Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 16, 2023

CASE NO(S).: OLT-22-002806

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Helen Kszan

Subject: Minor Variance

Variance from By-law No.: 79-14

Property Address/Description: Concession 3, Lot 16 & 17 (4827 Vaughan Rd)

Municipality: Township of West Lincoln

Municipal File No.: A5/2017WL

OLT Case No.: OLT-22-002806

Legacy Case No.: PL170547

OLT Lead Case No.: OLT-22-002806

OLT Case Name: Kszan v. West Lincoln (Township)

Heard: July 20 and 21, 2023 by Video Hearing

APPEARANCES:

Parties Counsel

Helen Kszan A. Bouchelev

Township of West Lincoln T. Richardson S. Greenlaw

DECISION DELIVERED BY S. dIXON AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1This Decision and Order arises from a hearing on the merits of an appeal filed by Helen Kszan (“Appellant”) pursuant to s. 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), in respect of minor variance application A5/2017WL (“Application”) in the Township of West Lincoln (“Township”) for lands fronting the north side of Vaughan Road, legally described as Part of Lots 16 and 17, Concession 3 (“Subject Property”). There is currently no municipal address for the Subject Property.

2The Application seeks relief from required Minimum Distance Separation (“MDS”) setbacks from nearby livestock facilities to enable the construction of a residential dwelling on the Subject Property through subsequent applications.

3Planning staff initially recommended refusal of the Application on the basis that the requested variance was not minor in nature and was not desirable for the appropriate development or use of the Subject Property. The Committee of Adjustment (“COA”) concurred with planning staff and denied the Application.

BACKGROUND AND CONTEXT

4The Subject Property was created in 1997 by way of severance from an agricultural parcel of land known municipally as 4827 Vaughan Road. The intent of the severance was to create a farm retirement lot for the Appellant – then owners of the entirety of 4827 Vaughan Road – for the purposes of constructing and occupying a residential dwelling on the Subject Property.

5The Subject Property was severed from the middle of the Vaughan Road frontage, such that the remaining agricultural lands surround the Subject Property to the west, north and east.

6The Appellant ultimately purchased a nearby residential dwelling instead of developing the Subject Property, which remains vacant. The surrounding agricultural lands at 4827 Vaughan Road were then sold by the Appellant and are currently owned by Jeremy Den Besten.

7Mr. Den Besten actively farms 4827 Vaughan Road (“Den Besten Farm”), which contains two livestock facilities – a goat barn and a hog barn – that were constructed after the Subject Property was severed. The livestock facilities impact the ability to develop the Subject Property due to the required MDS between new residential uses and existing agricultural uses.

AMENDED APPLICATION

Proposed Variances

8The Application originally requested MDS setbacks of 375 metres (“m”) from both the goat barn and the hog barn to the Subject Property, whereas setbacks of 603 m are required.

9In early July 2023, prior to the Hearing, both the Township and the Appellant provided the Tribunal with updates outlining their current respective positions on the Application and the relief being sought.

10The Township advised the Tribunal that they can support variances that reduce the required MDS setbacks from each of the two livestock facilities (“Township Variances”), as follows:

a) A reduction in the MDS setback from the goat barn to the Subject Property from 603 m to 372 m; and

b) A reduction in the MDS setback from the hog barn to the Subject Property from 603 m to 515 m.

11The Appellant advised the Tribunal that they are satisfied with the Township’s position on the reduced setback from the goat barn to the Subject Property (i.e., 372 m). However, the Appellant is requesting a greater variance from the hog barn to enable residential development on the vast majority of the Subject Property, as follows:

a) A reduction in the MDS setback from the hog barn to the Subject Property from 603 m to 452 m.

12In the alternative to their preferred hog barn setback (above), the Appellant requested the following variances in descending order of preference:

a) A reduction in the MDS setback from the hog barn to the Subject Property from 603 m to 482 m;

b) A reduction in the MDS setback from the hog barn to the Subject Property from 603 m to 500 m; or

c) A reduction in the MDS setback from the hog barn to the Subject Property from 603 m to 515 m (the same variance proffered by the Township).

Repealed Zoning By-Law

13The Subject Property is zoned Agriculture A2 in Zoning By-law No. 79-14 (“ZBL 79-14”), which was in effect at the time the Application was considered by the COA but has since been repealed and replaced by Zoning By-Law No. 2017-70 (“ZBL 2017-70”). The Subject Property is zoned Agriculture in ZBL 2017-70.

14Both Zoning By-laws (“ZBLs”) permit a single detached dwelling on the Subject Property. However, if single detached dwellings are located on lots that do not also have an agricultural use, then the lot is considered non-agricultural. The ZBLs each stipulate that non-agricultural residential uses in agricultural areas are only permitted in accordance with provincial MDS requirements.

15The initial Application seeks variances to ZBL 79-14. However, the MDS requirement of 603 m – which was considered by staff and by the COA when reviewing the Application – is the requirement reflected in and implemented through ZBL 2017-70.

16The Tribunal notes that should any variances to ZBL 79-14 be authorised, a subsequent application for a building permit would be required prior to the construction of a residential dwelling on the Subject Property. Since ZBL 79-14 has been repealed, that building permit would be processed under ZBL 2017-70, and any approved variance to ZBL 79-14 would not be applicable.

17Given the intent of the Application to seek relief from the MDS requirements to facilitate the development of a residential dwelling through subsequent applications, and in consideration of the repeal of ZBL 79-14, the Parties requested that the Tribunal consider the proposed variances under the current and in force ZBL 2017-70.

Notice of Amended Application

18 Section 45(18.1) of the Act provides that the Tribunal may make a decision on an application which has been amended from the original application if further notice is given to those entitled to receive it. However, pursuant to s. 45(18.1.1), the Tribunal is not required to give notice under s. (18.1) if, in its opinion, the amendment to the original application is considered to be minor.

19In this instance, the Tribunal is satisfied that the amended Application is minor and does not require further notice for the following reasons:

a) The requested variances from the required MDS setback from the hog barn are all less than the initial Application, resulting in a greater MDS setback;

b) The requested variance from the required MDS setback from the goat barn is greater than the initial Application by only three metres, which reflects a minor revision made after careful consideration by the Township (discussed later in this Decision); and

c) Mr. Den Besten, owner of the livestock facilities that require MDS setbacks, was made aware of the amended Application in advance of the Hearing and attended on the first day of same to provide the Tribunal with his comments.

20Further, the Tribunal is satisfied that consideration of the Application under ZBL 2017-70 does not require further notice as the MDS requirement of 603 m that was considered by both staff and the COA is the same as the MDS requirement reflected in the current and in-force ZBL 2017-70.

SUBMISSIONS AND ANALYSIS

Witnesses

Jeremy Den Besten

21Prior to the start of the Hearing, the Parties and Tribunal were informed that, given the Township’s change in position from refusing the variances outright to supporting the Township Variances, Mr. Den Besten intended to seek Participant Status at the outset of the Hearing. As anticipated, Mr. Den Besten did so, explaining his desire to provide an overview of his agricultural operations and the impacts they might have on the Subject Property should any variances be granted.

22This raised objections from the Appellant’s counsel on the basis that, despite being involved in the case since at least early 2023, Mr. Den Besten had not sought Participant Status prior to the start of the Hearing, nor had he provided a Participant Statement to the Tribunal or Parties. Therefore, it was submitted, the Appellant was not given an appropriate opportunity to prepare for any submissions Mr. Den Besten might make at the Hearing.

23The Township supported Mr. Den Besten’s request on the basis that, until this point, Mr. Den Besten had observed the Township’s position as not supporting a variance of any kind. Presumably, Mr. Den Besten therefore didn’t feel the need to actively participate in the Hearing until the Township’s position changed.

24Counsel for the Township further suggested to the Tribunal that the information Mr. Den Besten might provide could likely be addressed by the Township’s expert witnesses, but it would be more appropriate – and reliable – for the Tribunal to, “hear it from the farmer directly.”

25The Tribunal agreed with the Township and found that hearing from Mr. Den Besten directly would assist in providing the Tribunal with the best possible evidence to determine the case at hand. Mr. Den Besten is the owner of the lands that directly abut the Subject Property on three sides and has the best knowledge of his own operations, which are the very reason that the variances are being sought in the first place. To that end, the Tribunal granted the request and made Mr. Den Besten a Participant.

26In lieu of a written Participant Statement, the Tribunal elected to call Mr. Den Besten as a Tribunal Witness in accordance with s. 18(1)(a)(iii) of the Ontario Land Tribunal Act, 2021 (“OLTA”), which provides the Tribunal with the authority to examine any person who is not a Party but who has made a submission to the Tribunal with respect to the proceeding:

Witnesses and evidence

18(1) At any stage of a proceeding, the Tribunal may,

(a) examine any of the following persons:

(i) a party to the proceeding,

(ii) a witness in the proceeding, or

(iii) a person who has made a submission to the Tribunal with respect to the proceeding, other than a party;

27Mr. Den Besten provided the Tribunal with an overview of his agricultural operations, which include four other hog farms in the area. The goat barn on the Den Besten Farm contains approximately 1,100 goats. The hog barn typically contains approximately 2,000 hogs but has been vacant since being destroyed by a fire in March 2022. The hog barn has not since been rebuilt.

28Both the goat barn and the destroyed hog barn currently contain active liquid manure storage facilities beneath the livestock flooring, such that falling manure from the animals can be captured, stored, and eventually used to fertilize agricultural crops. The goat barn also contains a dry (solid) manure storage facility.

29While the hog barn does not currently contain any hogs, the liquid manure storage facility – capable of holding up to 600,000 gallons (2.27 million litres) – is still operational and allows Mr. Den Besten to transfer liquid manure between facilities. If a storage facility from one of his nearby farms approaches capacity, manure can be moved to the Den Besten Farm. Manure storage typically lasts between eight and 14 months before being pumped onto fields as fertilizer.

30The pumped manure then rests for 24 to 36 hours before being tilled into the fields, including the fields surrounding the Subject Property. Therein lies Mr. Den Besten’s primary concern: manure spread near the Subject Property has the potential – though inadvertent – to flow onto the Subject Property in the event of a heavy rainfall during the rest period.

31Mr. Den Besten also noted the strong odours from the storage facilities and from the fields during fertilization. He proffered that building a house in the middle of a farm could lead to complaints from the future owner of the Subject Property and that, in his opinion, “the MDS is very important and should be honoured in full to protect farmers and people that want to live in the country.” Accordingly, Mr. Den Besten does not support any of the variances proposed by the Township or Appellant.

Land Use Planners

32The Tribunal heard from three witnesses that were qualified by the Tribunal to provide independent expert opinion evidence on matters pertaining to land use planning (collectively, “Planners”):

The Appellant called Terrance Glover, the Owner and Principal of Urban in Mind, an urban planning and land development consulting firm. Mr. Glover is a Registered Professional Planner with over 25 years of professional planning experience in both the public and private sectors.
The City called Brian Treble, the Director of Planning and Building at the Township. Mr. Treble is a Registered Professional Planner with approximately 35 years of professional planning experience in the public sector, 17 of which have been with the Township.
The City also called Dan Currie, a Partner with MHBC Planning Limited. Mr. Currie is a Registered Professional Planner with approximately 25 years of professional planning experience in both the public and private sectors.

Tony Kszan

33Following the conclusion of Mr. Glover’s expert testimony – which should have marked the end of the Appellant’s evidence-in-chief according to the Hearing Plan – and without seeking permission by way of motion or otherwise, Mr. Bouchelev, counsel for the Appellant, attempted to introduce Mr. Kszan, the Appellant’s son, as a surprise witness. Mr. Bouchelev asserted that the reason for same was because the Tribunal had called Mr. Den Besten as a witness at the outset of the Hearing and the Appellants had not been prepared in advance to respond to his testimony.

34The irony was not lost on the Tribunal that the lack of opportunity to prepare in advance, which Mr. Bouchelev claimed as the reason for needing to introduce a surprise witness, was precisely what he was now imposing on the Township moments before the start of their case and well into the proceedings.

35The Parties were reminded that the Tribunal is the master of its own house. The OLTA provides the Tribunal with the authority to call a witness other than a Party at any stage of a proceeding. Exercising that authority does not imply that counsel may then take it upon themselves to dictate the course of the remaining proceedings, nor introduce witnesses at their leisure.

36With respect to the testimony of Mr. Den Besten, the Parties were aware of his request for status and his position with respect to the requested variances in advance of the Hearing. Following the conclusion of his brief testimony, the Tribunal then gave the Parties additional time to consider same prior to calling their expert witnesses of record. In the Appellant’s case, questions pertaining to Mr. Den Besten’s testimony could have been, and in fact were, directed to their land use planning expert.

37Notwithstanding the above, and given no objection from the Township, the Tribunal granted Mr. Bouchelev permission to conduct a brief examination of Mr. Kszan given his firsthand knowledge of the Subject Property.

38Mr. Kszan informed the Tribunal that he grew up on – and farmed – the Subject Property and the Den Besten Farm before the latter was sold. Being familiar with the Subject Property, it is his opinion that the best place to build a house on same is in the centre, as that is the highest point of the Subject Property, allowing rainfall runoff to slope away from the house.

Mr. Fraser

39During the expert testimonies of Messrs. Treble and Currie, evidence was proffered regarding conversations that each witness had with Hugh Fraser in respect of the Application. Mr. Fraser is a former employee of 35 years with the Ontario Ministry of Agriculture, Food and Rural Affairs (“OMAFRA”). He co-authored two publications on the MDS (2006 and 2017) prior to his retirement from OMAFRA and was retained by the Township following the Appeal to assist with the MDS calculations for the Subject Property.

40Mr. Fraser filed an expert Witness Statement with the Tribunal and was listed on the Hearing Plan as a potential witness for the Township. Following the testimonies of Messrs. Treble and Currie, the Tribunal did not find it would be helpful to hear additional expert evidence from Mr. Fraser. To that end, Mr. Fraser was not qualified as an expert and his Witness Statement has not been relied upon as part of the Tribunal’s analysis. However, the Tribunal did call Mr. Fraser as a Tribunal Witness to confirm that: (1) he was present for the testimonies of Messrs. Treble and Currie (he was); and (2) he agreed with the characterisations of the conversations Messrs. Treble and Currie had with him and their use of the information he provided (he did).

Minimum Distance Separation

MDS Policy Framework

41The Tribunal was directed to the Provincial Policy Statement, 2020 (“PPS”), which requires the use of MDS to reduce incompatibility concerns regarding odour from livestock facilities.

42PPS Policies 1.1.5.8 and 2.3.3.3 state the following:

1.1.5.8 New land uses, including the creation of lots, and new or expanding livestock facilities, shall comply with the minimum distance separation formulae.

2.3.3.3 New land uses in prime agricultural areas, including the creation of lots and new or expanding livestock facilities, shall comply with the minimum distance separation formulae.

43“Minimum distance separation formulae” is defined in the PPS as follows:

Minimum distance separation formulae:

means formulae and guidelines developed by the Province, as amended from time to time, to separate uses so as to reduce incompatibility concerns about odour from livestock facilities.

44The “formulae and guidelines developed by the Province, as amended from time to time” referenced in the definition above refers to Publication 853, The Minimum Distance Separation (MDS) Document: Formula and Guidelines for Livestock Facility and Anaerobic Digester Odour Setbacks (“MDS Guidelines”).

45Mr. Currie directed the Tribunal to MDS Guidelines #42 and #43, which address reductions to MDS setbacks, as follows:

The direction of prevailing wind, surrounding topography, and presence of trees, berms or other screening are not part of, and are not intended to affect, the calculation of MDS setbacks. However, these or other similar elements could be considered in applications to vary or reduce MDS setbacks, where appropriate, and in accordance with Implementation Guideline #43.
MDS I setbacks should not be reduced except in limited site specific circumstances that meet the intent of this MDS Document. Examples include circumstances that mitigate environmental or public health and safety impacts, or avoid natural or human-made hazards.

If deemed appropriate by a municipality, the processes by which a reduction to MDS I may be considered could include a minor variance to the local zoning by-law provisions, a site specific zoning by-law amendment or an official plan amendment introducing a site specific policy area.

46The Township Official Plan (“TOP”) implements the MDS policies of the PPS as follows:

4.2.1 c) The Minimum Distance Separation Formulae, as amended from time to time, shall be utilized to determine separation distances between new or expanding livestock operations and new or expanding non-farm uses in all Agricultural areas. The implementation of the Minimum Distance Separation Formulae shall be through the Township’s Zoning Bylaw. New and expanding uses within all Agricultural Designations including the creation of new lots as permitted by Section 17.13 of the plan and new or expanding livestock facilities shall comply with the minimum distance separation formulae.

47Section 3.10 of ZBL 2017-70 contains provisions for MDS in accordance with Policy 4.2.1 c) of the TOP. Provision 3.10.1 of ZBL 2017-70 requires that all non-agricultural uses, buildings and structures outside of a settlement area shall comply with the MDS Guidelines (which are attached as Schedule B to ZBL 2017-70).

MDS Calculations for the Den Besten Farm

48The evidence of the Planners revealed two complicating factors unique to the Den Besten Farm that impact the calculation of the MDS from the existing livestock facilities.

49First, it was submitted, livestock facilities on agricultural properties are typically built in close proximity to each other, such that a single MDS radius can be drawn around the cluster of facilities. However, the hog barn on the Den Besten Farm is a considerable distance to the north of the goat barn. The result of which is that the greater MDS required by the hog barn is also applied to the goat barn, creating two overlapping radii that encompass the entirety of the Subject Property.

50Mr. Treble directed the Tribunal to MDS Guideline #19, which requires the total capacity (or potential capacity) for all livestock barns or manure storages on a lot to be measured equally from all livestock facilities:

MDS calculations shall be based on the combined design capacity for all livestock barns on a lot, even if they are unoccupied livestock barns or separated by a substantial distance on the lot.

Where there are no livestock barns on a lot, MDS calculations shall be based on the combined design capacity for all manure storages on a lot, even if they are unused manure storages or separated by a substantial distance on the lot.

51Second, Mr. Treble proffered, liquid manure storage under a goat barn is atypical and is accordingly not contemplated by the software used to calculate MDS (AgriSuite), which requires inputs for, among other things, the number and type of livestock, how long the livestock will be at a particular location, and the type of manure storage.

52Mr. Treble proffered that there is quite a dramatic difference in the odours emitted from hogs compared to the odours emitted from goats. In short, the odour from goats is less offensive than the odour from hogs, and therefore a lesser MDS is typically required from goat barns to achieve compatibility with residential uses. A similar opinion was proffered by Mr. Glover, who explained that, taken individually, the MDS requirements would be different for each barn. In other words, if there were no hog barn, the MDS requirement for the goat barn would be less than 603 m.

53In consideration of the above, the Township consulted with staff from OMAFRA and retained Mr. Fraser following the Appeal to assist in reviewing the Township’s MDS calculations. With the guidance of Mr. Fraser, among others, the Township refined the MDS calculations for each barn type and established two different variances that they considered to be minor and appropriate.

The Four Tests of a Minor Variance

Township Variances

54The crux of the issues between the Parties is not whether variances should be permitted, but what the appropriate extent of the variances should be. To that end, the Planners agreed that the Township Variances meet the four tests of a minor variance as set out in s. 45(1) of the Act. The supporting evidence to that effect was best articulated by Mr. Currie, whose testimony in that regard can be summarised as follows:

a) The Township Variances maintain the general intent and purpose of the TOP, which seeks to protect agricultural areas for the long-term use for agriculture. A component of that, he opined, is ensuring compatibility between agricultural and sensitive uses, which the Township Variances achieve.

b) The Township Variances maintain the general intent and purpose of the Township’s ZBLs, which permit the development of a single detached house on the Subject Property, subject to the provisions of the MDS Guidelines. In Mr. Currie’s opinion, the intent of the MDS Guidelines is to discourage reductions in MDS or, where reductions are considered, to minimize them such that non-agricultural sensitive uses are located as far away as possible from applicable agricultural uses.

c) The Township Variances are minor in nature because they appropriately respond to the unique impacts of both the hog barn and goat barn (i.e., the differing intensity of odours from each) on the Subject Property, and because they minimize the impacts on the current – and potential future – operations of the Den Besten Farm.

d) The Town Variances are desirable for the appropriate development or use of the Subject Property as they mitigate impacts on the Den Besten Farm while providing a reasonable opportunity to develop the Subject Property with a single detached house of a sizeable footprint, substantially setback from the road, and with some flexibility as to where the dwelling may be located within the resulting buildable area.

Appellant Variances

55In Mr. Glover’s opinion, all of the additional variances requested by the Appellant in Paragraphs [11] and [12] of this Decision (“Appellant Variances”) will have the same impact on the Den Besten Farm and a future dwelling on the Subject Property. His evidence to that effect was succinct and can generally be summarised as follows: Regardless of where you build a house on the Subject Property, there will still be an odour impact.

56To that end, Mr. Glover advised the Tribunal on several occasions that he struggles to understand the difference in impact between any of the Appellant Variances. In his opinion, all of the variances are equal and therefore the appropriate variance should be the one that most favours the Subject Property to allow for its intended use as a residential lot.

57For those reasons, Mr. Glover opined that all of the Appellant Variances maintain the general intent and purpose of the TOP and ZBL and are minor in nature.

58With respect to the desirability for the appropriate development or use of the Subject Property, Mr. Glover opined that typically, residents in a rural area want to live further back from the road to maintain the “traditional view” or “aesthetic” of a rural lot. He proffered that building a dwelling closer to the road (which he agreed would be no closer than approximately 22 metres in this instance) would result in future residents experiencing more noise and dust from traffic, and generally having less privacy. In his opinion, building the house further back on the Subject Property would mitigate those concerns while not affecting the Den Besten Farm.

59Mr. Currie does not support any of the Appellant Variances. In his opinion, all of the Appellant Variances permit the dwelling to be closer to the hog barn, resulting in a greater impact on both the existing agricultural uses on the Den Besten Farm and the occupants of the future dwelling on the Subject Property. He proffered that while all of the Appellant Variances would help to maximize the development potential of the Subject Property, no public policy objective – or public interest – is realised in doing so.

The Public Interest

60In describing the public interest as it pertains to this matter, Mr. Currie directed the Tribunal to Section 2(b) of the Act, which requires the Tribunal to have regard to the protection of the agricultural resources of the Province as a matter of provincial interest. That interest, Mr. Currie proffered, is implemented in part through the PPS, the Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”), the Region of Niagara Official Plan, 2014 (“ROP”) and the TOP.

Provincial Policy Statement, 2020

61Policy 1.1.5.7 of the PPS states:

Opportunities to support a diversified rural economy should be promoted by protecting agricultural and other resource-related uses and directing non-related development to areas where it will minimize constraints on these uses. (emphasis added)

62Section 1.7.1 of the PPS states that long-term economic prosperity of the province should be supported, in part, by:

i) sustaining and enhancing the viability of the agricultural system through protecting agricultural resources, minimizing land use conflicts, providing opportunities to support local food, and maintaining and improving the agri-food network; (emphasis added)

63Section 2.3 of the PPS sets out policies specific to agriculture. Policy 2.3.3.2 states:

2.3.3.2 In prime agricultural areas, all types, sizes and intensities of agricultural uses and normal farm practices shall be promoted and protected in accordance with provincial standards.

Growth Plan for the Greater Golden Horseshoe, 2020

64Section 4.2.6 of the Growth Plan sets out policies specific to the Agricultural System and requires that prime agricultural areas be protected for the long-term use for agriculture. Policy 4.2.6.3 states:

Where agricultural uses and non-agricultural uses interface outside of settlement areas, land use compatibility will be achieved by avoiding or where avoidance is not possible, minimizing and mitigating adverse impacts on the Agricultural System […] (emphasis added)

Region of Niagara Official Plan, 2014

65Section 4.1 of the ROP identifies agriculture as an important part of the Region’s economy and states that the agricultural land base will be protected for the provision of healthy, local food for present and future generations. Policy 4.1.3.7 of the ROP states:

Where agricultural uses and non-agricultural uses interface, land use compatibility shall be achieved by avoiding or, where avoidance is not possible, minimizing and mitigating adverse impacts on the agricultural system, by incorporating measures as part of new or expanding non-agricultural uses, as appropriate, within the area being developed. (emphasis added)

Township of West Lincoln Official Plan

66Section 2.4 of the TOP establishes goals for the Township. It states, in part:

a) To provide an environment for sustainable agriculture and related activities through the protection of prime agricultural lands and by preventing incompatible land uses […] (emphasis added)

67Section 4 of the TOP sets out policies for agricultural land uses. Section 4.2 states that it is an objective of the TOP to promote and protect a viable agricultural industry and to minimize the impact of non-farm uses on the agricultural area.

Opinion

68In Mr. Currie’s opinion, permitting a dwelling to be built closer to the hog barn on the Den Besten Farm would not meet the policy intent outlined above. He proffered that the Appellant Variances would increase, rather than minimize, the constraints on the agricultural system by negatively impacting the potential for the future expansion of livestock facilities, which would need to be set back from a future dwelling on the Subject Property in accordance with the MDS Guidelines.

69To support his position, Mr. Currie provided the Tribunal with an overview of the existing constraints surrounding the Subject Property and the Den Besten Farm. In short, neither the goat barn nor the hog barn can expand to the south due to the proximity of existing sensitive uses south of Vaughan Road (which also limit the expansion of other existing livestock facilities south of Vaughan Road). Expansion of livestock facilities away from Vaughan Road and the Subject Property may be possible but will be impacted by the location of a dwelling on the Subject Property. In Mr. Currie’s opinion, the further away residential development on the Subject Property is from the livestock facilities (and in particular the hog barn), the greater the potential for their future expansion.

70Mr. Treble proffered a similar opinion that, based on his analysis of the relevant policies outlined above, the further away non-farm uses are from intensive agricultural uses, the better. In his opinion, the Township Variances represent a solution that is, “the best of both worlds.”

FINDINGS

71The Tribunal agrees with the opinion of Mr. Currie that the policies of the PPS, Growth Plan, ROP and TOP provide a clear public interest mandate to protect the Province’s agricultural resources by avoiding or minimizing constraints, conflicts and impacts on agricultural uses. That mandate is implemented, in part, through the requirements of the MDS Guidelines, which are reflected in ZBL 2017-70.

72The Tribunal finds that the MDS Guidelines are clear in their intent that “setbacks should not be reduced except in limited site specific circumstances that meet the intent of this MDS Document”. In that regard, the Tribunal agrees with Mr. Currie that where reductions to the MDS are considered, the intent of the MDS Guidelines is to minimize them such that non-agricultural sensitive uses are located as far away as possible from agricultural uses.

73Notwithstanding that general intent, the Tribunal is satisfied that the MDS Guidelines provide the Township with limited discretion to consider reductions in the MDS setback requirements of the ZBLs. Of particular note is the language in MDS Guidelines #42 and #43, which recognises that applications to vary or reduce MDS setbacks, where deemed appropriate by a municipality, can be considered by way of minor variance to the local zoning by-law.

74The Tribunal finds that the Township’s considerable efforts to find a solution that considers both public and private interests represent a fair and balanced approach to land use planning. The Township Variances provide the Appellant with a reasonable opportunity to develop the Subject Property, while upholding provincial interests by limiting impacts on nearby agricultural uses, including those on the Den Besten Farm.

75The Township Variances are supported by the detailed analyses of Messrs. Treble and Currie in consultation with past and present representatives of OMAFRA that have intimate knowledge of the MDS Guidelines. The Tribunal finds that the combined efforts of same have appropriately responded to the unique circumstances of the Den Besten Farm while upholding provincial interests and intended policy outcomes.

76Conversely, the Tribunal finds that the Appellant Variances do not have appropriate regard for the MDS Guidelines, the overarching policies pertaining to same, or the public interest. Rather, the Appellant Variances seek only to maximize the development potential of the Subject Property, made clear by the incremental approach with which they were requested. Each of the Appellant Variances were given the same weight in Mr. Glover’s analysis, supported equally by his cursory opinions that (1) odours will be present across the entirety of the site; and (2) rural residents typically want to build houses as far away from the road as possible.

Conclusions

77The Tribunal is satisfied that the Township Variances have appropriate regard for matters of provincial interest as set out in s. 2 of the Act, are consistent with the PPS, and conform to the Growth Plan.

78Regarding the four tests of a minor variance as set out in s. 45(1) of the Act, the Tribunal accepts the uncontroverted evidence of the Planners that the Township Variances maintain the general purpose and intent of the ROP, TOP and ZBLs, are minor in nature, and are desirable for the appropriate development or use of the Subject Property.

79In consideration of the above, the Tribunal is satisfied that the Township Variances represent good planning and are in the public interest.

ORDER

80THE TRIBUNAL, having been asked to consider an application which has been amended from the original application; and

81THE TRIBUNAL, having determined as provided for in subsection 45(18.1.1) of the Planning Act that no further notice is required;

82THE TRIBUNAL ORDERS that the appeal is allowed in part and the following variances to By-law 2017-70 are authorised:

a) The Minimum Distance Separation 1 setback from the hog barn (liquid manure) at 4827 Vaughan Road to the Subject Property shall be reduced from 603 metres to 515 metres; and

b) The Minimum Distance Separation 1 setbacks from the dairy goat kid barn (solid manure) and the dairy goat kid barn (liquid manure) at 4827 Vaughan Road to the Subject Property shall be reduced from 603 metres to 372 metres.

“S. Dixon”

s. dixon

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