence and opinions of both Mr. Edwards and Ms. Howson in this regard and similarly finds that the subject ZBA conforms to the Region OP.

Township of Uxbridge Official Plan

98Within the Township OP, the site is designated Oak Ridges Moraine Conservation Plan Area in Map 1. The majority of the subject site is also designated Natural Linkage Area in Schedule H Oak Ridges Moraine Conservation Plan ("ORMCP") Area Land Use Plan. A small portion of the extreme southeast corner of the site is designated Natural Core Area. This coincides with a small, wooded area, which abuts a much larger wooded area which is also designated Natural Core Area.

99Mr. Edwards confirms that s. 1.9 of the Township OP provides policies for the ORMCP Area. He testified that the Township OP indicates that the ORMCP should be reviewed fully before making an interpretation of policies. Pursuant to Policy s. 1.9.4.2, agricultural uses are permitted in the Natural Linkage Area designation subject to all other policies of s. 1.9 regulations of the applicable Zoning By-law.

100Mr. Edwards notes that the Township OP does not permit all uses in accordance with the permitted uses of the ORMCP. However, the Township OP states that the ORMCP should be reviewed in its entirety when making land use decisions within the Moraine and, pursuant to Policy s. 1.9.3, "[w]here there is a conflict between the policies of this Plan and the policies of the Moraine Plan, the policies of the Moraine Plan shall take precedence". As a result, he concludes that the permitted uses found in the ORMCP are permitted pursuant to the Township OP, irrespective of whether or not they are listed in the Township OP. Noting that the ORMCP permits agriculture-related uses, the Tribunal accepts this and finds the same.

101As was the case for the Region’s OP, and as previously noted, an amendment to the Township OP (OPA 65) was sought to ensure there is clarity regarding permitting the Applicant’s proposed use. The amendment added a policy to s. 1.9.4.2 ii) of the OP, expressly permitting as follows within the Natural Linkage Area:

Notwithstanding the foregoing, an agriculture-related use, as defined in the Oak Rides Moraine Conservation Plan, comprised of a grain milling, blending and storage facility, including accessory sales of finished products, serving farm operations and farm suppliers and similar uses shall be permitted on [the subject property].

102It is Mr. Edwards’ conclusion that the Applicant’s proposed use of the property, as facilitated by the proposed ZBA, conforms to the site-specific policies of the Township OP as amended by OPA 65. The Tribunal finds this to be obvious.

103Once again, Ms. Howson’s evidence closely follows Mr. Edwards evidence insofar as she also opines that the proposed ZBA conforms to the Township OP as amended by OPA 65. She confirms again that the amendment was specifically approved out of an abundance of caution to ensure there is no ambiguity with respect to conformity of the proposed use and related ZBA.

104The Tribunal accepts the evidence and opinions of both Mr. Edwards and Ms. Howson in this regard and similarly finds that the subject ZBA conforms to the Township OP.

Issue 2: Does the proposed use constitute an agriculture-related use and is it consistent with PPS Policy s. 2.3.3.1?

105As it relates to Issue 2, the Pearce brothers principally submit that the proposed use of the subject property is an industrial use which does not constitute "agriculture-related uses" as defined in either the PPS or the ORMCP.

106The Tribunal notes that Policy s. 2.3.3.1 of the PPS sets out permitted uses in prime agricultural areas as follows:

In prime agricultural areas, permitted uses and activities are: agricultural uses, agriculture-related uses and on-farm diversified uses.

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

107The PPS defines "Agriculture-related uses" as follows:

Agriculture-related uses: means those farm-related commercial and farm-related industrial uses that are directly related to farm operations in the area, support agriculture, benefit from being in close proximity to farm operations, and provide direct products and/or services to farm operations as a primary activity.

108The Tribunal notes that the Issues List does not make reference to the ORMCP. However, the Appellants made repeated reference to the definition of "agriculture-related uses" contained in the ORMCP, which states:

"agriculture-related uses" means farm-related commercial and industrial uses that,

(a) are directly related to, and compatible with, farm operations in the surrounding area and do not hinder those farm operations,

(b) support agriculture,

(c) benefit from being in close proximity to farm operations, and

(d) provide products or services, or both, directly to farm operations as a primary activity.

109The Tribunal finds that the ORMCP definition of "agriculture-related uses" is essentially the same as the language contained in Policy s. 2.3.3.1 and definition of "agriculture-related uses" within the PPS. As a result, the Tribunal finds no prejudice to allow the Appellants to make submissions with regards to the ORMCP in the context of Issue 2 .

110Referencing the ORMCP definition of "agriculture-related uses", the Appellants submit that the use facilitated by the proposed ZBA must be consistent with all four elements of the ORMCP definition to constitute "agriculture-related uses". The Tribunal notes that, through the course of the hearing, it became evident that the Appellants principally contest satisfaction of the first and fourth elements of the ORMCP definition, claiming that the Applicant’s business is related to farm operations which are located too far away to be considered "farm operations in the surrounding area", and also that it does not "provide products or services, or both, directly to farm operations as a primary activity" because, they submit, the business merely buys products (grain and seeds) from farmers.

111In response, Mr. Edwards notes that PPS Policy s. 2.3.3.1 states that criteria for uses, to qualify as "agriculture-related uses", may be based upon guidelines developed by the Province. He then drew the Tribunal’s attention to the Province’s guidelines entitled "Guidelines on Permitted Uses in Ontario’s Prime Agricultural Areas" (the "Guidelines").

112The below headings closely follow the headings in the Guidelines, which essentially breakdown the elements of PPS Policy s. 2.3.3.1 and corresponding definition of "agriculture-related uses". Below the following headings are references to the Guidelines, followed by Mr. Edwards’ corresponding evidence/opinion:

1. Farm Related Commercial and Industrial Uses

• The Guidelines note that farm related industrial uses may involve industrial operations that process farm commodities. They can also add value to agricultural commodities.
• The Guidelines provide examples of farm-related commercial uses, such as retailing of agriculture-related products (i.e. value-added products like wine or cider made from produce grown in the area), and farm-related industrial uses such as industrial operations that process farm commodities from the area such as feed mills, grain dryers, cold/dry storage facilities, and food and beverage processors (i.e. wineries and cheese factories).
• Mr. Edwards testified that the proposed facility will provide processing of farm commodities by providing milling and blending services. The facility can also add value to grain supplies by blending it with other grains to create custom grain products. The facility will provide a vital connection between farmers and the Province’s agri-food network.

2. Shall be compatible with and shall not hinder surrounding agricultural operations

• The Guidelines list the following considerations as it relates to this criterion: (a) Ensure surrounding agricultural operations are able to pursue their agricultural practices without impairment or inconvenience; (b) Uses should be appropriate to available rural services; (c) Uses should maintain the agricultural/rural character of the area; (d) Uses should meet all applicable provincial air emission, noise, water and wastewater standards and receive all relevant environmental approvals; and, (e) The cumulative impact of multiple uses in prime agricultural areas should be limited and not undermine the agricultural nature of the area.
• Mr. Edwards testified that the proposed use does not introduce any elements incompatible or materially impacting surrounding agricultural uses, noting that the closest agriculture use in proximity to the proposed facility is upon the same property, which will continue to be grain-farmed. In addition, the closest agriculture-related use is St. Lawrence Grains and Farm Supply Ltd., immediately to the south, which is similar in character but substantially larger in size and scale compared to the proposed development.
• Mr. Edwards further testified that, in terms of required services, all services for the proposed facility can be accommodated by private services on site. As far as Provincial standards and environmental approvals are concerned, the facility will be developed under the required permits for well and septic, with storm water to be dealt with on site in accordance with Toronto Region Conservation Authority guidelines. Noise impacts are discussed below under Issue 3.

3. Directly Related to Farm Operations in the area

• The Guidelines note that "area" is not necessarily based upon distance or municipal boundaries. The Guidelines also note that value added processing may require inputs brought in from outside the area. The Guidelines use the example of a winery, which could be an agriculture-related use if it primarily uses grapes grown in the area.
• Mr. Edwards testified that, in the Grainboys’ case, the majority of inputs are grown in the immediate area, while a minority of the inputs must come from further away and sometimes out of province due to a lack of domestic availability. This is necessary to allow Grainboys to maximize the value added to products that are principally grown locally.

4. Supports agriculture

• This criterion limits uses to those primarily focused on supporting agriculture. The Guidelines provide two examples: the first is a grain elevator used by farmers in the area which supports and benefits the area’s farms; and the second is a co-operatively run produce auction which creates a market for regional produce in the area and encourages greater local production of higher-value fruits and vegetables.
• Mr. Edwards testified that the subject proposal will provide a benefit to local farms by processing, adding value and facilitating access to more lucrative markets for their grain crops. It will also create or at least enhance local development of markets for alternative varieties and species of grains which can be sold at higher margins.

5. Provides direct products and/or services to farm operations as a primary activity

• This criterion requires that agriculture-related uses directly service farm operations as a primary activity. The Guidelines state that:

  Direct products and/or services" refers to uses that serve an agricultural need or create an opportunity for agriculture at any stage of the supply chain (e.g., […] value-added food […] processing and distribution or retail of agricultural commodities grown in the area). [emphasis added]

• Citing Hillier v. Clearview (Township), 2017 CarswellOnt 9615 at paras. 10, 13 & 14, the Applicant notes that a distinction has been made regarding the wording "a primary activity" in the PPS, which is not the same as the primary activity. The Ontario Municipal Board (as the Tribunal was known then) found "that an appropriate interpretation of the phrase admits to the possibility of more than one activity as prime activities." The point being, the Applicant submits, is that any one of the three lines of the Grainboys’ business (1. milling, 2. seed-cleaning, and/or 3. flour/grain blending), but not necessarily all three, may be found to be "a primary activity" and, thus, satisfy the criterion of agriculture-related use.
• The Guidelines further state that, to assess whether a proposed use meets the test of providing direct products and/or services to farm operations as a primary activity, municipalities should require evidence demonstrating that, for example, "inputs are primarily produced in the area".
• Mr. Edwards testified that the proposed facility will create an opportunity for agriculture by offering a way to add value to agricultural products grown in the area by milling and blending them into higher value flours and mixes, and then distributing/retailing the end products. This creates an opportunity for farmers to realize higher value from their crops.

6. Benefits from being in close proximity to farm operations

• To meet this criterion, the Guidelines state that agriculture-related uses must benefit from or need to be located near the farm operations they serve. Benefits may include more effective or efficient operations due to access to inputs, roads suited to slow-moving farm vehicles, reduced transportation distance, and marketing opportunities associated with being part of an agricultural cluster.
• Mr. Edwards testified that, in the present case, locating the proposed mill closer to the source of grain production reduces transportation cost. The new facility will also assist local farmers by providing options for delivery vehicles at the site (i.e. a blower truck will not be required). Onsite storage availability will further improve marketing opportunities for both Grainboys and farmers who do not have alternative storage options.

113In addition to referring to s. 2.2 of the Guidelines, as set out above, Mr. Edwards also referred to s. 1.4 which sets out, in more general terms, "Principles of Permitted Uses" in prime agricultural areas. The following is an account of his evidence in this regard, with each specific principle set out in the Guidelines stated first, followed by Mr. Edward’s evidence:

1. Agriculture remains the principal use in prime agricultural areas.

• Mr. Edwards testified that Agriculture will remain the principal use, with the proposed development only enhancing that use.
• Furthermore, the proposed facility will occupy a minority share of the subject property’s total area land size (3.8%), with agricultural uses continuing to occupy the majority.

2. Prime Agriculture areas are protected for future generations.

• Mr. Edwards testified that the majority of the property will continue to be farmed, and the proposed facility will directly serve the needs of area farmers both now and into the future – thus protecting the area by promoting increased viability.

3. Land taken out of agricultural production if any is minimal.

• Mr. Edwards testified that 9.14 acres, or 10% of the subject property’s area land size, will be taken out of production – which is minimal considering the degree of benefit that the facility will provide.

4. Regard is given to the long term (multi-generational) impact in prime agricultural areas.

• Mr. Edwards testified that the proposed facility will provide value-adding services that will help to preserve and enhance the financial viability of grain farming in the area for the long-term (multi-generational).

5. Normal farm practice may continue unhindered.

• Mr. Edwards testified that, as previously stated, the proposed use does not introduce any elements incompatible or materially impacting surrounding agricultural uses.

6. Agricultural and rural character and heritage are maintained as much as possible.

• Mr. Edwards testified that grain milling and storage is a long-standing practice and the facility will only enhance existing rural character and heritage (noting that St. Lawrence Grains and Farm Supply Ltd., being of a similar character but a larger facility, is located on the adjacent property).

7. Uses are compatible with agricultural uses.

• Mr. Edwards testified that the proposed use does not introduce any elements incompatible with agriculture. Instead, it enhances surrounding agricultural uses by providing additional marketing opportunities.

8. They make a positive contribution to agricultural industry, either directly or indirectly.

• Mr. Edwards testified that the proposed facility is agriculture-related and provides a value-added service directly to grain growers.

9. Servicing requirements (e.g. water and wastewater, road access, fire services, policing) fit the agricultural context.

• Mr. Edwards testified that the milling operation is a dry process, with water, sewer and storm water services accommodated using private systems on site.

114Ms. Howson’s evidence again closely follows Mr. Edwards’ evidence as described above. In summary, she opines that the proposed grain milling and blending facility constitutes an agriculture-related use and is consistent with PPS Policy s. 2.3.3.1. It is a use which is directly related to farm operations, and which has the potential to be directly related to local farm operations and support agriculture generally. It will also provide benefits by being in close proximity to local farm operations, as will such farm operations benefit from their proximity to the proposed facility.

115The Tribunal accepts the evidence of both Mr. Edwards and Ms. Howson and similarly finds that the Applicant’s proposed use, as facilitated by the proposed ZBA, constitutes an agriculture-related use as defined by the PPS (and, similarly, the ORMCP).

116Addressing the contested points raised by the Appellants, the Tribunal rejects their submissions insofar as they claim that Grainboys’ business is related to farm operations that are located too far away to be considered "farm operations in the surrounding area". The Tribunal also rejects their claim that Grainboys’ business does not "provide products or services, or both, directly to farm operations as a primary activity".

117On the first point, the evidence simply does not bear this out. Mr. Petrovich’s uncontested evidence is that imported grains make-up only around 15% of the ingredients constituting the business’ total outputs for all three lines of business. In their most recent year (ending July 2022), about 60% of Grainboy’s inputs for their cleaning and milling lines came from the immediate local area, while approximately 35% came from elsewhere in Ontario, leaving only 5% to be sourced out of province. He further testified that approximately 25% of their suppliers are within 25 kilometres of the proposed facility, and approximately 63% of the farmers who ship grain to them directly are between 15 and 50 kilometres away.

118On the second point, the Appellants clearly have a more restrictive view of what constitutes "provide products or services, or both, directly to farm operations as a primary activity" than what was intended by the PPS (and, correspondingly, the ORMCP). This is confirmed in the Guidelines. As guided by the Guidelines, the Tribunal finds that, to "provide products or services, or both, directly to farm operations as a primary activity", Grainboys’ operations need only prove that they are adding value to crops grown in the area, and it does not matter to whom Grainboys sells their final products.

119As an example, a winery or cidery provides an appropriate analogy for what constitutes an agriculture-related use in the present case. Milling, seed-cleaning and flour/grain blending is analogous to crushing grapes, filtering juices, and adding other ingredients as part of the fermentation process. If Grainboys baked bread and sold it directly to consumers, it would complete the analogy. The Guidelines are crystal clear insofar as distributing and/or retailing end products, that involve the value-added processing of area agricultural products, may constitute an agriculture-related use.

120It is obvious to the Tribunal that providing marketing opportunities to area farmers is a key consideration when assessing what constitutes an "agriculture-related use", and Grainboys certainly does that. Another analogous example of an agriculture-related use, featured in the Guidelines as an example, is that of a produce auction which creates a market for regional produce (i.e. higher-value fruits and vegetables). Grainboys does the same thing insofar as it provides marketing opportunities to sell different higher-value grain varieties, species and/or organics.

121It is noteworthy that the Tribunal also agrees with the finding in Hillier insofar as the correct interpretation of the definition of "Agriculture-related use" is that which must involve "a primary activity" of the proposed use, not necessarily the primary activity, nor even a majority of the subject activities, provided that all of the other "agriculture-related use" criteria are met.

122The Tribunal notes that Mr. Pearce intimated in closing submissions that the Applicant is obliged to locate the facility somewhere else, at a location that is not within a prime agricultural area, if it is viable to do so. The Tribunal does not accept this submission. Following para. 15 of Hillier, the Tribunal finds in the present case that "[t]here does not appear to be any provision in the PPS or the Guidelines that seeks to impose an obligation on a proponent to investigate alternative sites which would avoid the absorption of prime agricultural land."

Issue 3: Has the potential for noise impacts on surrounding land uses been adequately addressed?

123As it relates to Issue 3, the Appellants did not tender any evidence nor did they otherwise meaningfully pursue their stated concerns about noise. Nevertheless, the Applicants were obliged to provide evidence to address this issue. Andrew Dobson, the Applicant’s Acoustical Engineering expert, testified that the Applicants retained HGC Engineering to complete a Noise Impact Study, and an updated version of that study was provided in relation to the subject property dated April 7, 2020.

124As the proposed facility constitutes a farm-related industrial use, the Applicant acknowledges that there is the potential for the facility’s operation to produce noise. The Applicant also acknowledges that there are five "sensitive receptors" in the area, all of which are in the form of detached dwellings, including a dwelling owned by the Appellants.

125Mr. Dobson testified that the Noise Impact Study addresses the potential impact of noise on the neighbouring dwellings during "predictable worst-case operations" (when every sound-emitting source is active at the same time). It was determined that additional noise mitigation measures, apart from silencers that are already factory-incorporated into equipment planned for the facility (i.e. silencers that are part of the dust collector system), are not necessary.

126However, it is also acknowledged and recommended that, as the project moves forward, and specific equipment to be used at the facility is more firmly determined, an acoustic engineering review of the source sound levels and locations of the actual proposed equipment to be used should be conducted to ensure conformance with the assumptions made in the noise report.

127Mr. Edwards testified that this is why an "H" holding provision is appropriate. One of the conditions for removal of the hold is as follows.

An acoustical engineer shall verify the sound level specifications and locations of equipment which will emit noise conform to the assumptions made in the Noise Impact Study by HGC Engineering, September 2019, revised April 2020 and that acceptable sound levels will result at all off-site residential receptors.

128The result is that the development cannot proceed until verification that the anticipated noise impacts remain the same following resolution of the site plan. Mr. Edwards notes that approval of detailed plans is also a requirement to remove the holding provision.

129Ms. Howson’s evidence again reflects that of Mr. Edwards. She confirms that the issue of noise has been examined through the above described Noise Impact Study. She recognizes that the analysis takes into consideration the surrounding environment and concludes that the sound emissions can be within the applicable sound level criteria under typical predictable worst case operating conditions. She also confirms that the Region further reviewed the report and concluded that the aforementioned recommendations are appropriate. Additionally, as part of the requirements to remove the "H" holding provision of the ZBA, Ms. Howson confirms that a review and satisfactory report will be carried out to verify the findings at the site plan or building permit stage. As a result, she opines that the issue of noise impacts has been adequately addressed by way of the proposed ZBA.

130The Tribunal notes that there was some discussion about whether it is practical to require the Applicant to confirm actual noise impacts after construction is completed. However, the Tribunal found that there was no evidence to support the notion that this is necessary.

131Given the above evidence, the Tribunal finds that the Appellants’ concerns respecting noise impacts have been adequately addressed as a planning matter through the implementation of the "H" holding provision of the subject ZBA. Furthermore, no subsequent studies are required at the post-construction phase of the development.

Conformity with Provincial Plans and consistency with the PPS

132Mr. Edwards notes that, despite the fact that the issues of the Issues List do not make reference to conformity with Provincial Plans pursuant to s. 3(5) of the Act, and makes only one reference to consistency with a single section of the PPS (Policy s. 2.3.3.1), the Applicant nevertheless has a responsibility to demonstrate conformity/consistency with Provincial Plans and the PPS pursuant to s. 3(5) of the Act. As such, Mr. Edwards provided the following uncontested evidence and opinions regarding satisfaction of s. 3(5) of the Act.

Provincial Policy Statement

133Mr. Edwards testified that the PPS provides overarching policies to guide municipal decisions on land use planning matters. Planning decisions must be consistent with the policies set out in the PPS. Other Provincial Plans must be read in conjunction with the PPS and will take precedence over it unless legislation provides otherwise.

134The subject property is in a rural area, and s. 1.1.4 of the PPS deals with rural areas. This section states that healthy, integrated, and viable rural areas should be supported by several actions including "providing opportunities for economic activities in prime agricultural areas, in accordance with Policy 2.3". Mr. Edwards opined that the proposed facility will provide an opportunity for economic activity in accordance with this section by providing a value-added service for grain producers.

135Section 1.7.1(i) of the PPS also states that:

Long-term economic prosperity should be supported by:

sustaining and enhancing the viability of the agricultural system through protecting agricultural resources, minimizing land use conflicts, providing opportunities to support local food, and maintaining and improving the agri-food network"

136The "agri-food network" is defined in the PPS as:

Within the agricultural system, a network that includes elements important to the viability of the agri-food sector such as regional infrastructure and transportation networks; on-farm buildings and infrastructure; agricultural services, farm markets, distributors, and primary processing; and vibrant, agriculture-supportive communities.

137Mr. Edwards opined that the proposed development constitutes a primary processing facility for grain that will support local agriculture and contribute to the viability of the agri-food network as defined in the PPS.

138Mr. Edwards acknowledges that s. 2.3.1 of the PPS states that Prime Agricultural Areas "shall be protected for long-term use for agriculture", and the proposed development will take some land out of production. However, it is noteworthy that s. 2.3.1 uses the words "for agriculture", which is reasonably interpreted to constitute uses more broadly than just agriculture production. He opined that, while some land is to be taken out of agricultural production, the proposed use will nevertheless be "for agriculture".

139Section 2.3.2 states that:

Planning authorities are encouraged to use an agricultural system approach to maintain and enhance the geographic continuity of the agricultural land base and the functional and economic connections to the agri-food network.

and an "Agricultural System" is defined in the PPS as:

A system comprised of a group of inter-connected elements that collectively create a viable, thriving agricultural sector. It has two components:

a) An agricultural land base comprised of prime agricultural areas, including specialty crop areas, and rural lands that together create a continuous productive land base for agriculture; and

b) An agri-food network which includes infrastructure, services, and assets important to the viability of the agri-food sector.

140Mr. Edwards opined that the proposed development is consistent with these policies insofar as the proposed facility provides primary processing of grain as an enhancement of "the geographic continuity of the agricultural land base and the functional and economic connections to the agri-food network", using an "agricultural system approach" as defined in the PPS.

141The Tribunal finds that these policies ‘bake in’ considerations of economic viability and prosperity. The PPS is ripe with language promoting maintenance and enhancement of economic activities in prime agricultural areas.

142This is not a new concept. The Tribunal understands that the practice of locating essential infrastructure and value-added facilities within agriculture communities is commonly planned for. The Tribunal finds that the Applicant’s proposed development is a prime example.

143The Tribunal notes that, while the Appellants did not make direct submissions addressing the above sections of the PPS (and they provided no evidence), it was intimated at times by Mr. Pearce that they view the relevant policies as prohibiting any development in prime agricultural areas which takes land out of production. For the reasons set out above, the Tribunal finds that this is clearly not the case.

144While the protection of prime agricultural lands is certainly vital to the protection of the long-term economic viability of the agriculture sector, limited and strategic losses of productive lands is sometimes unavoidable to promote greater long-term prosperity.

145The Tribunal recognizes that perhaps the greatest way to protect against large losses of productive agricultural lands, to other uses such as residential development, is to ensure that the economic benefits of farming productive lands is financially competitive. Likewise, an overly strict approach of protecting every single acre of productive agricultural land, with a blind focus on preserving just the land, may lead us to have protected lands without it being farmed productively.

146Consequently, the Tribunal finds that the Applicant’s proposed development is squarely consistent with the PPS by providing opportunities for economic activities in prime agricultural areas, it protects the subject property and the greater area’s lands for long-term agricultural uses, and it maintains and enhances the long-term economic prosperity of the area’s agri-food network. The proposed development further promises to provide opportunities to support local food which will help maintain and improve a vibrant, agriculture-supportive community – all of which is supported by the policies of the PPS. While some productive land will be lost to construct the proposed facility, it is minimal in comparison to the broad-reaching benefits the proposed development will provide.

Growth Plan for the Greater Golden Horseshoe (the "Growth Plan")

147The subject property is within the Greater Golden Horseshoe Region. The Growth Plan is a long-term plan that works with other provincial plans to provide a framework for growth and resource management in the Greater Golden Horseshoe Region. The Guiding Principles of the Growth Plan are found at s. 1.2.1., one of which states "support and enhance the long-term viability and productivity of agriculture by protecting prime agricultural areas and the agri-food network". Mr. Edwards stated that, for the same reasons set out above regarding the PPS, the proposed development conforms to this principle.

148As previously noted, Mr. Edwards testified that the subject site is within an area designated Prime Agricultural Area in the Agricultural System for the Greater Golden Horseshoe mapping. Based upon the definitions related to agriculture, he opined that the proposed use would be permitted under the Growth Plan and it would comprise an integral component of the agri-food network as an agricultural service and primary processing facility.

149With no evidence to the contrary, and noting that the Tribunal finds that the goals and objectives of the Growth Plan are essentially the same as those of the PPS in relation to protecting agricultural resources and prosperity of area farms, the Tribunal concludes that the proposed ZBA conforms to the Growth Plan.

Oak Ridges Moraine Conservation Plan (the "ORMCP")

150The ORMCP was adopted in 2002 through the Oak Ridges Moraine Conservation Act. The subject property is within the purview of the ORMCP, which provides land use and resource management direction for lands associated with the Moraine feature.

151Mr. Edwards testified that the ORMCP establishes four land use designations for lands within the Moraine landform; one of which, including the subject property, is the Natural Linkage Area designation.

152Permitted uses within the Natural Linkage Area are set out in s. 12(3) of the ORMCP and includes "agriculture-related uses", subject to conditions set out in s. 12(4). The s. 12(4) conditions state "agriculture-related uses […] are only permitted in prime agricultural areas in the Natural Linkage Areas." Mr. Edwards noted, as stated previously, that the subject property is located in a prime agricultural area within the Natural Linkage Area pursuant to Provincial Plan mapping.

153Mr. Edwards notes that "agriculture-related uses" is a defined term within the ORMCP. However, as previously noted in this Decision, it is practically the same as that which is within the PPS. The manner in which the proposed use and enabling ZBA conforms to the definition of agriculture-related uses is discussed above under the Issue 2 analysis.

154Mr. Edwards further notes that the "Landform Conservation Areas" of the "Oak Ridges Moraine Map No. 2" indicates the subject property falls within a "Category 2 Landform Conservation Area". Section 30(6) of the ORMCP requires development in this area to demonstrate practices that will minimize disturbing the character of the landform.

155Mr. Edwards’ uncontroverted evidence was that the significant landforms listed under s. 30(6)(a) do not need to be considered because they are not present on the site. He further reiterated that the proposed development has a coverage of only 1.4%, well below the limit of 50% identified at s. 30(6)(b), and the percentage of impervious surface proposed is only 3.8% of the site, well below the limit of 20% set out at s. 30(6)(c).

156At s. 29(5), the ORMCP also lists a number of uses that are prohibited in areas of high aquifer vulnerability. This is noteworthy because the western end of the site has an indication of possible high aquifer vulnerability. Mr. Edwards notes that the proposed development does not involve any aspects that fall within the list of prohibited uses in such an area.

157In summary, Mr. Edwards opined that the proposed ZBA conforms to the ORMCP. The Tribunal accepts the above evidence and comes to the same conclusion.

Regard to Matters of Provincial Interest and Decision of the Township

158Section 2 of the Act requires that the Tribunal, in carrying out its responsibilities, to have regard to matters of Provincial interest. This includes environmental and agricultural concerns. For the same reasons set out above, and in the absence of evidence to the contrary, the Tribunal confirms that it has had sufficient regard to the prescribed matters of Provincial interest and s. 2(b) of the Act in particular.

159Section 2.1(1) of the Act requires the Tribunal, in carrying out its responsibilities, to have regard to any decision that is made under the Act by a municipal council or by an approval authority as it relates to the same planning matter. In the present case, the Township approved the subject ZBA, and both the Township and the Region took steps to amend their respective OPs to ensure conformity of the proposed ZBA with their OPs. Unequivocally, both municipal governments want the proposed ZBA to be approved to facilitate the proposed development. The Tribunal, in coming to the same decision, confirms that it has had sufficient regard to the Township’s approval of the ZBA and both the Township’s and Region’s decision to amend their respective OPs to ensure conformity with the proposed ZBA.

Conclusion

160The Tribunal finds that the proposed ZBA is consistent with the PPS and conforms to the Growth Plan and ORMCP. The ZBA also conforms to the Township OP and Region OP, as amended by OPA 65 and ROPA 185 respectively, which provide site-specific exceptions to expressly permit the proposed uses on the subject property. In coming to its findings, the Tribunal also confirms that it has had sufficient regard to matters of provincial interest, as well as the decisions of the Township and Region which are clearly supportive of the proposed development.

161Based upon the foregoing, the Tribunal finds that the proposed ZBA constitutes good land use planning, appropriately implements municipal and provincial policies, and the proposed development will constitute an appropriate use of the property. As such, it should be approved.

ORDER

162The Tribunal Orders that the appeal is dismissed.

"K.R. Andrews"

K.R. ANDREWS MEMBER

Ontario Land Tribunal Website: 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