Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 17, 2023

CASE NO(S).: OLT-22-004349

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

Applicant/Appellant: Dene Banger & Frances Boegli

Subject: Consent/Severance – Refused by Approval Authority

Description: To facilitate the creation of a new residential lot

Property Address: 525 & 653 Bidwell Road

Municipality: Township of Assiginack

Municipal File No.: B12-22

OLT Case No.: OLT-22-004349

OLT Lead Case No.: OLT-22-004349

OLT Case Name: Banger v. Assiginack (Township)

Heard: February 23, 2023 by Video Conference

APPEARANCES:

Parties

Dene Banger & Frances Boegli (Banger)

Counsel/Representative

Self-Represented

Parties

Counsel/Representative

Theresa Carlyle Township of Assiginak-Manatoulin Planning Board Secretary Treasurer

DECISION DELIVERED BY STEVEN T. MASTORAS AND P. TOMILIN AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1This proceeding commenced under subsection 53(19) of the Planning Act R.S.O. 1990, c. (the “Act”). The appeal for a Consent/Severance (“Application”), is based on the refusal of the Planning Board of the Township of Assiginack (the “Township”), under file #B12-22, regarding 525 and 653 Bidwell Road (the “Parcel”), on July 26, 2022.

2There were no preliminary issues, and proper Notice of Hearing was sent to interested persons by the Tribunal. Mr. Robert Brown corresponded with the Tribunal indicating an interest in Participant status, but after some discussion at the commencement of the hearing, Mr. Brown opted to be an observer.

3Because there were no other Parties present at the hearing, and no scheduled expert oral testimony, or written expert opinion evidence submitted to the hearing, the hearing commenced with opening statements from both Parties, followed by oral testimony and written submissions.

APPELLANT’S TESTIMONY AND SUBMISSIONS

4Mr. Dene Banger (the “Appellant”) provided oral testimony and written submissions demonstrating that his interest in severing the Parcel, was based on his desire to sell the newly created, approximately seven-acre lot, and that he believed the Tribunal should also not apply any conditions to such a severance, including any environmental impact analyses or studies.

5The Appellant also testified that the basis for the Township’s refusal of the application was due to the proximity of the Parcel to a neighbouring aggregate pit and quarry, that had been inactive for a period of seven years, in the lead up to the Application, and currently before the Tribunal.

6The Appellant further testified that despite his unsuccessful efforts to seek a revocation of the aggregate license for the site, the license was still in effect and was recently assumed by a new property owner in March 2022. Additionally, the Appellant asserted that the minimum setback requirements of the 2018 Township’s Official Plan, (“TOP”), in relation to aggregate sites in the Township, were improperly and inaccurately applied to his Parcel, and adversely affected the Application.

7Furthermore, the Appellant testified that any requirements from the Township related to environmental studies, including an Environmental Impact Study (“EIS”), or a Dust, Noise and Vibration Study (“DNVS”) related to the Application, were cost prohibitive and unnecessary in this circumstance. Part of the rationale for the Appellant’s view, was that the pit and quarry licensees (“Licensees”), were not even themselves required to perform these studies in their original applications for a license in January 2007, or amendments to the license in March 2012.

8Regarding the specific setback requirements, the Appellant testified that the Licensee was already required to have an internal setback of 30 metres inside the property line in addition to a public access road, and the TOP’s requirement of 300 metres as a setback standard, impeded the Appellants ability to sever the Parcel, which was overreaching and unnecessary (see Exhibit 1).

9In cross-examination, the Appellant also confirmed he received disclosure of the Planning Report submitted at the hearing, and copies of the TOP and Provincial Policy Statement, 2020 (“PPS 2020”), but asserted the Township’s position on the Application was made well in advance of the Planning Board hearing in July 2022.

TOWNSHIP-MANITOULIN PLANNING BOARD (“MPB”) AND MS. CARLYLE’S TESTIMONY AND SUBMISSIONS

10The Township’s MPB/Secretary-Treasurer, Ms. Theresa Carlyle, testified the Appellant’s submissions and testimony were flawed related specifically to the TOP’s setback requirements, and the PPS’s 2020 guidelines. She asserted the TOP was duly executed with input from several Provincial Ministries beginning in 2016, and up to its adoption in 2018, and that it specifically addressed pit and quarry setbacks throughout the Township, ensuring consistency in their application. Ms. Carlyle further stated that the objective of these policies was to mitigate land-use conflicts, and that any pit operations below the water table were required to have a 300-metre setback from any new residential dwellings.

11Ms. Carlyle testified the Licensee’s property was approximately 49.3 hectares, and that the entire lot was subject to this requirement (see Exhibit 2).

12Furthermore, Ms. Carlyle contested the suggestion that a comprehensive EIS was required by the Township, and instead, described the need for, at a minimum, the requirement of an DNVS.

13Ms. Carlyle also testified the 30-metre setback was an important element associated with the extraction area of the pit, and verified the property still maintained the current license issued under the Aggregate Resources Act (“ARA”).

14Finally, Ms. Carlyle testified the Appellant’s own engineering submission from Tulloch Engineering (Aug.17, 2021 letter), identified two scenarios which could have supported the Appellant’s application at the time of the Township’s consideration, which were:

• A revocation of the ARA license by the Ministry of Natural Resources and Forestry (“MNRF”) and/or,
• A land-use planning compatibility analysis, along with a DNVS.

15Overall, Ms. Carlyle stressed the necessity for the internal 30-metre setback related to the pit, and the 300-metre setback stipulated in the TOP. She further testified the PPS 2020 references the importance of mineral aggregate resources policy and its long-term significance.

ANALYSIS AND DISPOSITION

16Relevant elements of Section 2 of the Act states:

2. The Minister, the council of a municipality, a local board, a planning board and the Tribunal, in carrying out their responsibilities under this Act, shall have regard to, among other matters, matters of provincial interest such as,

a) The protection of ecological systems, including natural areas, features and functions; b) The protection of the agricultural resources of the Province; c) The conservation and management of natural resources and the mineral resource base; d) The orderly development of safe and healthy communities; e) The protection of the financial and economic well-being of the Province and its municipalities; f) The co-ordination of planning activities of public bodies; g) The resolution of planning conflicts involving public and private interests; h) The protection of public health and safety; i) The appropriate location of growth and development;

17Regarding Mineral Aggregate Resources, the TOP emphasizes the following:

1. “Mineral aggregate resources will be protected for long-term use. As much of the mineral aggregate resources as is realistically possible will be made available as close to markets as possible.
2. The following policies apply to Mineral Aggregate Resources:
3. Development proposals in close proximity to licensed aggregate extraction areas will be evaluated in terms of potential incompatibilities and addressed accordingly in consultation with the Province. Pertinent information regarding surface and groundwater, dust, vibration, noise, traffic routes in connection with the licensed aggregate extraction area, and buffering will be considered to ascertain the effect these existing factors will have on the proposed new development. Residential and institutional development within 300 metres of mineral aggregate resource areas and licensed pits will generally not be permitted. Proposed residential or institutional development within these areas will be supported by studies that demonstrate that any land use conflicts will be fully mitigated."

18The Township’s position regarding setbacks is a convincing one. It became evident during testimony the Township initiated the required Ministerial reviews associated with its TOP and adopted the document in 2018. It also became evident at the hearing that there were several licensed aggregate sites in the Township, and this warranted a comprehensive strategy which was implemented through this TOP process.

19Additionally, the PPS 2020 states the following:

2.5 Mineral Aggregate Resources

2.5.1 Mineral aggregate resources shall be protected for long-term use and, where provincial information is available, deposits of mineral aggregate resources shall be identified.

2.5.2 Protection of Long-Term Resource Supply

2.5.2.1 As much of the mineral aggregate resources as is realistically possible shall be made available as close to markets as possible. Demonstration of need for mineral aggregate resources, including any type of supply/demand analysis, shall not be required, notwithstanding the availability, designation or licensing for extraction of mineral aggregate resources locally or elsewhere.

2.5.2.2 Extraction shall be undertaken in a manner which minimizes social, economic and environmental impacts.

2.5.2.3 Mineral aggregate resource conservation shall be undertaken, including through the use of accessory aggregate recycling facilities within operations, wherever feasible.

2.5.2.4 Mineral aggregate operations shall be protected from development and activities that would preclude or hinder their expansion or continued use or which would be incompatible for reasons of public health, public safety or environmental impact. Existing mineral aggregate operations shall be permitted to continue without the need for official plan amendment, rezoning or development permit under the Planning Act. Where the Aggregate Resources Act applies, only processes under the Aggregate Resources Act shall address the depth of extraction of new or existing mineral aggregate operations. When a license for extraction or operation ceases to exist, policy 2.5.2.5 continues to apply.

2.5.2.5 In known deposits of mineral aggregate resources and on adjacent lands, development and activities which would preclude or hinder the establishment of new operations or access to the resources shall only be permitted if: a) resource use would not be feasible; or b) the proposed land use or development serves a greater long-term public interest; and c) issues of public health, public safety and environmental impact are addressed.

2.5.3 Rehabilitation

2.5.3.1 Progressive and final rehabilitation shall be required to accommodate subsequent land uses, to promote land use compatibility, to recognize the interim nature of extraction, and to mitigate negative impacts to the extent possible. Final rehabilitation shall take surrounding land use and approved land use designations into consideration.

2.5.3.2 Comprehensive rehabilitation planning is encouraged where there is a concentration of mineral aggregate operations.

2.5.3.3 In parts of the Province not designated under the Aggregate Resources Act, rehabilitation standards that are compatible with those under the Act should be adopted for extraction operations on private lands.

20While the Appellant’s testimony and submissions sought discretion from the Tribunal, the absence of any expert land-use planning analysis, and the absence of any effort to seek a DNVS, at a minimum, impacted the credibility of the Appellant’s case. Without the support of any relevant planning analysis, or even a minimum amount of environmental analysis, the Tribunal is not convinced the consent/severance appeal meets the objectives of the TOP, nor is it consistent with the PPS 2020.

21Concurrently, the testimony and submissions from the Township, particularly the planning report, highlighted the relevance and importance of the TOP, and the need to ensure an effective level of compatibility between such land uses. While the 300-metre setback may seem inordinate from a layman’s perspective, it is indeed part of the TOP, and the process for the implementation of this important planning document was not in dispute. Additionally, in the absence of any expert opinion or evidence on behalf of the Appellant related to the TOP, and the PPS 2020, the Tribunal cannot be reasonably expected to challenge the integrity of these documents and guidelines. The requisite land-use planning analysis, and at a minimum, some degree of professional environmental study and submissions should have been contemplated by the Appellant.

22Therefore, the Tribunal concludes that this Application fails to conform with the TOP and is not consistent with the PPS 2020, and shall be denied and dismissed.

ORDER

23THE TRIBUNAL ORDERS that the appeal is dismissed, and the provisional consent is not to be given.

“Steven T. Mastoras”

STEVEN T. MASTORAS MEMBER

“P. Tomilin”

P. TOMILIN MEMBER

Ontario Land Tribunal Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.