Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 26, 2023
CASE NO(S).: OLT-22-003997
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Cody Diehl
Subject: Consent – Conditions of provisional consent
Description: Consent application to create a new lot
Reference Number: C-12-2022
Property Address: 43712 Cardiff Road
Municipality/UT: Huron East/Huron
OLT Case No.: OLT-22-003997
OLT Lead Case No.: OLT-22-003997
OLT Case Name: Diehl v. Huron East (City)
Heard: October 14, 2022 by Video Hearing
APPEARANCES:
Parties
Counsel
Cody Diehl
Marc Kemerer
Huron County
Gregory Stewart
DECISION DELIVERED BY S. BOBKA AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Cody Diehl (“Applicant”) owns the property located at 43712 Cardiff Road (“Subject Property”) in Ethel. He applied to Huron County (“County”) for consent to sever the Subject Property to create one additional lot. Planning Staff recommended the approval of the consent, subject to ten conditions, and the County approved the consent subject to those conditions. The Applicant appealed that decision to the Tribunal under s. 53(19) of the Planning Act (“Act”) as the size of the severed portion granted was different than what was applied for as a result of the imposed conditions.
SUBJECT PROPERTY AND EFFECT OF PROPOSAL
2The Subject Property is approximately 40.47 hectares (“ha”) (100 acres) in size and consists of a house, a bank barn and shed. There are 37 acres of natural features on the property.
3The Subject Property is:
a. designated Agriculture and Natural Environment, in the Huron East Official Plan (“OP”);
b. zoned AG1 (General Agriculture), NE1 (Natural Environment – Full Protections) and NE2 (Natural Environment – Limited Protection in the Huron East Zoning By-law (“ZBL”).
4The Application proposes to create a new lot under the ‘Surplus Farm Dwellings’ severance policies (s. 10.3.1.7 of the OP) and it features:
a. a proposed severed area of approximately 4.05 ha (10 acres) in size, which includes the house, bank barn and shed;
b. a proposed retained area of approximately 36.42 ha (90 acres), which contains agricultural and natural environment features.
5The difference in opinion between the Applicant and the County lies with Condition No. 9 of the recommended conditions (found in Exhibit 1), which requires that the severed parcel be reduced to a rectangle with a maximum area of 3.5 acres (1.4 ha) containing the house, septic system, well and out-buildings. The Applicant’s position is that the requested 10 acres is required and appropriate for a market gardening business, which his family intends to build, while the County’s position is that 3.5 acres is sufficient for the residential use of the severed parcel.
LEGISLATIVE FRAMEWORK
6With respect to this Appeal, 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 Town 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 (but not limited to): whether the proposed consent 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; and the dimensions and shapes of the proposed lots.
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