Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 10, 2023 CASE NO(S).: OLT-22-004625

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

Applicant/Appellant: Barbara Lynn Pressacco Subject: Consent/Severance Property Address: 2450 Concession #1 Municipality/UT: Alfred and Plantagenet/Prescott and Russell OLT Case No.: OLT-22-004625 OLT Lead Case No.: OLT-22-004625 OLT Case Name: Pressacco v. Prescott and Russell (county)

Heard: July 05, 2023 by Video Hearing

APPEARANCES:

Parties Barbara Lynn Pressacco ("Applicant")

Counsel Roberto Aburto Alice Mihailescu

Parties United Counties of Prescott and Russell ("UCPR")

Counsel Greg Meeds

DECISION DELIVERED BY JEAN-PIERRE BLAIS AND G.C.P. BISHOP AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The matter before the Tribunal originates in a Motion for Direction pursuant to s. 53(4.1) of the Planning Act, RSO 1990, c. P.13 (“Act”) with respect to the Applicant’s appeal pursuant to s. 53(14) of the Act. The appeal from a non-decision is with respect to a property municipally known as 2450 Concession 1, in the Township of Alfred and Plantagenet (“Township”), the lower-tier municipality, and with respect to which the UCPR, the upper-tier municipality, is the approval authority pursuant to s. 50(1)(a) of the Act. The UCPR, under its By-law No. 2020-15, has delegated consent granting authority to the Director of Planning and Forestry pursuant to s. 54(4) of the Act.

2The Applicant’s Motion for Direction sought: (1) an Order pursuant to s. 53(4.1) declaring that the information and material required under s. 53(2) and s. 53(3) of the Act have been provided by the Applicant; (2) an Order directing a Tribunal hearing regarding the merits of the consent application for a lot enlargement, pursuant to s. 53(30) of the Act, given a non-decision under s. 53(14) of the Act; and, (3) an Order pursuant to s. 53(35) and s. 53(35.1) of the Act allowing the Applicant to amend the Notice of Appeal to apply, in the alternative, for a severance pursuant to s. 53(1) of the Act.

3The Tribunal was informed on April 18, 2023 that the Motion for Direction was resolved by consent of the Parties. They agreed to the relief set out above. This was on the condition that all matters and issues raised by the motion materials would be reserved for the ultimate hearing of this matter, and without prejudice to UCPR’s position at the hearing. Essentially, the Parties agreed to a hearing on the merits of a consent application for a lot enlargement and, in the alternative, for a severance pursuant to s. 53(1). By agreeing to this relief, the UCPR was not to be constrained in the arguments it may raise in response.

4Consequently, a Notice of this Hearing was sent administratively by the Tribunal on June 2, 2023. No other persons sought Party or Participant status.

SUBJECT PROPERTIES

5The Applicant is the owner of part of Lots 23 and 24, Concession 1 in North Plantagenet (“Subject Properties”). The Subject Properties are legally described as:

PT LT 23-24 CON 1 NORTH PLANTAGENET AS IN R90949 (FIRSTLY & THIRDLY), S/T & T/W R90949 EXCEPT THE EASEMENT THEREIN RE: TRAVELLED RD; S/T R75096; ALFRED/PLANTAGENET (PIN 54197- 0115)

6The Subject Properties are two adjacent generally rectangular waterfront parcels in the Township, located along a right-of-way road (travelled road). This right-of-way road is connected to Concession 1 – Plantagenet. The smaller of the two parcels currently covers an area of approximately 1,696 square meters, while the larger parcel covers an area of approximately 11,148 square metres.

7The Applicant seeks to enlarge the smaller parcel by an area of 1,967 square metres by reducing the size of the larger parcel. To do so, a consent under s. 53(1) of the Act is required.

8Under UCPR’s Official Plan (“OP”), the Subject Properties are currently in the Agricultural Resource Policy Area, not the Rural Policy Area.

POSITION OF THE PARTIES

9The Applicant takes the position that although captured under one Property Identification Number (“PIN”) in 2010, the Subject Properties can be traced back as two separate lots as early as the late 1960s, predating the OP adopted in 1999 and the Township’s Zoning By-law No. 2009-50 (“ZBL”) adopted in 2009. The Applicant argues that the Subject Properties are recognized in the OP as separate, existing lots of record. As a result, the Applicant argues that a lot enlargement should be granted as between those two existing lots of record. For the Applicant, the core issue is recognizing the historic status of the two parcels as two lots of record.

10The UCPR takes the position that if there are indeed two lots, then a lot enlargement would be permissible through the granting of a consent by way of a lot addition. Under that scenario, a part of the Applicant’s property described as “firstly” would be conveyed by lot addition to that part of the property described as “thirdly”. Thus, the enlarged “thirdly” could then be conveyed to a would-be purchaser. However, the UCPR argues that there are not two lots “for the purposes of the Act” and that the two parcels were never separate. As a result, the UCPR argues there cannot be a transfer of area from the larger parcel to adjacent smaller parcel as there is only one lot for the purposes of the Act. Further, the UCPR argues that pursuant to the rules of subdivision control at s. 50(3) of the Act, that portion of the larger portion is not “conveyable”. For the UCPR, the existence of separate roll numbers and separate tax bills is irrelevant to whether there are two separate lots for the purposes of the planning legislation.

11With respect to the alternative remedy (i.e., a consent to sever pursuant to s. 53(1) of the Act of a single lot into two lots), the UCPR disagrees with the Applicant, and takes the position that the legislative tests have not been met, particularly with respect to the criteria set out at s. 51(24) of the Act. The Applicant submits that the legislative tests have been met. In particular, the Applicant argues that policy 2.3.4.2 of the Provincial Policy Statement 2020 (“PPS 2020”) expressly authorizes the granting of a severance for lands, for legal or technical reasons, to recognize the historical nature of the lots.

EVIDENCE AND ANALYSIS

12The evidence in this matter was provided by two expert witnesses. Marc Daigneault, retained by the Applicant, was qualified by the Tribunal as an expert in land use planning. Louis Prévost, Director of Planning and Forestry for the UCPR, was similarly qualified by the Tribunal. The Applicant also testified as a lay witness.

APPLICATION FOR LOT ENLARGEMENT

13Mr. Daigneault testified extensively on the history of the Applicant’s land holdings, as well as the various steps the Applicant undertook to obtain approval of the lot enlargement starting in 2020. In summary, he explained that the Applicant purchased the lands from Louise Sutton in 2010. The conveyancing included the lands described above in paragraph 5 as “firstly” and “thirdly”, with PIN 54197-0115, as well as another parcel of land which was referred to as “secondly”, with PIN 54197-0072. The “secondly” parcel, which is in proximity along the South Nation River, does not abut “firstly” and “thirdly”, and is only contextually relevant to the matter before the Tribunal. Mr. Daigneault further testified that Ms. Sutton’s 1995 title could be traced back to a conveyancing in the 1960s of the three parcels, which included the metes and bounds description of the three parcels.

14Mr. Daigneault opined that the “firstly” and “thirdly” parcels were separate properties and were two separate “existing lots of record”.

15Mr. Daigneault testified that the two parcels were existing lots of record for the purposes of the OP but acknowledged that the OP did not provide a definition of that expression. In his opinion, the two parcels predated the OP, as well as the Planning Amendment Act, 1970, c. 72 (“1970 Amendment”). He explained that under policy 4.2.4(7) of the OP, an existing lot of record in an Agricultural Policy Area designation may be used for residential purposes in accordance with the relevant provisions of the local Zoning By-law and in accordance with the following criteria:

a) one single detached dwelling and accessory structures are permitted on each conveyable lot;

b) such lot is of an appropriate size and shape and the dwelling can be serviced with private sewage disposal and water services;

c) such lot has frontage on a public road which is maintained on a year round basis;

d) complies with other relevant policies of this Plan; and

e) complies with the policies of Section 7 regarding Minimum Distance Separation Formulae.

16Moreover, Mr. Daigneault testified that the Subject Properties met the requirements for extension and enlargement set out in Policies 7.3.2, 7.3.3, 7.3.5 and 7.4.2 of the OP and s. 34(10) of the Act.

17Mr. Daigneault opined that although the Subject Properties were assigned a singular PIN in 2010, both lots have specific assessment roll numbers for property tax purposes, and each can be identified distinctly on the “À la Carte” service.

18Mr. Daigneault also described the Applicant’s unsuccessful attempt, with the support of the Township, to have the UCPR redesignate the Subject Properties to the Rural Policy Area from the Agricultural Resource Policy Area under the OP. He explained that, almost everywhere else, properties in the UCPR along the Ottawa River (from Hawkesbury to Rockland) and along the Nation River are generally so designated.

19The Applicant testified with respect to her ownership history, the steps she undertook to have the “firstly” and “thirdly” parcels be separately identified for purposes of assessment and municipal taxation, the steps she undertook to obtain a consent for lot enlargement, the support she received from neighbours to do so and her own historic research of the title of the Subject Properties. She and Mr. Daigneault underscored that the UCPR never processed the Applicant’s two applications for lot enlargement; rather, they were simply returned to her.

20Based on the above, the Tribunal has no trouble accepting that certain individuals believed that these were separate lots and that they may have been treated as separate parcels under other non-planning legislative schemes, including municipal taxation. They may even be “existing lots of record” for the purposes of the OP and the ZBL. However, the issue before the Tribunal is whether there are two lots for the purposes of the Act, i.e., that there are two conveyable lots that meet the requirements of s. 50(3) of the Act. The OP, the ZBL and even the PPS 2020 cannot amend the Act’s fundamental requirement that there must be two conveyable lots.

21This is not a mere technical issue that can be cured by the Tribunal. For over five decades, with the introduction of subdivision control universally throughout Ontario, flowing from the 1970 Amendment, the Act prohibits an owner of land anywhere in Ontario from conveying a portion of their abutting lands unless that portion has been subdivided or severed through consent application by an approval process codified in the Act. Although s. 50(3) of the Act provides exceptions to this fundamental principle, none of them are applicable in this case. On cross examination, Mr. Daigneault acknowledged that the notion of “lots of record” is not found in that subsection. He also acknowledged that, under the Act, a consent for lot enlargement requires two conveyable lots.

22The Tribunal finds there is no compelling evidence that the Subject Properties have been severed for the purposes of the Act either before or after 1970. On the contrary, the Tribunal is of the view that the more compelling evidence is that there was never a severance.

23Mr. Daigneault initially testified that a 1969 transfer, at Tab 13 of Exhibit 1, between Robert St-Onge and Paul Crête, prior to the 1970 Amendment, was evidence of the creation of the “thirdly” portion of the parcel. However, on cross-examination, Mr. Daigneault acknowledged that the transfer was not with respect to the “thirdly” parcel, but instead was with respect to another parcel to the west of the Subject Properties. He conceded that this transfer is not evidence of the creation of the “thirdly” portion.

24Similarly, the Applicant points to a sale of a portion of the Subject Properties from Mr. St-Onge to Ms. Jeanne Prieur on July 6, 1970 as evidence of the severance or the existence of two lots. However, Mr. Prévost testified, and the Tribunal prefers his evidence, that the Quit Claim Deed, dated September 12, 1974, is evidence of a failed attempt by Mr. St-Onge to sell a portion of the Subject Properties, namely the so called “thirdly” parcel, to Ms. Prieur in contravention of the 1970 Amendment.

25It appears that Mr. St-Onge had been selling smaller waterfront lots abutting his own in a series of successive previous sales in the absence of severances. However, his last attempt to do so was captured by the 1970 Amendment, applicable throughout Ontario as of June 27, 1970, the date of the coming into force of the 1970 Amendment, pursuant to s. 7 of that amending statute. The amendment came into force a few days before the sale to Ms. Prieur. Indeed, on cross-examination, Mr. Daigneault admitted that there was no record of a transfer before 1970 creating conveyable lots. The Applicant testified that Ms. Prieur had built a cottage, which had to be torn down, which gave rise to the Quit Claim Deed and essentially ended the initial sale from Mr. St-Onge to Ms. Prieur. The evidence supports the conclusion that Mr. St-Onge was unable to secure a severance now required under the 1970 Amendment. Paragraph 1 of the Affidavit attached to the Quit Claim Deed states that no tax was payable under the Land Speculation Tax Act, 1974 because the deed was a “reconveyance as no Title passed due to no Committee of Adjustment approval of previous abortive Deed”.

26An application for consent was received by the Township of North Plantagenet on December 28, 1971. Following a few procedural steps, consent to sever was refused on April 19, 1973 by the approval authority, communicated to Mr. St-Onge by letter dated April 25, 1973. The decision became final and binding as no Notice of Appeal was received within 21 days. The Comité de la Régie des Terrains (the Land Division Committee) for the UCPR added the suggestion that it would be best for Mr. St-Onge to make a request to the Ontario Department of Municipal Affairs for a plan of subdivision. There was no evidence before the Tribunal whether this was done.

27The Applicant pointed to a mortgage, registered by Mr. St-Onge with the Caisse Populaire (Instrument 21915C, Exhibit 3, p. 2) on October 29, 1971 on a small parcel being 0.462 acres in area, as purported evidence that there were two conveyable parcels. The Tribunal does not draw the same conclusion. A mortgage may very well have been registered on a 0.462 acre parcel; however, that parcel was not part of the Subject Properties. Mr. St-Onge had already putatively sold the 0.462 acre parcel, known as “thirdly”, to Ms. Prieur more than a year before and therefore could not have mortgaged it with the Caisse Populaire.

28Co-counsels for the Applicant argued that Mr. Prévost, the approval authority for the UCPR, had stated in correspondence to the Applicant concerning her lot enlargement application that the two parcels had been merged. They also pointed to similar statements in the Planning and Forestry Committee meetings which suggested, in their view, that Mr. Prévost had admitted that this was a technical merger and that, by implication, two lots of record previously existed. The Tribunal is not persuaded by this argument. The matter before the Tribunal is a hearing de novo. Given the complete evidence provided by the Parties to the Tribunal, an alleged, previously-made, mistaken conclusion by Mr. Prévost is irrelevant at this stage and cannot be binding on the Tribunal for its evaluation of the evidence.

29The Tribunal concludes that the Subject Properties were, and are, one lot for the purposes of the Act. This is not a case of correcting a technical or inadvertent merger, nor can this matter be characterized, as advanced by Co-counsels for the Applicant, that this is a formal severance application to “simply acknowledge the original status as lots of record”. There are instances when technical severances are required to correct an inadvertent merger of adjacent properties that were sold, without Planning Act consent, prior to June 27, 1970, but this is not one of those cases.

30The Tribunal notes that, during the hearing, reference was made to legal opinions respecting the historical status of the Subject Properties. Given that the authors of those legal opinions did not testify at the hearing, the Tribunal has given little weight to these opinions.

31Mr. Daigneault testified that it was his belief that the two parcels predated the 1970 Amendment. The Tribunal finds that although there existed Surveyor Plans, together with the corresponding metes and bounds descriptions prior to the 1970 Amendment, these do not legalize the creation of the separate lots. It is the transfer of ownership of the lot, placed on title prior to the 1970 Amendment, to an owner different than the grantor, that was required to separate the ownership. The deposit of this transfer of title was simply 10 days too late.

32For these reasons, the Tribunal finds that the Subject Properties were and are a single lot or parcel for the purposes of the Act; therefore, they cannot properly be the subject of a lot enlargement or lot line adjustment under the Act. Whether described as the “smaller/larger lot” or “thirdly/firstly”, those parcels of land are not conveyable separately under the Act pursuant to s. 50(3) of the Act. The Tribunal accepts the position of the UCPR that the reason “thirdly” and “firstly” are referenced separately in successive transfers, particularly in 1988, in 1998 and ultimately in 2010 to the Applicant, is merely a carry-over from the abortive conveyancing of “thirdly” to Ms. Prieur in 1970.

APPLICATION FOR CONSENT

33If the Subject Properties constitute one lot for the purposes of the Act, as the Tribunal has found above, the Applicant must meet the applicable legislative test for the consent severance of that one lot into two lots, namely the severed lot and the retained lot. That consent application must meet the criteria set out in s. 51(24) of the Act and must be consistent with the PPS 2020. Under this scenario, the severed lot would have an area equal to the area of the so-called smaller lot and an additional 1,967 square metres for a total of approximately 3,663 square metres and the retained lot would be constituted by the area not included in the newly proposed severed lot for a total of approximately 9,181 square metres.

34With regard to the alternative remedy, whilst the Tribunal heard evidence with respect to consistency with the PPS 2020, matters of provincial interest pursuant to ss. 2 and 51(24)(a) of the Act, and the other criteria enumerated in s. 51(24) of the Act, the matter turns conclusively on whether the severance application conforms to the UCPR’s OP.

35Mr. Daigneault testified in his examination in chief, which he confirmed under cross-examination, that the Applicant had “no leg to stand on, if there was only one lot”. In his evidence in chief, he explained that the Applicant had every interest in establishing that there were two lots because the Applicant would otherwise have difficulty establishing conformity to the UCPR’s OP.

36Given this admission, Mr. Prévost did not testify extensively on this issue but agreed that conformity with the OP could not be met.

37The Tribunal agrees with both expert witnesses and finds that severance does not conform with the OP. Neither the Tribunal nor the approval authority has the discretion to go against the OP. The OP provides at policy 7.4.2.3(3) that within the Agricultural Resource Policy Area the creation of new residential lots shall not be permitted except in accordance with policy 7.4.2.3.2. That exception is not applicable in this circumstance as policy 7.4.2.3.2 relates to farm dwellings made surplus to a farming operation following farm consolidation. The Applicant testified that she had intended to sell and continues to intend to sell for the purpose of residential development. No specific development is proposed at this time.

38Moreover, the OP provides at policy 7.4.2(3) that all lots created through a consent application “shall have frontage on a year-round publicly maintained road with at least one side of the lot which physically abuts the public road”. Although the Applicant testified that the road was privately maintained, jointly, by residents in winter, the uncontested evidence is that the proposed lot would be on a private right-of-way and not on a public road.

39Therefore, the Tribunal finds that the alternative severance application would not conform to the OP, and consent cannot be given considering s. 51(24)(c) of the Act. Policy 2.3.4.2 of the PPS 2020 relating to an exception allowing a severance on agricultural lands for legal or technical reasons is insufficient to cure the proposed severance’s nonconformity with the OP.

40The Tribunal notes that policy 3.3.6(4) of the OP also provides that the creation of a new lot is not permitted on private roads. Under that policy, development may be permitted in accordance with local zoning by-laws on existing lots of record located on private roads; however, permitting development does not amount to permission to create a new severed lot.

41Finally, the Tribunal notes that Mr. Prévost testified that the Applicant would need to obtain an amendment to the OP to make a successful case for the consent severance of her single lot for the purposes of the Act.

CONCLUSION

42In summary, based on the foregoing evidence, the Tribunal finds that the Subject Properties are a single lot for the purposes of the Act, that the single lot cannot be the subject of a lot enlargement and that severance of that single lot into two parcels would not conform to the UCPR’s OP; therefore, consent cannot be given pursuant to s. 51(24)(c) of the Act.

ORDER

43In the first instance, THE TRIBUNAL, having been asked to consider an application for a lot enlargement, the appeal is dismissed, and provisional consent is not to be given.

44In the alternative, THE TRIBUNAL, having been asked to consider an application that has been amended from the original application, and the Tribunal having determined, as provided for in subsection 53(35.1) of the Planning Act that no further notice is required, ORDERS that the appeal is dismissed, and provisional consent is not to be given.

“Jean-Pierre Blais”

JEAN-PIERRE BLAIS MEMBER

“G.C.P. Bishop”

G.C.P. BISHOP ALTERNATE CHAIR

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.