2540659 Ontario Inc. v. The Archipelago (Township), 2023 CanLII 56714

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 23, 2023

CASE NO(S).: OLT-22-004853

PROCEEDING COMMENCED UNDER subsection 53(14) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant and Appellant: 2540659 Ontario Inc.

Subject: Application for Consent – Failure of Approval Authority to make a decision

Description: To permit the creation of a new residential water access lot

Reference Number: B03-22

Property Address: The Pines Island No. B494

Municipality/UT: The Archipelago/Parry Sound

OLT Case No: OLT-22-004853

OLT Lead Case No: OLT-22-004853

OLT Case Name: 2540659 Ontario Inc. v. The Archipelago (Township)

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Motion by: Scott Rosenthal, Mike Daymond and Leesa Daymond

Purpose of Motion: Request for Determination

Subject: Application for Consent – Failure of Approval Authority to make a decision

Municipality: The Archipelago (Township)

Heard: May 2, 2023 by video hearing

APPEARANCES:

Parties

Counsel

2540659 Ontario Inc.

Marc Kemerer

Township of the Archipelago

Sylvain Rouleau

MEMORANDUM OF ORAL DECISION DELIVERED BY ASTRID J. CLOS ON MAY 2, 2023 AND ORDER OF THE TRIBUNAL

Link to Order

1The Tribunal convened a Hearing (“Hearing”) with respect to an appeal brought pursuant to section 53(14) of the Planning Act (“Act”) by 2540659 Ontario Inc. (“Applicant”) for a portion of the property located on the Pines Island No. B494 (“Subject Property”), in the Township of the Archipelago (“Township”) arising from the failure of the Township’s Planning Board to make a decision within the statutory timeframe for Provisional Consent Application No. B03-22 (the “Consent”).

BACKGROUND

2Consent Application Nos. B01-22, B02-22 and B03-22 were filed with the Township on December 20, 2021, by the Applicant to divide Island B494 into three lots and one retained parcel.

3The Notice of a Hearing for these applications, including the Consent, which is the subject of this Hearing, provided by the Planning Board was dated June 24, 2022.

4At the July 21, 2022 meeting, the Planning Report prepared by Cale Henderson, Township Planner, supporting the Severance Applications, subject to the imposition of certain conditions, was provided to the Planning Board.

The Goal and Objectives of the Official Plan maintain an “environment first” and “status quo” philosophy toward development in the Township. This philosophy is carried forward in the development and environmental policies of the Official Plan that are intended to ensure that the natural character of the Township is protected. The Official Plan recognizes that further development can be provided for in the Township, although it is discouraged, rather than encouraged. The subject property qualifies for consideration to create three new lots, however, it is paramount that any proposal for lot creation be directed to areas that are appropriate for development and do not contain significant constraints. It would appear that, conditional on the recommendations within this report being implemented, the proposal appears to be appropriate.

5The Planning Board deferred the three Severance applications on July 21, 2022, to enable the owner to confer with the concerned neighbours.

6John Jackson, the Applicant’s Planner, provided a memo to the Township reporting on the status of the communications with the closest neighbours.

The Pines [Island No. B494] is an existing parcel of record and is eligible for a building permit. A building permit for a dwelling, septic system and dock has been obtained for the area that would be proposed Lot 4 [retained lands].

A draft Site Plan has been prepared to assist in mitigating the potential impacts on the northeast end of the island.

We have overlayed the approved building location on a site plan that shows a buffer or tree preservation area to the north that will screen the new cottage from the Daymond cottage.

Soundings have been taken and there is currently a minimum of 10 – 15 feet at the proposed dock location. [Lot 4]

Dock restriction areas are illustrated on the constraint map.

7On October 20, 2022, the Planning Board approved Application Nos. B01-22 and B02-22 with conditions for the creation of two lots on the Subject Property, and deferred making a decision with respect to B03-22 to allow further discussion, consideration and negotiation with the neighbours.

8No appeals were filed with respect to Application Nos. B01-22 and B02-22 for the Subject Property and these Provisional Consent decisions are final.

9The Applicant subsequently appealed the non-decision related to Consent Application No. B03-22.

10On March 9, 2023, the Planning Board resolved to inform the Ontario Land Tribunal (“Tribunal”) that it has no objection to the approval of Application No. B03-22, for the 2.8 hectare (“ha”) lot and the retained 4.1 ha lot (Exhibit 2 - “N”).

NOW THEREFORE BE IT RESOLVED that the Board informs the Ontario Land Tribunal that it has no objection to the approval of Application No. B03-22, for the third, proposed water access, residential lot being 2.8 ha (6.7 ac) +/- in size, having approximately 189 m (620 ft) +/- of frontage, and a retained lot being 4.1 ha (10.1 ac) +/- in size, having 391 m (1283 ft) +/-, in accordance with the recommendations within the Environmental Impact Study and the October 20, 2022 Staff Report, to protect the identified natural heritage features and minimize impacts on navigation and privacy of adjacent properties.

11A proposed Settlement Agreement was entered into on April 24, 2023, between the Township and the Applicant with respect to Consent Application No. B03-22 for the Subject Property.

LEGISLATIVE TESTS

12The Tribunal in carrying out their responsibilities shall have regard to matters of provincial interest as set out in s. 2 of the Planning Act (“Act”).

13When making a decision relating to a planning matter, the Tribunal shall have regard to any information and material received by a council or approval authority in relation to the matter as set out in s. 2.1(2) of the Act.

14A Decision of the Tribunal, in respect of any authority that affects a planning matter, shall be consistent with the Provincial Policy Statement, 2020 (“PPS”) and shall conform with or shall not conflict with the Growth Plan for Northern Ontario (“GP”) as set out in s. 3(5) of the Act.

15In authorizing a consent to sever, the Tribunal must be satisfied that the Applicant has demonstrated that a plan of subdivision of the land is not necessary for the proper and orderly development of the municipality, in accordance with s. 53(1) of the Act.

16In considering a consent to sever, the Tribunal shall have regard to the criteria of s. 51(24) of the Act.

MOTION FOR PARTY STATUS

17On April 14, 2023, Jonathan Nehmetallah, Counsel for Scott Rosenthal, Mike Daymond and Leesa Daymond brought a motion for an Order granting Party status in this proceeding (Exhibit 1 - Notice of Motion for Party Status).

18Mr. Nehmetallah raised grounds that the proposed Parties are concerned that the Consent application represents an inappropriate level of overdevelopment for the surrounding area and is made without consideration to various land use compatibility, scale of development, environmental, aesthetic, vista, and privacy matters.

19Mr. Nehmetallah took the Tribunal to Rule 8.2 of the Tribunal’s Rules of Practice and Procedure (“Rules”). As stated in paragraph 7 of his motion,

the Tribunal may add a person as a party to a proceeding when that person satisfies any applicable legislative tests and where their presence is necessary to enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding.

20Mr. Nehmetallah also reviewed with the Tribunal what he considered the relevant “obvious factors” in considering whether Party status should be granted in reference to 1137528 Ontario Ltd. v. Oakville (Town), [2010] O.M.B.D. No. 770 (“1137528 Ontario Ltd. v. Oakville (Town”). He set these factors out in his clients’ Notice of Motion as follows:

1. Public Interest

To what extent is the public interest advanced if party status is granted?

The public has an interest in the granting of party status to the Proposed Parties as there are concerns that the Consent Application represents an inappropriate level of overdevelopment for the surround area. It is in the public interest that the scope and level of development be debated robustly given the general goal of the Township of the Archipelago Official Plan which is to “preserve the unique and high quality of the natural environment which leads to a recreational experience that is both relaxing and aesthetically appealing to property owners and visitors who use the area, and is designed to make both property owners and visitors realize that they share equally in the responsibility of maintaining the ecological integrity within a UNESCO Biosphere Reserve.”

2. Prejudice

What prejudice, if any, would be suffered by the municipality or another party to the proceedings?

No prejudice. The Proposed Parties are prepared to proceed on the hearing date previously scheduled for May 2, 2023 and therefore the municipality and the Applicant/Appellant will not be prejudiced by a delay in the hearing of the matter on the merits. The concerns of the Proposed Parties will not materially impact the length nor the complexity of the proceeding and the matter could be concluded in a single day.

3. Direct Interest

Does the person seeking party status have a direct interest in the policy?

Yes. The Proposed Parties previously made submissions to the Municipality when this matter was before it and the Municipality declined to render a decision on the consent in order to provide the Proposed Parties and the Applicant/Appellant time to further discuss the concerns of the Proposed Parties. Moreover, the Subject Property is immediately adjacent to the Neighbouring Islands.

4. Historical Background

What is the historical background of the policy sought to be challenged?

The historical background to the Consent Application supports the request for party status. The Consent Application was opposed by the Proposed Parties while the matter was before the municipality. The grounds of their objections are a necessary and important context to provide historical background to the proceeding. This is of particular import given the fact that the ostensible reason for the non-decision while the Consent Application was before the municipality was to allow time for the parties to discuss the concerns of the Proposed Parties.

We therefore believe that the Proposed Parties satisfy the “obvious factors” normally used by the Tribunal to assess such a request.

21Mr. Nehmetallah indicated that in contrast to the “Prejudice” submission in his written motion materials which stated that his clients are prepared to proceed with the Consent hearing if granted Party status, his clients would instead be bringing a motion to adjourn the proceeding today. The adjournment request would be based on a future request to consolidate this Consent proceeding. The request would be to consolidate the future zoning appeal to be filed by his clients (with respect to the zoning by-law required as a condition of the Consent) with the Consent.

22While not included in his written motion material, in presenting the motion Mr. Nehmetallah did address another test from the 1137528 Ontario Ltd. v. Oakville (Town) OMB decision namely, avoiding a multiplicity of hearings in the consideration of granting Party status.

23Mr. Nehmetallah stated that there are reasonable grounds to grant Party status to his clients. His clients have participated in the local planning process and made their concerns known to the Planning Board prior to any decision being made with respect to the Consent.

24Mr. Nehmetallah indicated that a Consent hearing before the Tribunal is a hearing de novo.

25Mr. Nehmetallah stated that the purpose of the Party status request is to provide the Tribunal with an understanding of the wide-spread support for the residents’ concerns and to provide the status required to request an adjournment. The adjournment would be based on a consolidation request with a future zoning appeal in order to reduce the need for a multiplicity of hearings.

26Mr. Nehmetallah indicated that in the event an adjournment is granted, he would commit to acting expeditiously with his clients. He further stated that even if an adjournment is granted there is no prejudice to the Applicant since the Consent is conditional on a rezoning being approved. Mr. Nehmetallah stated that the Consent does not crystalize until the conditions are fulfilled.

27Mr. Nehmetallah indicated that his clients had not retained any expert witnesses to provide evidence for the Consent hearing today. He indicated that his clients would retain a land use planner and ecologist to provide expert evidence at the future consolidated hearing he intends to request for the zone change appeal they intend to file.

28Mr. Nehmetallah advised that if denied Party status, his clients would be prejudiced by not being able to test the evidence of the Applicant’s land use planner through cross-examination. In addition, the zoning appeal may be considered predetermined by the Consent being authorized.

29Mr. Nehmetallah questioned the integrity, non-bias and whether the land use planner retained by the Applicant is acting as an advocate. No written or verbal basis or rationale, in support of this statement, was provided by Mr. Nehmetallah.

PARTICIPANT STATEMENT

30Mr. Nehmetallah offered that, should the Tribunal not grant Party status, then Participant status should be granted to his clients.

31Mr. Nehmetallah then stated that a Participant Statement had been prepared, but not filed with the Tribunal prior to the commencement of the hearing.

32No explanation was provided by Mr. Nehmetallah regarding why the Participant Statement was prepared, but not filed with the Tribunal as part of the Request for Party Status that he did file, nor included as part of his Motion record that he brought, nor as a separate Participant status request. It is established practice that the Tribunal encourages Participant Statements to be filed at least 10 days prior to the commencement of the hearing. Nonetheless, the Tribunal, the Parties and the witness all had access to the extensive correspondence from the neighbours, which was included in the motion materials filed by Mr. Nehmetallah, to rely upon prior to this matter being heard.

33The Tribunal asked Mr. Nehmetallah whether the Participant Statement which had been prepared, but not filed with the Tribunal, included new information not already before the Tribunal. He replied that the Participant Statement was a comprehensive consolidation of the comments already included in his motion materials.

34The motion materials provided by Mr. Nehmetallah included the Affidavit of one of his clients, Scott Rosenthal, which addressed the public interest of the motion, requesting Party status. Mr. Rosenthal stated in his Affidavit:

Public Interest

7. It is my belief that our concerns particularized in the October 12th Letter are shared by the other property owners in the surrounding area of the Subject Property and this is reflected in the correspondences filed with the Township opposing the Consent Application. Attached hereto and marked as Exhibit “D” is a copy of the correspondences received by the Township opposing the Consent Application.

8. Given our concerns in the October 12th Letter and the concerns shared by the public more generally, it is my belief that it is in the public interest that the scope and level of development be debated robustly given the general goal of the Township Official Plan which is “preserve the unique and high quality of the natural environment which leads to a recreational experience that is both relaxing and aesthetically appealing to property owners and visitors who use the area, and is designed to make both property owners and visitors realize that they share equally in the responsibility of maintaining the ecological integrity within a UNESCO Biosphere Reserve.

35The Tribunal carefully reviewed all the submissions provided in the motion materials prior to the hearing event. In particular, Exhibit D of Mr. Rosenthal’s affidavit included the neighbours’ correspondence in opposition to the Consent application (in some cases more than one piece of correspondence) from John Hamilton, Wendy Hilliard, Mike Daymond, Jody Markus, Adam Keyser, Raymond Murakami and Ann Johnston, Josette Lamoureaux and Jeff Carr, W. Carl Breckenridge, Mary Hamilton, Leesa Daymond, Jonathan Markus, James T. Markus, , Ainslie Gray, Tami Daymond, Caryn Segall, Robert and Jaime McGrath, Scott S. Rosenthal, Jane Nawroth, Pierre Barber, Jonathan Pintwala, Graeme Barber, and Katharina von Aufschaiter.

36The Tribunal reviewed the issues raised by the community prior to the hearing and understands the wide-spread level of concern in opposition to the Consent.

37The Tribunal has reviewed and is aware that the neighbours who have enjoyed this area for many years, for generations in some cases, have concerns related to the proposed Consent and retained lands (referenced as “Lot 4”). Their concerns summarized herein are not exhaustive.

• Lot 4 is incompatible, and no building should be permitted due to an insufficient location for locating a dock.

• That Lot 4 should have a restrictive covenant imposed leaving it in a natural state due to conflicts with a septic bed and the wetland buffer.

• That while the Official Plan may permit the creation of three new lots, discretion should be used to not permit them where sound reasons are provided.

• Safety of residents due to increased boat traffic.

• Impacts to wildlife from the construction of new cottages related to the proposed Consent and Lot 4.

• The big increase in noise already experienced due to the trees cut, proximity of the proposed lots and docks.

• There are questions regarding activities that have occurred on the Subject Property and whether they were done with proper permission being granted.

• There are questions regarding proper notice to residents of activities which occurred on the Subject Property.

• Development on Lot 4 is an invasion of privacy and security with noise and safety issues from boats and jet skis in their swimming area.

• That any buildings or structures be setback 60 m from the south and west shorelines and that no docks be permitted in this location.

• Concern related to the increase in density of cottages in a 1 km area by 20%.

• The location of the Consent and Lot 4 will jeopardize the privacy of existing cottagers on their islands.

• Concerns that the water quality will suffer as result of this development.

• Desire to preserve the rare and fragile Georgian Bay ecosystem with many endangered species by permitting less development than a developer would like.

• Whether the response provided by RiverStone Environmental Solutions adequately addressed the question posed by the Township related to mitigation measures for the site alteration completed.

• The total area of the Subject Property should not include areas below the high water mark and the large marsh area and buffer.

• Maximum privacy should be provided by the siting of new buildings and structures to minimize their impact on existing development.

• Concern that existing dock locations conflict with type 1 fish habitat and should be removed.

• Concerns related to the increase of air and light pollution in relation to the proposal.

• Objections to Lot 4 which appears to be in the small bay used by existing families as a small private bay for their water activities.

• Lot 4 should be donated to the Georgian Bay Land Trust as parkland instead of donating $5,000 per lot to the Township as a condition of the severance.

RESPONSE TO MOTION FOR PARTY STATUS

38On April 21, 2023, Marc Kemerer, Counsel for the Applicant, provided the responding motion to dismiss the Motion for Party status in this proceeding (Exhibit 2 - Notice of Response to Motion for Party Status).

39Mr. Kemerer provided grounds for his responding motion.

4. Even if there were issues to adjudicate, the Neighbours do not propose to bring any professional planning or environmental evidence to support their position at the hearing. What they would do is simply to repeat the concerns they expressed at the Planning Board meetings. In their Motion they acknowledge that they are not adding any complexity to the issues. Their concerns, already considered through the originating public process, are not sustainable given that the only professional land-use planning evidence being proffered for the settlement hearing is from both the Applicant and the Township (via the 21 July 2022 Planning Report filed by the Township Manager of Development and Environmental Services).

5. The participation of the Neighbours as a party will result in prejudice to the Applicant by causing a potential delay to the Tribunal’s determination of the settlement of the Appeal. The Applicant has already endured a number of delays in the review of the Applications by The Archipelago Planning Board as a result of the Neighbours involvement and should not be subject to further delay in obtaining the approval of the subject consent. This is particularly so where there is no sustainable evidence to be considered from the Neighbours regarding the settlement.

40Mr. Kemerer stated that the Motion for Party status is brought only for the purpose of delay.

41Mr. Kemerer advised that he has no objection to Participant status being granted.

42Mr. Kemerer stated that the residents have known about the settlement with the Township since March 9, 2023 and that the Tribunal provided notice of today’s hearing on March 15, 2023. The residents did not retain experts to provide planning or environmental evidence at this Hearing.

43Mr. Kemerer submitted that the proposed settlement is good planning, which is the opinion of both Mr. Henderson and John Jackson, two qualified land use planners.

44Mr. Kemerer explained that a separate zone change application is required for the Consent and retained parcel to add the “D” symbol to the Subject Property to indicate that these lots were created through a severance and are not eligible for further lot creation.

45Mr. Kemerer stated that it is ironic that the zoning recently approved by Council, which residents want to appeal, includes regulations to specifically address their concerns raised through the process and will implement the recommendations of the Environmental Impact Study (“EIS”), which the residents say that they want.

46Mr. Kemerer explained that the zoning recently approved relates to the conditions imposed on the two severance applications already approved and does not relate to the Consent for the Subject Property, which is at issue in this Hearing.

47Mr. Kemerer argued that the zoning recently approved by the Township, does not satisfy the condition of the Consent now before the Tribunal, and therefore, could not properly be consolidated into one hearing by the Tribunal.

48Mr. Kemerer explained that once the Consent is authorized, his client will need to apply for a new zone change application to satisfy the relevant condition of that Consent approval.

49Mr. Kemerer stated that the prejudice to his client is obvious if the requested Party status is granted. Once granted Party status an adjournment will be requested. If a decision is not made related to the Consent, the Township will be reluctant to process the zoning application to clear a condition for a Consent, which is not yet in effect. This will result in another time delay.

50Mr. Kemerer submits that nothing has changed in relation to the residents’ ability to move forward with the Consent Hearing today.

51Mr. Kemerer provided that the Planning Board already delayed making a decision to accommodate the concerns of the residents.

52Mr. Kemerer submitted that with respect to Tribunal’s Rule 8.2, the public interest has been capably served by the Township which is their role. The residents are not protectors of the public interest and their presence as Parties is not necessary to enable the Tribunal to adjudicate effectively and completely on the issues in the proceeding.

53Mr. Rouleau took no position on the Motion on behalf of the Township.

ANALYSIS AND FINDINGS – MOTION FOR PARTY STATUS

54After careful review of the records and upon hearing submissions from Counsel, the Tribunal finds that it must dismiss the motion to grant Party status to Scott Rosenthal, Mike Daymond and Leesa Daymond.

55The Tribunal is persuaded that Scott Rosenthal, Mike Daymond and Leesa Daymond have raised genuine land use issues and have participated in the local process. In accordance with the alternative offered by their Counsel, and on consent of the other Parties, Participant status is granted.

56The concerns and issues of the Participants were documented in the correspondence and affidavit motion materials filed with the Tribunal prior to the hearing.

57No new issues were raised by the Participants which had not already been considered and addressed through the local planning process. While the Consent is a hearing de novo the Tribunal is aware that must also have regard to the information the Planning Board received in relation to the Consent. The Tribunal finds that Participant status properly allows the issues and concerns to be considered through this hearing process for the Consent.

58The Participants did not demonstrate that they would be providing evidence at the Consent hearing if granted Party status, which had the prospect of advancing the public interest in the proceeding. The Participants were prepared on the day of the Consent hearing to provide non-opinion statements based on the material which had been filed prior to the hearing. This is most appropriately considered through the Participant status which was granted.

59The Tribunal finds that the Participant status granted did not result in significant prejudice to the Participants.

60The Tribunal finds that reasonable grounds were not presented sufficient to grant the requested Party status.

61The concerns raised in the request did not clearly articulate why Party status was necessary for the Tribunal to adjudicate effectively and completely on the issues in the proceeding. The Tribunal was not persuaded, in this case, that granting Party status was necessary to adjudicate effectively and completely on the issues in the proceeding.

62Accordingly, the Tribunal granted Participant status to Scott Rosenthal, Mike Daymond and Leesa Daymond.

PARTICIPANT STATUS REQUEST

63The Tribunal received a written request for Participant status on April 19, 2023, from Ashley and Wendy Hilliard. This submission was followed up with a replacement version with a typo correction. Both versions of their Participant Statement were received and carefully reviewed by the Tribunal prior to the hearing.

64Their Participant status request established that their, Island B517, is located in the immediate neighbourhood of the proposed Consent and that they participated in the local planning process.

65The main concern of Ashley and Wendy Hilliard relates to the retained lands, which they maintain contains an important wetland and fish habitat that should be protected, is unsuitable for development, has no good docking and if developed would unfairly and very negatively impact the existing cottages on neighbouring Islands B501A and B502.

66Ashley and Wendy Hilliard suggest that the wetland on the retained lands be protected. They also state that just because a land division may be permitted does not mean that it must be.

67The Tribunal found that Ashley and Wendy Hilliard have a demonstrated interest in the matter and on consent of the Parties, the Tribunal grants the requested Participant status.

PROPOSED SETTLEMENT

68The Tribunal considered the proposed Settlement in accordance with Rule 12.1 of the Tribunal’s Rules.

69The Tribunal qualified Mr. Jackson to provide expert opinion evidence in the discipline of land use planning. During his evidence, Mr. Jackson referred to both written and visual materials included in Exhibit 3 – Affidavit of John S. Jackson M.C.I.P., R.P.P.

70Mr. Jackson outlined his extensive 45 years of planning experience in this area, which commenced in 1978. The Tribunal found Mr. Jackson to be a professional and credible witness.

71Mr. Jackson described the surrounding area as the eastern shore of Georgian Bay and part of the 30,000-island archipelago. The Subject Property is located among the outer islands in the south part of Township. Island B494 is located off the west side of Parry Island near the entrance to Johnny Bay. Island B494 is approximately 11 ha in area.

72Mr. Jackson reviewed the conditions related to the Consent contained in the proposed Settlement Agreement.

That the approval of Consent Application No. B03-22 shall be subject to the conditions.

1. A transfer document bearing original signatures and one photocopy for the Board’s records, on which is set out the legal description of the subject parcel(s) and the names of the transferor(s) and transferee(s).

2. A reference plan of survey bearing the Land Registry Office registration number and signature as evidence of its deposit therein, and which illustrates the parcels to which the consent approval is related. Prior to having the survey plan registered, the Board will require a copy of a draft plan from a surveyor to ensure it is in compliance with the approved application.

3. That the severed and retained lands be rezoned from the ‘Coastal/Island Residential (CR)’ Zone to the ‘Coastal/Island Residential/Divided Exception ## (CR/D-##)’ Zone in accordance with the recommendations within the Report:

i. A minimum front yard setback of 15 metres;

ii. A minimum front yard setback of 30 m for septic systems;

iii. Docks shall not be located within the Docking Restrictions Areas and shall not be located in ES1 and ES2 Zones;

iv. A minimum 30 m setback from the ES2 Zone; and

v. No buildings and structures shall be located within the tree preservation no build envelope

4. To rezone identified natural heritage features to the appropriate Environmentally Sensitive 1 (ES-1) Zones and Environmentally Sensitive 2 (ES-2) Zones.

5. Confirmation from a qualified septic installer that a suitable location for the construction of a septic system is available on the severed and retained lands outside of any constraint area and buffer/setbacks.

6. That 2540659 enter into a s. 51(26) agreement with the Township to address matters to implement the recommendations of the 21 December 2021 Riverstone Environmental Impact Study, including a remediation plan for past works not in compliance with those recommendations.

7. That the proposed tree preservation area identified by 2540659 on the supplementary submission dated 14 September 2022 be addressed either as part of the rezoning or the s. 51(26) agreement to buffer the new cottage on Lot 4 from Island B-501-A.

8. Confirmation from a qualified surveyor that the Subject Lands meet the minimum lot area of 10 ha and the retained and severed lands maintain a minimum lot area of 1 ha (2.47 ac) and a minimum lot frontage of 100 metres each.

9. Payment of $5,000.00 to the Township in lieu of lands being conveyed to the Township for parkland purposes.

73Mr. Jackson provided his opinion that the conditions in paragraph [63] protect the public interest in this Consent through the requirement for an enhanced front yard setback, a 30-metre minimum front yard setback for a septic system, identified areas where docks shall not be permitted to protect privacy and fish habitat, a 30-metre setback from the ES2 Zone, tree preservation areas where no buildings or structures are permitted, protecting natural heritage features by requiring them to be in Environmentally Sensitive Zones, locating septic systems outside any constraint areas including buffers, a required agreement with the Township to ensure that the recommendations of the EIS will be implemented, include a remediation plan for the past works in the agreement, a tree preservation area on the retained parcel (Lot 4) to buffer the new cottage from Island-501-A, a surveyor to confirm that Island B494 meets the 10 ha minimum lot area, and requiring cash-in-lieu of parkland be provided.

[Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) - Matters of Provincial Interest

74The Tribunal heard evidence from Mr. Jackson that his planning analysis related to the proposed Consent, as included in the proposed Settlement Agreement, has had appropriate regard for the applicable matters of provincial interest under s. 2 of the Act.

[Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) – Is a Subdivision Necessary?

75Mr. Jackson reviewed the Township Official Plan policy which states that the creation of three new lots does not require that a Draft Plan of Subdivision be provided. He opined that a plan of subdivision is not necessary for the proper and orderly development of the Subject Property, in accordance with s. 53(1) of the Act.

[Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) – Criteria for Consents

76Mr. Jackson reviewed the applicable criteria as set out in s. 51(24) of the Act in relation to the Consent. He summarized that, in his opinion, the Consent conforms to the Township Official Plan. The Consent and retained parcel are equal to or larger in size than adjacent lots with suitable areas provided for cottage, dock and septic system locations. The parcels have been configured to give each lot a western exposure with the lots converging to a central point to discourage development on the east side of the island near neighbouring properties. The lands will be zoned to signify the land division and to increase the required front yard as recommended by the EIS. In addition, the Township will require an agreement to be registered against the parcels to implement the recommendations of the EIS. The Township generally assigns a fee – cash in lieu of parkland dedication.

77Mr. Jackson provided his opinion that the applicable criteria as set out in s. 51(24) of the Act have been satisfactorily addressed through the Consent and the conditions to be imposed.

Provincial Policy Statement

78Mr. Jackson provided his opinion with respect to the Consent being consistent with the Provincial Policy Statement (“PPS”). He summarized that the Subject Property is considered rural lands under the PPS and is subject to the provisions of s. 1.1.5. He indicated that the proposed Consent is consistent with the Rural Lands policy and represents appropriate development given its compliance with the neighbourhood land division policy in the Township Official Plan.

79Mr. Jackson indicated that the Natural Heritage policies contained in s. 2.1 of the PPS apply to the Subject Property. He indicated that his planning opinion was informed by the EIS which concluded that if the recommended measures are implemented, the Consent will be consistent with the applicable natural heritage policies.

80Mr. Jackson provided his professional opinion that the Consent with the required conditions is consistent with the PPS.

Growth Plan for Northern Ontario (“GP”)

81Mr. Jackson indicated that it is his opinion that the Consent with the conditions conforms to the balance of economic and social policies within the GP.

Township of the Archipelago Official Plan

82Mr. Jackson explained that all lands and islands have the same, single designation in the Township for recreational purposes. He advised that residential dwellings are permitted on all such designated waterfront properties in the Township. He further indicated that the Long Sault-Amanda neighbourhood policies are applicable to the Subject Property.

83Mr. Jackson referred to s. 10.2.6 of the Township Official Plan.

Long Sault – Amanda

10.26 Notwithstanding the above, there are several large islands in the Long Sault - Amanda Neighbourhood (greater than ten hectares) where land division resulting in the creation of three new lots per land holding may be permitted subject to Section 14 - Development Procedures and Standards and any other applicable policies.

84Mr. Jackson opined that Island B494 is identified in the Township Official Plan as a large island based on its size of over 10 ha where the creation of three new lots may be permitted because the applicable policies have been properly addressed by the Consent through the inclusion of the conditions.

85Mr. Jackson indicated that the Township required that the Consent, in accordance with the policies of the Township Official Plan, be assessed for impacts on the environmental features. In order to properly assess the environmental policies and the associated impact on the various islands, a qualified consultant was retained to assess the proposal.

86Mr. Jackson indicated that an EIS prepared by RiverStone Environmental Solutions Inc. was prepared and submitted with the Consent applications. The EIS included a number of recommendations to mitigate any impacts from the proposed Consent. (Exhibit 2) These recommendations include:

• All new development and site alteration should be set back a minimum of 15 m from the Georgian Bay high water mark (176.44 masl) on the subject property. This exceeds the minimum front yard setback that is required by the Township in the zoning bylaw.

• All new septic systems are to be setback a minimum of 15 m from the Georgian Bay high water mark (176.44 masl) on the subject property and 15 m from any other aquatic features on the property (Figure 2).

• When the native soil is exposed within the development envelopes, sediment and erosion control works, in the form of heavy-duty sediment fencing, be positioned along the edge of development envelopes.

• Temporary storage locations of aggregate material should be located a minimum of 15 m from the Georgian Bay high watermark. This material is to be contained by two layers of heavy-duty sediment fencing.

• The sediment fencing must be constructed of heavy material and solid posts to ensure its integrity and be properly installed (trenched in) to maintain its reliability during inclement weather events.

• Where soil depths do not permit trenching in of sediment fencing, straw bales are to be used.

• Regular inspection and monitoring will be necessary to ensure that the structural integrity and continued functioning of the sediment control measures is maintained (i.e., proper installation is not the only action necessary to satisfy the mitigation requirements).

• Inspections of sediment and erosion control measures should be completed within 24 hours of the onset of a storm event.

• Sediment control measures must be maintained in good working order until vegetation has been established on the exposed soils.

• Offloading of construction materials and aggregate be undertaken during fair weather conditions and with care not to allow any of this material to enter the water.

• Existing vegetation within 7.5 m of the Georgian Bay high watermark must be maintained in its natural state (Figure 3) unless it is a safety hazard. Debris from clearing or materials to be used in construction are not to be placed within this area.

• Vegetation within 15 m of the shoreline and 30 m of the wetland communities as indicated on Figure 3 be maintained in its natural state, with the exception of a pathway to the shoreline for each lot. The path will have a maximum width of 2 m, meander, and be constructed of permeable substances (i.e., clean gravel, mulch) where required. Trees will not be cut within the setback unless they are a safety hazard and debris from clearing or materials to be used in construction will not be placed within the setback.

• Where haul routes are needed to access development areas, their widths be minimized to the extent that is absolutely necessary. These routes will be constructed along the future access pathways to the shoreline. The route must be flagged, and strictly followed.

• A combination of active (revegetation) and passive (natural regeneration) rehabilitation of the haul route to the final width of 2-m be completed following construction.

• A Class IV sewage treatment facility, employing the use of a raised filter bed or a tertiary treatment system with area bed, be required.

• Any imported soils for septic construction should utilize soils with high concentrations of iron and aluminum that are known to bind phosphorus.

• The final location and installation of any septic system be completed by a licenced installer.

• Docking structure proposed for the severed and retained lots be located in the area identified as Type 2 fish habitat. Recommended docking envelopes that meet this criterion are provided on Figure 3

• During construction of docking structures, any in-water habitat features, including aquatic vegetation, natural woody debris, and boulders must be left in their current locations in the nearshore area unless their removal/movement has been permitted through the applicable ministry.

• Timing of construction for each dock should be outside the spawning period for warmwater fish species (April 15 to July 15).

• During design and construction of docking structures, the DFO Measures to protect fish and fish habitat be reviewed and implemented (Appendix 4). It should be noted that not all measures are suitable for all projects.

• New development and site alteration be setback a minimum of 15 m from the Georgian Bay high watermark (176.44 masl). With the exception of a 2 m wide path, no vegetation is to be removed in this area

• Development and site alteration should be set back a minimum of 30 m from the wetland features as indicated on Figure 3. All development should be excluded from these areas.

• The extent of vegetation removal and site alteration be minimized to the extent possible.

• No rocks (e.g., boulders, table rocks, etc.) be relocated as part of site alteration on the subject property.

• Clearing of vegetation will be limited as much as possible to the footprint required for the construction of buildings.

• Where present, rotting logs, brush piles, or compost piles will be left in place.

• With the exception of docking and a 2 m wide path to the shoreline, no development or site alteration will occur within 15 m of the Georgian Bay high watermark.

• Tree clearing for the purposes of development on each proposed lot only occur in the fall, winter and early spring (from October 15 to April 15). This timeframe is outside of the maternal roosting period.

• In the event that tree clearing must occur between April 15 and October 15, additional studies will need to be completed to confirm the presence or absence of SAR bats. These studies will include snag tree surveys and acoustic monitoring of the area where trees will be removed, by a qualified professional. Should SAR bats be detected, the MECP should be contacted to determine if a permit would be required to proceed.

• Vegetation removal and disturbance outside of the development envelopes should be minimized.

• Restricted vegetation clearing during the migratory bird nesting season, April 15 and August 31 each year.

87Mr. Jackson provided his opinion that, with the recommendations of the EIS required to be implemented through the conditions, the Consent is in conformity with the Township Official Plan.

TOWNSHIP ZONING BY-LAW

88Mr. Jackson indicated that the proposed Consent and retained lot comply with the minimum standards for lots in the CR Zone. Further that, the EIS recommended that the front yard be increased from 7.5 metres to 15 metres, which has been included as a condition. This recommendation along with others related to a setback for septic systems, restrictions on dock locations, a setback from the ES-2 Zone, no building permitted in the tree preservation envelope and identifying the existing natural heritage features in the ES-1 and ES-2 Zones have been included within the required conditions.

89Mr. Jackson provided his opinion that the Consent with the required conditions, which will result in a site-specific zoning for the subject property, represents good planning.

90Mr. Jackson indicated that there were a number of submissions by neighbours opposing the Consent related to density, visual impacts, navigation impacts and the removal of vegetation, which have been mitigated, in his opinion, through restrictions related to building setbacks, septic setbacks, docking restrictions and tree preservation areas being implemented through the conditions.

91Mr. Jackson explained that the Township will require that the zoning for the Subject Property be amended to add a “D” suffix to denote that no further division of land will be permitted.

92Mr. Jackson provided his concluding land use planning opinion that Consent Application No. B03-22 with the conditions as included in paragraph [63]:

• has had appropriate regard for the applicable matters of provincial interest under s. 2 of the Act;

• that a plan of subdivision is not necessary for the proper and orderly development of the Subject Property, in accordance with s. 53(1) of the Act;

• that the applicable criteria as set out in s. 51(24) of the Act have been satisfactorily addressed;

• is consistent with the PPS;

• conforms to the balance of economic and social policies within the GP;

• is in conformity with the Township Official Plan;

• includes conditions which protect the public interest;

• the concerns raised by the neighbours have been appropriately mitigated; and,

• represents good planning.

ANALYSIS AND FINDINGS - PROPOSED CONSENT

93The Tribunal accepts the uncontested planning opinion evidence of Mr. Jackson and finds that the proposed Consent, inclusive of the conditions, meets all the requisite tests as outlined in his evidence.

94The Tribunal finds based on the evidence of John Jackson, that the conditions in paragraph [72] are reasonable having regard to the nature of the development proposed pursuant to s. 51(25) of the Act.

95The Tribunal had regard for the information and material received by the Planning Board in relation to the matter when making its decision.

96The Tribunal finds that the concerns and issues raised by the Participants have been adequately addressed in the conditions required for the Consent.

97The Tribunal finds that the Provisional Consent including the conditions in paragraph [72] satisfies the required legislative tests with reasons that include the following:

a. Condition 8 will require that the minimum 10 ha size of the island be confirmed by a surveyor to ensure that the property is eligible for the Consent in accordance with s. 10.2.6 of the Township Official Plan.

b. Conditions 3, 4, 5, 6, 7 and 8 will ensure that the recommendations of the EIS, including a remediation plan for the works undertaken, will be included in the zoning and/or an agreement.

c. Condition 3 will also identify areas where docking is restricted to address concerns related to conflicts with natural areas and loss of privacy.

d. Condition 7 will also require a tree preservation area to buffer the new cottage on the retained parcel (Lot 4) to be buffered from Island B-501-A.

e. The Township has determined that cash-in-lieu of parkland is appropriate for this location. This requirement is included in Condition 9.

98Careful regard has been had to the issues and concerns of the Participants in the course of making this Decision. The Tribunal is satisfied that the concerns raised by the Participants were given appropriate consideration.

99On the evidence, the Tribunal is satisfied that the Provisional Consent will not result in undue adverse impacts at the Subject Property or to the area in general.

ORDER

100THE TRIBUNAL ORDERS that the appeal is allowed and the Provisional Consent is to be given subject to the conditions set out in paragraph [72] of this Decision.

101AND THE TRIBUNAL ORDERS that pursuant to section 53(39) of the Planning Act, the Township of the Archipelago shall have the authority to clear the conditions of the provisional consent and to administer the certificate of the consent for the purposes of section 53(42) of the Act. In the event that there are any difficulties implementing any of the conditions of the Provisional Consent, the Tribunal may be spoken to.

“Astrid J. Clos”

ASTRID J. CLOS

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.