Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 12, 2023

CASE NO(S).: OLT-22-004826

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Amiel Bekkers

Subject: Consent

Description: To permit creation of a new lot with an existing kennel

Reference Number: B22/08(1335)

Property Address: 3466 Burnhamthorpe Road West

Municipality/UT: Oakville/Halton

OLT Case No.: OLT-22-004826

OLT Lead Case No.: OLT-22-004826

OLT Case Name: Bekkers v. Oakville (Town)

Heard: June 26 to 28, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
Amiel Bekkers	Russell Cheeseman
Town of Oakville	Dennis Perlin
Region of Halton	Brittany Maione

DECISION DELIVERED BY S. Dixon AND ORDER OF THE TRIBUNAL

Link to Final Order

Background

1This Decision and Order arises from a hearing on the merits of an appeal filed by Amiel Bekkers (“Appellant”) pursuant to s. 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), in respect of consent application B22/08(1335) (“Application”) in the Town of Oakville (“Town”) for the lands known municipally as 3466 Burnhamthorpe Road West (“Subject Property”).

2The Subject Property – approximately 8.2 hectares in size – contains two existing buildings: a two-storey single detached dwelling and a one-storey kennel. The Appellant, owner of the Subject Property, submitted the Application to sever approximately 2.64 hectares of the Subject Property for the purposes of creating a new lot for the existing kennel, such that the two existing buildings would be on separate lots. The retained parcel of approximately 5.56 hectares would contain the existing detached dwelling.

3Staff from the Town and the Region of Halton (“Region”) recommended refusal of the Application on the basis that the severance would result in the fragmentation of prime agricultural land outside of the Urban Area. The Committee of Adjustment (“COA”) refused the Application.

Site and Area Context

4The Subject Property is located within an agricultural area, outside of the Town’s Urban Area, at the southeast corner of Tremaine Road North (Regional Road 22) and Burnhamthorpe Road West, north of Highway 407. West of Tremaine Road North is the City of Burlington. North of Burnhamthorpe Road West is the Town of Milton. South of Highway 407 are lands within the Town’s Urban Area, outside of the Built Boundary.

5The existing dwelling is generally located towards the centre of the Subject Property. The existing kennel is located east of the dwelling towards the rear of the Subject Property. Surrounding both existing buildings on the west, south and east sides of the Subject Property are agricultural fields used for crop production.

6The agricultural fields on the west side of the Subject Property are traversed by a tributary of the Fourteen Mile Creek that is part of a Provincially Significant Wetland (“PSW”) complex known as the North Oakville-Milton West Wetland Complex. The Subject Property is entirely located within the Oakville-Milton Wetlands and Uplands Area of Natural and Scientific Interest (“ANSI”), covering a total of approximately 290 hectares and including 11 woodlots.

7The Subject Property is primarily surrounded by agricultural lands to the north, west and south. Two Hydro One corridors are located to the immediate south of the Subject Property, with agricultural lands located between and adjacent to each corridor. A small cluster of rural residential properties abut the Subject Property to the immediate east along Burnhamthorpe Road West. Behind those properties – southeast of the Subject Property – is a large significant woodlot extending south to Highway 407.

Legislative Framework

8When considering an appeal under s. 53(19) of the Act, where an application for consent was refused, the Tribunal shall:

Have regard to matters of Provincial Interest as set out in s. 2 of the Act;
Have regard to any decision that was made under the Act by a municipal council or by an approval authority, including any information and material that was considered in making the decision, as set out in s. 2.1 of the Act;
Ensure its decision is consistent with the Provincial Policy Statement, 2020 (“PPS”), as set out in s. 3(5) of the Act; and
Ensure its decision conforms with, or does not conflict with, any provincial plans that are in effect on the date of the decision, as set out in s. 3(5) of the Act.

9 Section 53(12) of the Act further requires a council or the Minister, in determining whether a provisional consent is to be given, to have regard to the matters under s. 51(24) with respect to the approval of a plan of subdivision (“Consent Criteria”).

Witnesses

10The Tribunal heard from three witnesses that were qualified to provide independent expert opinion evidence on matters pertaining to land use planning (collectively, “Planners”):

The Appellant called David Igelman, a Senior Planner with Design Plan Services Inc. Mr. Igelman is a Registered Professional Planner (“RPP”) with over three years of professional planning experience in the private sector.
The Town called Allan Ramsay, a Principal at Allan Ramsay Planning Associates Inc. Mr. Ramsay is an RPP with over 42 years of professional planning experience in both the private and public sectors, including 22 years with the City of Burlington and five years with the Town.
The Region called Sara Gregory, an Intermediate Planner with the Region. Ms. Gregory is a provisional member of the Ontario Professional Planners Institute and the Canadian Institute of Planners. She has six years of professional planning experience in both the public and private sectors.

ISSUES

11As per the Tribunal’s direction at the Case Management Conference held in advance of this Hearing, the Parties were not required to prepare an Issues List. Rather, the principal issue before the Tribunal was straightforward:

Is the Application, which proposes to create a new lot in a prime agricultural area, permitted by the policies of the Province, Region and Town?

12Secondary to the principal issue, considerable evidence was proffered with regards to the potential impacts of the Application on the natural heritage features and their ecological functions on or adjacent to the Subject Property.

13In addressing the issues above, the evidence of the Planners focused on the relevant sections contained within the legislative and policy frameworks of the Act, the PPS, the Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”), the Greenbelt Plan, 2017 (“Greenbelt Plan”), the Parkway Belt West Plan, 1978 (“PBWP”), the Region Official Plan, 2021 (“ROP”), the Town Official Plan, 2021 (“TOP”), and Town Zoning By-law No. 2014-014 (“ZBL”).

ANALYSIS

Purpose of the Application

14The covering letter submitted with the Application (“Application Letter”, found in Exhibit 1), prepared and signed by Mr. Igelman on April 1, 2022, states that, “This proposal is a consent to sever wherein 3466 Burnhamthorpe Road West will be severed into two lots to create a new lot for each of the two existing buildings on the Subject Property.” The letter further reiterates that “the purpose of this severance is to create one new lot so that each of the two uses are on separate lots.”

15In his opening and closing submissions, Counsel for the Appellant provided additional colour, summarising the purpose of the Application as simply putting a line down the middle of the Subject Property to allow each building to be on a separate lot so that the Appellant can transfer or mortgage the severed lot independently of the retained lot.

16This was reiterated throughout the written and oral testimony of Mr. Igelman, and perhaps most clearly stated in Paragraph 142 of his Witness Statement (found in Exhibit 1), as follows:

While the Proposal does meet the definition of development as per the PPS, 2020 and Greenbelt, 2017, the Proposal does not consist of any new uses/buildings/structures and only consists of severing the existing lot so that the existing kennel on the Subject Property can be transferred separately from the existing single-detached house. The principal agricultural use on the Subject Property is proposed to be retained on both the severed and retained lots.

Issue 1: Lot Creation in Prime Agricultural Areas

Planning Act

17The Tribunal finds the following matters of provincial interest set out in s. 2 of the Act and the Consent Criteria set out in s. 51(24) of the Act to be the most relevant in considering the principal issue of this Hearing:

Provincial Interest (s. 2)

(b) the protection of the agricultural resources of the Province;

(p) the appropriate location of growth and development;

Consent Criteria (s. 51(24))

(a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2;

(b) whether the proposed subdivision is premature or in the public interest;

(d) the suitability of the land for the purposes for which it is to be subdivided;

(f) the dimensions and shapes of the proposed lots;

18With respect to Consent Criteria (f), Mr. Igelman assessed the appropriateness of the dimensions and shapes of the proposed lots by conducting a lot analysis of the surrounding area. He concluded that the proposed dimensions, shapes and frontages of the proposed lots on the Subject Property would be consistent with the majority of lots in the area and that each of the proposed lots conform with the ZBL, requiring no amendments to same.

19In considering the remaining provisions of the Act outlined above, Mr. Igelman proffered a similar response repeated throughout his oral and written testimony: “The Proposal does not consist of any new construction and the two existing buildings on the Subject Property are to remain as-is.” Therefore, in his opinion, the Application complies with the Act and has regard for matters of provincial interest.

20Mr. Ramsay provided the Tribunal with a more nuanced analysis of the Act. He proffered that, with respect to s. 2(b) on the protection of the agricultural resources of the Province, the proposed severance would result in the fragmentation of prime agricultural lands, including the bisection of the southerly farm field and the isolation of the easterly farm field on the Subject Property. In his opinion, this would not result in the protection of agricultural resources.

21With respect to s. 2(p) of the Act, Mr. Ramsay opined that the Subject Property is not an appropriate location for growth and development. He proffered that the Subject Property is located within a prime agricultural area, is part of an ANSI and a PSW complex, and is adjacent to a significant woodland. In his opinion, development of the type proposed by the Application should be directed to the Town’s Urban Area, south of Highway 407.

22In considering the Consent Criteria of s. 51(24) of the Act, Mr. Ramsay proffered that the Application does not have appropriate regard for criteria (b) and is not in the public interest as it will result in the fragmentation of farmland and will impact natural features. He further proffered that the creation of a separate lot in a prime agricultural area to facilitate a future private sale is not in the public interest.

23Mr. Ramsay proffered similar opinions with respect to criteria (d) on the suitability of the lands for the proposed consent and criteria (f) on the dimensions and shapes of the proposed lots, stating that, “The sole purpose of the consent is to facilitate the sale or disposition of the retained lands separately from the severed lands” and “the proposed dimensions of the proposed lots will contribute to the fragmentation of lands within the agricultural area.” He further proffered that, with respect to Mr. Igelman’s lot analysis, no indication was provided as to which lots in the analysis are used for agricultural purposes and which lots are used for rural residential or other uses.

24Regarding criteria (c), Mr. Ramsay opined that the Application does not conform to several policies of the ROP or TOP pertaining to the protection or fragmentation of prime agricultural lands, the preservation of natural features, and policies specific to lot creation.

25Ms. Gregory opined that the Application does not have regard for matters of provincial interest or support the protection of the agricultural resources of the Province and would result in the fragmentation of the agricultural system.

Provincial Policy Statement

26There was no dispute among the Planners that the Subject Property is considered “prime agricultural land” within a “prime agricultural area”, as defined by the PPS.

27Policy 2.3.1 of the PPS states that, “Prime agricultural areas shall be protected for long-term use for agriculture.” Policy 2.3.3.1 establishes permitted uses and activities in prime agricultural areas, which include agricultural uses, agriculture-related uses, and on-farm diversified uses. Those uses are defined in the PPS as follows:

Agricultural uses:

means the growing of crops, including nursery, biomass, and horticultural crops; raising of livestock; raising of other animals for food, fur or fibre, including poultry and fish; aquaculture; apiaries; agro-forestry; maple syrup production; and associated on-farm buildings and structures, including, but not limited to livestock facilities, manure storages, value-retaining facilities, and accommodation for full-time farm labour when the size and nature of the operation requires additional employment.

Agriculture-related uses:

means those farm-related commercial and farm-related industrial uses that are directly related to farm operations in the area, support agriculture, benefit from being in close proximity to farm operations, and provide direct products and/or services to farm operations as a primary activity.

On-farm diversified uses:

means uses that are secondary to the principal agricultural use of the property, and are limited in area. On-farm diversified uses include, but are not limited to, home occupations, home industries, agri-tourism uses, and uses that produce value-added agricultural products. Ground-mounted solar facilities are permitted in prime agricultural areas, including specialty crop areas, only as on-farm diversified uses.

28Section 2.3.4 of the PPS contains policies for Lot Creation and Lot Adjustments in prime agricultural areas. Policy 2.3.4.1 states the following:

Lot creation in prime agricultural areas is discouraged and may only be permitted for:

a) agricultural uses, provided that the lots are of a size appropriate for the type of agricultural use(s) common in the area and are sufficiently large to maintain flexibility for future changes in the type or size of agricultural operations;

b) agriculture-related uses, provided that any new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services;

c) a residence surplus to a farming operation as a result of farm consolidation […]; and

d) infrastructure, where the facility or corridor cannot be accommodated through the use of easements or rights-of-way.

29The Planners agreed that the Application is not for agricultural-related uses, is not proposing to create a lot for a residence surplus to a farming operation as a result of farm consolidation, and is not for infrastructure. As such, it was agreed that Policies 2.3.4.1 b), c) and d) do not apply in this instance.

30Mr. Igelman proffered that the principal use of the Subject Property is agriculture, and that both the proposed severed and retained lots will remain as agricultural uses with the existing dwelling on the retained lot and the existing kennel on the severed lot. He further proffered that the uses, lot sizes and frontages of the proposed retained and severed lots are all permitted by the ZBL. Therefore, in his opinion, the Application is permitted by PPS Policy 2.3.4.1 a) as the severed and retained lots will be of an appropriate size and will be sufficiently large to maintain flexibility for future changes in the type or size of agricultural operations.

31Notwithstanding his opinion that the Application is consistent with the PPS, Mr. Igelman conceded that the proposed severance isn’t necessary for the existing uses to continue, nor is it needed for agricultural purposes. He reiterated that while the primary agricultural use will continue on the Subject Property, “the severance is to allow the conveyance or sale of one of the lots separate from the other lot.”

32In Mr. Ramsay’s opinion, the Application does not support, preserve, or protect agricultural land and will contribute to further fragmentation of agricultural land in the area. He proffered that the Application is to create one new lot so that each of the two existing uses – the dwelling and the kennel – are on separate lots to facilitate the sale or transfer of each lot separately. That, he opined, does not meet the policy intent of any of the permitted types of lot creation contemplated by the PPS.

33Mr. Ramsay further opined that although there are existing agricultural uses on the Subject Property, the Application does not propose to create a lot for an agricultural use. He proffered that if the Application were approved, the agricultural uses on the severed lot would account for approximately 40 per cent of the total lot area, with the other 60 per cent being used for non-agricultural uses (e.g., the kennel). As such, the principal use on the severed parcel would no longer be agricultural.

34Ms. Gregory directed the Tribunal to Part IV of the PPS: Vision for Ontario’s Land Use Planning System, which recognises that the Province’s natural heritage and agricultural resources provide important environmental, economic and social benefits. She proffered that the PPS directs that the wise use and management of these resources over the long term is a key provincial interest.

35In Ms. Gregory’s professional opinion, the Application is not consistent with the agricultural policies of the PPS that protect prime agricultural areas. She opined that the Application would fragment the Subject Property in direct contrast to the objectives of the PPS, which discourages the creation of new lots in prime agricultural areas and strictly limits them to very few exemptions that are not applicable in this instance.

Growth Plan for the Greater Golden Horseshoe

36The Subject Property is within the Greenbelt Area of the Growth Plan. Section 1.2.3 of the Growth Plan addresses how the Growth Plan is to be read. Included in that section are provisions for how the Growth Plan is to be read in conjunction with other provincial plans. It states, in part:

Within the Greenbelt Area, policies of this Plan that address the same, similar, related, or overlapping matters as the Greenbelt Plan, the Oak Ridges Moraine Conservation Plan, or the Niagara Escarpment Plan do not apply within that part of the Greenbelt Area covered by the relevant plan except where the policies of this Plan, the Greenbelt Plan, the Oak Ridges Moraine Conservation Plan, or the Niagara Escarpment Plan provide otherwise.

37Mr. Igelman did not provide evidence in relation to the Growth Plan in either his written testimony or oral evidence-in-chief. When questioned as to why during cross-examination, he directed the Tribunal to the provisions of s. 1.2.3 (above) and noted that the Subject Property is within the PBWP and the Greenbelt Plan. As such, he proffered, the Growth Plan “doesn’t set out any other relevant policies to be reviewed.” In his opinion, it stands to reason that the Greenbelt Plan would be more protective than the Growth Plan, and he therefore did not feel it was necessary to provide a review of the Growth Plan.

38Mr. Ramsay and Ms. Gregory each directed the Tribunal to the Agricultural System policies contained in s. 4.2.6 of the Growth Plan. Policy 4.2.6.2 states that prime agricultural areas will be protected for long-term use for agriculture. Policy 4.2.6.5 encourages the retention of existing lots of record for agricultural uses.

39Mr. Ramsay further directed the Tribunal to s. 1.2.1 of the Growth Plan, which establishes the guiding principle of supporting and enhancing the long-term viability and productivity of agriculture by protecting prime agricultural areas and the agri-food network.

40In Mr. Ramsay’s opinion, the Application will contribute to the fragmentation of the prime agricultural area and will not protect the area for long-term agricultural use, and therefore does not conform to the Growth Plan.

41In Ms. Gregory’s opinion, the policies of the Growth Plan intend that limited development should be permitted in areas located within the Greenbelt Area, and as such the Application does not conform to the Growth Plan.

Greenbelt Plan and Parkway Belt West Plan

42The Subject Property is within the “Protected Countryside” and the “Natural Heritage System” of the Greenbelt Plan, as depicted on Schedules 1 and 4, respectively, and on the more detailed Map 98 contained in Exhibit 3 to this Hearing.

43Section 2.3 of the Greenbelt Plan states:

The requirements of the Parkway Belt West Plan, deemed to be a development plan under the Ontario Planning and Development Act, 1994, continue to apply to lands within the Parkway Belt West Plan Area and the Protected Countryside policies do not apply, with the exception of sections 3.2 and 3.3.

44Section 3.2 of the Greenbelt Plan contains Natural System policies. Section 3.3 contains policies pertaining to Parkland, Open Space and Trails.

45Policy 3.2.2.1 of the Greenbelt Plan permits a full range of existing and new agricultural, agriculture-related, on-farm diversified uses and normal farm practices on lands within the Natural Heritage System of the Protected Countryside.

46The PBWP establishes policies for the use of lands within the Parkway Belt West, including the Subject Property. Section 3 of the PBWP establishes a series of objectives for the Parkway Belt West, including the provision of extensive areas of public and private open space, the preservation of prominent natural features, and the protection of other features such as wooded areas, water courses and other points of interest.

47There was no dispute among the Planners that the existing uses on the Subject Property are permitted by the Greenbelt Plan and the PBWP. The primary differences in opinion generally pertained to Policy 5.1.6 of the PBWP, which addresses Land Severances as follows:

The creation of new lots within the area covered by the Plan shall be strictly limited. Official plans shall contain provisions relating to land severances. These provisions shall attain the goals and objectives of the Plan and guide land division committees.

48In Mr. Igelman’s opinion, the Application conforms to the applicable official plan policies and therefore conforms with the policies of the PBWP.

49In Mr. Ramsay’s opinion, the Application does not conform with the provisions of Policy 5.1.6 of the PBWP, which strictly limit the creation of new lots. He proffered that he has worked with the PBWP since 1981 and in his experience, consents are generally only granted for purposes that further the goals and objectives of same. In his opinion, a severance for the purposes of facilitating the sale of one lot separate from the other does not further any of the PBWP’s goals or work towards the achievement of its objectives.

50Ms. Gregory proffered that, in accordance with Policy 5.1.6 of the PBWP, the ROP contains provisions for lot creation that, in her opinion, the Application fails to conform with. In her further opinion, the Application does not conform to the PBWP as it does not implement its goals and objectives – specifically those pertaining to the provision of open spaces and the protection of natural features.

Region of Halton Official Plan

51The Application was submitted on April 1, 2022 and accordingly reviewed under the ROP in effect at that time, being the 2021 office consolidation. The ROP identifies the Subject Property as:

a) “Regional Natural Heritage System” and “Greenbelt Natural Heritage System (Overlay)” on Map 1: Regional Structure;

b) “Parkway Belt West Plan Area”, “Greenbelt Plan Protected Countryside Area”, and “Natural Heritage System (Greenbelt Plan)” on Map 1A: Provincial Plan Areas and Land Use Designations;

c) “Prime Agricultural Areas” on Map 1E: Agricultural System and Settlement Areas; and

d) “Key Features” and “Greenbelt NHS” on Map 1G: Key Features within the Greenbelt and Regional Natural Heritage Systems.

52Part III of the ROP contains policies for Land Stewardship, including Development Criteria. Within Part III, Policies 65 to 67 address lot creation, as follows:

The creation of new lots in any land use designation is permitted only by specific policies of this Plan.
Subject to other policies of this Plan, applicable Local Official Plan policies and Zoning Bylaws, and policies of the applicable Provincial Plan, new lots may be created:

(1) for the purpose of acquisition by a public body;

(2) for the purpose of consolidating lots;

(2.1) for adjusting lot lines […]

(2.2) for the purpose of creating a new lot for conservation purposes as part of the Bruce Trail […]

(3) for an existing residence surplus to a farm operation as a result of a farm consolidation in the Agricultural System identified on Map 1E […]

The creation of new building lots on private services must meet minimum criteria set forth by the Region’s Guidelines for Hydrogeological Studies and Best Management Practices for Groundwater Protection under Section 101(1.4) of this Plan.

53Policy 91 of the ROP states:

The goal of the Agricultural System is to maintain a permanently secure, economically viable agricultural industry and to preserve the open-space character and landscape of Halton’s non-urbanized areas.

54Policy 99 of the ROP sets out the objectives of the Agricultural System of the Region, including:

(1) To recognize agriculture as the primary activity and land use in the Agricultural System.

(2) To preserve Prime Agricultural Areas, as shown on Map 1E, and prime agricultural lands.

(3) To maintain as much as possible lands for existing and future farm use.

(4) To protect farms from incompatible activities and land uses which would limit agricultural productivity or efficiency.

(5) To reduce the fragmentation of lands suitable for agriculture and provide for their consolidation.

55Policy 100 of the ROP lists the permitted uses in the Agricultural Area designation, which include but are not limited to: All types, sizes and intensities of agricultural operations, normal farm practices, existing uses, and:

(17) animal kennels, only if located on a commercial farm, secondary to the farming operation, and in conjunction with a single detached dwelling.

56Policy 117.1(16) permits a similar range of uses on lands within the Regional Natural Heritage System, including animal kennels in conjunction with a single detached dwelling, only if located on a commercial farm and secondary to the farming operation.

57Policy 101(2) of the ROP states that it is the policy of council to recognise, encourage and protect agriculture as an important industry in the Region. Policy 101(2)(g) requires the preservation of the agricultural land base by protecting prime agricultural areas identified on Map 1E.

58Mr. Igelman agreed that, with respect to Policy 65, there are no other policies in the ROP that establish circumstances where severances would be permitted other than those outlined in Policy 66. He conceded that the Application does not constitute one of those circumstances. However, in his opinion, the policy is clear that these are not the only circumstances in which lot creation may be permitted as the policy speaks to the other policies of the ROP, TOP, ZBL and applicable Provincial Plans. As the Application proposes to create two lots that are both compliant with the ZBL, it is Mr. Igelman’s opinion that the Application meets the intent of Policy 66.

59With respect to Policy 67, Mr. Igelman conceded that a hydrogeological study was not completed as part of the Application and that it would be appropriate to impose a condition related to the undertaking of same should the Tribunal grant the proposed consent on a conditional basis.

60Regarding Policy 99, Mr. Igelman agreed that subsection (5) establishes the objective of reducing fragmentation and providing for the consolidation of lands suitable for agriculture. He conceded that, if approved, the Application would result in two lots that are each smaller than the existing lot and that the Application would not provide for the consolidation of agricultural lands. In his response, he reiterated that the purpose of the Application is to allow each lot to be sold separately, and that each lot would contain agricultural uses.

61During cross-examination, Mr. Igelman was directed to the Application Letter, in which he stated the following in response to ROP Policy 99(5):

The Subject Property is currently not used for agricultural purposes and will, therefore, not fragment lands suitable for agriculture. Additionally, the Subject Property is already of a size that is not entirely suitable for agricultural purposes and further division of the Subject Property will not result in the fragmentation of lands suitable for agricultural purposes.

62Mr. Igelman addressed the apparent conflict in his evidence by stating that since the time the initial application was filed at the very outset of the process, he has been able to confirm that the principal use of the Subject Property is agriculture. While the Tribunal accepts the more current evidence that the Subject Property is indeed used in part for agricultural purposes, the Tribunal notes that the justification provided in the Application Letter supports the opinions of Mr. Ramsay and Ms. Gregory that the proposed lot creation is not for agricultural uses.

63Regarding Policies 100 and 117.1, Mr. Igelman proffered that both policies permit the existing uses on the Subject Property and reiterated that the existing uses are proposed to be retained, with no new construction proposed on either the severed or retained lots. Mr. Igelman conceded that if the proposed consent is granted, the kennel on the severed lot would no longer be in conjunction with a single detached dwelling. However, he proffered, the ZBL permits a kennel on the Subject Property and does not require that it exist in conjunction with a single detached dwelling.

64Mr. Ramsay and Ms. Gregory each opined that the Application does not satisfy any of the listed conditions in the ROP for the creation of a new lot.

65With respect to the agricultural policies of the ROP, Mr. Ramsay opined that the Application does not conform with Policy 99(5) as the proposed lot creation will increase, rather than reduce, the amount of fragmentation of agricultural lands in the Region. Similarly, it is his opinion that fragmentation of the Subject Property would not contribute to the preservation of the agricultural land base by protecting prime agricultural areas, as required by Policy 101(2)(g).

66Regarding the use permissions in Policies 100 and 117.1, it is Mr. Ramsay’s opinion that the Application does not conform with the provisions for animal kennels because, should the consent be granted, the existing kennel will not be located on a commercial farm, would not be secondary to a farming operation, and would not exist in conjunction with a single detached dwelling.

67Ms. Gregory proffered that the policies in the ROP are an important vehicle in implementing the provincial policy direction to maintain, preserve and protect agricultural lands, including prime agricultural areas, for the long term. In her opinion, the Application promotes fragmentation and the creation of less viable agricultural lands than presently exists on the Subject Property.

Town of Oakville Official Plan

68The Subject Property is located within the Parkway Belt West and Green Belt areas on Schedule A1 – Urban Structure and are outside of the Built Boundary and Urban Area on Schedule A2 – Built Boundary and Urban Growth Centre of the TOP. Schedule B – Natural Features and Hazard Lands places the Subject Property entirely within an ANSI and adjacent to a Woodland.

69Schedule K – 407 North Land Use designates the Subject Property as Parkway Belt West, within the Greenbelt Special Policy Area overlay.

70Section 19 of the TOP states that the PBWP applies to lands designated as Parkway Belt West, and that the policies of the PBWP shall govern the use of land within the Parkway Belt West designation.

71Section 26.6 of the TOP states that lands within the Greenbelt Plan Area are subject to the Greenbelt Plan. Further, while the TOP policies are applicable, the Greenbelt Plan shall prevail in the event of a conflict between the two plans.

72Section 28.14 of the TOP provides policy direction for consents to sever lands. Policy 28.14.2 states, in part:

Applications for consent to create new lots may only be granted where:

c) the lot can adequately be serviced by water, wastewater and storm drainage facilities;

f) the lot will not restrict the ultimate development of adjacent lands;

g) the size and shape of the lot conforms with the requirements of the Zoning By-law, is appropriate to the use proposed and is compatible with adjacent lots; and,

h) the consent conforms to all relevant policies of this Plan.

73Mr. Igelman proffered that the existing uses on the Subject Property are currently serviced through private servicing, and that further details of any servicing requirements could be demonstrated through conditions of approval should the Tribunal grant the proposed severance.

74Mr. Igelman further proffered that the proposed severed and retained lots will each be compliant with all applicable ZBL regulations and that the existing uses are compatible with adjacent lots.

75Mr. Ramsay proffered that the Application has not provided adequate information with respect to servicing or its impact on minimum separation distances to adjacent lands, which could ultimately restrict their development. He further proffered that while the proposed severed and retained lots will comply with the ZBL, the Application results in the fragmentation of agricultural land and is not an appropriate use of the Subject Property.

76With respect to Policy 28.14.2 h), it is Mr. Ramsay’s opinion that the Application does not conform with the policies of the TOP as the TOP requires conformity with the PBWP and the Greenbelt Plan, which the Application has failed to demonstrate.

77Ms. Gregory provided no opinions with respect to the TOP.

Zoning By-law No. 2014-014

78The Subject Property is zoned “Greenbelt Plan (GB)” in the ZBL. There was no dispute among the Planners that the existing uses are permitted in the ZBL, or that the proposed retained and severed lots resulting from the Application would meet the provisions of same.

Issue 2: Natural Heritage Features and Functions

79As noted in Paragraphs [6] and [7] of this Decision, the Subject Property is entirely within an ANSI, is traversed by a tributary that is part of a PSW complex, and is adjacent to a significant woodlot.

80 Section 2(a) of the Act establishes the protection of ecological systems, including natural areas, features and functions, as a matter of provincial interest. The Consent Criteria of s. 51(24)(h) of the Act includes the conservation of natural resources and flood control.

81In consideration of the above, a significant amount of evidence was proffered by the Town and Region pertaining to the natural heritage policies of the Province, Region, and Town. Specifically, Mr. Ramsay and Ms. Gregory each directed the Tribunal to several policies within s. 2.1 of the PPS, s. 4.2.2 of the Growth Plan, s. 3.2 of the Greenbelt Plan, Part III of the ROP, and s. 16 of the TOP, that contain provisions for the protection of natural heritage features and their functions (including but not limited to ANSIs, significant wetlands, and significant woodlands).

82Included in each of those sections are policies that require development, including lot creation, to demonstrate that there will be no negative impacts on any identified natural features or their ecological functions on or adjacent to the proposed development.

83The Town and Region submitted that the Appellant has not completed the necessary work to identify the site’s natural heritage features and functions, the potential impacts of the proposed development on those features and functions, and any appropriate measures to mitigate those impacts, all of which would typically be addressed in an Environmental Impact Study/Assessment (“EIS”).

84Mr. Igelman conceded that the proposed lot line in the Application was drawn without the benefit of an EIS, and that a possible conclusion of an EIS could be that the proposed lot line may need to be relocated or may not be appropriate. He acknowledged that an EIS is required to demonstrate consistency and conformity with the relevant policies and proffered that it would be appropriate to impose a condition related to the undertaking of same should the Tribunal grant the proposed consent on a conditional basis.

85Mr. Igelman also proffered that the Halton Region Conservation Authority (“HRCA”) expressed no concerns or objections to the Application (as per their October 6, 2022 comments to the COA), and reiterated that the Application does not consist of any new uses, buildings or structures, and only consists of severing the existing lot so that the existing kennel on the Subject Property can be transferred separately from the existing single-detached house.

86Mr. Ramsay acknowledged the HRCA’s review of the Application and took no issue with their conclusions. However, he proffered that the HRCA reviewed the Application in the context of their mandate, which includes the Natural Hazard policies of s. 3.1 of the PPS but does not include an evaluation of the Natural Heritage Features identified in s. 2.1 of the PPS. This is reflected in the letter from the HRCA (contained in Exhibit 1) which states, in part:

[Conservation Halton] reviews applications based on its delegated responsibility to represent the Province on the natural hazard policies of the PPS (3.1.1-3.1.7).

87In response to Mr. Igelman’s suggestion that the appropriate studies can be required as part of a conditional approval of the proposed consent, Mr. Ramsay opined that the appropriate time to complete the studies is before the consent is granted, such that the studies form “part of the deliberation” to determine what is appropriate for the site, rather than left to a future process after the consent has been provisionally granted.

88Ms. Gregory proffered that, in addition to being within an ANSI, the Subject Property contains or is adjacent to portions of key natural heritage features and key hydrologic features and may contain or be adjacent to potential habitat of endangered or threatened species, potential significant wildlife habitat, and potential fish habitat, and that it is unclear as to whether the proposed severance falls within the limits of one of those features or their vegetation protection zone.

89Throughout their respective testimonies, Mr. Ramsay and Ms. Gregory proffered that the Application failed to demonstrate – through technical reports or studies – that the proposed severance will not have any negative impacts on the natural heritage features or functions on or adjacent to the Subject Property. Therefore, they opined, the Application is not consistent with the relevant policies of the PPS and does not conform to the relevant policies of the Growth Plan, Greenbelt Plan, or ROP. Mr. Ramsay further opined that the Application does not conform with the TOP.

Summary Opinions

90In summarising his professional opinion, Mr. Igelman reiterated that the purpose of the Application is to allow the transfer of one of the new lots without the need to transfer the other. In his opinion, the Application complies with the Act and has regard for matters of provincial interest, is consistent with the PPS, conforms with all relevant Provincial Plans, and is contemplated by the ROP and TOP. He proffered that the Application represents little to no change to the existing conditions of the Subject Property and will maintain the principal agricultural use on both lots, along with the existing non-agricultural uses. He concluded by stating that the Application represents an appropriate form of lot creation in an area where lot creation is otherwise strictly limited.

91In Mr. Ramsay’s opinion, the Application does not have appropriate regard for the matters of provincial interest set out in s. 2 of the Act or the Consent Criteria of s. 51(24) of the Act, is not consistent with the PPS, and does not conform with the Growth Plan, Greenbelt Plan, PBWP, ROP or TOP. He further opined that the creation of a new lot on the Subject Property does not represent good planning and should not be approved.

92In Ms. Gregory’s opinion, the Application does not have regard for s. 2 of the Act, nor does it reflect the public interest as required by s. 51(24) of the Act. The Application, she opined, is not consistent with the PPS and does not conform to the Growth Plan, the Natural Heritage System Policies of the Greenbelt Plan, the Lot Creation policies of the PBWP, or the policies of the ROP. In her opinion, the Application should be refused as it does not represent good planning.

FINDINGS

Lot Creation in Prime Agricultural Areas

93The Tribunal agrees with and prefers the evidence of Mr. Ramsay and Ms. Gregory that the proposed lot creation is not permitted, is not in the public interest, and does not represent good planning.

94 Section 2(b) of the Act requires the Tribunal to have regard for the protection of the agricultural resources of the Province. That protection is safeguarded, in part, by the policies of the PPS and Provincial Plans that require the protection of prime agricultural areas, which includes a clear mandate for limiting lot creation in same.

95To that end, the PPS only permits lot creation in prime agricultural areas for agricultural uses, agriculture-related uses, and a residence surplus to a farming operation as a result of farm consolidation. Even then, the very policy that permits lot creation in prime agricultural areas also discourages it (Policy 2.3.4.1).

96On the other side of the same coin, the Growth Plan encourages the retention of existing lots of record for agricultural uses (Policy 4.2.6.5).

97The PBWP, while not limited to agricultural lands, states that, “The creation of new lots within the area covered by the Plan shall be strictly limited” (Policy 5.1.6).

98The provincial direction above is in turn reflected in the ROP, which establishes the objective of reducing the fragmentation of lands suitable for agriculture and providing for their consolidation (Policy 99). Policies 65 and 66 of the ROP limit the creation of new lots to a specific set of circumstances, relying in part on the policies of the TOP, which in this instance, require lot creation to conform to the policies of the PBWP.

99With respect to the lot creation policies of the ROP, and in particular Policy 66, the Tribunal finds that while the policy indicates that lot creation is, “Subject to other policies of this Plan, applicable Local Official Plan policies and Zoning By-laws, and policies of the applicable Provincial Plan”, the Tribunal is not satisfied that this policy ought to be interpreted as, “If a use is permitted in the ZBL, lot creation for that use is also permitted.” Unlike the PPS, PBWP and TOP, which each contain lot creation policies that can be read in conjunction with the ROP, there was no evidence proffered to the Tribunal to suggest that the ZBL contains similar provisions.

100The Tribunal finds that the fragmentation of agricultural lands, including through the creation of new lots within prime agricultural areas, is generally not desirable or in the public interest. Notwithstanding that general premise, the PPS does set out a limited set of circumstances where lot creation in prime agricultural areas may be permitted, including for agricultural uses. Therein lies the crux of this matter. While the supporting policies of the Growth Plan, PBWP, ROP and TOP assist in establishing a high threshold for lot creation in prime agricultural areas, proposals for same must first meet one of the three conditions set out in Policy 2.3.4.1 of the PPS. In this instance, the Tribunal is not satisfied that the Application does so.

101The Tribunal was not presented with any compelling evidence to suggest that the proposed lot creation is for agricultural uses. While evidence was proffered that the existing agricultural uses will be maintained on the Subject Property, the Tribunal does not find that simply maintaining an existing use equates to creating a new lot for that use.

102Despite the Appellant’s suggestion to the contrary (i.e., that the existence of agriculture on the Subject Property implies that the proposed lot creation is for agricultural uses), the evidence overwhelmingly suggests otherwise. From the initial stages of the Application, the purpose of same has been clear: “This proposal is a consent to sever wherein [the Subject Property] will be severed into two lots to create a new lot for each of the two existing buildings on the Subject Property” (emphasis added). The proposed lot creation is for the existing buildings. It is not for the existing agricultural uses.

103This intent is further evidenced in the Application Letter, wherein Mr. Igelman initially proffered that the Subject Property is not used for agricultural purposes. Surely, if the Application was made under the assumption that agricultural uses did not exist on the Subject Property, it cannot be said that the lot creation is intended for agricultural uses.

104The purpose of the Application was then further clarified and repeated throughout the written and oral evidence of Mr. Igelman, the submissions of the Appellant’s Counsel, and the materials filed with the Tribunal. As stated in Paragraph 142 of Mr. Igelman’s Witness Statement: “the Proposal […] only consists of severing the existing lot so that the existing kennel on the Subject Property can be transferred separately from the existing single-detached house” (emphasis added).

105The Tribunal finds that the intent of the Application, which is to facilitate the transfer of an animal kennel independent of a residential dwelling, does not meet the requirements or intent of the agricultural lot creation policies of the PPS and is therefore not consistent with same.

Natural Heritage Features and Functions

106Reflecting on the Appellant’s suggestion that the demonstration of no negative impacts on the natural features or functions on or adjacent to the Subject Property is appropriate as a condition of approval, the Tribunal takes notice of Loerts v. Petrolia (Town), 2022 CanLII 63794 (ON LT) (“Loerts v. Petrolia”), in which – similar to the case at hand – the following was submitted to the Tribunal:

[…] the Applicant has not completed the work necessary to identify the site’s natural heritage features and functions, the potential impacts of development on those features and functions, and appropriate measures to mitigate those impacts.

107Unlike the case now before the Tribunal, the applicant in Loerts v. Petrolia had completed an EIS as part of their application. Even then, Members Tousaw (now Vice Chair) and Mann found that the contents of the EIS did not sufficiently address the policies of the Province, County or Town (following emphasis added):

[…] the Tribunal finds that the Applicant’s forestry, tree impact, and endangered species studies, while helpful in addressing certain requirements, do not sufficiently address all of the components of an EIS as required by policies of the Province, County and Town. Such deficiency results in the failure of the OPA and ZBA to satisfy all legislative requirements and results in these applications being refused.

108While the Tribunal recognises the relative simplicity of the current Application (in which no physical changes are proposed to be made to the Subject Property) compared to the application in Loerts v. Petrolia (in which the applicants sought to permit residential development on a 10-hectare woodlot), both applications must satisfy the legislative requirements set out in s. 3(5) of the Act and be consistent with the PPS and any applicable Provincial Plans.

109To that end, the policies of the PPS and Provincial Plans are prescriptive and clear – development, including lot creation, shall not be permitted unless it can be demonstrated that there are no negative impacts on natural features or their ecological functions. As was the finding in Loerts v. Petrolia, sufficient information is required to assist the Tribunal in fully assessing the relevant policies:

[…] the Tribunal finds that, while the PPS policies for liveable communities are suitably addressed by this development, the policies for natural features have not been fully addressed [… The] Tribunal finds that insufficient information is available here to fully assess all policies in pursuit of a balanced approach.

110The Tribunal acknowledges that, in approving a provisional consent, the Act provides the Tribunal with the authority to impose such conditions as it finds reasonable. However, the Tribunal agrees with the opinion of Mr. Ramsay that the outcomes of an EIS should inform the decision to approve or not approve development. While the recommendations of an EIS may be appropriately imposed as a condition of approval, the Tribunal does not find that it would be appropriate to treat the entirety of an EIS in a similar manner.

111For clarity, the Tribunal notes that the above findings pertaining to Natural Heritage are made in response to the substantive evidence proffered with respect to same. Even with the benefit of an EIS completed as part of the Application, the Tribunal’s findings with respect to the lot creation policies of the PPS and relevant Provincial Plans would remain as stated in this Decision.

Conclusion

112The Tribunal finds that the Application, which proposes to fragment prime agricultural lands through the creation of a new lot for the sole purpose of facilitating the transfer of land from one private interest to another, does not have appropriate regard for the matters of public interest set out in s. 2 of the Act or the criteria of s. 51(24) of the Act, is not contemplated by or consistent with the PPS, does not conform to the PBWP, Greenbelt Plan, Growth Plan, ROP or TOP, and is not in the public interest.

113For those reasons, the Tribunal finds that the Application does not represent good planning.

ORDER

114THE TRIBUNAL ORDERS that the appeal is dismissed and the provisional consent is not to be given.

“S. Dixon”

s. dixon

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.

Bekkers v. Oakville (Town), 2023 CanLII 94341

Case Summary