Wilson v. North Almaguin Planning Board, 2023 CanLII 48573

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 02, 2023

CASE NO(S).: OLT-22-003974

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

Applicant/Appellant: Scott and Nicole Wilson

Subject: Consent - refused by Approval Authority

Description: To create a new Rural Residential Waterfront Lot, plus retained lands

Reference Number: B5-Patterson-2022

Property Address: Concession 2

Municipality/UT: Parry Sound/Parry Sound

OLT Case No: OLT-22-003974

OLT Lead Case No: OLT-22-003974

OLT Case Name: Wilson v. North Almaguin Planning Board

Heard: November 18, 2022 by Video Hearing

APPEARANCES:

Parties	Counsel*/Representative
Scott Wilson	Harold Elston*
North Almaguin Planning Board	John Borlase

DECISION DELIVERED BY S. BOBKA AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1Scott and Nicole Wilson (together the “Applicant”) own the property located at Part of Lots 20 & 21, Concession 2 (“Subject Property”) in the Township of Patterson (“Township”). The Applicant applied to the approval authority, in this case the North Almaguin Planning Board (“NAPB”), for consent to sever the Subject Property to create one additional lot. Planning staff recommended the denial of the consent and the NAPB denied the consent. The Applicant appealed the decision of the NAPB to the Tribunal.

LEGISLATIVE FRAMEWORK

2With respect to the Appeal under s. 53(19) of the Planning Act (“Act”), in order to determine whether provisional consent should be granted (with such conditions that may be required):

a) The Tribunal must 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, 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 with 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;

c) As with any planning decision, the Tribunal must be satisfied that the proposed consent is consistent with the Provincial Policy Statement (“PPS”) and conforms to any applicable Provincial Plan. 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; and,

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.

HEARING

3The Applicant was represented by Counsel, Harold Elston, at the Hearing and called Jamie Robinson, a Land Use Planner, and Brent Parsons, an Ecologist, as witnesses. Upon review of their Curricula Vitae (“CV”) and Acknowledgement of Expert’s Duty (“AED”) forms, the Tribunal qualified Mr. Robinson to provide opinion evidence in land use planning and Mr. Parsons to provide opinion evidence in ecology with a specialty in lake capacity.

4The NAPB was represented at the Hearing by John Borlase, a Member of the NAPB, and called Steve McArthur, a Land Use Planner, as a witness. Counsel for the Applicant raised concerns regarding the witness’ credentials, but as Mr. McArthur is a Registered Professional Planner in good standing with the Ontario Professional Planners Institute and an accredited full member of the Canadian Institute of Planners, the Tribunal qualified him to provide opinion evidence in land use planning. The Tribunal reviewed the AED form with Mr. McArthur and he confirmed his understanding of his role as an expert witness.

5The Tribunal received and marked the following documents as Exhibits to the Appeal:

Exhibit 1: Compiled Document Book – J. Robinson

Exhibit 2: a) CV of J. Robinson b) AED of J. Robinson

Exhibit 3: a) CV of B. Parsons b) AED of B. Parsons

Exhibit 4: Revised Consent Sketch

Exhibit 5: Revised Consent Sketch – Aerial

Exhibit 6: a) CV of S. McArthur b) AED of S. McArthur

Exhibit 7: Evidence Outline – J. Robinson

Exhibit 8: Evidence Outline – B. Parsons

SUBJECT PROPERTY AND EFFECT OF PROPOSAL

6The Subject Property is known locally as 399 Limberlost Point Road and is located in Patterson Township which is an unincorporated township.

7The Subject Property is on Commanda Lake (“Lake”) and is approximately 26 hectares (“ha”) in size with approximately 782.1 metres (“m”) of frontage on Limberlost Point Road (“Road”) and has approximately 60.8 m of frontage on the Lake. It is currently vacant.

8The purpose and effect of the proposed Consent is to create one new lot. The severed lot would be 2.55 ha in size, with 182.9 m of frontage on the Road, and 30.4 m of frontage on the Lake. The retained portion would be 23.46 ha in size, with 599.2 m of frontage on the Road and 30.4 m of frontage on the Lake.

(Exhibit 4)

BACKGROUND

9The NAPB refused the application based on Mr. McArthur’s Planning Analysis Report (“Report”) (found in Exhibit 1, pages 68-76) which identifies these main issues: lake capacity, the NAPB Guiding Principle which limits the consideration of severances to once every 15 years and inconsistency with the PPS. In his Report, Mr. McArthur recommended that the consent be denied as:

a) the Lake is currently at capacity for development due to phosphorous load as determined by the Ministry of the Environment, Conservation & Parks (“MECP”);

b) the Subject Property was severed in 2013 by previous owners and an application to sever should not be considered until 2028 at the earliest; and,

c) approving new lot creation without the supporting scientific data is contrary to Provincial Policy.

10In his Report, Mr. McArthur explained that in an unincorporated Township, there are no Official Plan nor Zoning-By-laws that apply, and so the proposal is reviewed under relevant Provincial Policy. To assist their decision-making, the NAPB has adopted Guiding Principles which speak to lot creation and he specified that the Guiding Principles:

‘borrow’ from good planning policies that have been put in place in neighbouring organized municipalities in an effort to limit rural lot creation and to protect natural resources – especially on lakes in the area that have been deemed to be at capacity. (Exhibit 1, p. 71)

11The Applicant provided the following grounds for appeal:

a) the proposal has regard to all matters in s. 51(24) of the Act;

b) the proposal is consistent with PPS;

c) the proposal exceeds the 300 m setback from the Lake for septic systems as required by the North Bay Mattawa Conservation Authority (“Conservation Authority”);

d) there is a viable location for a Class 4F septic system on both the severed and retained lots as confirmed by the Conservation Authority; and

e) the Restoule Local Roads Board (“Roads Board”) has no issues with the proposed severance and the Applicant has agreed that any new driveway will have to comply with Ministry of Transportation (“MTO”) specifications.

PARSONS EVIDENCE

12Mr. Parsons’ testimony focused on the capacity of the Lake (PPS Policy 2.2 (h)) and the review of natural heritage features (PPS Policy 2.1). He testified that the Lake was deemed by to be at capacity for development in 1994, based on total phosphorus measurements and modelling, which would mean no new lot creation could occur. However, it was his opinion that the at-capacity status was based on an outdated approach and data, so is no longer relevant. He explained that currently, the ‘Lakeshore Capacity Assessment Handbook’ (“Handbook”), created in 2010, is used to determine development capacity.

13Mr. Parsons explained that he had gathered current data on total phosphorus for the Lake and nearby Restoule Lake. Based on data from 2016, 2018 and 2019, he found the total phosphorus concentrations for both lakes to be relatively low, with the Lake at a mean of 10.9 micrograms per litre (“ug/L”) and Restoule Lake at 8.10 ug/L. He explained that these were significantly below the Provincial Water Quality Objective of 20 ug/L which aims to avoid nuisance concentrations of algae in lakes. Based on this data, Mr. Parsons concluded that the previous determination regarding the development capacity of the Lake is no longer valid as it no longer represents best practices.

14Mr. Parsons stated that even if the Lake was determined to be at-capacity, the mitigation strategy recommended by the MECP would be to ensure that any septic system was at least 300 m away from the Lake. Mr. Parsons confirmed that 300 m is, in his opinion, a very conservative and precautionary distance. He cited that the on-site sewage system review, completed by the Conservation Authority, found that the proposal meets the requirements as set out in Part 8 of the Ontario Building Code and that there was adequate room to accommodate appropriate septic systems at least 300 m from the shoreline of the Lake on both the severed and retained portions. Mr. Parsons did his own site walk and concurred with the position of the Conservation Authority.

15Regarding natural heritage features which are protected through PPS policy 2.1, Mr. Parsons found no natural heritage features through his review of the Land Information Ontario database. In terms of fish habitat, s. 2.1.6 of the PPS states that “development and site alteration shall not be permitted in fish habitat except in accordance with provincial and federal requirements”. Mr. Parsons did not identify any constraints and opined that it would be the Applicant’s responsibility to conform with any policy relating to fish habit when any in-water works were considered.

16It was Mr. Parsons’ opinion that the proposal:

meets the criteria of the Guiding Principles for Considering Consent Applications in Unincorporated Townships such as setback requirements for septic locations administered by the North Bay Mattawa Conservation Authority and consideration of Ministry of Environment Conservation and Parks recommendations for septic placement adjacent to at-capacity lakes. (Exhibit 8, page 2)

ROBINSON EVIDENCE

17Mr. Robinson’s overall opinion was that the proposal features resource-based recreational development which is a permitted use in the PPS, it can be appropriately serviced in terms of roads as well as septic and water systems and it will not have a negative impact on the Lake (based on Mr. Parsons’ evidence). He opined that the proposed development is compatible with the character of the surrounding area and characteristic of the existing shoreline development in the area.

18He testified that the area consists mainly of cottage-style development on shoreline residential properties. He highlighted that the Lake frontages of both the proposed severed and retained portions are consistent with adjacent and nearby lots, stating that most lots had Lake frontages of approximately 30 m. Finally, he explained that the majority of the Subject Property is hardwood forest, with some coniferous forest, which slopes towards the Lake in general; however, he stated that the land is quite flat and could support a septic system and driveway on both the severed and retained portions.

19Mr. Robinson reviewed s. 2 of the Act and testified that the application had regard to the matters of Provincial interest (including but not limited to):

s. 2(a) the protection of ecological systems, including natural areas, features and functions. As evidenced by Mr. Parsons’ detailed testimony.

s. 2(f) the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems. This is demonstrated by the letter from the Roads Board (found at Exhibit 1, p.36), which raised no concerns regarding the road and the letter from the Conservation Authority (found Exhibit 1, p.375) confirming that the septic system could be appropriately located more than 300 m from the Lake on both the severed and retained properties. Mr. Robinson opined that water could be obtained either by well or from the Lake.

s. 2(h) the orderly development of safe and healthy communities. As it is resource-based recreational development that is adjacent to recreational lots on either side, it is orderly and located appropriately

20Mr. Robinson opined that the proposed consent is consistent with the PPS. In s. 1.1.6.1, of the PPS, it states that

On rural lands located in territory without municipal organization, the focus of development activity shall be related to the sustainable management or use of resources and resource-based recreational uses (including recreational dwellings).

Mr. Robinson testified that the proposal is, in his opinion, consistent with this section of PPS, as it features resource-based recreational development.

21Mr. Robinson specified that the consent application is to permit one new shoreline residential lot, which is a permitted use under the PPS. In the planning report to the NAPB, he found that Mr. McArthur’s analysis “relied on consent application guidelines that are more appropriately applied to a rural area and not a shoreline area in the unorganized area.” Mr. Robinson testified that for areas without organization, the PPS treats these two types of development quite differently and therefore the initial planning recommendation by Mr. McArthur was flawed. He specified that s. 1.1.5.1 of the PPS should not apply.

22Mr. Robinson stated that, as only one additional lot will be created, a plan of subdivision is not required for the proper and orderly development of the Township. He highlighted the considerations decision-makers must have regarding a consent application, as found in s. 51(24) of the Act, and opined that the proposal meets the criteria as it (including but not limited to), as the proposal:

s. 51(24)(a) has regard for matters of Provincial interest, as outlined in paragraph [19] above;

s. 51(24)(b) is not premature, as it is adjacent to other existing recreational lots;

s. 51(24)(d) is suitable for the purposes for which it is to be subdivided as both lots can accommodate a septic system, there are suitable dwelling locations and there is access to the shoreline in accordance with Federal and Provincial regulations;

s. 51(24)(f) has consistent dimensions and shapes of the proposed lots, with a similar 30 m Lake frontage;

s. 51(24)(h) has regard for flood control as there will not be any dwellings next to the water; and

s. 51(24)(i) can be adequately serviced in terms of roads, as confirmed by the Roads Board letter.

23Regarding the Growth Plan for Northern Ontario (“GP”), Mr. Robinson opined that it was more of an economic development tool or service delivery tool, and that, while it does provide some direction regarding established industries, there was no applicability to resource-based recreational uses. It was his opinion that the proposal is in conformity with and does not conflict with the GP.

24Mr. Robinson opined that the NAPB’s Guiding Principles should have limited applicability as they are not required under s. 51(24) of the Act, must be applied in the context of the PPS and cannot be applied on their own. He further opined that the NAPB’s stated adoption of portions of Powassan’s OP was not permitted, as Patterson is an unorganized township for which there is no applicable OP. As such, he stated that the proposal must be evaluated based on s. 2 of the Act, the PPS, s. 51(24) of the Act and the GP.

25It was Mr. Robinson’s opinion that the 15-year limitation on consents is not found in an applicable policy and that as a Guiding Principle it must be given less weight and should have limited applicability. He testified that the 15-year limit is intended to limit sprawl, and that it is not intended to limit lake-based development.

26It was Mr. Robinson’s overall opinion that that proposal has regard for matters of Provincial interest, represents good land use planning and is in the public interest.

27In terms of conditions, there were none proposed by the NAPB. After reviewing several previous NAPB consent decisions, Mr. Robinson proposed several standard conditions and recommended that the provisional consent be granted subject to those conditions.

MCARTHUR EVIDENCE

28Mr. McArthur’s evidence came mainly from his Report. His viva voce testimony at the Hearing was brief and the Tribunal notes that the NAPB did not provide any additional documents as evidence at the Hearing.

29In the Report, he identified that the purpose of the consent was to create a new Rural Residential Waterfront Lot, plus retained lands. He went on to discuss the pressures for residential development including scattered development, sprawl and land fragmentation.

30Mr. McArthur stated in his Report that the Subject Property is:

surrounded by other rural residential uses, including waterfront residential lands on Commanda Lake. Lands on the north side of the lake are predominantly rural residential/recreational uses but do include some farming/agricultural lands.” (Exhibit 1, P.69)

31In his testimony, Mr. McArthur stated that he could appreciate Mr. Robinson’s interpretation that this proposal featured resource-based recreational development. He opined that most of the properties in the area are full-time residences which have taxed the services of the area, and that the NAPB is trying to manage that pressure.

32As discussed above, Mr. McArthur’s recommendation to the Board to deny the consent application was based on the lake being at capacity, the Guiding Principle that limits consents to every 15 years and inconsistency with the PPS.

33Mr. McArthur’s Report explained that the NAPB’s “adopted guiding principles limit the consideration of severances from parcels created by consent to once every fifteen (15) years in order to assess the impact prior to permitting further development.” He stated that this principle was borne of consent policies within the Powassan Official Plan. It was his contention that the application is premature and that it should not be considered until 2028.

34In his testimony, Mr. McArthur stated that borrowing policy from the neighbouring Municipality of Powassan is done in the interest of fairness, but also in the interest of protecting and controlling the development of these important shorelines while maintaining the rural nature.

35In his Report, Mr. McArthur listed the PPS policies of s. 1.1.5.1 (Rural), s. 1.1.6 (Territories without Organization) and s. 2.2.1 (Capacity). He identified that the main issue with the PPS involves section 2.2.1 which states that: “Planning authorities shall protect, improve or restore the quality and quantity of water by: … (h) ensuring consideration of environmental lake capacity, where applicable….” Mr. McArthur stated that the Lake was deemed at capacity for development by the MECP due to phosphorous load and that approving new lot creation without the supporting scientific data is contrary to Provincial Policy. However, during his testimony, which followed that of Mr. Parsons, Mr. McArthur did not dispute Mr. Parsons’ evidence regarding lake capacity.

36Mr. McArthur highlighted during his testimony that this Tribunal Decision was not about the creation of one lot, but rather about the future and purpose of the NAPB if the Guidelines don’t apply. He stated that a favourable decision for the Applicant could lead to a significant increase in applications for consents in the area.

37Mr. McArthur concluded in the Report that the proposed consent was not consistent with some sections of the PPS, went against the adopted NAPB Guiding Principles and did not represent good land use planning.

FINDINGS

38Both Mr. Borlase and Mr. McArthur are clearly passionate about the protection and stewardship of land and water within the Township. The Tribunal acknowledges that NAPB resources are limited and sincerely thanks both individuals for the time (much of it volunteer) and effort they put into preparing for and attending the Hearing. However, the Tribunal finds that the NAPB did not put forward sufficient planning evidence upon which the Tribunal could rely to refuse the Appeal. The abundant, detailed evidence provided by the Applicant’s expert witnesses stood generally unopposed. During his testimony, despite prompts from the Tribunal, Mr. McArthur did not explain or defend the statements or conclusions found in his Report that were questioned by Mr. Robinson.

39The legislative framework for consents is outlined in paragraph [2] above. The Tribunal was not presented with any evidence from Mr. McArthur’s Report, nor his brief testimony, to demonstrate that that the 15-year timeline limiting consents is prescribed or recommended in any relevant legislation or policy.

40The Tribunal takes the position that the Guiding Principles cannot stand alone to supersede the requirements contained in legislation or policy and, as such, must be given less weight. The Tribunal has considered the application on its merits and has given considerable attention to the position of the NAPB, including its Guiding Principles. The Tribunal prefers the evidence of Mr. Robinson and finds that the 15-year limitation on consents is not sufficient reason to deny the consent. The Tribunal notes that it would be a different situation if the 15-year rule had been part of an applicable Official Plan.

41In Mr. McArthur’s report, he stated that approving new lot creation without the current supporting scientific data would be contrary to Provincial Policy. The Tribunal is satisfied that the detailed analysis provided by Mr. Parsons now shows that the Lake is not currently at capacity. However, if the Tribunal has erred in that determination, even if the Lake is at capacity, the proposal allows for the appropriate mitigation measure (prescribed by the MECP) of locating the septic system 300+ m away from the shoreline (a fact confirmed by the Conservation Authority letter). As such, the Tribunal finds that the issue of lake capacity has been considered and is not a reason to deny the consent.

42The Tribunal takes no position regarding Mr. McArthur’s concerns about this Decision leading to an increase of consent applications. However, the Tribunal notes that in making a decision on a proposed provisional consent, each application is considered on its own merits. The Tribunal’s finding is specific to this particular consent application which, based on Mr. Robinson’s evidence, meets the relevant requirements. However, another application (even if similar) might not be able to demonstrate that it meets those requirements, and so would not be automatically approved by an Approval Authority.

CONCLUSIONS

43As the proposal is to create one additional lot, the Tribunal is satisfied that a plan of subdivision is not necessary for the orderly development of the Township.

44Based on Mr. Robinson’s evidence, the Tribunal is satisfied that the proposal has regard to the matters of Provincial interest in s. 2 of the Act including, but not limited to, subsections a), c), e), f), h), o) and p).

45The Tribunal is also satisfied that the proposed consent meets the criteria identified in s. 51(24) of the Act including, but not limited to, subsections a), b), c), d), f), h) and i).

46With respect to the matter of conditions to be imposed, the Tribunal finds that the recommended conditions, requested and consented to by the Applicant, are reasonable, having regard to the nature of the proposed consent. As a result, the Tribunal will impose the conditions.

47The Tribunal is satisfied, based on the evidence presented by Mr. Robinson and Mr. Parsons, that the provisional consent is appropriate, subject to the proposed conditions. The Tribunal is satisfied that the proposal meets the required legislative tests and is, in general, representative of good planning in the public interest.

48Regard has also been given to the decision of the NAPB and the information it had available when making its decision.

ORDER

49THE Tribunal orders that the Appeal is allowed and the provisional consent is to be given, substantially in compliance with Schedule 1, attached to this Order, subject to the following conditions:

a) that three copies of the following be provided to the North Almaguin Planning Board:

i. Schedule to the Transfer/Deed of Land setting out the entire legal description of the parcel in question, and also containing the names and addresses of the parties indicated on the Transfer/Deed of Land.

ii. A certificate in the appropriate form prescribed in O.Reg. 197/96, Schedule I for signature of the NAPB Official (Secretary-Treasurer or Chairperson)

iii. A copy of the Draft Reference Plan which has been reviewed by the Land Registry Office.

b) that the provisional consent shall lapse in accordance with the provisions of the Planning Act.

c) that the Tribunal may be spoken to concerning issues arising from the implementation of this Order.

“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.

Schedule 1