Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 10, 2023 CASE NO(S).: OLT-22-002798

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

Applicant and Appellant: John Stephenson Subject: Refusal of Application for Consent: Severance Property Address/Description: Two Island Lake, PIN 62327-0320 & PIN 62327-0321 Municipality: District of Thunder Bay Municipal File No.: 58-C-193026 OLT Case No.: OLT-22-002798 OLT File No.: OLT-22-002798 OLT Case Name: Stephenson v Ontario (MMAH)

Heard: January 24-28, 2023 (by video) and by February 22, 2023 (in writing)

APPEARANCES:

Parties	Counsel
John Stephenson	Rene Larson
Ministry of Municipal Affairs and Housing	Marian Awan, Baiging Luo

DECISION DELIVERED BY ROBERT G. ACKERMAN, BITA M. RAJAEE AND S. BOBKA AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This was a Hearing in the matter of an Appeal under s. 53(19) of the Planning Act (“Act”) by John Stephenson (“Appellant”) from the Decision of the Ministry of Municipal Affairs and Housing (“Respondent”) refusing to grant a provisional consent to sever a property known as Two Island Lake Road, PIN 62327-0320 and PIN 62327-0321, in the District of Thunder Bay (“Subject Property”). The purpose of the Application and proposed severance was to create a new lot for the development of two recreational dwellings.

THE PROPOSAL AND CONTEXT

2The Subject Property is unimproved and located on the west shoreline of Two Island Lake in the geographic Township of Jacques, in the District of Thunder Bay. The Township of Jacques is an unorganized territory, which is not subject to municipal government, and as a result is not subject to an Official Plan or Zoning provisions. In such unorganized territories the Respondent is given the jurisdiction to grant consents by Section 53 of the Act, and is therefore the Approval Authority in the instant case.

3On October 8, 2021, the Appellant submitted a consent Application to the Respondent for the creation of one new lot, shown as Parts 4 and 6 on Plan 55R-10412, by severance from the Subject Property. The stated purpose for the proposed new lot was for resource-based recreational uses, including a recreational dwelling (the “Severed Lands”). Parts 3 and 5 on Plan 55R-10412 were proposed to be retained by the Appellant and to be used as well for resource-based recreational uses, including a recreational dwelling (the “Retained Lands”). The Severed Lands would comprise 0.459 hectres (“ha”) with 51.7 metres (“m”) of frontage onto Two Island Lake, and the Retained Lands would comprise 0.447 ha with 51.7 m of frontage onto Two Island Lake. Each proposed lot would have a depth of approximately 86 m from Two Island Lake Road to the shore of Two Island Lake. Neither the Severed Lands nor the Retained Lands would meet the minimum recommended lot size of 1.0 ha as per Guideline D-5-4, of the Ministry of the Environment, Conservation and Parks (“MECP”), which sets out the standards which land use planning authorities are to apply when determining whether a proposed on-site sewage system is appropriate for a new development.

4By letter of February 18, 2022, the Respondent gave notice of its Decision to the Appellant that the Application for the provisional consent was refused. The letter stated that the Application was refused because data provided by the MECP showed that the total phosphorus (“TP”) concentration in Two Island Lake was on an increasing trend, and that in view of the TP level and its upward trend, there may be little or no development capacity remaining on the Lake. The Appellant was advised that, in these circumstances a study utilizing lakeshore capacity modeling was required to assess whether Two Island Lake could sustain the creation of one further undersized lot and the proposed development on the two proposed undersized lots.

5The required study was to be prepared in accordance with the “Lakeshore Capacity Assessment Handbook”, which was published jointly by the former Ministry of the Environment, Ministry of Natural Resources and the Respondent (“Handbook”). The Handbook was filed as Tab 11 in Volume 2 of the Document Book of the Respondent, which was marked as Exhibit 3A (Volume 1) and Exhibit 3B (Volume 2). The Handbook was developed to provide guidance to municipalities and other stakeholders responsible for the management of development along the shorelines of Ontario’s inland lakes within the Precambrian Shield. The Preface to the Handbook states that this planning tool is strongly recommended by the Ontario government as an effective means of being consistent with the Act and the Provincial Policy Statement (“PPS”).

6As referred to above and described in the evidence cited below, the Respondent had advised the Appellant that a Lakeshore Capacity Assessment must be completed and submitted in support of the Application. The Assessment had not been provided, and based upon the evidence available, the Application was refused as not being consistent with Section 2.2.1(h) of the PPS.

7On March 10, 2022, the Appellant filed the Appeal, which was heard over a four-day period, from January 24th to 27th, 2023. The Tribunal directed the Parties to file Written Submissions and that all Submissions be filed by February 22, 2023.

DECISION

8For the reasons that follow, the Tribunal finds that the Appellant’s Application for a provisional consent to sever should not be approved.

STATUTORY FRAMEWORK

9With respect to the Appeal under s. 53(19) of the Act, in order to determine whether provisional consent should be granted (with such conditions that may be required), the Tribunal must:

a) Be satisfied that a plan of subdivision is not necessary for the proper and orderly development of the Township and can proceed by way of application for consent;

b) 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;

c) 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;

d) 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;

e) Finally, in general, the Tribunal will decide whether the proposed consent along with any required conditions, is representative of good planning in the public interest.

ISSUES

10The parties filed an Issues List with the Tribunal which is Attachment 2 to the Procedural Order governing this Appeal. In view of the Tribunal’s findings on the merits, only the issues of each Party relevant to the determination of this Appeal are addressed in this Decision:

11The relevant issues tendered by the Appellant are Issue 1 and Issue 4:

Does the Lake Capacity and Hydrogeological Assessment, as updated and completed for the Appellant, establish whether Two Island Lake has the capacity to support one additional recreational lot?
Has the Appellant satisfied the Ontario Land Tribunal that his application to create one additional recreational lot is consistent with the Provincial Policy Statement 2020, conforms or does not conflict with the Growth Plan for Northern Ontario, and complies with the Planning Act?

12The relevant Issues tendered by Respondent are Issues 5 and 6:

Is the approval of the application for consent on Two Island Lake consistent with the Provincial Policy Statement, 2020 (“PPS”) policies prohibiting development on lakes that are at capacity, more specifically:

a. Is the approval of the application for consent consistent with Policy 2.2.1h), which requires planning authorities to protect, improve or restore the quality and quantity of water by ensuring consideration of environmental lake capacity?

b. Is the approval of the application for consent consistent with Policy 1.1.1c), which requires avoidance of development that may cause environmental or public health and safety concerns?

c. Is the approval of the application for consent consistent with Policy 1.6.6.4, which only allows individual on-site sewage and water services if the site conditions are suitable for the long-term provision of such services with no negative impacts?

d. Is the approval of the application for consent consistent with Policy 1.6.6.4, which requires consideration of whether development will cause negative impacts, as assessed through a hydrogeological study?

e. Is the approval of the application for consent consistent with Policy 2.2.1f), which requires planning authorities to protect, improve or restore the quality and quantity of water by protecting vulnerable surface and groundwater?

Is a Lake Capacity Assessment, undertaken in accordance with Ontario’s Lakeshore Capacity Assessment Handbook, required to demonstrate environmental lake capacity?

a. If so, has the Appellant undertaken an updated Lake Capacity Assessment, in accordance with Ontario’s Lakeshore Capacity Assessment Handbook, to establish that Two Island Lake is not “at capacity”?

THE EVIDENCE

13On behalf of the Appellant, the Tribunal heard evidence from five witnesses:

Christopher Jowett – Representative of Waterloo Biofilter Systems Inc.;
Richard Kraemer – Thunder Bay District Health Unit (under Summons);
John Stephenson – Owner of Subject Lands; Applicant/Appellant;
Jason Garatti - P.Eng., P.Geo.-- Hydrogeologist & Environmental Scientist;
Stefan Huzan - Land Use Planner.

14On behalf of the Respondent, the Tribunal heard evidence from four witnesses:

Amy Godwin – M.Sc. – Surface Water Specialist;
Matthew McMahon, P. Eng. – Wastewater Treatment Specialist;
Shawn Kinney, P.Geo. – Geoscientist & Hydrologist, Ground Water Specialist;
Andrew Carr, RPP – Land Use Planner

EVIDENCE ON BEHALF OF THE APPELLANT

Stefan Huzan

15Stefan Huzan was qualified by the Tribunal to provide opinion evidence on the land use planning issues in this Appeal. His Expert Witness Statement was filed as Tab 3 of the Joint Witness Statement Book of the Parties, which was marked as Exhibit 1.

16Mr. Huzan’s evidence regarding conformity of the Application with the GPNO, was that Section 6.2 of the GPNO is engaged as it addresses the sustainable development of natural resources.

17Mr. Huzan expressed his opinion that the creation of one additional lot on Two Island Lake for seasonal recreation purposes would be in conformity with the policies of Section 6.2.2 of the GPNO, once it is demonstrated that the lot can be created in a sustainable way, in which natural resources are protected. Essentially his opinion was that demonstrating consistency with the applicable policies in the PPS will establish conformity with Section 6.2.2 of the GPNO.

18Mr. Huzan referenced numerous PPS Policies as applicable. Those relevant to the determination of this Appeal are:

Policy 1.6.6.4 of the PPS directs that individual on-site sewage services may be used, provided that the long-term provision of such services will cause no negative impacts;
Policy 2.2.1 h) of the PPS directs that planning authorities must improve and restore water quality and quantity by ensuring that specific consideration is given to environmental lake capacity; and
Section 2.1 of the PPS directs that consideration be given to wildlife habitat protection.

19Mr. Huzan’s evidence was that it is his opinion that the proposal did not conflict with the GPNO, was consistent with the identified PPS policies and had appropriate regard for the applicable provisions of the Act. In his viva voce evidence Mr. Huzan made reference to the Report prepared by Jason Garatti, M.Sc.Eng., P. Geo, dated January 9, 2023, which was filed as Tab 2 of Exhibit 1. The Executive Summary of Mr. Garatti’s Report states that it is a Hydrogeological Investigation, a Lakeshore Capacity Model (“LCM”) and Procedure D-5-4 Study (“the Garatti Report”). Mr. Huzan stated that his opinions were reliant upon the Garatti Report (despite not mentioning this Report in his written Expert Witness Statement), which concluded that there is capacity on Two Island Lake for the creation of the proposed lot and development.

20With regard to the habitat protection Policies contained in Section 2.1 of the PPS, Mr. Huzan referred to an Environmental Report prepared on behalf of the Appellant assessing possible impacts identified in the PPS, and expressed the opinion that the proposal was consistent with Policy 2.1.5 d) (fish habitat), Policy 2.1.6 (habitat of endangered or threatened species), Policy 2.1.7 (lands adjacent to fish habitat), and Policy 2.1.8 (lands adjacent to significant wildlife habitat). However, an Environmental Report addressing Policy 2.1.5 d) (fish habitat), Policy 2.1.6 (habitat of endangered or threatened species), Policy 2.1.7 (lands adjacent to fish habitat), and Policy 2.1.8 (lands adjacent to significant wildlife habitat) was not produced and no witness respecting such a Report was called.

21In reference to Section 2.2 of the PPS which directs that planning authorities protect, improve or restore the quality and quantity of water, by various measures, and specifically paragraph 2.2.1.b) which directs planning authorities to minimize potential negative impacts, and paragraph 2.2.1.h) which directs planning authorities to ensure consideration is given to environmental lake capacity, where applicable, Mr. Huzan expressed the opinion that the proposal was consistent with the PPS. Mr. Huzan also stated his opinion that, as is the case with other sections, the PPS recognizes that there are no situations of absolute zero development impact, and that while impacts will occur from development, these should be so small as to not be significant.

22In regard to the Policies in Section 2.2 of the PPS, Mr. Huzan referred to the Garatti Report which concluded that the proposed severance and development would minimize negative impacts, would be within the lakeshore capacity of Two Island Lake, and that the approval of the severance would therefore be consistent with the policies of Section 2.2.1.

23Mr. Huzan stated that Land Registry Office mapping indicated that there are 55 shoreline lots on Two Island Lake, of which approximately 40 are developed.

24Mr. Huzan’s concluding opinion was that the proposed severance does not conflict with the GPNO, is consistent with the PPS and has appropriate regard for the subdivision criteria of the Act, conforms with applicable planning policy, and thus constitutes good planning, and he recommended to the Tribunal that the Application be approved.

Jason Garatti

25Jason Garatti, M.Sc., P.Geo., was called by the Appellant as an expert witness. Mr. Garatti is a Professional Engineer, and Geologist, and was qualified by the Tribunal to provide opinion evidence in the field of hydrogeology and environmental science. Mr. Garatti prepared the report titled “Lakeshore Capacity Model – Two Island Lake” referred to by Mr. Huzan in his evidence and referred to above as the Garatti Report and filed as Tab 2 to Exhibit 1. Mr. Garatti had been retained by the Appellant to complete the required hydrogeological investigation, Lakeshore Capacity Assessment and Procedure D-5-4 Study after the Application for a provisional consent had been refused by MMAH.

26Mr. Garatti related that he attended at the Subject Property in May 2022 to complete his field investigation and to determine the suitability of the Subject Property for individual on-site septic services and for the Procedure D-5-4 Study. His site investigation found that the soil overburden on the site is thin, and that the bedrock is at a shallow depth throughout the site. He concluded that the Subject Property is therefore hydrogeologically sensitive. He stated that the lower hydraulic boundary for sewage effluent would be the shallow bedrock, and that its impermeable nature would satisfy the system isolation consideration in the Procedure D-5-4 Phase II analysis.

27He also performed surface water sampling and it was Mr. Garatti’s opinion, based on his water sampling analysis, the data he obtained from the Lake Partner Program of the MECP, and the LCM which he had completed, that the proposed severance and development of one additional lot would not cause adverse impacts to the surface water quality of Two Island Lake. His modelling predicted that TP concentrations in the Lake would remain below the Provincial Water Quality Objectives (PWQO) of 10 μg/L for aesthetic objectives and would not exceed the 20 μg/L upper limit.

28Mr. Garatti stated that the results of his analysis and modelling indicated that Two Island Lake has the capacity for the further development of 37 lots: five permanent lots, eleven extended seasonal lots and twenty-one seasonal lots. He proposed with respect to the Application, that engineered septic solutions (such as an effluent pre-treatment system and the installation of raised tile beds) may mitigate dissolved phosphorous migration to the Lake and thereby reduce phosphorous to acceptable concentrations. In this regard, he specifically recommended the installation of a Waterloo Biofilter EC-P system, which he said would remove between 90% to 99% of phosphorus from the septic system effluent and remove 80% to 91% of the nitrogen. He stated that stormwater management practices would also be necessary in order to minimize nutrient loadings from run off into the Lake. He also recommended the maintenance of shoreline vegetation, minimal lot clearing and grading and abstinence from fertilizer use.

29Mr. Garatti concluded that the total phosphorus loading of Two Island Lake, with the Retained Lot and the Severed Lot developed as proposed, and with conventional septic systems, would result in total phosphorus concentrations of 8.76 μg/L, which is below the applicable PWQO limit of 10 ug/L for aesthetic objectives and well below the 20 μg/L limit to avoid algae blooms. He recommended that the Severed Lot and Retained Lot be required to install septic systems that incorporate a Waterloo Biofilter EC-P system to reduce phosphorus as well as nitrogen concentrations prior to discharging septic effluent to the natural environment.

EVIDENCE ON BEHALF OF THE RESPONDENT

Andrew Carr

30Andrew Carr, RPP, was called by the Respondent to provide land-use planning evidence respecting the Application and was so qualified. Mr. Carr is a Registered Professional Planner with the Ministry of Natural Resources and Forestry (“MNFR”) and during the relevant period was in the employ of the Respondent as a Planner and was tasked with reviewing the Application which is the subject of these Proceedings.

31He related that the pre-consultation application had been submitted by the Appellant in February 2019, which was circulated to the MNRF, Ministry of Transportation for Ontario (“MTO”) and MECP for comments. The MECP responded identifying lot size and lake capacity concerns. As water testing done in 2011 had shown that Two island Lake was nearing capacity, the Application was required to be supported by a Lakeshore Capacity Assessment, to assess the water quality status of the Lake and consistency with Policy 2.2.1 of the PPS. In addition, a site specific hydrogeological assessment was required to determine consistency with Policy 1.6.6.4 of the PPS. These requirements for a complete Application were communicated to the Appellant.

32In October 2020, the Appellant’s Application was received. It failed to include a Lake Capacity Assessment or a hydrogeological assessment. In the absence of these two required assessment reports, the Application was refused. Subsequently, this Appeal Proceeding was commenced.

33Mr. Carr disagreed with the opinion of Mr. Garatti respecting the further lot development capacity of Two Island Lake. He provided a lot inventory for the Lake, which he had compiled using GIS satellite imagery, PIN data, and site visits. The lot inventory indicated the total number of all lots on the Lake to be 74, 46 of which are improved with a dwelling and 28 of which are unimproved. Mr. Carr stated that the total number of 55 lots, 40 lots of which were improved, as estimated by Mr. Huzan and relied upon by Mr. Garatti in his Lake Capacity Assessment, was incorrect.

34It was Mr. Carr’s opinion that Two Island Lake is now at capacity and that the Handbook does not support any new lot creation in these circumstances. This was contrary to the opinion of Mr. Garatti that there was capacity for the development remaining on Two island Lake.

35It was Mr. Carr’s opinion that approving the Application for a provisional consent would not be consistent with the PPS as it was inconsistent with the following Policies:

(a) Policy 2.2.1 h) of the PPS, as it would not ensure consideration of lake capacity;

(b) Policy 2.2.1 f) of the PPS, as it would not protect Two Island Lake, a sensitive surface water feature;

(c) Policy 1.6.6.4 of the PPS, as the site conditions are not suitable for the long-term provision of individual onsite sewage systems with no negative impacts to a sensitive surface water feature; and

(d) Policy 1.1.1 c) of the PPS, as it would not be avoiding a land use pattern which may cause environmental or public health and safety concerns.

36It was Mr. Carr’s opinion that refusal to grant the Application would be consistent with Policies 1.1.1 c), 1.6.6.4 and 2.2.1 f) para 2, and 2.2.1 h) of the PPS, and would have regard for matters of provincial interest as provided for in subsection 2 of the Act.

Amy Godwin

37Amy Godwin holds a Bachelor of Science Degree and a Master’s Degree in Biology, and was called as an expert witness by the Respondent and was qualified to provide expert evidence as a Surface Water Specialist. Ms. Godwin is employed in that capacity by the MECP where her responsibilities include the review of surface water reports in submitted planning applications. In preparation for her testimony, she visited Two island lake in June 2022 to collect water samples for phosphorus monitoring and again in September 2022 to investigate temperature and dissolved oxygen levels in the lake. Ms. Godwin’s Expert Witness Statement was filed as Tab 3 to Exhibit 1.

38Ms. Godwin disagreed with Mr. Garatti’s opinion regarding the remaining development capacity on Two Island Lake and stated that as a result of her investigations, she had concluded that there is currently a lakeshore capacity issue at Two Island Lake, and that in fact the Lake has no remaining development capacity whatsoever.

39Ms. Godwin stated that lakeshore capacity assessments are used to predict how much development a given lake can sustain along its shoreline without exhibiting negative effects resulting from high phosphorus levels. A lakeshore capacity assessment, prepared following the Handbook, is required to demonstrate environmental lake capacity. However, where actual water quality issues have been observed on a lake, such observations can confirm, or even supersede, the results of the Lakeshore Capacity Assessment. This is because the actual occurrence and observation of confirmed water quality issues, are more important than any modelling predictions of remaining development capacity. Such is the case, Ms. Godwin stated, with Two Island Lake, where there have been several recent observations (June 2021 and July 2022) of water quality issues that pose threats to the aquatic environment and to the health of the people residing on and recreating in or upon the Lake. She cited the confirmed recurrence of cyanobacteria (algae) blooms and late-summer anoxia (low or no oxygen) in the bottom layer of the Lake. Ms. Godwin stated her opinion that these issues would be compounded by increasing the phosphorus load on the Lake which would result from the proposed severance and development.

40Ms. Godwin stated that the existing development potential on the Lake, in the form of existing unimproved building lots, exceeds the Lake’s overall development capacity. She stated that Mr. Garatti’s lake capacity model had a wide range of errors that render its conclusions unreliable and that it therefore does not establish that Two Island Lake has the capacity for one additional recreational lot.

41Ms. Godwin identified the following errors in the Garatti Report which render its findings and conclusions unreliable:

a) The Report contained incorrect inputs that deviated from standard practice without explanation, including inputs from two upstream lakes which were combined into a single lake in a way that impacted the modelling to produce lower TP numbers;

b) The Report’s lake capacity model did not take into account the late summer anoxia. This significantly skewed the Report’s modelling results by producing lower TP numbers;

c) The Report’s predicted TP concentration in the Lake at full development would be lower than the TP level currently measured in water sampling, which is not possible;

d) If some of the inputs with respect to the Garatti Report model are corrected, the validation step fails because the difference between the measured phosphorus and the modelled phosphorus becomes 33.8%, which exceeds the threshold of a 20% difference prescribed by the Handbook;

e) Mr. Garatti’s calculations did not account for the impermeable bedrock at a shallow depth which he had noted in his investigation of the Subject Property. While its impermeable nature would satisfy the system isolation consideration in the Procedure D-5-4 Phase II analysis, the bedrock would also cause all phosphorus from the sewage system of both the Severed Lot and the Retained Lot to migrate directly into Two Island Lake, negatively impacting the surface water quality of the Lake.

ANALYSIS AND FINDINGS OF THE TRIBUNAL

42The Tribunal prefers the evidence of Mr. Carr and Ms. Godwin and finds that there are critical flaws in Mr. Garatti’s opinion and Report, as identified by Mr. Carr and Ms. Godwin. This renders it difficult for the Tribunal to rely on his opinions regarding the lakeshore capacity of Two Island Lake and the impact which the proposed severance and development would have upon the water quality of the Lake.

43In his Written Submissions, counsel for the Appellant argues that Mr. Huzan’s opinion that the consent Application was consistent with the PPS survived the scrutiny of cross-examination. The Tribunal disagrees. Mr. Huzan admitted that there are no situations of absolute zero development impact, that impacts will occur from development, and that the PPS Policies provide that these should be so small as to not be significant.

44As set out below, the Tribunal finds that the Application is not consistent with several Policies in the PPS as the impacts of the proposed severance and development on Two Island Lake will be significant. The Tribunal’s findings with respect to the existing lakeshore capacity render it unnecessary for the Tribunal to consider the evidence presented by the Parties regarding tertiary septic treatment systems and the proposed Waterloo Biofilter treatment system.

45The Tribunal finds that, on the evidence presented, the existing development potential on Two Island Lake exceeds the Lake’s development capacity. The existing shoreline development on the Lake, coupled with the available development potential of existing vacant lots, represents a phosphorus load to the Lake that will exceed the Lake’s PWQO value.

46The Tribunal finds that the approval of the Application is not consistent with Policy 2.2.1 f) of the PPS as it would not protect vulnerable surface water.

47The Tribunal further finds that the approval of the Application would not be consistent with Policy 2.2.1 h) of the PPS, as approval would not result in the protection, improvement or restoration of the quality or quantity of water at Two Island Lake, and approval would be given in disregard for the demonstrated lakeshore capacity concerns on Two Island Lake.

48The Tribunal finds that the approval of the application is not consistent with Policy 1.6.6.4 of the PPS as the proposed development will result in negative impacts to the water quality of Two Island Lake by increasing the phosphorus load to the Lake and exacerbating and worsening the existing water quality issues.

49The Tribunal finds that the approval of the Application is not consistent with Policy 1.6.6.4 of the PPS as the phosphorus from the sewage system for the proposed additional lot will eventually migrate into Two Island Lake, which is already at capacity for phosphorus. In this regard, Policy 1.6.6.4 only permits individual on-site sewage systems in cases where the system’s long-term use will cause no negative impacts. The result is that the Application also does not conform with Section 6.2.2 of the GPNO.

50The Tribunal finds that the approval of the application is not consistent with Policy 1.1.1 c) of the PPS, which requires that shoreline development be sustainable, and the avoidance of any development that may cause environmental or public health and safety concerns.

51The Tribunal finds that the refusal to grant the Application for a provisional consent is consistent with Policies 1.1.1 c), 1.6.6.4 and 2.2.1 f) para 2, and 2.2.1 h) of the PPS, and has regard for matters of provincial interest as provided for in subsection 2 of the Act.

52The Tribunal therefore determines the issues submitted by the parties as follows and set out in bold typeface.

53Issues 1 and 4 tendered by the Appellant:

Does the Lake Capacity and Hydrogeological Assessment, as updated and completed for the Appellant, establish whether Two Island Lake has the capacity to support one additional recreational lot?

No. The Lake Capacity and Hydrogeological Assessment does not establish that Two Island Lake has capacity at this time to support one additional recreational lot.

Has the Appellant satisfied the Ontario Land Tribunal that his application to create one additional recreational lot is consistent with the Provincial Policy Statement 2020, conforms or does not conflict with the Growth Plan For Northern Ontario, and complies with the Planning Act?

No. The Application to create one recreational lot is not consistent with the PPS or the GPNO, and does not comply with the Act.

54Issues 5 and 6 tendered by Respondent:

Is the approval of the application for consent on Two Island Lake consistent with the Provincial Policy Statement, 2020 (“PPS”) policies prohibiting development on lakes that are at capacity, more specifically:

b. Is the approval of the application for consent consistent with Policy 1.1.1c), which requires avoidance of development that may cause environmental or public health and safety concerns? No.

Is a Lake Capacity Assessment, undertaken in accordance with Ontario’s Lakeshore Capacity Assessment Handbook, required to demonstrate environmental lake capacity?

a. If so, has the appellant landowner undertaken an updated Lake Capacity Assessment, in accordance with Ontario’s Lakeshore Capacity Assessment Handbook, to establish that Two Island Lake is not “at capacity”?

A Lakeshore Capacity Assessment prepared in accordance with the handbook is required.

No, the Appellant’s Lakeshore Capacity Assessment was not prepared in accordance with the Handbook.

ORDER

55THE TRIBUNAL ORDERS that the appeal is dismissed, and the provisional consent is not to be given.

“Robert G. Ackerman”

ROBERT G. ACKERMAN MEMBER

“Bita M. Rajaee”

BITA M. RAJAEE MEMBER

“S. Bobka”

S. BOBKA 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.

Stephenson v Ontario (MMAH), 2023 CanLII 41846

Case Summary