Eskape View Inc. v. Huron (County), 2023 CanLII 28250

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 4, 2023 CASE NO(S).: OLT-22-004089

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

Applicant/Appellant: Eskape View Inc. Subject: Consent – Conditions of provisional consent Description: To sever the subject property to allow for designated development lands to become separately conveyable Reference Number: C30-2022 Property Address: 33814A and 82451 Golf Course Road Municipality/UT: Ashfield-Colborne-Wawanosh/Huron OLT Case No: OLT-22-004089 OLT Lead Case No: OLT-22-004089 OLT Case Name: Eskape View Inc. v. Huron (County)

Heard: February 24, 2023 by video hearing

APPEARANCES:

Parties	Counsel
Eskape View Inc. ("Applicant/Appellant")	Kathleen DeBlock Boersma
The Corporation of the County of Huron ("County")	Greg Stewart

DECISION DELIVERED BY S. MANN AND JENNIFER GOLD ON FEBRUARY 24, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Eskape View Inc. (the "Appellant") made application to The Corporation for the County of Huron (the "County") for consent to sever the property municipally known as Part Lot 6, Broken Front Concession, S/T Row, Colborne Ward, Township of Ashfield-Colborne-Wawanosh (the "Property"). The County approved the application by its decision dated June 15, 2022 (the "Approval"), subject to eight conditions. The Appellant appealed the Approval and disputed two of the conditions, namely the requirement to convey land to the Township of Ashfield-Colborne-Wawanosh (the "Township") and the condition of a Park Land fee and tree re-planting along the land to be conveyed to the Township.

2The Parties reached a settlement prior to the hearing. Minutes of Settlement were filed with the Tribunal and marked as Exhibit 4 to the hearing. In support of the settlement, the County submitted the evidence of Celina Whaling-Rae, a Planner with the Planning and Development Department of the County. Ms. Whaling-Rae’s Acknowledgement of Expert’s Duty (Exhibit 1) and curriculum vitae (Exhibit 2) were reviewed by the Panel and Ms. Whaling-Rae was qualified by the Tribunal to provide expert land use planning evidence.

3The Minutes of Settlement reflect the agreement of the parties that the conditions, as submitted to the Tribunal for the purposes of the Appeal, be amended and that on that basis, the Appeal be allowed in part.

4Upon hearing the evidence, the Tribunal was satisfied that the proposed consent to sever, with the amended conditions, represents good land use planning and aligns with Provincial planning policies and legislation.

ISSUE

5The issue before the Tribunal is whether the severance of the Property and the creation of the severed lot from the existing parcel, with the conditions as set out in the Minutes of Settlement, generally meets the requirements and criteria set out in the applicable framework of Provincial planning legislation, specifically s.51(24) of the Planning Act ("Act"), and represents good planning. The Tribunal must also consider matters of Provincial interest and consider the original decision made by the County and its basis.

EVIDENCE AND ANALYSIS

6The Tribunal received and considered the expert evidence of Ms. Whaling-Rae. She provided an overview of the application and referenced the severance sketch attached to the Minutes of Settlement. She explained the conditions contained in the Township’s decision were based on the Township’s concerns regarding: (a) drainage; (b) maintenance of the shoreline; (c) maintenance of the existing laneway for years to come; and (d) beach access to be maintained for current and future residents. The Approval was subject to conditions, including that the lands west of 66 feet east from the western edge of the existing laneway on the severed parcel be transferred to the Township.

7The parties agreed to revised conditions that are set out in the executed Minutes of Settlement. They include:

1. An easement for the purpose of beach access to the benefit of the owners of the severed lands and the Township be registered over the portion of the severed parcel labelled "A" and "B" on the severance sketch (attached to the Minutes of Settlement and attached to this decision as Attachment 2) and
2. The existing laneway on the severed parcel labelled "C" on the severance sketch (Attachment 2) be transferred to the Township.

8Ms. Whaling-Rae opined that the decision and the conditions as set out in the Minutes of Settlement represent good planning and align with the Provincial Policy Statement, 2020. It allows for the development of land, including future residential development, permits the Township to retain access over natural features, and the possibility for the laneway to be brought to municipal standards. Ms. Whaling-Rae opined that the conditions were reasonable.

9In her submissions, Kathleen DeBlock Boersma, counsel for the Appellant, submitted that the settlement strikes a balance between the maintenance of beach access and shoreline and her client’s desire to retain ownership of that land.

10The Tribunal has reviewed the Minutes of Settlement as well as the Municipal Record as it was provided to the Tribunal in filing the Appeal. Upon consideration of the uncontested planning evidence provided by Ms. Whaling-Rae, the Minutes of Settlement and the Municipal Record, the Tribunal finds that the consent application meets the criteria in s.51(24) of the Act, aligns with the Provincial Policy Statement and represents good planning in the public interest.

11With respect to the conditions, the Tribunal, upon consideration of the uncontested planning evidence provided by Ms. Whaling-Rae, having considered the original conditions, and the proposed amendment to those conditions, finds that the amended conditions are reasonable and should apply to the approved consent to severance. Accordingly, the Tribunal will order those conditions in relation to the approval of the proposed severance.

ORDER

12THE TRIBUNAL ORDERS that the Appeal is allowed in part, and the provisional consent is to be given, subject to the amended conditions set out in Attachment 1 to this Order.

"S. Mann"

Simranjeet Mann MEMBER

"Jennifer Gold"

Jennifer Gold 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

CONDITIONS OF APPROVAL

Expire Period:

1. Conditions imposed must be met within two years of the date of notice of decision, as required by Section 53(14) of the Planning Act, RSO 1990, as amended. If conditions are not fulfilled as prescribed within two years, the application shall be deemed to be refused. Provided the conditions are fulfilled within two years, the application is valid for three years from the date of notice of decision.

Municipal Requirements

2. All municipal requirements, financial or otherwise, be met to the satisfaction of the Township.
3. The sum of $250 be paid to the Township as cash-in-lieu of parkland.
4. An easement for the purpose of drainage in favour of the Township be registered on title of the retained parcel. The area subject to the easement are lands south of the natural watercourse.
5. An easement for the purpose of beach access to the benefit of the owners of the severed lands and the Township of Ashfield Colborne Wawanosh be registered over the portion of the severed parcel labelled "A" and "B" on the sketch attached hereto.
6. The existing laneway on the severed parcel labeled "C" on the sketch attached hereto be transferred to the Township.

Survey/Reference Plan

7. Provide to the satisfaction of the County and the Township: a) a survey showing the lot lines of the severed parcel and the location of any building thereon, and b) a reference plan based on an approved survey.

Zoning

8. Where a violation of any municipal zoning by-law is evident, the appropriate minor variance or rezoning be obtained to the satisfaction of the Township

Other

9. That trees be re-planted on the east side of the 66 feet to be conveyed to the Township, to the satisfaction of the Township.

ATTACHMENT 2