747752 Ontario Ltd. v. North Dumphries (Township), 2023 CanLII 92343

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 05, 2023

CASE NO(S).: OLT-22-004440

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

Applicant/Appellant: 747752 Ontario Ltd.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: A non-decision for a Zoning By-law Amendment to permit an aggregate pit.

Reference Number: ZC-03/20

Property Address: 1662 Alps Road

Municipality/UT: North Dumfries/Waterloo

OLT Case No: OLT-22-004440

OLT Lead Case No: OLT-22-004440

OLT Case Name: 747752 Ontario Ltd. v. North Dumphries (Township)

Heard: September 18, 2023

APPEARANCES:

Parties

Counsel/Representative

747752 Ontario Ltd.

Jonathan Kahn

Township of North Dumfries

Michael van Bodegom Christopher Manning

Regional Municipality of Waterloo

Fiona McCrea

MEMORANDUM OF ORAL DECISION DELIVERED BY C.I. MOLINARI ON SEPTEMBER 18, 2023 AND FINAL ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION AND BACKGROUND

1This matter involves a settlement hearing related to an appeal filed by 747752 Ontario Ltd. (“Appellant”) pursuant to s. 34(11) of the Planning Act (“Act”) against the failure of Township of North Dumfries (“Township”) to make a decision within the statutory time frame regarding the Appellant’s Zoning By-law Amendment (“ZBA”) application (“Application”) for the property municipally known as 1662 Alps Road (“Subject Property”).

2The Application proposes to amend the Township Zoning By-law No. 689-83, as amended (“ZBL”), to permit aggregate extraction on the Subject Property.

3The Subject Property is approximately 40.47 hectares (“ha”) and is predominately cleared agricultural land, with environmental areas to the southwest and a farm complex at the south end occupying approximately 7.44 ha. The environmental areas and farm complex do not form part of the proposed extraction operation (“Chudyk Pit”). Of the remaining approximately 33.03 ha, 30.15 ha is proposed for extraction above the water table. The remaining 2.88 ha includes setbacks that will be used for the construction of acoustic/visual berms and environmental protection.

4The surrounding area is characterized by agricultural and mineral aggregate operations and a few rural residential uses. There are approved existing and future planned aggregate extraction sites surrounding the Subject Property to the west, north and east, and to the south are woodlands, including the Dryden Tract. Within 300 metres (“m”) of the Subject Property are two rural residential uses, including one to the west of the Subject Property, which is located within a licensed gravel pit, and one to the southwest on Alps Road.

5The Subject Property has frontage on Alps Road and is associated with existing approved extraction sites to the north (“Cedar Creek Pit”) and to the east (“Alps Pit”). The Cedar Creek Pit, Alps Pit and the proposed Chudyk Pit are owned by CRH Canada Group Inc. (“CRH”). The three pits are to function together as an integrated operation (“CRH Pits”), with the extracted aggregate from the Chudyk Pit to be transported via a conveyor to the central processing area (“CP Area”) located within the Cedar Creek Pit for processing and shipment off-site.

6A portable crusher is proposed within the Chudyk Pit to allow the extracted material to be crushed, if required, prior to being conveyed to the CP Area for further processing. All trucks for the CRH Pits will use the approved Cedar Creek Pit entrance/exit on Cedar Creek Road to the north of the Subject Property and no truck entrance/exit is proposed on Alps Road.

7The majority of the Subject Property is zoned ‘Z.1 (Agricultural) Zone’ with a portion at the northeast corner zoned ‘Z.1 Exception 20.1.320’ permitting the transportation of aggregate material from the Alps Pit to the Cedar Creek Pit and a smaller portion zoned ‘Z.12B Exception 20.1.320’ to recognize existing environmental features that were identified during the approval of the Cedar Creek Pit and the Alps Pit.

8The Application was filed with the Township on June 19, 2020, and deemed complete as of July 13, 2020, with a statutory public meeting held on October 27, 2020. The Application was appealed to the Tribunal on September 1, 2022.

9At the Case Management Conference held on March 20, 2023, the Tribunal granted Party status to the Regional Municipality of Waterloo (“Region”), and Participant status to Benjamin Rouse and North Dumfries Conservation Alliance (“NDCA”).

10Subsequent to the appeal of the Application, the Township and the Region endorsed the approval of the Application through the signing of Minutes of Settlement by all Parties.

11The Tribunal received correspondence from the Appellant, in advance of the hearing, advising that the Parties had settled the issues and requesting that the Tribunal convert the proceedings to a settlement hearing. The Parties submitted that they were seeking approval of the proposed ZBA submitted as part of the settlement.

12In accordance with Rule 12 of the Tribunal’s Rules of Practice and Procedure, the Tribunal convened the proceedings as a hearing on the terms of the settlement.

LEGISLATIVE FRAMEWORK

13When considering appeals filed pursuant to s. 34(11) of the Act, the Tribunal must have regard to the matters of provincial interest as set in s. 2 of the Act. Section 3(5) of the Act requires decisions of the Tribunal affecting planning matters to be consistent with the Provincial Policy Statement, 2020 (“PPS”) and, in this case, conform to the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”). The Tribunal must also be satisfied that the Application conforms with the Region Official Plan (“ROP”) and the Township Official Plan (“TOP”).

14In consideration of the statutory requirements set out above, the Tribunal must be satisfied that the Application represents good planning and is in the public interest.

WITNESSES

15Prior to the commencement of the hearing, the Tribunal received the Witness Statements from Brian Zeman of MacNaughton Hermsen Britton Clarkson Planning Limited and Brian Sulley of Rowan Williams Davies & Irwin Inc. (“RWDI”) in support of the settlement. The Tribunal qualified Mr. Zeman and Mr. Sulley, on consent, to provide expert opinion evidence pertaining to this matter, in the areas of land use planning and air quality, respectively. Both Mr. Zeman and Mr. Sulley adopted their witness statements as part of their evidence.

LAND USE PLANNING EVIDENCE

16Mr. Zeman provided background information on the Subject Property, the surrounding area, the proposed use and the history and processing of the Application.

17With respect to the regulatory and policy context, Mr. Zeman opined that the ZBA has regard for the applicable matters of provincial interest pursuant to s. 2 of the Act, is consistent with the PPS and is in conformity with the Growth Plan, the ROP and the TOP.

The ZBA

18As submitted by Mr. Zeman, the ZBA proposes to rezone the Subject Property from ‘Agriculture’ and a site-specific ‘Agriculture’ zone to a site-specific ‘Mineral Aggregates’ zone subject to a holding symbol, and from ‘Agriculture’ to ‘Environmental Protection’ along the west boundary. With reference to the draft Schedule ‘A’ and ‘B’ to the ZBA, he advised that the site-specific exceptions include the following:

• Parts 1, 2, 3 and 4 to be zoned ‘Mineral Aggregates’ to permit the proposed Chudyk Pit;

• Parts 3 and 4 to revert to ‘Environmental Protection’ zoning once the Aggregate Resources Act (“ARA”) licence is surrendered and to be rehabilitated to a natural heritage end-use;

• Part 5 to maintain the existing ‘Environmental Protection’ zoning;

• Part 6 to be zoned ‘Environmental Protection’ to protect the existing natural heritage features (“NHFs”) on the subject site; and

• Part 7 to maintain the ‘Agriculture’ zoning to permit the existing farm complex.

19Mr. Zeman explained that the holding symbol contained in the ZBA for Parts 1, 2, 3 and 4 would be a permanent hold on the zoning throughout the extraction operation to restrict the aggregate extraction use “to 1.5 m above the seasonally high water table”. Although the ZBA allows for the lifting of the holding symbol once appropriate studies have been completed to the satisfaction of the Region and the Township regarding aggregate extraction below the water table, it was Mr. Zeman’s submission that there is no intent to extract below the water table based on the quality of the resources.

20Mr. Zeman clarified that the rezoning for the removal of the holding symbol would be administered through the Township, not the Tribunal, and would only occur once the AGA licence is surrendered.

The Planning Act

21Mr. Zeman opined that the ZBA has regard to the applicable matters of provincial interest pursuant to s. 2 of the Act, and in particular, subsections:

(a) the protection of ecological systems, including natural areas, features and functions – as all natural features are excluded from the extraction area, will be enhanced as part of the rehabilitation of the site, and the ZBA proposes to rezone these areas to Environmental Protection providing additional protection than the existing zoning affords;

(b) the protection of the agricultural resources of the Province – as the extraction area will be rehabilitated back to an agricultural condition and will not result in the loss of prime agricultural land in the long-term;

(c) the conservation and management of natural resources and the mineral resource base – as the Subject Property is in a protected aggregate area, is located ‘close-to-market’ (meaning in close proximity to where the aggregate will ultimately be used) and is a logical extension of the adjacent extraction sites;

(d) the conservation of features of significant architectural, cultural, historical, archaeological or scientific interest – as the area of the Subject Property proposed to be subject to extraction does not contain any significant cultural heritage resources and the adjacent cultural heritage resources will be conserved;

(e) the supply, efficient use and conservation of energy and water – as the proposed aggregate extraction will remain above the water table and will not impact groundwater resources including residential and agricultural wells;

(f) the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems – as the proposed Chudyk Pit will not result in a new haul route on Alps Road and will efficiently utilize the existing haul route on Cedar Creek Road;

(h) the orderly development of safe and healthy communities, (o) the protection of public health and safety, and (p) the appropriate location of growth and development – as the Subject Property is located in an area planned for extraction through the designations in the ROP and TOP and the proposed design of the extraction site ensures impacts on all surrounding land uses and sensory receptors are minimized;

(k) the adequate provision of employment opportunities, and (l) the protection of the financial and economic well-being of the Province and its municipalities – as the proposed extraction use will provide for rural employment opportunities as well as have a close-to-market source of aggregate, reducing the financial costs of public infrastructure projects;

(n) the resolution of planning conflicts involving public and private interests – as the Application process resulted in the resolution of technical issues and the Parties entered into Minutes of Settlement in support of the ZBA; and

(s) the mitigation of greenhouse gas emissions and adaptation to a changing climate – as the location of extraction sites close to markets, in this case to the urban centers of Cambridge and Kitchener, results in the reduction in the length of haul routes, which helps to reduce greenhouse gas emissions.

Provincial Policy Statement

22Mr. Zeman proffered that the PPS permits the management and use of mineral aggregate resources on rural lands as per section 1.1.5. As addressed in his Planning Justification Report (“PJR”) appended to his witness statement, Mr. Zeman found that the ZBA supports the PPS policies related to building strong healthy communities, including those in sections 1.1.5, 1.2.6, 1.6.7 and 1.7 pertaining to rural lands in municipalities, land use compatibility, transportation systems and long-term economic prosperity. In addition, the ZBA supports the PPS policies related to the wise use and management of resources, including those in sections 2.1, 2.2, 2.5 and 2.6 pertaining to natural heritage, water, mineral aggregate resources and cultural heritage and archaeology, and section 3.2 related to protecting public health and safety from human-made hazards.

23Policy 2.5.4.1 of the PPS states that “[i]n prime agricultural areas, on prime agricultural land, extraction of mineral aggregate resources is permitted as an interim use provided that the site will be rehabilitated back to an agricultural condition”. As addressed in Mr. Zeman’s PJR, the proposed extraction area contains prime agricultural land within a prime agricultural area, and through progressive and final rehabilitation, the site will be rehabilitated back to an agricultural condition with ecological enhancements. It was his opinion that the ZBA is consistent with the PPS.

Growth Plan

24In his PJR, Mr. Zeman noted that, as required by section 4.2.8.3 of the Growth Plan for new mineral aggregate operations in prime agricultural areas, the proposed Chudyk Pit is supported by an agricultural impact assessment and, as the site will be rehabilitated back to an agricultural condition in accordance with policy 2.5.4 of the PPS, it will maintain or improve connectivity of the provincially mapped Agricultural System. He proffered that the rehabilitation will include ecological enhancements to adjacent NHFs.

25Mr. Zeman opined that the ZBA conforms with the Growth Plan, and, as addressed in his PJR, in particular sections 2.2.9, 4.1 and 4.2.8, pertaining to rural areas, protecting what is valuable, and mineral aggregate resources, respectively. He noted that, as per policy 2.2.9.3, mineral aggregate operations are a permitted use in rural areas subject to the policies in section 4.

Region Official Plan

26Mr. Zeman advised that the Subject Property is designated ‘Protected Countryside’ and ‘Prime Agricultural Area’ and is identified as a ‘Mineral Aggregate Resource Area’ in the ROP. The ROP permits mineral aggregate operations as an interim use. In his PJR, Mr. Zeman proffered that both designations “are intended to permanently protect valuable areas from urban development, while providing the continued use of the lands for agriculture, environmental and other appropriate rural uses including mineral aggregate resources”. He stated that mineral aggregate operations may be permitted as an interim use in both designations in accordance with the policies of Chapter 9 of the ROP, which require a site-specific amendment to the ZBL supported by required studies. Mr. Zeman advised that the following studies were submitted to the satisfaction of the Region:

• Air Quality Assessment

• Noise Impact Study

• Hydrogeological and Hydrological Study

• Traffic Impact Assessment

• Environmental Impact Assessment

• Archaeological Assessment and Cultural Heritage Impact Assessment

27The ROP also requires information on the estimated lifespan of the mineral aggregate operation and a demonstration that the final rehabilitation plan is consistent with the policies of the ROP and the TOP. In his PJR, Mr. Zeman submitted that the proposed pit “contains approximately 5 million tonnes of aggregate and the maximum permitted tonnage limit is 1.5 million tonnes per annum” and that “it is estimated that that [sic] extraction at the proposed Chudyk [Pit] will take approximately 10 years”. He noted that the final rehabilitation of the site will be to “an agricultural condition with ecological enhancements” consistent with the policies and land use designations in the ROP and the TOP.

28It was Mr. Zeman’s opinion that the ZBA conforms to the ROP.

Township Official Plan

29The Subject Property is designated ‘Protected Countryside’ and ‘Prime Agricultural Area’ and identified as a ‘Mineral Aggregate Resource Area’ in the TOP. Mr. Zeman proffered that mineral aggregate extraction is permitted as an interim use, subject to rehabilitation back to an agricultural condition, and an amendment to the TOP is not required.

30The TOP encourages development that is compatible with surrounding land uses. In his PJR, Mr. Zeman submitted that the proposed Chudyk Pit is located adjacent to existing mineral aggregate operations and is protected for its aggregate potential. In addition, the operational design of the pit has been supported by technical reports as noted above in paragraph [26]. Further, Mr. Zeman proffered that “operational controls and mitigation have been incorporated into the proposed Aggregate Resources Site Plans” and that these plans will “regulate the operation to ensure that impacts from the operation minimize potential adverse effects from odour, noise, and other contaminants, and risks to public health and safety”.

31In his PJR, Mr. Zeman noted that ancillary land uses, such as asphalt plants, concrete plants, aggregate depots and aggregate transfer stations, which the TOP requires site-specific zoning to permit, are not proposed for the proposed Chudyk Pit. He also confirmed, as noted above in paragraph [26] for the ROP, that all required studies were submitted to the satisfaction of the Township.

32Similar to the ROP, the TOP requires the rehabilitation of the site to a “viable after-use of the disturbed area within the licensed area”. As noted regarding the ROP, Mr. Zeman confirmed that the rehabilitation plan has been prepared to “restore the property back to an agricultural condition and ecological enhancements” in conjunction with the Cedar Creek Pit and the Alps Pit and that “[o]verall the operations will be phased to limit [the] overall disturbed area and require progressive rehabilitation of the site”.

33It was Mr. Zeman’s opinion that the ZBA conforms to the TOP.

Zoning By-law

34In his PJR, Mr. Zeman noted that the proposed site-specific ZBA has been drafted to be consistent with the zoning by-laws that were approved for the adjacent Cedar Creek Pit and Alps Pits and:

• Permits mineral aggregate uses on a portion of the Subject Property;

• Limits extraction to 1.5 m above the water table;

• Zones the on-site environmental features and a 10 m setback to such features to Environmental Protection and prohibits extraction;

• Zones the ecological enhancement areas to Environmental Protection following the surrender of the ARA licence; and

• Retains the farm complex and amenity area on-site and prohibits extraction within this area.

35Mr. Zeman reviewed the draft ZBA in detail and confirmed that the Part number labels ‘Part 1’, ‘Part 2’, ‘Part 3’ and ‘Part 4’ will remain on the ZBA schedule after the site is rehabilitated. In addition, Parts 65 and 66 on Schedule B to the ZBA are to be repealed and reference to such Parts is to be incorporated in the ZBA.

36In Mr. Zeman’s opinion, the holding symbol included in the ZBA provides for the limitation of the extraction to 1.5 m above the high water table and is not intended to be removed for the duration of the pit operation. He added that, based on the quality of the resources, there is no intention to extract below the water table, and once the aggregate resource licence is surrendered, the rezoning to remove the holding symbol would follow.

Participant Statements

37Mr. Zeman reviewed the concerns raised by the Participants, Mr. Rouse and NDCA, and provided evidence on each of the areas of concern, including protection of the natural environment, protection of agricultural resources, protection of water wells, treatment of the Rouse residence as a sensitive receptor, areas requiring additional archaeological assessment, and conservation of cultural heritage resources located on-site and at 1748 Alps Road as follows:

• Protection of the natural environment – Mr. Zeman proffered that there are no key NHFs identified within the proposed extraction area and that the ZBA includes setbacks to the on-site NHFs that will be forested to protect and enhance the feature. He advised that the NHF is to be rezoned from Agricultural to Environmental Protection and that the rehabilitation plan proposes additional ecological enhancements to improve connectivity with adjacent NHFs.

Further, Mr. Zeman advised that the Application has been reviewed by the Grand River Conservation Authority, the Region’s Ecological and Environmental Advisory Committee and the Ministry of Natural Resources and Forestry (“MNRF”), with no outstanding issues related to the protection of the natural environment.

• Protection of agricultural resources – Mr. Zeman advised that mineral aggregate operations are permitted on prime agricultural land subject to rehabilitation of the site back to an agricultural condition, as is proposed for the Chudyk Pit. The proposed ARA site plans include detailed site plan conditions, monitoring and reporting to restore the site to the same soil capability for agricultural that existed prior to extraction.

Further, Mr. Zeman advised that the Application has been reviewed by the Ministry of Agriculture, Food and Rural Affairs and by an agricultural peer reviewer retained on behalf of the Township, with no outstanding issues related to the protection of agricultural resources.

• Protection of water wells – Mr. Zeman confirmed that extraction of aggregate resources on the proposed Chudyk Pit will be limited to 1.5 m above the groundwater table and will not impact surrounding residential and agricultural wells, including the well on the Rouse property. He advised that, in order to ensure the protection of adjacent wells, the proposed ARA site plans include the requirement for baseline monitoring of residential wells within 500 m prior to extraction, groundwater quantity and quality monitoring during operations and annual reporting thereafter.

Further, Mr. Zeman advised that the Application has been reviewed by MNRF and by a hydrogeological peer reviewer retained on behalf of the Region, with no outstanding issues related to the protection of surrounding residential and agricultural wells.

• Treatment of the Rouse residence as a sensitive receptor – Mr. Zeman advised that the Rouse residence is located within the approved licensed area for the Lafarge Cambridge Pit Extension (“Lafarge Pit”) with the approved extraction area located less than 150 m from the Rouse residence. He explained that, as part of the approval of the Lafarge Pit, the Rouse residence was not considered a sensitive receptor since it was located within the licensed area. As a result, the Cambridge Pit and the Lafarge Pit are not required to provide air and noise mitigation for the Rouse residence.

Mr. Zeman advised that the planning assessment for the Chudyk Pit treated the Rouse residence as a sensitive receptor and the operation was designed to meet provincial standards and guidelines for noise and air quality in that respect.

With respect to noise, Mr. Zeman advised that the noise impact assessment concluded that the CRH Pits will be operated in accordance with provincial noise limits at the Rouse residence. The proposed ARA site plans include detailed noise controls, including an acoustic berm and the requirement for an acoustical audit during each phase of the operation to confirm noise limits are being met at surrounding sensitive receptors including the Rouse residence.

With respect to air quality, and further to the evidence of Mr. Sulley covered in paragraphs [39] to [43], Mr. Zeman submitted that the Rouse residence was modelled in the air quality assessment completed by RWDI and that the CRH Pits will operate below the relevant criteria for all contaminants, as measured at the Rouse residence. He further noted that the proposed ARA site plans include detailed air quality controls, including the requirement to prepare an annual report to demonstrate compliance with provincial standards for air quality and to confirm the site has been operated in accordance with the best management practices plan for the control of fugitive dust emissions on-site.

Further, Mr. Zeman advised that the Application has been reviewed by MNRF and by a noise and air quality peer reviewer retained on behalf of the Region, and there are no outstanding issues related to the protection of surrounding residential homes related to noise and air quality.

• Areas requiring additional archaeological assessment – Mr. Zeman submitted that a concern was raised by the Rouse family that a Stage 3 archaeology assessment is still required for the proposed Chudyk Pit. He confirmed, however, that a Stage 3 archaeology assessment is not required by the Ministry of Tourism, Culture and Sport who reviewed the Stage 1-2 Archaeological Assessment and confirmed that the fieldwork and reporting for the archaeological assessment are consistent with the Ministry's Standards.

• Conservation of cultural heritage resources located on-site and at 1748 Alps Road (Rouse property) – Mr. Zeman confirmed there are no significant cultural heritage resources located within the proposed Chudyk Pit and adjacent cultural heritage resources will be conserved. The cultural heritage impact assessment identified the Rouse residence as a property listed by the Township for its cultural heritage potential. The assessment was peer reviewed on behalf of the Township and the peer review confirmed that the proposed Chudyk Pit will not have adverse impacts on the cultural heritage resources located at 1748 Alps Road.

Conclusions

38Mr. Zeman concluded that the ZBA is consistent with the PPS, conforms to the Growth Plan and to both the ROP and the TOP. He further opined that the proposed ZBA represents good land use planning, is in the public interest and should be approved by the Tribunal.

AIR QUALITY EVIDENCE

39Mr. Sulley submitted that, in determining the estimated emissions of airborne contaminants for the proposed Chudyk Pit, the aggregate extraction operation of the CRH Pits were considered conjointly. The estimated emissions from the CHR Pits were determined based on the various activities on-site, including vehicle and heavy equipment emissions and airborne dust generated by the operations. These emission values were added to the ambient background air quality concentration values to provide a cumulative estimate of impacts at surrounding residential receptors, and then compared to the Ministry of Environment Conservation and Parks’ (“MECP”) Ambient Air Quality Criteria (“AAQC”) to determine whether the impacts of the operation on the residential receptors will be below the MECP criteria. As stated in Mr. Sulley’s Witness Statement, MECP describes AAQCs as “a concentration of a contaminant in air that is protective against adverse effects on health and/or the environment”.

40Mr. Sulley advised that mitigation measures are taken into consideration when determining emission values, which result in recommendations to be implemented on-site to ensure that the facility operates in compliance with the relevant criteria at the off-site receptors. As noted in his Witness Statement, with the following recommendations in place, the impacts from the facility operations will be within acceptable limits at nearby residential receptors, including the Rouse residence:

• Dust will be mitigated on site;

• Water or another provincially approved dust suppressant will be applied to internal haul roads and processing areas as often as required to mitigate dust.

• Processing equipment will be equipped with dust suppressing or collection devices, where the equipment creates dust and is being operated within 300 metres of a sensitive receptor;

• An annual report shall be completed by a qualified expert to demonstrate compliance with MECP standards and to confirm the site has been operated in accordance with the Best Practices Management Plan.

41Mr. Sulley advised that, if the ZBA is approved, an effective dust control plan or Best Management Practices Plan (“BMPP”) would be implemented to enable the facility to operate in compliance with the air quality standards set by MECP. The BMPP would include dust mitigation measures such as the watering of haul roads and the use of spray bars on processing equipment.

42In his Witness Statement, Mr. Sulley concluded that, with an appropriate BMPP for the site in place and the implementation of recommendations regarding fuel-burning equipment, “predicted concentrations at the nearby offsite receptors will be at or below the relevant criteria for all contaminants” and that “[t]he proposed Chudyk Pit has been appropriately designed, managed and separated from surrounding sensitive land uses to prevent and mitigate adverse effects”.

43Addressing the Rouse residence specifically, Mr. Sulley advised that, because the Rouse residence was located in the Lafarge Pit, specific reference to it was not included in the RWDI report, in accordance with accepted methodology. Clarification was provided with respect to the Rouse residence in the form of a subsequent letter report from RWDI dated May 16, 2023. The letter report specifies that:

RWDI did include receptor R01 [the Rouse residence] in the analysis, but the results were not shown. The results of the analysis are shown on Tables 1 and 2, attached to this letter. Tables 1 and 2 provides [sic] the predicted cumulative impacts due to operations at both the CRH Chudyk, CRH Cedar Creek, and CRH Alps Pits. Table 1 provides the predicted cumulative impacts using background air quality data from Kitchener, which is the nearest MECP monitoring station. As a sensitivity analysis, Table 2 provides the predicted cumulative impacts using background air quality data from downtown Hamilton, one of the most burdened airsheds in Ontario.

Regardless of the ambient background values used, predicted concentrations due to operations at CRH facilities are below the relevant criteria at Receptor R01 for all contaminants.

Thus, it was Mr. Sulley’s submission that the Rouse residence was modelled in the air quality assessment completed by RWDI and that the predicted air quality impacts at the Rouse residence are within the accepted AAQCs for all contaminants.

ANALYSIS AND FINDINGS

44The Tribunal accepts the uncontroverted testimony and evidence of Mr. Zeman and Mr. Sulley.

45In consideration of the submissions of Mr. Zeman and Mr. Sulley, as supported by the Township and the Region and the resulting settlement of the appeal, the Tribunal is satisfied that the ZBA has sufficient and proper regard for the applicable matters of provincial interest as set out in s. 2 of the Act. The Tribunal finds that the ZBA is consistent with the PPS and is in conformity with the Growth Plan, the ROP and the TOP. Aggregate extraction is a permitted use in the ROP and TOP land use designations and the extraction site will be rehabilitated back to an agricultural condition with ecological enhancements consistent with the ROP and the TOP policies and land use designations and will not result in the loss of prime agricultural land in the long-term. Further, the extraction use will be limited to 1.5 m above the water table, the NHFs will be protected and will not be adversely impacted by the aggregate extraction use, there will be no negative impacts on the water quality or quantity of the groundwater and the noise and air quality impacts on the neighbouring residential receptors will be mitigated to within acceptable Provincial standards.

46The Tribunal finds that the concerns of the Participants have been adequately addressed through the planned integrated operation of the CRH Pits and associated operational controls, the mitigation measures, the holding symbol and the eventual rehabilitation of the site.

47The Tribunal finds that, through the implementation of the recommendations, the monitoring programs and operational requirements, the ZBA represents wise resource management and good land use planning, and is in the public interest. Significant aggregate resources will be made available in a location close to market, while minimizing environmental, social and economic impacts, as confirmed by the peer reviewed studies undertaken in support of the proposed use, the comments and recommendations from the approval authorities and review agencies.

48The Tribunal finds that the holding symbol is appropriate for the ZBA and will result in the protection of the groundwater resources including for residential and agricultural wells. In the event that an application for removal of the holding symbol is requested for extraction below the high water table, the ZBA includes wording requiring appropriate studies to be completed to the satisfaction of the Region and the Township in accordance with the ROP and the TOP policies regarding aggregate resource extraction below the water table.

ORDER

49THE TRIBUNAL ORDERS that the appeal is allowed in part and Zoning By-law 689-83 of the Township of North Dumfries is amended as set out in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk of the Township of North Dumfries to assign a number to this By-law and exception zone numbers for record keeping purposes.

“C. I. Molinari”

C. I. MOLINARI

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.

Attachment 1