Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 21, 2023
CASE NO(S).: OLT-22-004523
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Sudha Prashar
Subject: Consent - refused by Approval Authority
Description: To sever property into two (2) separate lots for the purpose of estate residential development
Reference Number: B 010-22
Property Address: 4 McConachie Crescent
Municipality/UT: Caledon/Peel
OLT Case No: OLT-22-004523
OLT Lead Case No: OLT-22-004523
OLT Case Name: Prashar v. Caledon (Town)
Heard: February 1, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel*/Representative
Sudha & Anoop Prashar
Sudha Prashar
Town of Caledon
Max B. Rubin*
DECISION DELIVERED BY Kurtis Smith AND S. deBoer and ORDER OF THE TRIBUNAL
Introduction
1Sudha and Anoop Prashar ("Appellants/Appellant”) of 4 McConachie Crescent (“Subject Property”) in the Town of Caledon (“Town”), in the Region of Peel (“Region”), made an application for consent to sever the Subject Property into two Estate Residential Lots.
2The purpose of the severance will grant the Appellants the opportunity to construct a custom-built dwelling that meets the accessibility/health needs of their family.
3The Subject Property is situated at the corner of McConachie Crescent and Kennedy Road with vehicular access to the single detached dwelling from McConachie Crescent. The surrounding area is primarily agricultural with small residential clusters.
4Following a pre-consultation meeting with Town planning staff, the Appellants were of the opinion there would be no issues moving forward with an application of consent.
5The application sought before the Committee of Adjustment (“COA”) was to permit the severance of the vacant lands (“Severed Lot”) between Kennedy Road and the existing single detached dwelling on the Subject Property. The retained parcel would comprise of the existing dwelling (“Retained Lot”) with frontage along McConachie Crescent for both the Severed and Retained Lots.
6On August 17, 2022, the application with the associated Town planning staff report and recommendation came before the COA. Town planning staff recommended refusal, given that in their opinion it is not consistent with the Provincial Policy Statement (“PPS”), it does not conform to the Greenbelt Plan (“GBP”) and the Town of Caledon Official Plan (“COP”) and does not have regard for Section 51(24) of the Planning Act (“Act”).
7The COA denied the application and the Appellants appealed the decision to the Tribunal on September 13, 2022.
Preliminary Matters
8The Appellants retained Mr. Manni Chauhan, Principal Planner with G-force Urban Planner & Consultants to be their Agent in the consent application process to the Town and to subsequently file the appeal of decision. The Appellants wished to have Mr. Chauhan as a witness regarding land use planning to this matter, but to not be their agent. Prior to the commencement of the hearing the Tribunal received communication of the change of representation to self-representation by the Appellant. The Tribunal outlined the process of the hearing to the Appellants as this is their first appearance before the Tribunal. Since the Appellant was to be considered as “self-representing”, the Tribunal affirmed the Appellant prior to his opening statement in order for his full testimony to be considered by the Tribunal in this matter. The Tribunal was able to separate facts from arguments as addressed by the Appellant.
9The Tribunal did not receive any further requests for status (participant or party) for this matter.
Exhibits
10The following Exhibits were marked at the hearing:
i. Exhibit 1: Appeal Record and Forms
ii. Exhibit 2: Combined Expert Materials
iii. Exhibit 3: Combined Municipal Expert Materials
iv. Exhibit 4: Applicants Reply (February 1, 2023)
v. Exhibit 5: Applicant/Appellants Opening Statement
vi. Exhibit 6: Mr. Chauhan CV
vii. Exhibit 7: COP Schedule F
Legislative Framework
11With respect to the appeal pursuant to s. 53(19) of the Planning Act, in order to determine whether provisional consent should be granted (with such conditions that may be required), the Tribunal must:
i. Be satisfied that a plan of subdivision is not necessary for the proper and orderly development of the Town and can proceed by way of application for consent;
ii. If the Tribunal is satisfied that a plan of subdivision is not necessary, regard must then be given to the criteria set out in s. 51(24) of the Act, including: that the proposed consent has regard to matters of provincial interest; whether it is premature or in the public interest; whether there is conformity to applicable Official Plans; the suitability of the land for the purposes for which it is to be subdivided; the dimensions and shapes of the proposed lots; and the adequacy of utilities and municipal services;
iii. As with any planning decision, the Tribunal must be satisfied that the proposed consent is consistent with the PPS and conforms to any applicable provincial plans. The Tribunal must also have regard to the decision of the approval authority relating to the consent application and the information and material that was before it when making that decision;
iv. Pursuant to s. 53(12) of the Act, the Tribunal may consider and impose such conditions as are determined to be reasonable, having regard to the nature of the proposed consent;
v. Finally, the Tribunal will decide whether the proposed consent along with any required conditions, is representative of good planning in the public interest.
Planning Evidence
Appellant’s Witness, Mr. Chauhan
12The Appellant called on Mr. Manni Chauhan to provide expert opinion evidence in the area of land use planning. Mr. Chauhan is a member of the Canadian Institute of Planners, the Ontario Professional Planners Institute and has over 40 years of work experience. Mr. Chauhan was affirmed and qualified, without objection,to give expert opinion evidence in the area of land use planning in this matter.
PPS 2020
13Mr. Chauhan gave his opinion that the subdivision should be considered to be in a “Settlement Area” under the PPS. He stated that the subdivision is in a built-up area and has a mix of land uses. As such, the subdivision should be considered a “Settlement Area”.
14In Mr. Chauhan’s opinion, the consent is consistent with the following sections of the PPS:
Section 1.1: Managing and Directing Land Use to Achieve Efficient and Resilient Development and Land Use Patterns
1.1.1 (d) avoiding development and land use patterns that would prevent the efficient expansion of settlement areas in those areas which are adjacent or close to settlement areas;
1.1.1 (f) improving accessibility for persons with disabilities and older persons by addressing land use barriers which restrict their full participation in society.
Section 1.1.3: Settlement Areas
“…Ontario’s settlement areas vary significantly in terms of size, density, population, economic activity, diversity and intensity of land uses, service levels, and types of infrastructure available.” and that “…It is in the interest of all communities to use land and resources wisely, to promote efficient development patterns, protect resources, promote green spaces, ensure effective use of infrastructure and public service facilities and minimize unnecessary public expenditures.”
Section 1.1.3.4: Settlement Areas
Appropriate development standards should be promoted which facilitate intensification, redevelopment and compact form, while avoiding or mitigating risks to public health and safety.
Section 1.1.4: Rural Areas in Municipalities
“Rural areas are important to the economic success of the province and our quality of life. Rural areas are a system of lands that may include rural settlement areas, rural lands, prime agricultural areas, natural heritage features and areas, and other resource areas. Rural areas and urban areas are interdependent in terms of markets, resources and amenities. It is important to leverage rural assets and amenities and protect the environment as a foundation for a sustainable economy.”
Section 1.1.5.2: On Rural lands in municipalities, permitted uses are:
c) residential development, including lot creation, that is locally appropriate
Section 1.1.5.4 Development that is compatible with the rural landscape and can be sustained by rural service levels should be promoted.
Section 1.1.5.5 Development shall be appropriate to the infrastructure which is planned or available, and avoid the need for the unjustified and/or uneconomical expansion of this infrastructure.
Section 1.4.3 Planning authorities shall provide for an appropriate range and mix of housing options and densities to meet projected market-based and affordable housing needs of current and future residents of the regional market area by:
b) permitting and facilitating:
all housing options required to meet the social, health, economic and well-being requirements of current and future residents, including special needs requirements and needs arising from demographic changes and employment opportunities; and
all types of residential intensification, including additional residential units, and redevelopment in accordance with policy 1.1.3.3;
Greenbelt Act, 2005
15In Mr. Chauhan’s opinion, the subdivision was established before the enactment of the Greenbelt Act, and as such, the pre-established subdivision and zoning would allow the application to be approved as it would be a minor infill which does not need to conform to the Greenbelt Act due to the pre-establishment of the subdivision.
Region of Peel Official Plan (the “ROP”)
16Mr. Chauhan provided his opinion that the Subject Property conforms to the Region of Peel Official Plan as the Subject Property was a plan of subdivision that commenced before the Greenbelt Act of 2004. The recognition of this should allow the subdivision itself to be recognized as a Rural Settlement and as such, policy 5.4.18.1 to 5.4.18.4 allows for efficient and compact development including intensification on underutilized lands. These policies demonstrate that the application conforms with the ROP.
Town of Caledon Official Plan (the “COP”)
17In Mr. Chauhan’s opinion, the application conforms with the COP. Section 2.1 of the COP deals with well-established “Rural Estate Residential” communities. There is a strong tradition of maintaining a sense of community for each settlement. In his opinion, the subdivision should be recognized as such a community as it has all the characteristics necessary to be one. There is no reason, in his opinion, that the Subject
Property is not deemed as a part of a “Rural Estate Residential” community. If this were to be recognized, then this application would conform to policies concerning minor infilling.
18In Mr. Chauhan’s opinion, the COP’s lack of recognition of the “Rural Estate Residential” community is a failure of the Town. The Tribunal should recognize this error and allow for the consent to occur as it would be a minor infill of an underutilized property and the consent does not require any minor amendments in order to conform to the COP.
Town of Caledon Zoning By-law 2006-50 (the “ZBL”)
19In Mr. Chauhan’s opinion, the consent application conforms to the ZBL as there are no minor variances that are required to bring the newly created lot into compliance. The severed lot meets all the minimum areas and frontage requirements within the designated RE-36 zoning.
Conclusionary Opinion
20In Mr. Chauhan’s opinion, the application conforms with the PPS, ROP, COP and the ZBL. The consent application should be approved and the COP should be interpreted to recognize the existing plan of subdivision as a residential settlement.
Town’s Witness, Ms. Aquino
21The Town called on Ms. Cristina Aquino to provide expert opinion evidence in the area of land use planning. Ms. Aquino is currently working towards her membership with the Ontario Professional Planners Institute and has over 12 years of working experience. Ms. Aquino was affirmed and was qualified to give expert opinion evidence in the area of land use planning in this matter.
PPS 2020
22The Subject Property is designated to be in a prime agricultural area of the PPS. Under the PPS s. 2.3.4 lot creation within agricultural areas is discouraged and may only be permitted for:
a) agricultural uses, provided that the lots are of a size appropriate for the type of agricultural use(s) common in the area and are sufficiently large to maintain flexibility for future changes in the type or size of agricultural operations;
b) agriculture-related uses, provided that any new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services;
c) a residence surplus to a farming operation as a result of farm consolidation, provided that:
the new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services; and
the planning authority ensures that new residential dwellings are prohibited on any remnant parcel of farmland created by the severance. The approach used to ensure that no new residential dwellings are permitted on the remnant parcel may be recommended by the Province, or based on municipal approaches which achieve the same objective; and
d) infrastructure, where the facility or corridor cannot be accommodated through the use of easements or rights-of-way.
23In Ms. Aquino’s opinion, the application does not meet the criteria listed above and as such, is not consistent with the PPS.
Greenbelt Act, 2005
24In Ms. Aquino’s opinion the Greenbelt Act does not apply to the subdivision plan as this plan was created before the enactment of the Greenbelt Act. However, a consent is a different process in the Planning Act. The consent application did occur after the enactment of the Greenbelt Act, and as such, the application must conform to the Greenbelt Act of 2005. The Subject Property is within the “Protected Countryside” established by the Greenbelt Act. It was Ms. Aquino’s opinion that this designation prevents a consent application to be approved.
Region of Peel Official Plan (the “ROP”)
25The position of the Region of Peel concerning this application was that the application did not meet the criteria for a lot creation due to the Greenbelt Plan, specifically s. 4.6 of the Greenbelt Plan. As the comments of the Region states that the application cannot be approved, Ms. Aquino agreed with the Region’s position that the application did not conform with the ROP.
Town of Caledon Official Plan (the “COP”)
26The Subject Property is within the General Agricultural Area as per Schedule “A” of the COP. For properties within this designation, consents are only permitted within these designated lands for:
i. Farm consolidations or the enlargement of existing farm operation lots and that do not create a separate building lot or undersized lot;
ii. A residence surplus to a farming operation following consolidation;
iii. Minor lot line adjustments subject to specific policies; and,
iv. An agriculture-related commercial or agriculture-related industrial use subject to specific criteria and provisions.
27In Ms. Aquino’s opinion, the proposed consent does not conform to the COP for lot creation in an agricultural area.
Town of Caledon Zoning By-law 2006-50 (the “ZBL”)
28Ms. Aquino is of the same opinion as Mr. Chauhan that the proposed retained and severed lots would meet the requirements of the ZBL.
Conclusionary Opinion
29In Ms. Aquino’s opinion the application should be dismissed as it is not consistent with the PPS, fails to conform with the Greenbelt Act, and does not conform to the ROP or the COP.
Analysis and findings
30In rendering a decision, the Tribunal must take into account the evidence that was presented before it. The Tribunal must also give regard to the decision of the COA and the items presented before the COA, including public comments both written and orally submitted.
31Through the analysis of the evidence presented, the Tribunal finds that Mr. Chauhan did not provide sufficient evidence that the Subject Property is within a defined settlement area. The Subject Property has never been defined to be within settlement boundaries of the Town of Caledon. Additionally, the Subject Property has never been designated to be in a Rural Settlement Area as per the COP.
32The Tribunal does note that the COP and PPS permit severances in an agricultural area. However, the Tribunal is of the opinion that the application does not meet the qualifications set out in the COP or PPS as the application is not related to farm consolidation, agricultural related commercial or industrial use, and is not a dwelling that is surplus to a farming operation.
33Additionally, the Tribunal finds that the Subject Property is within the “Protected Countryside” area established by the Greenbelt Act. As a result of this designation the Subject Property is not permitted to be severed.
34Based on the evidence above, the Tribunal concurs with the evidence of Ms. Aquino that the application for consent is not consistent with the PPS and does not conform to the Greenbelt Act and COP.
ORDER
35THE TRIBUNAL ORDERS that the appeal is dismissed and the provisional consent is not to be given.
“Kurtis Smith”
KURTIS SMITH
MEMBER
“S. deBoer”
S. deBOER
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.