Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 29, 2023
CASE NO(S).: OLT-22-004749
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: ST. Mary's Cement Inc. (Canada) & Rosedale Securities Limited Subject: Official Plan Amendment Description: To permit expansion of gravel pit Property Address: 4222, 4228, & 4248 Sideroad 25 (Lot 25, Concession 1) Municipality/UT: Puslinch/Wellington Municipal File No.: OP-2020-04 OLT Case No.: OLT-22-004749 OLT Lead Case No.: OLT-22-004749 OLT Case Name: ST. Mary's Cement Inc. (Canada) & Rosedale Securities Limited v. Wellington (County)
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: ST. Mary's Cement Inc. (Canada) & Rosedale Securities Limited Subject: Zoning Bylaw Amendment Description: To permit expansion of gravel pit Property Address: 4222, 4228, & 4248 Sideroad 25 (Lot 25, Concession 1) Municipality/UT: Puslinch/Wellington Municipal File No.: D14-CBM OLT Case No.: OLT-22-004750 OLT Lead Case No.: OLT-22-004749 OLT Case Name: ST. Mary's Cement Inc. (Canada) & Rosedale Securities Limited v. Puslinch (Town)
Heard: March 23, 2023 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| St. Mary’s Cement Inc. (Canada) and Rosedale Securities Limited | Johnathan Kahn, David Hillier |
| Township of Puslinch | Kevin Thompson |
| County of Wellington | Peter Pickfield |
MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID BROWN ON MARCH 23, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Tribunal convened a Case Management Conference (“CMC”) in respect of the appeals filed by St. Mary’s Cement Inc. (Canada) and Rosedale Securities Limited (the “Appellants”) against the Township of Puslinch (the “Township”) for its failure to make a decision on an application to Amend the Zoning By-law (the “ZBA”) within the timeframes prescribed in the Planning Act, R.S.O. 1990, c. P. 13, as amended (the “Act”) and against the County of Wellington (the “County”) for its failure to make a decision on an application for an Official Plan Amendment (the “OPA”) within the timeframe prescribed in the Act. The lands that are the subject of the applications are located at 4222, 4228, and 4248 Sideroad 25 South (the “Subject Lands”).
2The proposal is to amend the County Official Plan to expand the Mineral Aggregates Resources Overlay to include a portion of the Subject Lands and to redesignate a portion of the Subject Lands from Greenlands to Secondary Agricultural and to redesignate a further portion of the Subject Lands from Secondary Agricultural to Greenlands. Additionally, the proposal includes rezoning the Subject Lands to allow aggregates extraction. The result will be to permit the expansion of the existing gravel pit abutting and to the north of the Subject Lands owned by the Appellants.
3An Affidavit of Service sworn February 17, 2023, attesting to the giving of Notice for this proceeding, was filed and marked as Exhibit 1.
4The Tribunal received a request for Participant Status from John McNie. Mr. McNie explained that he resides in the immediate area, and he represents a group of area residents that have concerns with the proposed gravel pit expansion. Mr. McNie confirmed that he is making the request personally as the group is not an incorporated ratepayers’ organization.
5A request for Participant Status was also received from Crieff Hills Community operating as Crieff Hills Retreat Centre (“Crieff Hills”). Kristine O’Brien, Executive Director at Crieff Hills, attended and advised that Crieff Hills owns lands abutting the Subject Lands and they have an interest in the outcome of the appeals.
6The Parties indicated no objections to the requests for Participant Status. The Tribunal granted Participant Status to Mr. McNie and Crieff Hills.
7No other requests for status were received by the Tribunal.
8Mr. Kahn, on behalf of the Appellant, advised that a draft Procedural Order (“PO”) and a draft Issues List (“IL”) have been submitted to the Tribunal for consideration. Mr. Kahn advised that the matters before the Tribunal are an OPA and ZBA. Mr. Kahn advised that a License Application has been filed with the Ministry of Natural Resources and Forestry (“MNRF”) pursuant to the Aggregates Resources Act (the “ARA”). The License Application has not been referred to the Tribunal at this time. Mr. Kahn indicated that the Parties are requesting that the Tribunal schedule ten (10) days for a hearing of the merits of the appeals.
9Mr. Pickfield advised the Tribunal that the County has filed an objection to the Appellant’s ARA License Application and requested the MNRF to refer the ARA License Application to the Tribunal for consideration. Mr. Pickfield requested that the hearing not occur until the MNRF referral has been received by the Tribunal so that the matters can be consolidated pursuant to Rule 16 of the Tribunal Rules of Practice and Procedure (the “Rules”). The draft IL provided to the Tribunal demonstrates the overlap of issues between the OPA and ZBA appeals and the matters considered with the ARA License Application. Mr. Pickfield does not oppose scheduling a merit hearing at this time, however, he requested that it be scheduled far enough into the future to enable the ARA License Application referral to be received by the Tribunal and that there is sufficient time to address the request for the consolidation and the procedural timelines contemplated in the draft PO.
10Mr. Thompson advised that the Township is in general agreement with the position outlined by the County. Mr. Thompson submitted that the ARA License Application and the OPA and ZBA appeals currently before the Tribunal are intrinsically linked and should be consolidated. He noted that the consolidation of the matters can not occur until such time as the MNRF referral of the ARA License Application has been received by the Tribunal. The Township supports the request to schedule the hearing date making sufficient time allowance for the receipt and consolidation of the ARA License Application with the OPA and ZBA appeals.
11Mr. Kahn, in response to the comments from the other Parties, submitted that the OPA and ZBA appeals before the Tribunal address the principle of land use of the Subject Lands, whereas the ARA License Application specifically addresses the operation of the permitted use. He noted that the ARA License Application may not be referred to the Tribunal and the OPA and ZBA can proceed independent of the ARA License Application.
12The Tribunal reviewed the draft IL. The Tribunal raised concerns with the wording included in Issue No. 5.:
- Are the proposed Site Plan Notes comprehensive and do they represent longer-term commitments by the proponent to operate and manage the aggregate operation to Township standards and policies, and do they provide certainty that monitoring and mitigation measures will address foreseen and unforeseen impacts in the community?
13The Tribunal requested that the terms “foreseen and unforeseen” be removed as they are not necessary to inform the issue and the inference requires that there can be mitigation measures included for impacts that have not been contemplated.
14In respect to Issues No. 9 and 10:
Have the potential noise impacts been properly assessed and modelled?
Have all potential noise receptors been properly accounted for?
15The Tribunal requested that the word “properly” be removed or replaced within Issues No. 9 and 10 to ensure the neutrality of the described issues. Should a Party have a concern with the manner in which the modelling has been completed or the noise receptors have been identified, the Party should clearly delineate the nature of the concern so as to focus the issue being raised.
16Mr. Kahn expressed concern with the broad nature of Issue No.1 relating to matters of provincial interest described in s. 2 of the Act and requested that the County and the Township provide a more precise description of the matters at issue. In respect to Issue No. 8, Mr. Kahn submitted that this is a “boiler plate” type of condition. He suggested that addressing the issue is a matter that is an opinion proffered by a witness having contemplated the relevant statutory requirements.
17The Tribunal finds that Issue No.1 is in an appropriate form for adjudication by the Tribunal.
18Issue No. 8 is:
- Does the proposal represent good planning and is it in the public interest?
19The Tribunal notes that this is a typical issue included on ILs filed with the Tribunal. The determination is part of the consideration of a planning application such as the OPA and ZBA that are the subject of the appeals before the Tribunal. The Tribunal, having considered the statutory requirements, must be satisfied that the planning matter under consideration represents good planning and is in the public interest. This consideration must be made by the presiding panel of the Tribunal regardless of whether it is identified in the IL. The Tribunal finds that the inclusion of the issue is not necessary in this instance.
20The Parties advised that they will continue refining the IL for submission with the final PO. The Tribunal encouraged the Parties to keep discussing issues and find common ground for the narrowing or elimination of issues as appropriate.
21The Parties shall provide the finalized PO before the next CMC.
22The Tribunal advised that Tribunal-assisted mediation is available to the Parties should they wish to consider mediation, alternatively, the Tribunal encouraged the Parties to explore settlement opportunities.
23The Tribunal scheduled a nine (9)-day Hearing of the Merits to be conducted by video and to commence on Monday, March 18, 2024, at 10 a.m.
24Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
https://global.gotomeeting.com/join/660145013
Access code: 660-145-013
25Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html
26Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: +1 (647) 497-9373 or Toll Free 1-888-299-1889. The access code is 660-145-013.
27Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
28The Tribunal schedules a further CMC for Friday, July 7, 2023, to commence at 10 a.m. by video. The CMC will consider the PO and consider, subject to receipt, the request to consolidate the ARA License Application referral from the MNRF pursuant to the Rules.
29Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
https://global.gotomeeting.com/join/638422541
Access code: 638-422-541
30Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html
31Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: +1 (647) 497-9373 or Toll Free 1-888-299-1889. The access code is 638-422-541.
32Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
33In the event that the referral of the ARA License Application is not received from the MNRF prior to the Friday, July 7, 2023 CMC, the Tribunal will determine the manner in which the request for consolidation shall be addressed.
ORDER
34THE TRIBUNAL ORDERS that John McNie and Crieff Hills Community are granted Participant Status in these proceedings.
35THE TRIBUNAL ORDERS that the nine (9)-day Merit Hearing shall commence on Monday, March 18, 2024, at 10 a.m. by video as set out above.
36THE TRIBUNAL ORDERS that a further Case Management Conference shall be held on Friday, July 7, 2023, at 10 a.m. by video as set out above.
37THE TRIBUNAL ORDERS that the Parties shall provide a finalized Procedural Order including an Issues List to the Tribunal on or before Friday, June 30, 2023.
38The Member is not seized, however, the Member may be spoken to, subject to the Tribunal’s calendar, in respect to finalizing the Issues List.
39There will be no further notice provided.
“David Brown”
David Brown
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.