Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 21, 2023

CASE NO(S).: OLT-21-001960

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

Appellant: Township of Springwater

Applicant: John Kapteyn

Owner: Nick and Lynda Van Casteren

Subject: Consent

Reference Number: B17/21

Property Address: 3088 Horseshoe Valley Road

Municipality/UT: Springwater/Simcoe

OLT Case No: OLT-21-001960

OLT Case Name: Township of Springwater v. Springwater (Township)

Heard: May 19, 2022, by video hearing and completed in writing on June 13, 2022

APPEARANCES:

Parties: Counsel

John Kapteyn: David S. White

Township of Springwater: Sarah Hanh

DECISION DELIVERED BY JATINDER BHULLAR AND P. TOMILIN AND THE ORDER OF THE TRIBUNAL

INTRODUCTION

1This was an appeal by the Township of Springwater (“Appellant”) concerning the decision of the Committee of Adjustment (“COA”) to approve the consent application from John Kapteyn (“Applicant”) to retain the existing farm market operation and single detached dwelling from the property located at 3088 Horseshoe Valley Road (“Subject Lands”) in the Township of Springwater (“Township”) while severing the larger farmland parcel.

2The Subject Lands have a total lot area of 49.1 hectares (“ha”) (121.35 acres). The Applicant proposes to sever an agricultural parcel of Subject Lands for farming purposes with a lot area of 42.2 ha (104.35 acres) 580 metres (“m”) (1,902.89 feet) of lot frontage on Rainbow Valley Road East and retained lot area of 6.9 ha (17.2 acres). The retained lands consist of an existing dwelling, serviced by an existing private well and septic system, a farm produce sales outlet and 3.56 ha (8.75 acres) of active farmland and having a lot frontage of approximately 106 m (347.8 feet) on Horseshoe Valley Road West.

3The Subject Lands are located in a Prime Agricultural Area, as defined by the Provincial Policy Statement (“PPS”) (2020), designated ‘Agricultural’, ‘Greenlands’ and ‘Rural’ within the County of Simcoe Official Plan (“CSOP”) and designated ‘Agricultural’ in the Township Official Plan (“OP”) and zoned Agricultural (A) in Springwater’s Comprehensive Zoning By-law (“ZBL”) No. 5000.

WITNESSES

4There were two lay witnesses called in support of the Applicant. These were duly affirmed/sworn per their preferences. The witnesses were:

a. John Kapteyn who plans to purchase the severed lot; and

b. Lynda Van Casteren who plans to continue operating a food operations with limited farm produces and uses on the retained lot.

5The parties also called witnesses to provide expert opinion evidence. These witnesses were duly affirmed/sworn, their acknowledgements of expert’s duties were confirmed and were qualified as follows:

a. The Applicant called Paul Neals as an Agrologist with expertise in provincial agricultural policies and to provide expert opinion evidence in those; and,

b. The Town called Brent Spagnol who identified himself as Director of Planning for the Township and was qualified to provide expert opinion evidence in the area of land use planning.

Site Context

6The site is graphically shown in the staff report modified to reflect the interchange of severed versus retained on consent of all the parties and the Tribunal having determined that per subsection 53(35.1) of the Planning Act that no further notice is required; shows as follows;

7The proposed consent would retain an agricultural parcel of land consisting of approximately 6.9 ha (17 acres) of lot area and having a lot frontage of approximately 106 m (347.8 feet) on Horseshoe Valley Road West. The retained parcel would contain a single detached dwelling and a farm produce sales outlet along with the associated accessory buildings and barns. Approximately 3.56 ha (8.75 acres) of active farmland would remain with the market operation. The property is serviced via an existing private well and septic system.

8The remaining farmland to be severed would consist of a total area of approximately 42.2 ha (104.35 acres) 580 m (1,902.89 feet) of lot frontage on Rainbow Valley Road East. The farmland is currently being farmed by and is proposed to be purchased by Arbor Lane Farm Inc. (J. Kapteyn), a neighbouring bona fide farmer and the Applicant, for the purposes of farm consolidation. Arbor Lane Farms Inc. operates a broiler breeder chicken operation in close proximity to the subject lands and also cash crops several farms within the Township.

Evidence

9Mr. Kapteyn stated that he already operates the greater part of the requested severed lands. He provided background on his family farming as passed down from his parents to himself and his brother. He stated that as a farmer, it would only be natural for him to further invest and take care through pride of ownership and long term certainty that ownership provides. He stated that this contrasts with how normally leased lands are differently considered when making investments for the long term maintenance of agricultural lands. He also emphasized that he primarily plans to grow cash crops on the 40 ha. M. Kapteyn added that the proposal as it looks different in policy context has already been in operation for over 10 years where he has tilled the 40 ha and the Van Casterens have operated their agri-food business on the smaller parcel. He emphasized that the formalization through severance will allow for due and appropriate management of family accession plans.

10Ms. Van Casteren provided significant details of her and her husband’s operation based on the planned retained lot. She stated that they have been operating about a seven acre operation since about 1982 (“Nicohlyn Farms”). They renovated the house on the lot, started a food hut as well a market based on the products from their smaller farm as well as more than 90 other farmers in the area. She added that she also started and is operating a kitchen to create value added products. She further described how they originally purchased the lands as a means for succession to their children but have realized the lands are not sufficient for independent operation. However, she is confident that the smaller operation on severed lot with focussed value added operations can sustain an agri-food based business with opportunities for 25 full time and six part time staff. She stated that most activities in the operation are manual than machinery oriented. She also took pride in describing possible school tours and support for food banks and charitable needs.

11Ms. Van Casteren informed during cross-examination that the severed lands always had a separate access as well would be facilitated through their retained parcel as appropriate. She described during redirect and emphasized that she gets her supplies from a local milling company and approximately 90% of the ingredients come from local sources for her value added agri-food business.

12Mr. Neals provided his evidence centred around the context of agri-food policies and guidelines as higher levels policies that establish framework in a wholesome context for such scenarios as the proposal in this hearing. He agreed with Mr. Kapteyn that as an agrologist, he sees substantial benefits in maintaining and protecting Prime Agricultural Area (“PAA”) land uses through ownership of such lands. He opined that this often results in better management of sustained quality for PAA lands for the longer term in support of the agri-food business.

13Mr. Neals also emphasized that the proposal does not take away any agricultural uses as both parcels retain their agri-business functions as these have done so for greater than 10 years and are equipped to do so into the future.

14Mr. Neals emphasized that the PPS provides direct guidance in this matter. He listed out criteria which the operation of Nicholyn Farms maintains and will continue to do so if the appeal is allowed. This is excerpted below:

1. farm related commercial use; includes retailing of agriculture-related products as done by Nicohlyn Farms.

2. compatible with and will not hinder surround agricultural operations; Nicohlyn Farms is an established farm related commercial use that supports sale of local farm produce. Arbor Lane Farm currently rents the land from Nicohlyn Farms and the lands will be retained in agriculture.

3. directly related to farm operations in the area; Nicohlyn Farms provides services to farm operations in the area that need to market their agricultural commodities.

4. supports agriculture; Nicohlyn Farms supports approximately 75 local producers and Arbor Lane Farm can continue to cultivate the severed property.

5. provides services to farm operations as a primary activity; Nicohlyn Farms primary activity in marketing local farm produce

6. benefits from being in close proximity to farm operations; Nicohlyn Farms is located within the agricultural area of Simcoe County and is easily accessed by the transportation network.

15Mr. Neals also provided detailed evidence regarding the Growth Plan polices related to the concept of agricultural system and agri-food network. He opined as excerpted below:

• Maintaining the agricultural land base for crop production in the long term

• Enhancing the economic viability of Arbor Lane Farms farming operation by expanding its land base through ownership which giving them control over land management decisions, promote long term investment into owned lands, provide equity and promote potential growth on the farming operation with ownership.

• Enabling Nicohlyn Farms to sell lands surplus to their operation while maintaining their farm market and support to local food producers

• The severance permits Nicohlyn Farms to continue their farm related commercial use and gives Arbor Lane Farms the ability to manage their farming operation independently as the landowner.

• Based on discussion with both parties in my opinion they are dedicated to maintaining both agricultural operations in the long term as part of the Simcoe County agri-food network.

16Mr. Neals also referred to the existing operations of Arbor Lane Farms (Kapteyn operations) and Nicholyn Farms in the context of reference to lot creation policies in the PPS 2020. He opined that the proposal is functionally consistent with policies 2.3.3 and 2.3.4 in the context of agriculture and the protection of this function.

17Mr. Spagnol anchored his planning evidence on the staff recommendation report prepared by staff member Brianna Belcourt. He reviewed the report analysis in his evidence. He stated that report concluded the proposed creation of a new lot does not conform with the minimum area requirements of the Township Official Plan (“TOP”) of the Township Comprehensive ZBL.

18Mr. Spagnol opined that in terms of regard for Provincial Interest per s. 2 of the Planning Act, and specifically sub (b) and sub (l) subsections; the proposal does not protect agricultural resources of the province and potentially creates fragmentation and reduces prime agricultural area land base.

19Mr. Spagnol also stated the proposal does not conform with the County Official Plan (“COP”) which has minimum lot area requirement of 40 ha. Mr. Spagnol opined that the proposal would fragment the existing house, farm produce sales, and accompanying farmland from the larger farm parcel in violation of Section 3.6.8 of the COP.

20Mr. Spagnol also opined that the TOP also specifically prohibits severances that result in the separation of market garden lots from agricultural properties.

21Mr. Spagnol also characterized the operations carried out by the Van Casterens as a “farm sales outlet” which is only permitted on a property having a minimum lot area of 35 ha.

22Mr. Spagnol stated that he concurs with the staff report which concludes that the proposal generally aligns with policies in PPS 2020.

23The County of Simcoe did not provide evidence but in its submission supported the evidence brought forth by the Township.

Analysis

24Mrs. Van Casteren and Mr. Kapteyn echoed the same information regarding the prevailing uses of the subject property. Mr. Kapteyn has leased the larger approximate 40 ha plus parcel for the last 10 years and has been using it to grow crops. The Casterens have operated the agri-food store and like business in the smaller portion of land during the same periods. This responds to the testimony of Mr. Spagnol that there is potential impact on protecting prime agricultural area land base in the Township.

25The Township did not call any agrological assessment evidence. Mr. Neals provided in depth and practical evidence related to agricultural systems and agri-food considerations embedded in the provincial policies and plans. Mr. Neals emphasized that there is broader and more direct direction in this provincial framework. He stated that encouragement and enhancing viability of the agri-food network is the proper lens to make determinations in such situations. The Tribunal prefers the evidence of Mr. Neals versus that of Mr. Spagnol in this regard. The narrow context of mechanically applying COP or TOP policies to such aspects of agri-food network and agricultural systems is not appropriate.

26The Applicant submitted that the COP policies discourage lot creation in agricultural designations. The Applicant argued that such restrictions are not reflective of the current direction in the provincial policies and plans.

27The Applicant also submitted that the dated TOP does not have consideration for agricultural systems. It is well established in land use planning that not all scenarios and aspects of land use planning implementations can be fully described or covered in any official plan. The absence of such aspects not covered does not make their consideration illegal in making land use planning determinations.

28Having regard for the decision made by the approval authority in consideration of all evidence before it when it made its decision, the weighing of competing evidence of Mr. Spagnol with that of Mr. Kapteyn, Ms. Van Casteren, Mr. Neals and having regard for all the material on file, the Tribunal finds that the original decision of the Committee of Adjustment for the Township was appropriate inclusive of the conditions attached to the approval and that the proposal has due regard for the provincial interest, have due regard for s. 53(19) of the Planning Act and a plan of subdivision is not required. The proposal is additionally consistent with the Provincial Policy Statement, conforms with the Growth Plan and the County plus Township’s Official Plans.

ORDER

29THE TRIBUNAL having been asked to consider an application that has been amended from the original application, and the Tribunal having determined as provided for in subsection 53(35.1) of the Planning Act that no further notice is required;

30THE TRIBUNAL ORDERS that the appeal is allowed and the provisional consent per Attachment 1 is to be given subject to the conditions set out in Attachment 2 to this Order.

“Jatinder Bhullar”

JATINDER BHULLAR

MEMBER

“P. Tomilin”

P. TOMILIN

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

MAP

(Note that the retained and severed lots are reversely labelled)

ATTACHMENT 2

CONDITIONS

1That the applicant meet all the requirements, financial or otherwise of the Municipality;

2That the applicant provide two (2) copies of the registered survey of the severed lot prepared by an Ontario Land Surveyor;

3That the owner/applicant satisfy and be responsible for all costs to satisfy Section 65 of the Drainage Act, 1990, if applicable;

4That the applicant obtain an entrance permit for the retained lands to the satisfaction of the Township, if applicable;

5That the applicant rezone the severed lands to an Agricultural Exception (A-xx) Zone to recognize the existing farm produce sales outlet (farm market) operation as a permitted use and to prohibit the keeping of livestock;

6That the applicant rezone the retained lands to an Agricultural Consolidation (AC) Zone to prohibit residential uses;

7That the applicant provide an undertaking and draft transfer demonstrating that

8the retained farmlands will be transferred to a ‘bona fide’ farmer;

9That it be confirmed that the private well and septic system are wholly contained within the property limits of the severed residential lands to the satisfaction of the Chief Building Official, prior to registration of the severance;

10That the applicant shall transfer to the Corporation of the County of Simcoe

11(“County”), at no cost, a fee simple, unencumbered interest in the following:

12A road allowance widening along the entire frontage of the subject property adjacent to County Road 22 to provide an 18.0 metre right-of-way from the centre line of County Road 22, to the satisfaction of the County of Simcoe, and in accordance with the letter dated November 24, 2021; and,

13That all structures such as fences, signs and landscaping boulders must be relocated inside of the new property line and comply with relevant Road Setback By-law No. 5604 and Sign By-law No.6756, to the satisfaction of the County of Simcoe in accordance with the letter dated November 24, 2021.