Leslie Drake v. Brant (County), 2023 CanLII 73692

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 11, 2023

CASE NO(S).: OLT-23-000153

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Leslie Drake

Subject: Zoning By-law Amendment

Description: To permit development of building for storage of machinery and residential dwelling

Property Address: 409 German School Road

Municipality/UT: Brant

Municipal File No.: ZBA44-22-DN

OLT Case No.: OLT-23-000153

OLT Lead Case No.: OLT-23-000153

OLT Case Name: Leslie Drake v. Brant (County)

Heard: July 27, 2023 by Video Hearing

APPEARANCES:

Parties Leslie Drake

Counsel Jennifer Meader

County of Brant Brian Duxbury

MEMORANDUM OF ORAL DECISION DELIVERED BY W. DANIEL BEST ON JULY 27, 2023 AND ORDER OF THE TRIBUNAL

1This first Case Management Conference (“CMC”) was conducted for the appeal by Leslie Drake (“Appellant”) of the refusal of the County of Brant (“County”) following an application for a Zoning By-law Amendment (“ZBA”) to permit the proposed development on lands described as Part Lots 15 & 16, Concession 2, Township of South Dumfries, as in A445684 & PT2, 2R5021 Save and Except Part 1 on 2R-5021 Township of South Dumfries, known as 409 German School Road (“Subject Property”).

2The purpose of the ZBA is to permit an Additional Residential Unit (“ARU”) in the form of a proposed building which will be utilized for the storage of machinery utilized on the Subject Property and provide for a residential dwelling within the building structure.

3The Subject Property is approximately 38 hectares (“ha”) in size with an estimated 341 metres (“m”) of frontage along German School Road. The Subject Property is currently developed with an existing single detached dwelling, detached garage, and several smaller buildings generally used for storage and maintenance of the property. In terms of the surrounding area, numerous farms and non-farm-related residential dwellings are within proximity of the proposed ARU. To the east of the Subject Property are existing non-farm-related residential dwellings, farmlands, to the west is farmlands and to the south a non-farm-related residential dwelling, cemetery and farm lands.

4The purpose of the application was to rezone the Subject Property from Agricultural (A) to Agricultural with site-specific provisions (A-189):

1. to permit an Additional Residential Unit that uses a different entrance from the municipal right of-way as the primary dwelling unit, whereas the use of the same entrance from the municipal right-of-way as the primary dwelling unit is required;
2. to permit an Additional Residential Unit approximately 400 metres (“m”) from the existing principal dwelling, whereas a maximum of 40 m is permitted;
3. to permit the development area of the Additional Residential Unit to be approximately 2,264 square metres (“m²”), whereas a maximum of 450 m² is permitted; and
4. all other provisions of the By-Law apply.

5The Affidavit of Service of Victoria Peacock sworn July 18, 2023 affirming compliance with respect to the directions as to service of this Notice of Case Management Conference is marked as Exhibit 1 to this CMC.

6No requests for Party status were received.

7No requests for Participant status were received.

8The Tribunal was presented with a draft Procedural Order (“PO”) prior to the CMC. The Tribunal requested that a revised draft PO be submitted, on consent, to ensure that the issues of all Parties are included and that appropriate dates for the exchange of documents and meetings of expert witnesses are reflected. Counsel for the Appellant was directed to submit the draft PO to the Case Coordinator by end of day Monday, July 31, 2023.

9Having received the benefit of the revised draft PO prior to the issuance of this Decision and having examined the scoped Issues List (“IL”), the Tribunal deems the PO to be in force and effect to govern the proceedings at the Hearing of the merits scheduled below. Any changes to the PO will require approval of the Tribunal.

10On consent of the Parties and based on the discussions during the CMC regarding the scope of the issues, the Tribunal determined it would be reasonable to schedule the Hearing for two days.

11A Hearing of the merits is scheduled to proceed by video at 10 a.m. on Thursday, December 21, 2023.

12Parties and Participants are asked to log in to the Video Hearing at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/927921077

Access Code: 927-921-077

13Parties and Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html

14Persons who experience technical difficulties accessing the GoToMeeting application, or who only wish to listen to the event, can connect to the event by calling in to an audio-only telephone line: +1 (647) 497-9391 or (Toll-Free) 1-888-299-1889. The access code is 927-921-077.

15Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the Video Hearing to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

ORDER

16The Tribunal orders its directions and rulings as set out above.

17The Procedural Order appended to this Decision as Schedule 1 is approved and in force and effect.

18There will be no further notice.

19The Member is not seized but may be spoken to through the Case Coordinator if there are any issues with respect to the implementation of this Order.

“W. Daniel Best”

W. DANIEL BEST

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

CASE NOS.: OLT-23-000153

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Leslie Drake

Subject: Zoning By-law Amendment

Description: To permit development of building for storage of machinery and residential dwelling within the building structure

Property Address: 409 German School Road

Municipality/UT: Brant/Western

Municipal File No.: ZBA44-22-DN

OLT Case No.: OLT-23-000153

OLT Lead Case No.: OLT-23-000153

OLT Case Name: Leslie Drake v. Brant (County)

PROCEDURAL ORDER

The Tribunal orders that:

1. The Tribunal may vary or add to this Order at any time either on request or as it sees fit. It may amend this Order by an oral ruling or by another written Order.

Organization of the Hearing

2. The Video Hearing will commence on December 21, 2023 at 10:00 am through video link: https://global.gotomeeting.com/join/927921077. When prompted, enter the code 927-921-077.

3. The Hearing is scheduled for 2 days, ending on December 22, 2023. The length of the Hearing may be shortened as issues are resolved or settlement is achieved. The Parties are expected to cooperate to reduce the length of the Hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The Parties identified at the case management conference are set out in Attachment 1.

5. The issues are set out in the Issues List attached as Attachment 2. Except for scoping or removing issues, there will be no changes to this list unless the Tribunal permits it. A Party who asks for changes may have costs awarded against it. Notwithstanding the foregoing, should the Appellant propose any modification(s) to the applications/proposal prior to or at the hearing, the County and the Region reserve the right to add to /modify the issues list in response to such modifications.

6. The order of evidence shall be as listed in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence-in-chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on consent or by Order of the Tribunal.

Requirements Before the Hearing

7. All Parties (or their representatives) shall provide a mailing address, email address, and telephone number to the Tribunal. Any such person who retains a representative (legal counsel or agent) subsequent to the prehearing conference must advise the other Parties and the Tribunal of the representative’s name, mailing address, email address and phone number.

8. A Party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal, the other Parties and to the County Clerk a list of the witnesses and the order in which they will be called. The witness list must be delivered by September 20, 2023, and include the order in which the witnesses will be called. For expert witnesses, a Party is to include a copy of the curriculum vitae and the area of expertise in which the witness is proposed to be qualified.

9. Expert witnesses in the same field shall meet to try to resolve or reduce the issues for the hearing by October 6, 2023. The experts must prepare a list of agreed facts and the remaining issues to be addressed at the hearing and provide this list to all of the Parties and the County Clerk, on or before October 13, 2023.

10. An expert witness shall prepare an Expert Witness Statement that shall include: an acknowledgement of expert’s duty form, the area(s) of expertise, any reports prepared by the expert, and any other reports or documents to be relied on at the hearing. Copies of this must be provided as in item 12 below. Instead of an Expert Witness Statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

11. Expert witnesses who are under summons but not paid to produce a report do not have to file an Expert Witness Statement; but the Party calling them must file a brief outline of the expert’s evidence and his or her area of expertise, as in item 12 below.

12. On or before November 5, 2023, the Parties shall provide copies of their Witness and/or Expert Witness Statements to the other Parties. A paper copy of any document proposed to be entered into evidence or relied upon shall be provided at the hearing unless ordered otherwise by the presiding Member.

13. On or before November 15, 2023 the Parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

14. On or before November 21, 2023, the Parties shall provide copies of Reply Witness Statements, if any, to the other Parties and the County Clerk.

15. On or before December 6, 2023, the Parties shall provide copies of their visual evidence to all of the other Parties. If a model is proposed to be used the Tribunal must be notified before the hearing. All Parties must have a reasonable opportunity to view it before the hearing.

16. The Parties shall cooperate to prepare a joint document book which shall be shared with the Tribunal case co-ordinator on of before December 11, 2023.

17. A person wishing to change written evidence, including witness statements, after witness statements and reply witness statements have been filed must make a written motion to the Tribunal in accordance with the Tribunal’s Rules 34 to 38.

18. A Party who provides the written evidence of a witness to the other Parties must have that witness attend the hearing to give oral evidence, unless the Tribunal and the Parties are notified at least 7 days before the hearing that the written evidence is not part of their record.

19. On or before December 14, 2023, the Parties shall prepare and file a Hearing plan with the Tribunal at least with a proposed schedule for the hearing that identifies, as a minimum, the Parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The Parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the Hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

20. All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10 MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by Rule 7.

21. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rules apply to such requests.

22. A summary of the various filing dates is contained in Attachment 4.

This Member is not seized.

So orders the Tribunal.

ATTACHMENT 1

PARTIES

1. Leslie Drake Turkstra Mazza Associates 15 Bold Street Hamilton, ON L8P 1T3 Jennifer Meader Tel: 905.529.3476 Email: jmeader@tmalaw.ca

2. The County of Brant Duxbury Law Professional Corporation 1 King Street West, Suite 500 Hamilton, ON L8P 1A4 Brian Duxbury Tel: 905.570.1242 Email: brian@duxburylaw.ca

ATTACHMENT 2

ISSUES LIST

NOTE: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any Party that the issue is either relevant or appropriate. The identification of an issue on this list by a Party indicates that Party’s intent to lead evidence or argue that the issue is relevant to the proceeding, for the purpose of fairly identifying to the other Parties the case they need to meet, but shall not preclude any other Party from calling evidence on the issue.

The County of Brant

1. Is the proposed rezoning consistent with the Provincial Policy Statement (PPS 2020) and in particular sections 1.1.4, 2.3.1, 2.1, 3.1.1?
2. Does the proposed rezoning conform with the Growth Plan and in particular section 2.2.1(2b), 2.2.9(6), 4.2, 2.1.2.3 and 4.2.6?
3. Does the proposal conform with the policies in the County of Brant’s Official Plan, as it was in-force at the time of the Application, and in particular policies which deal with additional residential units and the criteria for creating the same?
4. Will approval of the proposal result in an inappropriate loss of agricultural land within a prime agriculture area?
5. Does the proposal result in the creation of a second residential property in an agriculture area without appropriate consent?
6. Does the proposed rezoning result in adverse impacts?
7. Are the number and nature of the variances to the regulations appropriate?
8. Is the proposed building envelope of an appropriate size and configuration to allow flexibility in the placement of the structure, including the dwelling unit?
9. Will approval of this rezoning application result in a good land use planning outcome?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Leslie Drake
2. The County of Brant
3. Leslie Drake in Reply

ATTACHMENT 4

Summary of Filing Dates