Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 16, 2023
CASE NO(S).: OLT-22-004608
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Homeextent Inc.
Subject: Consent
Description: to sever a lot into three parcels for future residential use
Property Address: Vacant Lot Rathfon Road (Concession 2 Part Lots 8 & 9, 59-R-691 Parts 5 & 6)
Municipality: Township of Wainfleet
Reference Number: B17/2022W
OLT Case No.: OLT-22-004608
OLT Lead Case No.: OLT-22-004608
OLT Case Name: Homeextent Inc. v. Wainfleet (Township)
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Homeextent Inc.
Subject: Consent
Description: to sever a lot into three parcels for future residential use
Property Address: Vacant Lot Rathfon Road (Concession 2 Part Lots 8 & 9, 59-R-691 Parts 5 & 6)
Municipality: Township of Wainfleet
Municipal Reference Number: B18/2022W
OLT Case No.: OLT-22-004609
OLT Lead Case No.: OLT-22-004608
OLT Case Name: Homeextent Inc. v. Wainfleet (Township)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Homeextent Inc.
Subject: Minor Variance
Description: to request relief from provisions of Zoning By-law 034-2014 to permit the construction of a dwelling
Property Address: Vacant Lot Rathfon Road (Concession 2 Part Lots 8 & 9, 59-R-691 Parts 5 & 6)
Municipality: Township of Wainfleet
Municipal Reference Number: A14/2022W
OLT Case No.: OLT-22-004610
OLT Lead Case No.: OLT-22-004608
OLT Case Name: Homeextent Inc. v. Wainfleet (Township)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Homeextent Inc.
Subject: Minor Variance
Description: to request relief from provisions of Zoning By-law 034-2014 to permit the construction of a dwelling
Property Address: Vacant Lot Rathfon Road (Concession 2 Part Lots 8 & 9, 59-R-691 Parts 5 & 6)
Municipality: Township of Wainfleet
Municipal Reference Number: A15/2022W
OLT Case No.: OLT-22-004611
OLT Lead Case No.: OLT-22-004608
OLT Case Name: Homeextent Inc. v. Wainfleet (Township)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Homeextent Inc.
Subject: Minor Variance
Description: to request relief from provisions of Zoning By-law 034-2014 to permit the construction of a dwelling
Property Address: Vacant Lot Rathfon Road (Concession 2 Part Lots 8 & 9, 59-R-691 Parts 5 & 6)
Municipality: Township of Wainfleet
Municipal Reference Number: A16/2022W
OLT Case No.: OLT-22-004612
OLT Lead Case No.: OLT-22-004608
OLT Case Name: Homeextent Inc. v. Wainfleet (Township)
Heard: February 6, 2023 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Homeextent Inc. | Jennifer Meader |
| Township of Wainfleet | No one appeared |
DECISION DELIVERED BY JEAN-PIERRE BLAIS AND A. CORNACCHIA AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal involves three appeals. First, two appeals pursuant to s. 53(19) of the Planning Act (“Act”) based on the refusal of the Committee of Adjustment (“Committee”) of the Township of Wainfleet (“Township”) of two related Consent applications. Second, one appeal pursuant to s. 45(12) of the Act based on the Committee’s refusal of three related Minor Variance applications. The appeals were administratively consolidated due to the obvious overlapping of issues and evidence.
2The Applications by Homeextent Inc. (“Applicant/Appellant”) are with respect to vacant lands located on Rathfon Road, known municipally – in the absence of a municipal address - as Roll No. 271400000209001, in the Township (“Subject Lands”).
3The Notice of a Hearing Event was given administratively by the Tribunal. No other person sought party or participant status.
4No counsel appeared at the hearing on behalf of the Township. Although the matter was not contested, the Tribunal must nevertheless be satisfied that the application satisfies all legislative tests.
EVIDENCE
5The Applicant/Appellant called Craig A. Rohe as an expert witness. He was retained by the Applicant/Appellant in this matter. Mr. Rohe was qualified by the Tribunal as an expert in land use planning. He gave comprehensive and uncontested evidence evaluating the Applications against the relevant legislative tests.
Subject Property
6The Subject Lands have an area of approximately 10.95 hectares (“ha”), with a frontage of 108.51 metres (“m”) on Rathfon Road, between Lakeshore Road and Gord Harry Trail. They abut properties containing single detached dwellings to the north, west and south. An actively cultivated agricultural field is located to the east. They do not currently contain any structures and are not in agricultural production. They have been left to naturalize.
The Applications
7As part of a development proposal, the Applicant/Appellant filed with the Township two Consent applications and a Minor Variance application (“Applications”):
a. A Consent application to sever Parcel 1 for future residential use and for a concurrent partial discharge of mortgage (municipal file B17/2022W);
b. A Consent application to sever Parcel 2 for future residential use and for a concurrent partial discharge of mortgage (municipal file B18/2022W); and,
c. Minor Variance applications for relief from the Township’s Zoning By-law 034-2014 (“ZBL”) for minimum lot frontage for Parcel 1 (35.53 metres), for Parcel 2 (37.42 metres) and for retained Parcel 3 (35.56 metres) (municipal files A14/2022W, A15/2022W and A16/2022W).
8The severances sought would result in three parcels. Two severed parcels would be for residential development. The larger retained parcel would be for either future agricultural use, for residential development or both. The three Minor Variances seek to reduce lot frontages for each parcel to less than the 46 m as required under the ZBL. The Applications are inextricably linked because the proposed development cannot move forward without the approval of the consent Applications and the Minor Variance Application.
9The parcels will not be served by municipal water and sewage services. They are in an area with an environmentally sensitive aquifer. As a result, the Applicant/Appellant is proposing that the private water system will use a cistern rather than a well. The proposed private septic system has been designed to reduce nitrogen seepage.
10Township staff recommended approval of the Applications, subject to conditions with respect to the Consent applications (“Conditions of Approval”). However, the Township’s Committee of Adjustment refused the Applications on September 23, 2022.
ANALYSIS
Do the Proposed Consent Applications have Regard for the Criteria set out at [s. 51(24)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec51subsec24_smooth) of The [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)?
11Section 51(24) of the Act contains an extensive list of criteria to which the Tribunal must have regard in considering the Consent applications. Mr. Rohe testified extensively on those criteria.
12Mr. Rohe first analyzed the matters of Provincial interest in s. 2 of the Act, the Provincial Policy Statement 2020 (“PPS 2020”) and the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”) as they apply in this matter.
Matters of Provincial Interest, PPS 2020 and the Growth Plan
13Although the Subject Lands are in a rural area and are considered rural lands under the PPS 2020, Mr. Rohe testified that they are not considered to be wholly within a prime agricultural area given the class of soil that is present. Under the PPS 2020, settlement areas are the preferred location for growth. In this instance, the Subject Lands are among a large concentration of residential properties. In Mr. Rohe’s view, the Subject Lands are an appropriate location for limited growth and their development will be compatible with the rural landscape. The inclusion of new dwellings on the Subject Lands infills a gap along an existing strip of rural dwellings.
14Mr. Rohe also testified that the agricultural resources of the Province would be protected by accommodating development on lands not currently in active agricultural production. The creation of two residential lots is in keeping with the general character of the area and does not limit or fragment reasonable agricultural opportunities, particularly on the retained parcel. Mr. Rohe also explained that the Subject Lands are currently vacant, overgrown with cultural thicket and are not actively farmed.
15Mr. Rohe noted that the proposed development will be more than sufficiently set back from nearby livestock facilities. Given this, and the interceding land uses, namely open fields, existing residential development and municipal roads, Mr. Rohe concluded that a Minimum Distance Separation calculation was not necessary.
16For similar reasons, Mr. Rohe testified that the proposed Applications conform with the Growth Plan, particularly in respect of non-agricultural development in rural areas, compatibility with the rural landscape and surrounding land uses, natural and cultural heritage matters, and the provisioning of private water and sewage systems.
Conformity with Official Plans
17With respect to conformity with relevant official plans and the ZBL, Mr. Rohe explained that the subject Lands are designated as “Rural” under the Regional Municipality of Niagara’s Official Plan 2015 (“Regional OP”), as “Rural Area” under the Township’s Official Plan 2016 (“Township OP”) and as “Rural A4-2” under the ZBL.
18Mr. Rohe explained that the land use designations under the Regional OP, the Township OP and the ZBL permit the creation of lots for residential purposes in rural areas where the Subject Lands are located. He opined that each proposed lot would have sufficient area to provide for a dwelling and private services and will have access to a publicly maintained road and utilities. The Subject Lands are located between existing residential development, which have similar lot frontages, and their use will be compatible to the surrounding area. He also carefully reviewed the consent criteria under the Regional OP and Township OP and confirmed that the consent applications conform with those criteria.
19He also opined that the creation of proposed residential lots is not premature and will contribute to the Province’s housing supply.
20The Applications are supported by three technical studies requested by the Township. Mr. Rohe explained that the supporting studies demonstrate that lot creation and residential development can proceed with no impact on the natural environment, archaeological heritage, or ground water resources, particularly given the proposed Conditions of Approval.
Environmental Impact Study
21The Subject Lands were evaluated through an Environmental Impact Study to determine if there would be any significant impacts on existing natural areas or features on or adjacent to the Subject Lands. Mr. Rohe explained that the study completed by Ecological and Environmental Solutions concluded that the Subject Lands do not contain any significant natural features, except for a small encroachment of a significant woodland in the northwest corner of the large, retained parcel. The proposed lot lines do not encroach within the featured boundary and are located outside of the 120 m screening associated with such significant woodlands. Mr. Rohe further explained that the Study identified invasive species present on the proposed lots which will be removed to facilitate development, to the benefit of the overall natural environment. Appropriate measures in this regard are contemplated in the Conditions of Approval, such as the planting and preserving of native species, including trees.
Stage 1-2 Archaeological Assessment
22As the Subject Lands are close to Lake Erie, they are considered to exhibit archeological potential. Therefore, Detritus Consulting Ltd. completed a Stage 1 and 2 Archaeological Assessment. Through field review, no archaeological resources have been discovered. The preparation of required reports to the Ontario Ministry of Heritage, Sport, Tourism and Cultural Industries and the obtainment of Provincial letters of concurrence are subject to Conditions of Approval.
Hydrogeological Report
23Mr. Rohe explained that the Township is a rural municipality that does not have any municipal water and sanitary services. The proposed lots would have to be supported by private water and sceptic systems. Although the Subject Lands are located within a highly vulnerable aquifer, the Hydrological Report prepared by Terra-Dynamics Consulting Inc. concluded that private services can be accommodated on the proposed lots with no negative impact to groundwater. The proposed lots are to be just under 1 ha in size, with the retained parcel being 9.7 ha. These lot sizes were deemed appropriate in the circumstances to address sanitary system matters. The provision of potable water will occur through truck-filled cisterns rather than wells. Appropriate measures with respect to potable water and nitrogen reducing septic installations are subject to Conditions of Approval.
24Overall, Mr. Rohe testified that, in his professional opinion, the proposed Consent applications have regard to the criteria set out in s. 51(24) of the Act. In his opinion, the Applications had regard to matters of Provincial interest in s. 2 of the Act, were consistent with the PPS 2020, and conformed to the Growth Plan, the Regional OP and the Township’s OP. The Subject Lands are a suitable location for growth as they are set among primarily residential dwellings, have frontage on a public highway and can be supported by appropriate private water and sanitary services.
25The Tribunal accepts this comprehensive and uncontested evidence and finds same. The Tribunal also finds that the Conditions of Approval that support this finding are reasonable in the circumstances pursuant to s. 51(25) of the Act.
Does the Proposed Minor Variance Satisfy the Four Tests set out at [s. 45(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec45subsec1_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)?
26To succeed, an applicant for authorization of variances must satisfy the Tribunal that the four tests set out under s. 45(1) of the Act are met. The four tests require an applicant to satisfy the Tribunal that the variances:
i. Maintain the general intent and purpose of the official plan; ii. Maintain the general intent and purpose of the zoning by-law; iii. Are desirable for the appropriate development or use of the land building or structure; and iv. Are minor.
Official Plan and Zoning By-law
27As noted above, the Applications are inextricably linked. As a result, the legislative, public policy and public interest analysis overlaps considerably.
28The Tribunal is satisfied that the proposed variances meet the general intent and purpose of the Regional OP, the Township’s OP and the ZBL. The evidence is that OPs and the ZBL permit residential lot creation on the Subject Property. Mr. Rohe testified that lot frontage value was derived from the Regional OP. It was unclear, in his view, why the minimum frontage requirement was set at 46 m. However, he speculated that the 46 m standard may have been considered appropriate to optimize agricultural use. In any event, lot frontage requirements are stated, in the Regional OP and the Township’s OP, to be flexible based on circumstances. Mr. Rohe reiterated that the proposed lots are appropriately sized to accommodate single detached dwellings on cistern-based water services while providing sufficient area for amenities, drainage, and a nitrogen-reducing sanitary services.
Desirable
29The Tribunal also finds that the proposed reduced frontage will allow the Subject Lands to be used for their proposed purposes. The proposed frontage is like other rural residential properties in the area. The Subject Lands are an appropriate location for limited growth and their development will be compatible with the rural landscape. The inclusion of new dwellings on the Subject Lands infills a gap along an existing strip of rural dwellings. The reduced frontages which are part of the overall development proposal are desirable to support the proposed development.
Variances are Minor
30The Tribunal is satisfied that the variances sought are minor and will not cause any adverse impacts on the residents of the abutting properties.
31The requested reduction for the two proposed smaller parcels appropriately reduces a larger-than-required frontage given the proposed residential purpose for these parcels. The reduced frontage for the larger retained parcel will still provide sufficient area for both residential development and agricultural access to the field at the rear of that parcel.
32Accordingly, the Tribunal finds that the four tests at s. 45(1) of the Act have been met and that the appeal should be allowed.
CONCLUSION
33Overall, the Tribunal accepts the uncontested evidence of Mr. Rohe and finds that the proposed Applications meet all the relevant legislative tests, including sections 45(1), 51(24) and 51(25) of the Act. The Applications have regard to matters of Provincial interest in s. 2 of the Act, are consistent with the PPS 2020, and conform to the Growth Plan, the Regional OP and the Township’s OP. It represents good planning.
ORDER
34THE TRIBUNAL ORDERS that
i. The appeals of Consent applications B17/2022W and B18/2022W are allowed and provisional consents are to be given as described in Attachment 1 to this Order, subject to the conditions set out in Attachment 2 to this Order.
ii. The appeal of Minor Variance applications A14-A15-A16/2022W is allowed and the variances to the Township of Wainfleet By-law No. 034-2014, are authorized as set out in Attachment 3 to this Order.
“Jean-Pierre Blais”
JEAN-PIERRE BLAIS MEMBER
“A. Cornacchia”
A. CORNACCHIA 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.
Attachment 1
Attachment 2
Conditions of Consent
Consent Application B17/2022W
That minor variance application A14/2022W be approved.
That the owner submits a Stage 1-2 archaeological assessment (and any required subsequent archaeological assessments for Parts 1, 2 and 3) to the Ministry of Heritage, Sport, Tourism and Culture Industries (MHSTCI) and receiving an acknowledgement letter from MHSTCI (copied to Niagara Region) confirming that all archaeological resource concerns have met licensing and resource conservation requirements prior to any development on the site.
That the owner enters into a Development Agreement with the Township, to be registered against the title of Parcels 1, 2 and 3, which requires:
a. That the owner agrees to implement the recommendations of the Hydrogeological Assessment prepared by Terra Dynamics Consulting Inc. (dated August 4, 2022), including:
i. That the three parcels be equipped with the sewage systems that provide at least 75% nitrogen reduction of septic sewage effluent Level IV/tertiary treatment and located along the northern limit of the proposed parcels as shown in Figure 3;
ii. That the private water supply be provided via cistern;
iii. That future sewage disposal systems observe the required Ontario Building Code setbacks from water supplies and surface water. During the design process, it should be ensured that the septic bed on Parcel 2 has a minimum 30 metres setback from water well 6603631, likely located on the property immediately south of the subject property, 10808 Rathfon Road (shown in Figure 2 and 3).
iv. That if any on-site wells are discovered during construction, they should be decommissioned by a licensed water well contractor;
v. That if any on-site petroleum wells are discovered during construction, they should be decommissioned by a qualified well contractor.
b. That the owner agrees to implement the recommendations of the Environmental Impact Study prepared by Ecological & Environmental Solutions (dated July 2022), including but not limited to:
i. That an Invasive Species Management Plan be submitted, to the satisfaction of Niagara Region, that outlines the removal and management of Japanese Honeysuckle and Multiflora Rose to prevent the spread of these species towards the Core Natural Heritage System;
ii. That the owner agrees to implement the approved Invasive Species Management Plan;
iii. That vegetation removals be undertaken between September 15 and May 15, outside of the breeding bird nesting period. A survey for active bird nests should be conducted prior to any vegetation removal or site alteration planned to occur during this window.
iv. That permanent fencing be installed along the new property lines, to mitigate encroachment.
c. That any offers and agreements of purchase and sale or lease shall include the following warning clause:
i. “Should deeply buried archaeological remains/resources be found on the property during construction activities, all activities impacting archaeological resources must cease immediately, notify the Archaeology Programs Unit of the Ministry of Heritage, Sport, Tourism and Culture Industries (416-212-8886) and licensed archaeologist is required to carry out an archaeological assessment in accordance with the Ontario Heritage Act and the Standards and Guidelines for Consultant Archaeologists.
In the event that human remains are encountered during construction, all activities must cease immediately and the local police as well as the Cemeteries Regulation Unit of the Ministry of Government and Consumer Services (416-326-8800) must be contacted. In situations where human remains are associated with archaeological resources, MHSTCI should also be notified to ensure that the site is not subject to unlicensed alterations which would be a contravention of the Ontario Heritage Act.”
That the Secretary-Treasurer be provided with a registerable legal description of the subject parcel, together with a copy of the deposited reference plan, for use in the issuance of the Certificate of Consent.
That a final certification fee, payable to the Treasurer of the Township of Wainfleet, be submitted to the Secretary-Treasurer.
That all conditions of consent be fulfilled within a period of two years after notice has been given under Section 53(17) or 53(24), as per Section 53(41) of the Planning Act, R.S.O. 1990.
Consent Application B18/2022W
That minor variance applications A15/2022W and A16/2022W be approved.
That the owner submits a Stage 1-2 archaeological assessment (and any required subsequent archaeological assessments for Parts 1, 2 and 3) to the Ministry of Heritage, Sport, Tourism and Culture Industries (MHSTCI) and receiving an acknowledgement letter from MHSTCI (copied to Niagara Region) confirming that all archaeological resource concerns have met licensing and resource conservation requirements prior to any development on the site.
That the owner enters into a Development Agreement with the Township, to be registered against the title of Parcels 1, 2 and 3, which requires:
a. That the owner agrees to implement the recommendations of the Hydrogeological Assessment prepared by Terra Dynamics Consulting Inc. (dated August 4, 2022), including:
i. That the three parcels be equipped with the sewage systems that provide at least 75% nitrogen reduction of septic sewage effluent Level IV/tertiary treatment and located along the northern limit of the proposed parcels as shown in Figure 3;
ii. That the private water supply be provided via cistern;
iii. That future sewage disposal systems observe the required Ontario Building Code setbacks from water supplies and surface water. During the design process, it should be ensured that the septic bed on Parcel 2 has a minimum 30 metres setback from water well 6603631, likely located on the property immediately south of the subject property, 10808 Rathfon Road (shown in Figure 2 and 3).
iv. That if any on-site wells are discovered during construction, they should be decommissioned by a licensed water well contractor;
v. That if any on-site petroleum wells are discovered during construction, they should be decommissioned by a qualified well contractor.
b. That the owner agrees to implement the recommendations of the Environmental Impact Study prepared by Ecological & Environmental Solutions (dated July 2022), including but not limited to:
i. That an Invasive Species Management Plan be submitted, to the satisfaction of Niagara Region, that outlines the removal and management of Japanese Honeysuckle and Multiflora Rose to prevent the spread of these species towards the Core Natural Heritage System;
ii. That the owner agrees to implement the approved Invasive Species Management Plan;
iii. That vegetation removals be undertaken between September 15th and May 15th, outside of the breeding bird nesting period. A survey for active bird nests should be conducted prior to any vegetation removal or site alteration planned to occur during this window.
iv. That permanent fencing be installed along the new property lines, to mitigate encroachment.
c. That any offers and agreements of purchase and sale or lease shall include the following warning clause:
i. “Should deeply buried archaeological remains/resources be found on the property during construction activities, all activities impacting archaeological resources must cease immediately, notify the Archaeology Programs Unit of the Ministry of Heritage, Sport, Tourism and Culture Industries (416-212-8886) and licensed archaeologist is required to carry out an archaeological assessment in accordance with the Ontario Heritage Act and the Standards and Guidelines for Consultant Archaeologists.
In the event that human remains are encountered during construction, all activities must cease immediately and the local police as well as the Cemeteries Regulation Unit of the Ministry of Government and Consumer Services (416-326-8800) must be contacted. In situations where human remains are associated with archaeological resources, MHSTCI should also be notified to ensure that the site is not subject to unlicensed alterations which would be a contravention of the Ontario Heritage Act.”
That the Secretary-Treasurer be provided with a registerable legal description of the subject parcel, together with a copy of the deposited reference plan, for use in the issuance of the Certificate of Consent.
That a final certification fee, payable to the Treasurer of the Township of Wainfleet, be submitted to the Secretary-Treasurer.
That all conditions of consent be fulfilled within a period of two years after notice has been given under Section 53(17) or 53(24), as per Section 53(41) of the Planning Act, R.S.O. 1990.
Attachment 3
Minor Variance Application A14/2022W
That Parcel 1, as shown on the Severance Sketch attached to the Tribunal’s Order as Attachment 1, shall have a minimum frontage of 35.5 metres, whereas the Township of Wainfleet Zoning By-law 034-2014 requires a minimum frontage of 46 metres.
Minor Variance Application A15/2022W
That Parcel 2, as shown on the Severance Sketch attached to the Tribunal’s Order as Attachment 1, shall have a minimum frontage of 37.4 metres, whereas the Township of Wainfleet Zoning By-law 034-2014 requires a minimum frontage of 46 metres.
Minor Variance Application A16/2022W
That Parcel 3, as shown on the Severance Sketch attached to the Tribunal’s Order as Attachment 1, shall have a minimum frontage of 35.5 metres, whereas the Township of Wainfleet Zoning By-law 034-2014 requires a minimum frontage of 46 metres.