Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 11, 2024

CASE NO(S).: OLT-23-000468

PROCEEDING COMMENCED UNDER subsection 12(2) of O.Reg. 173/16 of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: Josephine Buchman

Subject: Community Planning Permit Application - Conditions

Description: To permit the construction of a boat launch and recognize the existing structures on the lot

Reference Number: CPP/07/2023/HTE

Property Address: 190 Rachels Lane

Municipality/UT: Huntsville/Muskoka

OLT Case No.: OLT-23-000468

OLT Lead Case No.: OLT-23-000468

OLT Case Name: Buchman v. Huntsville (Town)

Heard: January 11, 12, and 25, 2024 via Video Hearing

APPEARANCES:

Parties Josephine Buchman Town of Huntsville

Counsel Russell D. Cheeseman Stephanie Fleming Sarah Hahn

DECISION DELIVERED BY S.L. DIONNE AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The matter before the Tribunal is a Hearing on the merits of an appeal filed by Josephine Buchman (“Applicant”) pursuant to s. 12(2) of O. Reg. 173/16 of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), in respect of a decision of the Town of Huntsville (“Town”) pertaining to a Community Planning Permit application (CPP/07/2023/HTE) (“Application”), affecting lands municipally known as 190 Rachel's Lane, in the Town of Huntsville (“Subject Property”).

2The Subject Property is a peninsula-shaped waterfront residential lot located on the northern shore of Fox Lake, having a lot area of approximately 1.5 hectares (“ha”), and a lot frontage of approximately 120 metres (“m”). Several buildings are situated on the Subject Property, including a cottage, private cabin/bunkie, and other accessory structures.

3The Applicant is seeking permission for a boat launch on the Subject Property, and to recognize existing non-complying structures under the Town of Huntsville Community Planning Permit By-law 2022-97 (“CPPBL”). The history and background to the Application, as summarized by the Tribunal, is attached as Appendix A to this Decision.

4The Tribunal notes that additional approvals, which are not the subject of this Hearing, would be required in relation to the proposed in-water works, which involves constructing a 3.9 m by 8 m gravel base within Fox Lake, for the boat launch. This includes a review by Fisheries and Oceans Canada (“DFO”), and a Crown Land Use Permit from the Ministry of Natural Resources and Forestry (“MNRF”).

HEARING

5Evidence and submissions were heard by the Tribunal over the course of a three-day Hearing in January 2024.

6The Tribunal heard evidence from two planners, one for the Applicant (Graeme Huizinga), and one for the Town (Richard Clark), both of whom were duly qualified to provide opinion evidence in land use planning.

7Additionally, the Tribunal heard evidence from Dr. Beverley Wicks, who was retained by the Town. In terms of education, she holds a Ph.D. in zoology, a Masters Degree in zoology, a Bachelor’s Degree in agriculture (environmental biology), and she is a practicing environmental consultant. The Tribunal qualified Dr. Wicks as a biologist to provide opinion evidence related to her practical expertise in environmental impact studies.

8Participant Statements were filed on behalf of Todd Macyk, David G. Carey, and the Fox Lake Association (c/o Alix Yule), all of which have been considered by the Tribunal in arriving at this Decision. The Participants take objection to introducing a private boat launch on the Subject Property due to their concerns of the short-term rental use on the Subject Property, increased boat traffic on the lake, and the potential impacts on sensitive environmental features.

9The Tribunal marked the following as Exhibits in the Hearing:

• Exhibit 1 – Joint Document Book dated December 29, 2023;
• Exhibit 2 – Email Correspondence filed by the Applicant;
• Exhibit 3 – Agreed Statement of Facts of Planners (“Statement of Facts”);
• Exhibit 4 – Participant Statement for Fox Lake Association;
• Exhibit 5 – Participant Statement for David G. Carey;
• Exhibit 6 – Participant Statement for Todd Macyk;
• Exhibit 7 – Materials submitted to DFO by Applicant; and
• Exhibit 8 – CPP Amendment No. 2023-06.

10It is noted that the Town Staff Recommendation Report dated April 12, 2023 (“Recommendation Report”) is found in Exhibit 1 at Tab 21. The CPPBL is found in the hyperlink in Exhibit 1, at Tab 8.

BACKGROUND

The Application

11There are two parts to the Application under the CPPBL: 1) Part One of the Application is in respect of Existing Non-Complying Structures; and 2) Part Two of the Application is in respect of the Development Proposal.

Part One: The “Existing Non-Complying Structures”

12A Class 2 Community Planning Permit (“Permit”) is sought, the effect of which is to recognize an existing 56 square metre (“sq m”) private cabin, a 58 sq m attached deck, and to provide relief from s. 4.3.4 of the CPPBL to recognize the following yard requirements for existing non-complying structures:

i) A 28 m front yard set back for the existing 160 sq m dwelling;

ii) A 28.3 m front yard set back for an existing 10 sq m gazebo;

iii) A 23 m yard setback for the existing attached 86 sq m unenclosed deck; and

iv) A 29.5 m yard setback for an existing attached 26 sq m unenclosed deck.

Part Two: The “Development Proposal”

13A Class 2 Permit is sought, the effect of which is to permit the development of a boat launch and an associated 3.9 m wide access path, and to provide relief from s. 2.4.4 of the CPPBL to permit an increase in the maximum cumulative permitted Shoreline Activity Area (“SAA”) width from the existing 23.5 m to the proposed 27.4 m for the boat launch, and a 3.9 m wide path providing access to it.

14As agreed to by the Parties, the Development Proposal meets the definition of “development” as defined in s. 1(1) of O. Reg. 173/16 and requires the issuance of a Permit. The “effect” of the Permit, as described above, is as found in paragraph 1 of the Statement of Facts.

Decision of Town

15As set out in a Notice of Decision dated May 1, 2023, the Town Planning Council (“Council”) provisionally approved Part One of the Application with the variations conditional on the removal of a deck located along the east shoreline (“Condition 1”), and the issuance of the Permit, conditional on:

1. restoration of the shoreline vegetation in the area of the removed deck (“Condition 2”); and,

2. obtaining building permits for the deck attached to an existing private cabin, the deck attached to the dwelling, and the dock (“Condition 3”).

16As set out in a Notice of Decision dated May 1, 2023, Council denied Part Two of the Application to “permit an increase in shoreline amenity area from 23.5 m to 27.4 m for the construction of the boat launch and a 3.9 m wide path providing access to it”. It is noted by the Tribunal that the word “amenity” should in fact be “activity”.

17The reasons, set out in the Notice of Decision, for the Town’s refusal of Part Two of the Application are as follows (emphasis added):

1. The recognition of existing structures on the lot is appropriate for the lands; however, increasing the shoreline amenity areas would not be appropriate for the lands.

2. The proposal does not take into account the unique characteristics of the property as the boat launch proposes further shoreline clearing.

3. Potential off-site and adverse impacts have not been identified or mitigated.

4. The recognition of existing structures is compatible with the surrounding land uses and community waterfront character as no new structures are being proposed; however, the boat launch is not compatible as it is in proximity to a Wetland and Type 1 Fish Habitat (“T1FH”).

5. There are no applicable urban design guidelines in this instance.

6. The proposal does not conform to the District of Muskoka (“District”) and Town Official Plans.

7. The proposal is not consistent with the Provincial Policy Statement, 2020.

Information and Material

18In making its decision, Council had the following information and material before it:

• The Town Recommendation Report, in which Town staff’s recommendation is in line with the decision made by Council;
• The District comments issued on the Application on April 6, 2023 (Exhibit 2, Tab 24), recommending deferral of the Application pending the submission of an Environmental Impact Study (“EIS”) being undertaken to look at the location of the proposed boat launch and determine that there will be no negative impacts on the natural features or their ecological functions (i.e., wetland). Further, the District’s letter indicated that to address the matter of the T1FH along the frontage of the property in the general vicinity of the proposed boat launch, the Applicant has submitted the letter from DFO, which concludes that, provided the recommendations contained in the letter are implemented, the proposal will not likely result in a contravention of the Fisheries Act or Species at Risk Act, and that appropriate development control techniques should be used to implement these recommendations;
• Oral and written submissions by the Applicant, Participants, and Town staff; and
• A request by the Applicant for a deferral of the Application, to allow time to undertake an EIS and work to try to address the concerns of Town staff. Council denied the request for deferral.

DECISION

19On the appeal of the Application before it, the Tribunal has considered the totality of the evidence provided in the Hearing and the submissions of the Parties and Participants, and the Tribunal has arrived at its decision as it has authority to do so by way of O. Reg. 173/16.

20The Tribunal finds that the history and background to the Application, as summarized by the Tribunal in Appendix A to this Decision, to be informative in respect of the intended purpose and effect of the Application and the information that Council had before it at the time of making its decision.

21The Tribunal finds that Part One of the Application merits an approval without condition(s), and Part Two of the Application merits a provisional approval, subject to the fulfilment of a number of conditions.

22The Tribunal’s findings and the reasons that led to the Tribunal’s decision are outlined in detail below.

LEGISLATIVE FRAMEWORK

23The Community Planning Permit system in Ontario is provided for under s. 70(2) of the Act, and authorized by way of O. Reg. 173/16.

[O. Reg. 173/16](https://www.canlii.org/en/on/laws/regu/o-reg-173-16/latest/o-reg-173-16.html)

24In accordance with s. 14 of O. Reg. 173/16:

s. 14(1) On an appeal, under section 12, the Tribunal,

(a) shall hold a hearing and determine the matter in issue;

(b) may make any decision that the council could have made under s. 10(9).

s. 14(2) The Tribunal’s decision is final.

s. 14(3) If the Tribunal orders that a community planning permit be issued, the council shall issue it, except that if the Tribunal imposes conditions, the community planning permit shall not be issued until,

(a) in the case of conditions that are required to be met before the community planning permit is issued, the council is satisfied that the conditions have been met; and

(b) in the case of conditions that are attached to the community planning permit, their fulfilment has been secured in a way that is satisfactory to the council. [emphasis added]

25In terms of a decision that Council could have made, the Tribunal may refuse the application or approve the application, with or without conditions, in accordance with s. 10(9) of O. Reg. 173/16:

On considering the application, the council may,

(c) refuse the application;

(d) approve the application and issue a CPP with no conditions attached;

(e) approve the application and require that conditions be met before issuing a community planning permit;

(f) approve the application and issue a community planning permit with conditions attached; or

(g) approve the application, require that conditions be met before issuing a community planning permit and, when the conditions have been met, issue a community planning permit with conditions attached. [emphasis added]

26Further, where a municipality’s community planning permit by-law provides for a council to impose a condition(s) in making decisions on an application, as described in s. 10(9) (c), (d), or (e) of O. Reg. 173/16, such condition shall be of a type permitted in the official plan, be reasonable for and related to the appropriate use of land, and not conflict with federal and provincial statutes and regulations.

27In the case of an application approved as described in s. 10(9) (c), (d), or (e) of O. Reg. 173/16, such a condition(s) must meet the following requirements:

i. The condition shall be clear, precise and quantifiable.

ii. The condition shall include a clear statement of whether it must be complied with before construction, renovation or change of use of a building.

iii. The condition shall not deal with the following aspects of buildings and structures:

i) Interior design.

ii) The layout of interior areas, other than interior walkways, stairs, elevators and escalators to which members of the public have access from streets, open spaces and interior walkways in adjacent buildings.

iii) The manner of construction and construction standards. [emphasis added]

The Tests

28The Tribunal must be satisfied that the Application complies with the CPPBL (subject to Variations), conforms to the Town Official Plan (“TOP”) and District of Muskoka Official Plan (“DOP”), is consistent with the Provincial Policy Statement, 2020 (“PPS”), has regard to matters of provincial interest set out in s. 2 of the Act, and represents good planning.

29In making its decision, the Tribunal is also required, in accordance with s. 2.1(1) (a) and (b) of the Act, to ensure that it has regard for the decision made by Council and the information and material that Council considered in making its decision.

Compliance with CPPBL

30In resolving this appeal, the Tribunal applies the provisions of the CPPBL.

31For variations to the CPPBL provisions, as set out in s. 1.20.1 of the CPPBL, there is a seven-part Test that must be satisfied to approve a requested variation(s). The criteria set out in s. 1.20.1 of the CPPBL, is as follows:

s. 1.20.1 In addition to any other requirements of the By-law, the following provisions will be addressed to the satisfaction of the Town in evaluating Community Planning Permit applications, prior to issuance of a Community Planning Permit:

(a) the proposal is appropriate for the lands;

(b) the proposal takes into account the unique characteristics of the property;

(c) potential off-site and adverse impacts are identified and mitigated where appropriate;

(d) the proposed development is compatible with the surrounding land uses and community, waterfront, or rural character;

(e) the proposal is consistent with any applicable urban design guidelines;

(f) the proposal conforms to the District and Town Official Plans; and,

(g) the proposal is consistent with the Provincial Policy Statement. [emphasis added]

32The CPPBL also provides guidance as to how to apply the criteria in s. 1.20.1. More specifically, s. 1.20.2 and s. 1.20.3 on this guidance are as follows:

s. 1.20.2 When applying the criteria in 1.20.1, the applicant will be required to demonstrate that a development proposal meets all applicable criteria and creates no adverse impact, or includes measures to be implemented to avoid or mitigate the adverse impact, prior to approval and issuance of the Community Planning Permit. [emphasis added]

s. 1.20.3 Where a Class Two – Staff Variation is required, staff may scope the extent of the evaluation required in 1.20.1 in consideration of the scale of the variation requested and provided the general intent of the criteria are met. [emphasis added]

33The provisions of s. 1.17 of the CPPBL allows for provisional approval to be granted if the Tribunal is satisfied that the Application may proceed, subject to the fulfilment of any condition(s) that the Tribunal deems appropriate. The CPPBL allows for the provisional approval of an application, recognizing that there are conditions that must be satisfied for the permit for the development to be issued. The Permit may also be subject to a condition(s).

34The CPPBL contains a list of the type(s) of conditions that may be imposed, which are set out in ss.1.16.5.2, 1.16.5.3, and Appendix B of the CPPBL. Additionally, the CPPBL contains a list of the type of plans and technical reports that may be required at the time of a Permit application, which are set out in Appendix A of the CPPBL. The Tribunal notes that the list of the type(s) of conditions of approval, or provisional approval, similarly includes the technical reports.

35In essence, the CPPBL provides for technical reports to be a condition of provisional approval. In this situation, if the technical report, prepared to fulfill the condition of provisional approval, is not able to demonstrate that the development would not create an adverse impact for which certain measures could not be implemented to mitigate the impact satisfactorily, the condition would not be fulfilled and the permit would not be approved and issued.

PART ONE OF THE APPLICATION

36Part One of the Application is intended to have the effect of recognizing an existing 56 sq m private cabin and a 58 sq m attached deck, as well as to have the effect of bringing other building/structures into compliance with the CPPBL. The requested variation applies to the dwelling, gazebo, and two unenclosed decks.

Position of the Parties

37As set out in the Statement of Facts, the buildings and structures as shown on the Proposed Site Plan (Exhibit 1, Tab 26), including those for which variations were provisionally approved by the Town, are not at issue.

38The Parties agree that the requested variations to recognize the Existing Non-Complying Structures have merit, the Application ought to be approved, and a Permit issued. However, the positions of the Parties diverge with respect to whether or not the three (3) Conditions are appropriate.

39Further, upon closing submissions, counsel for the Applicant asked that the Tribunal, with respect to Part One of the Application, in the alternative, make a finding as to whether some of the existing non-complying structures may fall under an exemption to the CPPBL, and on that basis, make a finding as to whether the Part One CPPBL approvals are required. The Tribunal deals with the question as to whether the Application for the Existing Non-Complying Structures is necessary first.

Applicability of Exemptions

40The Approved Site Plan (Exhibit 1, Tab 9,) illustrates a “Single Family Dwelling”, “Location of Private Cabin”, “Septic Bed Envelope”, “Driveway”, “Floated Lift Dock with Shoreline Deck”, “Access Corridors / Areas to be Cleared” (between the single-family dwelling and the shoreline/dock), and a “Vegetative Envelope Where Existing Vegetation to be Maintained within 30 m setback”. It is noted that the single-family dwelling is labelled “Exact Location, Size, and Configuration of Dwelling is Approximate”. It is also noted on the Approved Site Plan that the “Access Corridors/Area to be Cleared” was permitted to be a maximum of 20 per cent of the Existing Vegetative Cover within the 30 m setback.

41Notably, the provisions set out in s. 1.3 of the CPPBL recognize that certain activities and types of development shall not require a permit. In accordance with s.1.3.1 a) of the CPPBL, these include “development that has been constructed, or for which a site plan agreement has been entered into pursuant to the Town’s former Site Plan Control By-law 2018-152, as amended, or its predecessors”. Additionally, “Development approved through an issued building permit” is exempt in accordance with s.1.3.1 g) to the CPPBL. [emphasis added]

42Based on the evidence presented, the Tribunal arrives at a finding that some, if not all, of the existing buildings or structures (subject to the Application) are exempt from requiring a Permit under the CPPBL. More particularly, those buildings or structures contemplated on the Approved Site Plan, those for which the Town has issued a Building Permit (“BP”), and those already constructed (prior to the CPPBL), all regardless of whether those same buildings or structures meet the current regulations under the CPPBL or not. This finding is supported by the opinion evidence of the two planners, whom both conceded in part in their oral testimony, that some of the structures noted in Part One of the Application may be exempt.

43Based on the evidence, the Tribunal finds that all of the existing building and structures shown on the Approved Site Plan are exempt from requiring a Permit, including the Single Family Dwelling and Private Cabin.

44However, Part One of the Application also includes a request for relief from the provisions of the CPPBL based on the Proposed Site Plan, which illustrates existing structures not included on the Approved Site Plan, and for which there was no definitive evidence provided in the Hearing to ascertain when such structures were constructed (relative to the time of the CPPBL coming into effect), which structures may or may not have been issued a BP, which structures would have been permitted at the time of their construction, erection or installation under the Town’s previous Zoning By-law(s), and those structures for which a BP would not have been required under the Ontario Building Code (“OBC”).

45In light of the foregoing, it is not possible for the Tribunal to make a finding in respect of the applicability of an exemption for those buildings or structures.

46Recognizing that the Applicant has agreed to make the Application, in order to ‘get along with the Town’, as characterized by counsel for the Applicant, and that the Parties agree that Part One of the Application has merit and ought to be approved, and for the sake of completeness, the Tribunal has considered Part One of the Application in its form before it in the Hearing.

Evidence and Analysis on the Issues

47The Applicant is not the original owner of the Subject Property, and most of the existing structures were already in existence at the time of purchase in 2019. The purpose and effect of Part One of the Application is “to recognize” existing structures that are not, or in this case may not be, in compliance with the CPPBL.

48Both planners provided opinion evidence that Part One of the Application to recognize existing structures has merit and meets all of the statutory tests, including:

• satisfies the criteria set out in s. 1.20.1 of the CPPBL for approval of the variations;
• complies with the CPPBL (subject to variations);
• conforms with the TOP and DOP;
• is consistent with the PPS;
• has regard to matters of provincial interest set out in s. 2 of the Act; and,
• represents good planning.

49The Town’s planner recommended the three (3) Conditions considered by and included in Council’s decision, which are summarized as follows:

• Condition 1: Removing an existing deck located along the east shoreline structure, because in his view the portion of the structure located in the SAA if not removed would need a variation to increase the SAA;
• Condition 2: With the removal of the structure, Town staff will want to dictate re-vegetation where it is being removed; and,
• Condition 3: Requirement to obtain BPs for existing structures.

50The Town’s planner indicated to the Tribunal in his oral testimony that his opinion of the suitability of the requested variation(s) would change if the conditions are not included. The Town’s planner opined that it would be in the best interest of the Applicant to clean up the status of the Subject Property, so as not to complicate a transfer or have this be an issue in the future if the Applicant has future development plans for the Subject Property.

51On cross-examination, the Town’s planner did concede that recommending Condition 3 is seen as leverage and overlaps with the authority of the Town’s Chief Building Official (“CBO”).

52The Applicant’s planner opined that consideration by Council of the request for the variation(s) related to the existing structures may have been clouded by the proposal to remove certain existing structures within the shoreline buffer as part of the Development Proposal (to reduce the width of disturbance within the SAA), along with concerns raised by the Participants pertaining to the short-term rental use of the Subject Property and a perceived potential increase in activity on the lake associated with the proposed boat launch. It was the opinion and recommendation of the Applicant’s planner that the Applicant should be able to decide which structures to remove to bring the Subject Property into compliance.

Tribunal’s Findings on Part One of the Application

53The Tribunal accepts the opinion evidence of the planners that the criteria of s. 1.20.1 of the CPPBL for the variation(s) is satisfied, that Part One of the Application meets the statutory tests, and in so far as the opinion evidence of the planners differs with respect to whether the Application should be subject to conditions, the Tribunal prefers the evidence of the Applicant’s planner.

54With respect to the Conditions, the Tribunal is not persuaded that there is a necessity, nor convinced there is a relevancy, to remove other existing structures (or landscaping elements) shown on the Proposed Site Plan and/or as described in the Statement of Facts, to approve Part One of the Application.

55In comparing the Approved Site Plan and the Proposed Site Plan, the Tribunal notes that the Approved Site Plan indicates that the Access Corridors/Area to be Cleared was permitted to be a maximum of 20 per cent of the Existing Vegetative Cover within the 30 m setback, and that the SAA shown on the two Plans are very similar in terms of their general location, size, and configuration.

56The Tribunal finds that there was no compelling evidence presented to demonstrate that the existing structures, or landscaping elements for that matter, on the Subject Property are in any way having an adverse impact, for instance on the integrity of the shoreline (aesthetic or otherwise), the environment, or public safety. Further, there was no compelling evidence as to why the specified platform (deck) needs to be removed. The concerns articulated by the Participants in this matter pertain primarily to the Development Proposal and not the existing structures.

57The Tribunal views the Town’s planner’s opinion as centered on “enforcement” of the CPPBL, as opposed to the land use planning grounds for recommending the Conditions.

58The Tribunal also prefers the recommendation of the Applicant’s planner that it should be up to the Applicant to decide what, if any, structures should be removed in the event such is necessary to bring the Subject Property into compliance.

59For these reasons, the Tribunal finds that Part One of the Application should be approved without Condition 1. The consequence of not imposing Condition 1 is that Condition 2 is no longer relevant.

60As for Condition 3, the CPPBL provisions, namely ss. 1.16.5.2 and 1.16.5.3, allow for the imposition of conditions of approval, and a four-page long list of potential conditions of approval, or provisional approval, pertaining to various matters is found in Appendix B. This list, while not exhaustive, is extensive and does not include a condition related to obtaining a BP.

61Additionally, having reviewed the CPPBL (Exhibit 1, Tab 8) and having considered the evidence of the two planners in the Hearing, it is the Tribunal’s view that the CPPBL is not meant to deal with matters of construction or construction standards, as such matters are dealt with by way of other provincial legislation, notably the OBC.

62It is a reasonable and fair assumption for the Tribunal to conclude that any structures for which the Town had a concern from a BP compliance perspective would have been known and would have been dealt with in the context of a BP application for a specific building or structure. This includes at that time of the Applicant’s purchase of the Subject Property, in the context of rectifying any issue(s) on the open BP file.

63In closing submissions, counsel for the Applicant argued that a condition must be appropriate, and that the proposed Condition 3 that requires obtaining a BP is not necessary given that the authority for issuance of a BP falls under the OBC. The Tribunal agrees with this position.

64The Tribunal finds that Condition 3 is not reasonable, not necessary, and not appropriate to be tied to the Application.

65The Tribunal is satisfied that sufficient evidence has been provided in the Hearing to find that the criteria under s. 1.20.1 of the CPPBL for the variations are met. The Tribunal finds also that Part One of the Application for the Existing Non-Complying Structures has regard for matters of provincial interest in s. 2 of the Act, is consistent with the PPS, conforms with the DOP and TOP, complies with the CPPBL, and represents good planning.

66The Tribunal has had regard to the decision made by Council, and the information that Council had before it at the time of its decision (as summarized previously in this Decision).

67The Tribunal finds that the Part One of the Application should be approved, that no Conditions in respect of same are necessary, and that the Town should issue the Permit.

PART TWO OF APPLICATION

68The effect of Part Two of the Application is to permit the “development” of a boat launch, an associated 3.9 m wide access path, and to provide relief from s. 2.4.4 of the CPPBL to permit an increase in the maximum cumulative permitted SAA width from the existing 23.5 m to the proposed 27.4 m for the boat launch and access path.

Position of the Parties

69The position of the Town is that the Development Proposal is in a sensitive area due to T1FH and a Wetland, and that the onus is on the Applicant to demonstrate in the Hearing that the “Tests” have been met, but that to do so, technical study needs to be undertaken, and such study was not undertaken, to reach a determination that the Development Proposal will have no negative impact, or that, with mitigation, will not create an adverse impact. The Town takes the position that the Applicant has failed to provide sufficient evidence in the Hearing to demonstrate that the Development Proposal meets the “Tests”, and on that basis, it is the Town’s submission that the requests ought to be denied.

70The position of the Applicant is that the Tribunal should consider granting the Permit for the Development Proposal provisionally, subject to certain conditions. The Applicant’s two proposed conditions of provisional approval of the Permit include requiring that a scoped EIS be undertaken to assess the impact of the proposed location of the boat launch on the Wetland identified on the existing Site Plan for the Subject Property (to the satisfaction of the Town), and the preparation of a technical study showing the location and construction details of the proposed boat launch route from the existing on-site parking area to the High Water Mark (“HWM”) of Fox Lake (to the satisfaction of the Town) (“Proposed Conditions”). Further, the Applicant proposes that upon fulfilment of the Proposed Conditions, the Permit be issued conditional on the development being undertaken in accordance with a Permit, including plans and drawings, and the provisions for the restoration of shoreline vegetation on site in the SAA (where structures may be removed at the Applicant’s discretion) to bring it into compliance with the maximum of 27.4 m.

71Additionally, the Applicant requested in the event the Tribunal grants the requested relief to s. 2.4.4 of the CPPBL, to increase the SAA from 23.5 m to 27.4 m, that the Applicant should be able to decide what, if any, structures be removed and/or retained to comply with the CPPBL.

Evidence, Submissions and Analysis on the Issues

72In this case, the Issues, set out in Attachment 2 to the Procedural Order governing the Hearing, relate to the statutory tests to be considered by the Tribunal in making its decision in respect of the Application, and as such, a summary of the evidence presented in the Hearing on the Issues and the Tribunal’s analysis and findings with respect to the merits of the Development Proposal in the context of the statutory tests are discussed below.

Subject Property and Development Proposal

73The Subject Property is designated “Waterfront Area” in the DOP and “Waterfront” in the TOP. It is within the “Waterfront Residential – 120 m (WR2)” precinct under the CPPBL, with a previous Zoning Exception WR2-1029 applicable. The effect of the exception is to permit a maximum lot coverage for accessory buildings of 2.5 per cent, and a minimum yard requirement from a watercourse of 30 m. The Subject Property is also subject to the Natural Constraint 1 and 2 Overlay (“Natural Constraint Overlays”) under the CPPBL, related to Sloping 20-40 per cent, T1FH, and Wetland.

74The Subject Property is a peninsula-shaped waterfront residential lot located on the northern shore of Fox Lake, having a lot frontage of approximately 120 m as measured in accordance with the CPPBL. The total lineal (chord) water frontage of the Subject Property is closer to 270 m.

75The Subject Property can be described as a fairly level lot, except for the slope down to the lake within the shoreline buffer area. There is a wetland feature along the shoreline frontage on the northern side of the peninsula, which coincides with a larger area identified as T1FH. The slopes are not as steep on the northern side of the Subject Property.

76The surrounding land uses are “Waterfront Residential”, and there is a tourist establishment (summer camp) on the other side of the lake. There are some private boat launches on other “Waterfront Residential” properties, and at the summer camp on the lake, but there is no public boat launch on Fox Lake.

77In respect of the Development Proposal:

• The Proposed Site Plan (Exhibit 1, Tab 26) illustrates the existing buildings, structures, and landscaping elements situated on the Subject Property (as were known on the date of the Application) and shows a 3.9 m wide “Proposed Cleared Area and Boat Launch” location within the 15 m shoreline buffer, and a path connecting to the driveway.
• The scope of the work and design factors associated with the Development Proposal consists of removing some vegetation, establishing a suitable grade, and laying down of a stable base, such as Granular B overtopped with finer granular such as Granular A. It is intended that the extent of the site alteration and placement of driveway material would occur within the 3.9 m wide area, to create the 3.9 m wide access path from the existing driveway to the shoreline.
• The in-water works, which consists of constructing a 3.9 m by 8 m gravel base within Fox Lake, will be subject to obtaining approvals from the MNRF in the form of a Crown Land Use Permit.
• The boat launch is proposed to be located outside of the boundary of the Wetland. The Proposed Site Plan illustrates the wetland limit as depicted on the Approved Site Plan. It is noted that one of the concerns raised in the Hearing is the validity of the boundary of the Wetland shown on the Proposed Site Plan and whether it is representative of the Wetland as it exists today or not.
• The existing structures located within the SAA, in the two areas marked in red on the Proposed Site Plan, and labelled “Portion to be Discontinued”, are proposed to be removed and re-vegetated to a natural state to offset the proposed 3.9 m wide access path in the SAA.
• The Development Proposal does not constitute a “structure”.

Planning Policy Definitions

78To set the stage for what is being requested, it is first important to understand what the terms “shoreline”, “shoreline activity area (SAA)”, and “shoreline buffer” mean.

79The “shoreline” is defined in the CPPBL as “the boundary between the water and the land, or any lot line which abuts a lake”.

80The “shoreline activity area (SAA)” is defined in the CPPBL as:

“that portion of lands within 15 m of the controlled highwater mark where the shoreline buffer is not applicable, where accessory shoreline structures such as boathouses, docks or other accessory structures such as pump houses are located, and where there is access to the water for activities such as swimming or boat launching.” [emphasis added]

81A shoreline buffer is defined in the CPPBL as:

“a natural area, adjacent to a shoreline, maintained or re-established in its natural pre-development state or improved to an acceptable standard established in a development agreement for the purpose of protecting natural habitat and water quality and minimizing the visual impact of buildings and structures on a lot.” [emphasis added]

82The Tribunal notes that the request for variation, to which the criteria of s. 1.20.1 of the CPPBL are to be applied, pertains to that portion of the Subject Property which is the 15 m back from the HWM, as opposed to that portion into the lake. As noted in the definitions, access to the water for boat launching occurs in the SAA. Additionally, one of the purposes of the shoreline buffer is to minimize the visual impact of buildings and structures on a lot, and in this case, the Development Proposal is neither a building nor a structure.

Summary of Evidence of Applicant’s Planner

83In summary, the Applicant’s planner’s opinion is that the Development Proposal is minor in terms of the scope of works as it essentially involves removing some vegetation and replacing it with a gravel pathway at a slope appropriate for launching a boat into the lake, and that the criteria for approval of the variation are met, and an EIS can be undertaken as a condition of provisional approval to address the planning policy tests. If approved, it is his opinion that it should be up to the Applicant to determine what structures/elements are removed to comply with the approved SAA width.

84The Applicant’s planner provided evidence that when the Applicant first approached the Town about the proposal for a boat launch, only a minor site plan amendment application was required, and that Town staff identified that comments from DFO were needed in order for Town staff to evaluate the appropriateness of the proposed boat launch given the presence of T1FH, and indicated that the location of the proposed boat launch would need to be located outside of the Wetland.

85It was his opinion evidence that the DFO Letter of Guidance (“DFO Letter”), issued on February 3, 2021 (not February 3, 2020 as noted on letter), confirms that the proposed boat launch, which involves constructing a 3.9 m by 8 m gravel base within Fox Lake at the terminus of the “Proposed Cleared Area and Boat Launch”, as illustrated on the Proposed Site Plan, is not seen as an issue to DFO, who are the experts when it comes to fish habitat and the potential for adverse impacts on fish and fish habitat. Further, that the DFO Letter confirms that there are no negative impacts on fish habitat expected if the recommendations therein regarding the proposed construction practices and mitigation measures for if, and when, the in-water works are undertaken, are followed.

Summary of Evidence of Town’s Planner

86The Town’s planner provided his planning opinion that there should not be an increase in the SAA on the Subject Property because the current standard of 15 m is already exceeded, and the Development Proposal does not have merit due to environmental sensitivities (Wetland and T1FH).

87He also opined that it is not possible to demonstrate that the Development Proposal will have no adverse impact on the Wetland and T1FH because there is no technical study that does so.

88Under cross-examination, he conceded that he advised Council that there was no reason to grant the requested deferral for the purposes of undertaking an EIS because Town staff could not support the increase in SAA.

Summary of Evidence of Dr. Wicks

89Given the Natural Constraint Overlays for the Wetland and T1FH, Dr. Wicks provided opinion evidence on natural heritage related issues.

90In her oral testimony, Dr. Wicks confirmed that she had not attended the Subject Property, however, she had conducted a desktop analysis, by overlaying the Proposed Site Plan with natural heritage features from ‘documentation’ such as provincial mapping, the DOP, TOP, and CPPBL schedules. The purpose of the desktop review and the resulting Figure 1 (Exhibit 1, Tab 11) is to try to understand the potential natural heritage layers or constraints to inform an EIS for the Application being considered. It is acknowledged that the features shown in Figure 1 and their limits have not been confirmed by way of field investigations and surveys, as would be typically done if an EIS was to be undertaken.

91As set out in her Witness Statement (Exhibit 1, Tab 11), it was Dr. Wicks’ opinion that in “Waterfront Residential” areas, such as that of the Subject Property, the preservation of ecological integrity can be balanced with built form by directing SAAs to be focused in a contiguous area and directed to less ecologically sensitive environmental features on the shore and in the water.

92It was her opinion that there is no supporting documentation as to how the limit of the Wetland boundary was determined, and that in the absence of an EIS that considers background information and existing site conditions in the context of the Development Proposal, it is not possible to determine if the Development Proposal is appropriately sited on the Subject Property, is located outside of sensitive environmental features, and if there will be negative impacts to the natural features and ecological functions.

93Under cross-examination, Dr. Wicks agreed that development is not precluded from occurring in T1FH. Further she agreed that a proposal for development in such an area would require a review by DFO and a qualified ecologist.

94Further, Dr. Wicks provided evidence that should an EIS be undertaken on the Subject Property, it would be appropriate for it to be a scoped EIS for a single season, with a one-day site visit, and a memo report addressing the matters under the PPS, along with recommendations. She also advised the Tribunal that the site visit would be best scheduled for the late summer.

Participant Statements

95The Participant Statements include photos of the Subject Property from Fox Lake, and characterizations thereof. The Participants’ concerns relate to the permitted/licensed short-term rental use of the Subject Property (noise, disturbance, and boating etiquette), the potential for additional motorized boat traffic on the Lake should the Proposed Development be approved, and the sensitivity of the natural areas and features on, and in the immediate vicinity of, the Subject Property (i.e., wetland and T1FH).

Issue 1 – Is the Development Proposal in Compliance with the CPPBL?

96The Tribunal notes the stated objectives of the CPPBL (Exhibit 1, Tab 8) are:

• streamlining the development approvals process;
• allowing for considerable flexibility in the application of development standards and land use permissions, providing more certainty to the pubic and interested parties on the future of land;
• establishing a comprehensive planning framework that facilitates and shapes appropriate, ecologically sound, and safe development; and
• regulating vegetation removal and site alteration as part of the development approval process to properly consider environmental protection and tree preservation where appropriate.

97Both planners agree that to issue a Permit, the Development Proposal would have to comply with the CPPBL, and that this includes the use permissions applicable to the lot and the applicable provisions (standards) in the CPPBL being met.

98The opinion of the planners differs with respect to whether the use is permitted.

99In terms of use, it is the Town’ planner’s opinion that “boat launch” is not specified as a permitted use in the WR2 Precinct, however, the WR2 Precinct does permit single detached dwellings, and that a boat launch and access lane leading to it would be treated as a shoreline use ancillary to the permitted single detached dwelling, but would only be permitted to occur on the lot subject to the applicable shoreline activity and shoreline buffer provisions of the CPPBL.

100In terms of use, it is the Applicant’ planner’s opinion that the Development Proposal requires the issuance of a Permit in accordance with the CPPBL, but that the use is not prohibited. He opines that a “boat launch” is not specifically identified in the CPPBL as a “type” of use, and that it would constitute a private boat launch, which is not out of character for cottage properties on Fox Lake. He opines that the gravel access path to facilitate the boat launch is permitted within the SAA by way of the definition of a SAA, which includes: “access to the water for activities such as swimming and boat launching”. The Applicant’s planner opines that the Development Proposal would be a permissible use, and any site alteration would constitute development and trigger the requirement for a Permit.

101With respect to use, the Tribunal agrees with both of the planners to a degree. With respect to the Applicant’s planner, the Tribunal agrees that the boat launch component is not a prohibited use, and that the boat launch is contemplated to be located within a SAA, by way of the definition. Further, the Tribunal agrees with the Town’s planner that the boat launch component is ancillary to the permitted use of the dwelling on the Subject Property, and the access path between the driveway and the shoreline can also be seen as ancillary to the permitted use. The “development” of the ancillary uses on the Subject Property requires compliance with the SAA and shoreline buffer provisions of the CPPBL.

102In terms of the form of relief, or variation, from the CPPBL required to facilitate the Development Proposal, again the opinions of the planners differ.

103It is the opinion of the Town’s planner that the Development Proposal is not in compliance with the CPPBL, and that Class 2 variations, plural, are required. He provided evidence that the Subject Property today exceeds the maximum width of all shoreline structures and SAAs permitted, which, as set out in s. 2.4.4. of the CPPBL, shall not exceed 25 per cent of the lot frontage to a maximum of 15 m. Further, while relief is required to permit an increase in the maximum SAA, as proposed, it was his opinion that the Development Proposal, in adding 3.9 m to the SAA, would bring the cumulative width to 27.4 m and would not comply with s. 2.4.4 of the CPPBL, and therefore should not be granted.

104The Town’s planner also pointed to the Natural Constraint Overlays within the CPPBL, applicable to the Subject Property, and identified the presence of mapped wetlands, steep slopes with 20 to 40 per cent grades, and T1FH. He opined that, to permit development within 30 m of natural features and areas, a variation is also required to s. 2.15.3 of the CPPBL, and that the Applicant may be required to submit a technical report to demonstrate that the Proposed Development can be appropriately accommodated. Additionally, the Town’s planner opines that any development, except a dock, shall maintain a minimum 30 m setback to the limits of any T1FH, and that in the case of the Subject Property, the entire north shoreline of the peninsula is identified as T1FH. He takes the position that the boat launch must comply with this 30 m setback and that a Class 2 variation to s. 2.15.6 of the CPPBL is required to permit the Development Proposal.

105The Applicant’s planner agrees that relief to s. 2.4.4 of the CPPBL, to permit an increase in the SAA from 23.5 m to 27.4 m is required, however, it is his opinion that, should the variation be granted, it would bring the Development Proposal into compliance with the CPPBL.

106In terms of the s. 2.15 – Natural Constraints provisions of the CPPBL, the Applicant’s planner, in his oral testimony, and as set out in the Reply Witness Statement (Exhibit 1, Tab 15) opined that relief from the s. 2.15.3 provisions would be required only for landbound structures encroaching into the 30 m of the shoreline, and would not be required for in-water works, and further, that the proposed access path and boat launch do not include any new “structures”, but rather the scope of works is more aligned with site alteration (placing of gravel). It is his opinion that a variation from s. 2.15.3 of the CPPBL is not warranted.

107The Applicant’s planner opined that in terms of the criteria for maintaining a 30 m setback to T1FH, the scope of the work for the Development Proposal, which involves some site alteration for an access path is not dissimilar to that associated with a dock, and a dock would have access to it through the vegetated shoreline buffer area, which would necessitate some form of alteration to the shoreline to connect the dock, and the dock would be in the water. It was his opinion that this 30 m setback should not be applied to the Development Proposal in the same fashion that it is not applied to a dock.

108The Tribunal notes from the evidence in the Hearing, that in accordance with s. 1.14.3 of the CPPBL, Council may vary the standards, provisions, and requirements up to 100 per cent of stated standards, subject to the criteria set out in s. 1.20.1. In other words, the CPPBL allows for the Town to have discretion in administering the CPPBL, and in adjudicating this appeal the Tribunal has similar discretion.

109Additionally, it is the Town, in administering the Community Planning Permit system in accordance with the CPPBL, that identifies the type of technical report(s) that are required to be submitted for the Town to evaluate the Application. Other than the DFO Letter, no additional technical reports were requested by the Town to process the Application and to prepare the Recommendation Report.

110The Tribunal accepts that the provisions set out in s. 2.15 – Natural Constraints of the CPPBL are applicable to Part Two of the Application. The Tribunal specifically notes ss. 2.15.2, 2.15.3, 2.15.6, and 2.15.9, which are as follows:

s. 2.15.2 Development shall generally not be permitted within natural heritage features and areas unless in accordance with applicable official plan policies or unless otherwise permitted in accordance with section 1.3 of this bylaw. [It is noted that s. 1.3 sets out the Exemptions to the issuance of a CPP].

s. 2.15.3 Notwithstanding s.2.15.2, any development proposed in or within 30 metres of Natural heritage features or areas … shall be considered a Class 2 -Staff Variation. In these cases, applicants may be required to submit a satisfactory technical report demonstrating that the proposed development can be appropriately accommodated.

s. 2.15.6 Development, save and except for a dock, shall be set back a minimum of 30 metres from the limits of any Type 1 Fish Habitat … Variations from these provisions may only be considered where site characteristics warrant and in accordance with the criteria for considering variations to Type 1 Fish Habitat as outlined in the Official Plan. A technical report must be submitted for any variation to demonstrate how the fish habitat may be protected from negative impacts despite a lesser setback.

s. 2.15.9 Within the shoreline of all water bodies, water courses and wetlands, filling, dredging and other shoreline alteration will require a community planning permit and may only be permitted if all adverse impacts have been addressed, and any required approvals have been obtained from the relevant approval authorities. [emphasis added]

111In considering the above provisions and the evidence in the Hearing, the Tribunal finds that the provisions of the CPPBL do allow for development within natural features and areas if in accordance with applicable official plan policies, or if permitted by way of an exemption under s. 1.3 of the CPPBL. Both planners opined that the exemptions of s. 1.3 of the CPPBL do not apply to Part Two of the Application.

112Also, in accordance with s. 2.15.3 of the CPPBL, development may be permitted in or within 30 m of natural features or areas (in this case the Wetland), subject to a Class 2 variation, and that a technical report demonstrating that the Proposed Development can be appropriately accommodated may be required to evaluate the variation.

113The Town did not flag the s.2.15.3 provision as something from which relief is required previously – neither when the original applications for Site Plan Agreement and Minor Variance (“MV”) were transitioned to an application under the CPPBL, nor before preparing the Recommendation Report to Council for its decision. The idea that an additional variation is required is being introduced in the context of the Hearing on the appeal of the Application.

114In addition, there was no identification by the Town of a requirement to undertake an additional technical report, to demonstrate that the Proposed Development can be appropriately accommodated within a 30 m setback of T1FH, and, it too is being introduced in the context of this Hearing.

115The Tribunal finds that although the CPPBL provides for flexibility and discretion in the manner that it may be administered, the Tribunal, in applying a plain reading of the provisions of the CPPBL and in consideration of the opinion evidence of the planners, finds that the provisions of the CPPBL do allow for shoreline alterations for lakes and wetlands. Where all adverse impacts are addressed, approvals are obtained from other relevant approval authorities (in this case the MNRF), and a Class 2 Permit is issued, and that the necessary variations to facilitate the Development Proposal only include the relief to s. 2.4.4, as set out in the Application.

116The Tribunal prefers the opinion evidence of the Applicant’s planner that the proposed access path and boat launch do not include any new ‘structures’ and are more aligned with site alteration (placing of gravel) and vegetation removal, not dissimilar in nature to that which would be associated with the installation of a dock, for which there is an exception from the 30 m setback to T1FH.

117The Tribunal notes that with respect to s. 2.15.6, this provision allows for a variation to the 30 m setback between “development” and T1FH where site characteristics warrant, and the criteria for considering such a variation is in accordance with the policies of the TOP, and in this context a technical report must be submitted to demonstrate how the fish habitat may be protected from negative impacts despite a lesser setback. Despite much debate and evidence in the Hearing as to what information DFO was provided with for their review and upon which they provided the DFO Letter, the Tribunal finds that a letter of guidance and the recommendations of DFO satisfactorily address the CPPBL requirement for a technical report in relation to the protection of T1FH from adverse impacts. The Applicant’s planner conceded in the Hearing that the information provided at the time of the request to DFO, including the Proposed Site Plan, has changed, and that a request to DFO for a re-review based on the revised plan(s) is in order.

118The Tribunal prefers the opinion evidence of the Applicant’s planner in regard to ss. 2.15.3 and 2.15.6 and agrees that variations under the CPPBL are not necessary to allow the Development Proposal located within 30 m of the Wetland and T1FH. To clarify, a Permit is required to allow the Proposed Development.

119In terms of compliance with the CPPBL, the Tribunal finds that the proposed boat launch is not a prohibited use on the Subject Property, and that it would be permitted subject to the approval of the necessary variation(s) to the CPPBL (in this case to s. 2.4.4), and the issuance of a Permit to carry out the site alterations and vegetation removal on the Subject Property. The Tribunal is of the view that, in such an event, this should be subject to obtaining an updated letter from DFO.

Issue 2 – Does the Development Proposal, including requested variations, satisfy criteria for evaluating variations contained within the CPPBL, ss. 1.20.1 a) – g)?

120The seven-part test set out in s. 1.20.1 of the CPPBL must be satisfied to approve the requested variation(s). Additionally, it must be demonstrated that the Development Proposal meets all the criteria, and creates no adverse impact, or includes measures to be implemented to avoid or mitigate the adverse impact, prior to approval and issuance of the Permit.

Test 1: Is the Development Proposal appropriate for the Subject Property?

121It was the opinion evidence of the Town’s planner that the Development Proposal is not appropriate because the Subject Property is highly constrained, the SAA standard is already exceeded, there has been unauthorized development activity within setbacks and the shoreline buffer, and there is no proper justification for the Development Proposal and the increase in SAA. The Town’s planner also opined that it would be more appropriate for any further development on the Subject Property to adhere to, and comply with, the setbacks, shoreline buffer, and SAA standards in the CPPBL. The Town’s planner also opined that the Development Proposal is not justified and that a more appropriate location would be on the southern shoreline of the peninsula, which coincides with the existing SAA, which in his opinion is less constrained and previously disturbed, despite there being constraints related to the steep and rocky slopes that may make the Development Proposal cost prohibitive.

122It was the opinion evidence of the Applicant’s planner that the SAA is a function of the shoreline frontage, in that a maximum of 25 per cent of the by-law frontage of a property, where the land meets the water, can be used, except for a lot with over 60 m in frontage is capped at 15 m. He suggests that, in this case, there should be some consideration as to how the provision of the CPPBL translates to the Subject Property, which has significantly more frontage, particularly given the peninsula shape of the Subject Property, which has a chord or lineal frontage of closer to 270 m. It was his opinion that from a visual impact perspective that a person can not see all the development and activity on the Subject Property unless looking at it directly given its peninsula shape, and that a person can see one side of the shoreline, or the other. It was also his opinion that the Development Proposal does not include a building or structure and that it is the equivalent of a pathway to the shoreline (no different than a pathway to a dock). Further, it was his opinion evidence that if the decision of the Tribunal is to grant permission, it will be up to the MNRF to determine whether the in-water works are problematic and if the boat launch can proceed.

123The Tribunal agrees with the opinion evidence of the Applicant’s planner that the nature of the development is not complex, in that it entails removing some vegetation and installing some gravel to create a pathway to the water, as well as a stable gravel bed in the water, and that it needs to be located such that it is feasible to connect directly to the driveway and for the slope to be at a grade appropriate for backing a trailer for a boat (or other personal watercraft) down into the water for entry and exit of the boat or other watercraft.

124The Tribunal accepts the evidence in the Hearing that steep slopes are a constraint on the Subject Property for the launching of a boat, and there are limited locations that could accommodate an appropriate grade for such a launch. The Tribunal prefers the opinion evidence of the Applicant’s planner that steep slopes being a constraint, that site alteration to accommodate a launch in the vicinity of the southern part of the peninsula would be more impactful visually and physically and should be avoided when determining the most appropriate location for the Development Proposal.

125Based on the evidence in the Hearing, the Tribunal finds that the visual impact of the Development Proposal will be minor, particularly given the lineal frontage of the Subject Property, that it would only be visible from one side of the peninsula, and that as shown in the photos in Exhibit 1, the vegetation along the shoreline frontage of the Subject Property includes trees, but it is not deeply forested. The Tribunal also finds that 2 m wide pathways are commonly found in the SAA, and in this case, it is proposed to be a gravel path which the Tribunal presumes will be permeable to allow rainfall to permeate into the ground.

Test 2: Does the Development Proposal take into account the unique characteristics of the Subject Property?

126It was the opinion evidence of the Town’s planner that the peninsula itself protruding into the lake is a unique characteristic, and that there are sensitive natural shoreline features located along the northern side, with steep slopes dominating its southern side, and that while this has been considered to some extent, the feasibility of the boat launch has not been in light of provincial and municipal planning policies.

127It was the opinion evidence of the Applicant’s planner that the Subject Property is appropriate to have additional SAA width due to its two-fold exposure to the lake and over 260 m of shoreline frontage, and that the SAAs are spaced apart and the areas in between are maintained in their natural state, whereby approximately 90 per cent of the frontage is intact natural buffer, 15 m in depth. Additionally, portions of the existing structures are proposed to be removed to offset the additional amenity width.

128The Tribunal notes that a typical WR2 Precinct lot would have a minimum lot frontage of 120 m, and the Subject Property is unique in that the lineal water frontage is over 260 m.

129The Tribunal prefers the opinion evidence of the Applicant’s planner that the Development Proposal does take into account the unique characteristics of the Subject Property in terms of the location for the access path relative to the steep slopes and minimizing visual impact, and given that the intention is for the development to be located outside of the Wetland, and that it is subject to DFO guidance with respect to fish habitat.

130The Tribunal finds that consistency with the provincial planning policies and conformity with municipal planning policies are separate tests #6 and #7.

Test 3: Does the Development Proposal identify potential off-site and adverse impacts and mitigate them where appropriate?

131The Tribunal is cognizant that the Subject Property is a waterfront residential lot in a Registered Plan of Subdivision and the “development” to be evaluated against the criteria in this test is whether the Development Proposal (as defined) would potentially have an adverse impact on the Subject Property, the adjacent Wetland, and T1FH.

132There is a difference of opinion as to whether the DFO Letter is legitimate to satisfy this test with respect to potential impacts on T1FH. However, the District’s comments on the Application indicated that to address the matter of the T1FH along the frontage of the Subject Property in the general vicinity of the proposed boat launch, the Applicant has submitted the DFO Letter, which concludes that, provided the recommendations contained in the DFO Letter are implemented, the Development Proposal will not likely result in a contravention of the Fisheries Act or Species at Risk Act, and that appropriate development control techniques should be used to implement these recommendations.

133Based on the evidence in the Hearing, the Tribunal finds that DFO has the expertise and jurisdiction with respect to T1FH, and the Tribunal is satisfied this test is met where DFO provides a letter that does not indicate a prohibition to undertaking works within the lake, and instead sets out directives for how proposed works and mitigation measures are to be implemented.

134With respect to the Wetland, the Development Proposal has been proposed to be outside of the Wetland, and the Tribunal keeps this in mind in its evaluation of the Application. The District’s comments on the Application dated April 6, 2023 (Exhibit 2, Tab 24), recommended a deferral of the Application pending the submission of an EIS being undertaken to look at the location of the proposed boat launch and determine that there will be no negative impacts on the natural features or their ecological functions (i.e., wetland). The Parties acknowledge that an EIS has not been undertaken and agree that such a technical study is necessary.

Test 4: Is the Development Proposal compatible with the surrounding land uses and waterfront character?

135It was the opinion evidence of the Town’s planner that the Development Proposal is not compatible with the adjacent Wetland and T1FH.

136It was the opinion evidence of the Applicant’s planner that boat launches, on private property, are in keeping with the character of waterfront properties, and are not uncommon on Fox Lake.

137Keeping in mind that the Development Proposal is in essence, the removal of some vegetation and placing of gravel to create an access path between the driveway and the shoreline situated on the Subject Property, the Tribunal prefers the evidence of the Applicant’s planner. It is inconceivable to the Tribunal that this would be seen as not compatible on a waterfront residential lot, particularly when pathways are precisely allowed for in the SAA.

138The Tribunal finds that the concerns related to in-water works is not a matter of (land use) compatibility, but rather, more appropriately a matter of potential impact (as addressed by way of test #3).

Test 5: Is the Development Proposal consistent with any applicable urban design guidelines?

139As there are no applicable urban design guidelines, it was the evidence of both planners that the Development Proposal satisfies this test.

Test 6: Is the Development Proposed in conformity with the TOP and DOP?

140Please refer to the Conformity with TOP and DOP sections of this Decision that follow.

Test 7: Is the Development Proposal consistent with the PPS?

141Please refer to the Consistency with the PPS section of this Decision that follow.

Issue 3 – Can the Applicant demonstrate that the Development Proposal will meet all applicable criteria contained in s. 1.20.1 of the CPPBL and appropriately address adverse impacts as required by s. 1.20.2 of the CPPBL?

142Based on the evidence in the Hearing, the Tribunal finds that the Development Proposal can meet the criteria of s. 1.20.1, provided that conditions of provisional approval are fulfilled, and provided that any recommended mitigation measures are implemented to address adverse impacts.

Issue 4 – Is the Development Proposal in conformity with the TOP (ss. B1.2, B2, B3, and C7.11-C7.2.19)?

143The Subject Property is designated “Waterfront” in the TOP.

144It is the Town’s planner’s evidence that this designation describes the shoreline communities located around lakes and rivers in the Town, and which are comprised of low-density residential development interspersed with resort commercial uses, and private camps, along with other uses that have developed due to the excellent recreational opportunities and aesthetic values offered by these waterbodies.

145It is the evidence of the Town’s planner that Part B of the TOP contains policies that speak to protecting natural heritage and the environment, and generally direct development away from natural heritage features and hazards that are unsuitable for development, and that the Development Proposal does not conform to the TOP.

146With respect to the Wetland, it is the Town’s planner’s evidence that policies in s. B1.2 of the TOP provide for all wetlands to be protected from development and that policy B2.2.5 provides that the Town may require that wetlands be evaluated to determine their significance, but regardless of whether they have been evaluated to determine if they are provincially significant or not, only certain compatible uses may occur within them (providing that a technical report demonstrates that there will be no negative impacts on a wetland and its ecological functions). It is his opinion that a boat launch is not listed as one of these uses.

147Also, it was the Town’s planner’s evidence that policy B2.2.9 permits limited compatible development adjacent to wetlands where the lot is large enough to accommodate suitable development outside of a wetland, and measures must be implemented to protect a wetland from site alteration, removal of vegetation or alteration of drainage, and development setbacks. The Town’s planner takes issue with the Wetland boundary shown on the Proposed Site Plan, that is based on the Approved Site Plan, as it originates from a 1998 site plan, and it is his observation from a site visit that it may no longer reflect the limits of the Wetland on the Subject Property today. He opines that it is not possible to confirm if the Development Proposal conforms to the TOP wetland policies because there is no evaluation of potential negative impacts provided and there is uncertainty about the location of the Wetland and extent of site alteration of the Subject Property. The Town’s planner’s evidence is that policy B2.2.10 sets out that where development is proposed within 30 m or less of a wetland, a technical report may be required to ensure that the integrity of the wetland is preserved, identify how the development can be appropriately accommodated, and identify any mitigation measures. Alternatively, a 30 m buffer is recommended as a precautionary mitigation measure to ensure wetlands are adequately protected.

148With respect to fish habitat, it is the Town’s planner’s evidence that the TOP policies set out that development and site alteration will only be permitted in fish habitat in accordance with provincial and federal requirements. The Town’s planner takes issue with whether the DFO Letter can be relied upon to demonstrate conformity with this TOP policy, and whether the MNRF would approve the in-water works. He also opines that the Application does not address policy B3.1.8, which sets out that works extending beyond the normal controlled HWM, or located at the shoreline, will need to be designed and located in a manner which addresses fish habitat, wildlife habitat, and natural landscape.

149With respect to the character of the “Waterfront” designation, it is the Town’s planner’s evidence that to maintain an appropriate balance between ecological integrity and function of a natural shoreline and built form, the policies of s. C.7.2.13 specify that SAAs should generally be focused in defined contiguous areas of the shoreline frontage of a lot, limited in extent, occupying only 25 per cent of the shoreline frontage, or up to 15 m, whichever is less. In this case, it is his opinion that the SAA is spread out throughout the shoreline buffer, and exceeds the target by an additional 8.5 m, and that the Development Proposal would increase it by a further 3 m, thereby exceeding the target by 12.4 m and establishing a distinct activity area. He also opines that the proposed location is contrary to policy C7.2.13 d) that SAAs should be directed to less ecologically sensitive reaches of the shoreline.

150With respect to proposed changes to the SAA target, it is the Town’s planner’s evidence that policy C7.2.14 sets out that such changes may only be considered where site characteristics warrant and is subject to the submission of a technical report satisfactory to the Town that outlines how the natural shoreline features and buffers are protected or enhanced on a site.

151The Applicant’s planner’s opinion evidence with respect to the wetland policies is that policy B2.2.5 and B 2.2.6 set out that, prior to a development proposal being approved, the Town may require that a wetland be evaluated to determine its significance, and the wetland size and boundary be defined by way of a site inspection or wetland assessment, and that prior to the Hearing, the Town had not deemed that such were necessary. Further, it is his opinion evidence that the Town at no point, prior to the Hearing, requested that a technical study, as contemplated in policy B2.2.10, be undertaken. It is also his opinion that the Town retains the authority to require specific design or mitigation measures as a condition of a Permit.

152The Applicant’s planner’s opinion evidence with respect to fish habitat is that the DFO Letter addresses the federal requirements and confirms that no negative impacts are anticipated to arise from the in-water works, and that the MNRF Land Use Permit system can be used to determine if any additional mitigation measures are deemed appropriate, thereby addressing the provincial requirement. He defended the validity of the DFO review and opined that both fish habitat and species at risk occurrence were reviewed by DFO, and that the methodology used by DFO’s trained, specialized biologists, and their findings, should be relied upon.

153The Applicant’s planner’s opinion with respect to the character of the Waterfront and the policies of s. C 7.2.13, is that policy language “should generally” imply the existence of circumstances where alternative development standards can be appropriate. He opines that, in this case, the Subject Property retains 90 per cent of its frontage in a natural state (with the requested variation approved), and the Development Proposal cannot be located abutting existing SAA due to site constraints (i.e., steep slopes), and that the intent of the TOP policies to ensure the natural environment prevails along the shoreline is maintained. Further, he points out that policy C.7.2.13 d) sets out that shoreline activity “should” be directed to less sensitive areas, and due to the constraints, the proposed location is the most appropriate, despite it being situated in sensitive fish habitat, but that in light of the DFO’s confirmation that development can proceed with no negative impacts to fish or their habitat, subject to the recommended mitigation measures, it is fine in this instance.

154The Applicant’s planner’s evidence with respect to the proposed change to the SAA is that a Planning Justification Report was provided, and that no other technical reports were requested by the Town.

155The Tribunal finds that the policies of the TOP do allow for an increase in the maximum SAA where justification exists. The Tribunal also finds that despite the TOP policies and the Town’s planner’s opinion evidence in the Hearing, the Town only now raises that a technical study is required for development within 30 m of the Wetland and to ‘justify’ a change to the maximum SAA.

156The Tribunal prefers the opinion evidence of the Applicant’s planner with respect to the validity of a DFO Letter to satisfy the federal requirement and a future MNRF Land Use Permit to satisfy the provincial requirements.

157The Tribunal also prefers the opinion evidence of the Applicant’s planner that there is merit in considering an increase to the maximum SAA on the Subject Property given its larger shoreline frontage, the peninsula configuration, and physical constraints, particularly in light of the Development Proposal essentially being a pathway to the shoreline only used on occasion for launch purposes. There is no structure involved, and given safety reasons, it is fair to assume that the activity of launching would generally be during the daylight hours. It is anticipated and expected by the Tribunal that no lighting would be provided in the area of the clearing and access path.

158The Tribunal finds that further technical report(s), as called for in the TOP, can be a condition of provisional approval.

Issue 5 – Is the Development Proposal in conformity with DOP (ss. C1 and C2)?

159It is the Town’s planner’s opinion that the Development Proposal does not conform to the DOP. As set out in his Witness Statement, it is the opinion of the Town’s planner that policy C1.4.5 of the DOP indicates that T1FH should be treated as an area of concern, and habitat may have to be verified by a qualified specialist before approval of development is granted adjacent to such habitat. However, he acknowledges that development may be exempt from this requirement, provided it is not a major development, satisfies provincial and federal requirements, or has been authorized by the approval authority. He does agree that the Development Proposal is not considered “major” in the context of the DOP policies. However, his opinion is that there is no evidence that the MNRF has provided their authorization in relation to the proposed in-water works.

160The Applicant’s planner is of the opinion that the Development Proposal does not constitute major development as it is a passive use, similar to a path or driveway, and that federal requirements under the Fisheries Act are satisfied by way of a DFO review and the direction provided in the DFO Letter. Additionally, he notes that the MNRF has not yet been consulted, but that a Crown Land Use Permit is intended to be pursued once it is determined that the anticipated scope of work can proceed, which is dependent upon the variation(s) being approved.

161The District has not advised that the Proposed Development does not conform to the DOP, but rather, has recommended that an EIS be undertaken to look at the location of the proposed boat launch and determine that there will be no negative impacts on the natural features or their ecological functions, and further, that appropriate development control techniques should be used so that the recommendations of DFO are implemented.

162The Tribunal relies on the District’s letter and accepts the opinion evidence of the Applicant’s planner, and finds that there is no issue of DOP conformity.

163In the Tribunal’s experience with these types of matters, it may be, and would not be uncommon, for the MNRF to require evidence that the local municipality is in support of the Development Proposal as part of its consideration of an application for a permit for the in-water works.

Issue 6 – Is the Development Proposal consistent with PPS?

164For context, the s. 2.1 Natural Heritage policies of the PPS call for natural features and areas to be protected for the long-term, and development or site alteration is not permitted within significant wetlands (as defined in the PPS), and development and site alteration is not permitted in fish habitat except in accordance with provincial and federal requirements. Additionally, as set out in policy 2.2.2 of the PPS, development and site alteration shall be restricted in or near sensitive water features, and ground water features, such as wetland, and that mitigative measures and/or alternative development approaches may be required to protect, improve or restore the features and their functions.

165It is the Town’s planner’s opinion that the policies of the DOP and TOP, and the CPPBL provisions related to shoreline buffer protection and maximum SAA implement the noted PPS policies. In his opinion, the Applicant has not shown that the natural features and functions will be appropriately protected, and the Development Proposal will not uphold the shoreline provisions.

166The Applicant’s planner’s opinion is that policy 2.1.4 of the PPS applies to provincially significant wetland identified by the Province of Ontario (“Province”), and that in this case, the wetland is locally designated, and that the DFO Letter addresses policy 2.1.6 of the PPS. With respect to policy 2.2.2 of the PPS, he opines that the gravel boat launch would not impede the flow or quality of water in the area if appropriate mitigation measures are implemented. He also opines that the mitigation is appropriate for the handling of machinery, sediment control, and restoration measures of what is a small-scale facility, and one that will not likely have any impact on fish habitat. He relies on the DFO Letter with respect to the specific appropriate measures to be implemented.

167The Tribunal finds that policy 2.1.6 of the PPS is clear that any development or site alteration cannot occur in fish habitat (Type 1 or otherwise) without meeting provincial and federal requirements, and that those requirements are best identified by way of the MNRF and DFO, respectively. As such, a Permit for the Development Proposal cannot be issued without obtaining any and all necessary permits/approvals from those agencies.

Issue 7 – Does the Proposed Development demonstrate proper regard for matters of provincial interest in [s. 2](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec2_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html), particularly a), c), e) and n)?

168The Town’s planner’s opinion is that relevant matters of provincial interest applicable in the consideration of the Application include ss. 2 a), c), e) and n), and in his opinion, proper regard has not been demonstrated.

169The Applicant’s planner’s opinion is that s. 2 a) is most relevant in this case and that the Development Proposal, being essentially a gravel path, is not significant at a provincial scale, and that it will not have a negative impact on the natural areas. He disagrees that conservation of natural and mineral resources and the supply, efficient uses, and conservation of energy and water are relevant to the Application. He opines that the Tribunal is an extension of the Province’s interest in resolving land use conflicts.

170The Tribunal agrees that s. 2 a), which calls for the protection of ecological systems, including natural areas, features, and functions is most relevant. The Tribunal is satisfied that this test is met by imposing a condition of provisional approval, requiring a technical study to be prepared in accordance with the applicable policies of the DOP and TOP, to confirm no adverse impact on the natural areas, features, and functions (in this case the Wetland, as well as a condition requiring the approval of DFO in relation to T1FH for approval and issuance of the Permit. Additionally, the Permit would be subject to a condition that a Crown Land Use Permit be issued by the MNRF prior to commencing the development.

Issue 8 – Does the Development Proposal represent good planning and is it in the public interest?

171It is the Town’s planner’s opinion that “good planning ensures that the Proposed Development is compatible with the surrounding area, protects the environment, and maintains the general character of the surrounding lands and waterfront character” and “is also based on sound scientific investigations and evidence contained in supporting technical documentation, as well as agency support and approvals, and community engagement”, and that the Development Proposal does not do any of these things.

172It is the Applicant’s planner‘s opinion that the Development Proposal represents good planning, in that it is only a minor increase in the CPPBL standard, that the use is permitted, and further, that there is nothing in the Development Proposal that runs contrary to the public interest because any impact can be offset with removal of non-complying structures (to comply with the permitted maximum SAA), restoration of areas, and the in-water portion can be dealt with through an amendment to the Approved Site Plan based on a MNRF permit (including any identified mitigation requirements).

Tribunal’s Findings on Part Two of the Application

173The Tribunal is mandated to consider the evidence before it in the Hearing and to determine whether the statutory tests are met or not.

Context

174To clarify, the requested relief or variation applies to that portion of the Subject Property, which is the 15 m setback from the HWM (shoreline buffer), as opposed to that portion into the lake. The requested Permit applies to the Development Proposal, which includes the creation of an access path from the driveway to the high-water mark of the lake and the boat launch on the Subject Property. The in-water works are regulated federally and provincially, and separate approvals and permits are required for those works.

175The Development Proposal is not uncommon on “Waterfront Residential” properties in the District. As discussed previously in this Decision, the use associated with the development that would be allowed, should the Permit be issued, is for access to the water for boat launching, and it has been established previously in this Decision, that this use is commonly found and permitted in the SAA. The access would be a pathway up to 3.9 m in width, and the CPPBL allows for a pedestrian path of up to 2 m in width in the SAA. It has also been established that one of the purposes of the shoreline buffer is to minimize the visual impact of buildings and structures on a lot. However, in this case the Development Proposal is neither a building nor a structure. The other purpose of the shoreline buffer is to protect natural habitat and water quality.

Participant Concerns

176The Tribunal is sympathetic to the concerns expressed by the Participants with respect to nuisances associated with a short-term rental use of the Subject Property, however, the Tribunal is satisfied from the evidence in the Hearing that the short-term rental use is a licensed permitted use by the Town, and the Development Proposal is not for an expansion of the number of beds for accommodation that could result in increased traffic, or demands on water and wastewater infrastructure, or loss of privacy for adjacent properties.

177The Development Proposal rather is to create a gravel path at a slope appropriate to facilitate the movements of a trailer down into and out of the lake, and there is no doubt that there will be impacts, physical or otherwise, to the natural features and areas, if only short-term in nature, that must be considered.

178While there is no public boat launch on Fox Lake, there are other cottage properties that enjoy a private boat launch, and while not known for certain, it is possible some of those other properties could be used for short-term rental. There is no reason that the owner of the Subject Property should not have the same opportunity to launch a boat or personal watercraft as other owners with properties on the lake, if all requisite approvals can be obtained.

179The Tribunal notes that at present, there is an ability to carry and launch a non-motorized boat or personal watercraft, such as a canoe, kayak, or paddleboard from the Subject Property, most likely from the vicinity of the existing dock. There may also be no impediment that would preclude the ability to carry and launch a small aluminum boat with a smaller horsepower engine from the Subject Property.

180The question to be considered is whether a private launch is feasible for the Subject Property given its physical attributes and applicable land use planning considerations, which are covered by way of the statutory tests.

Physical Attributes

181Based on the evidence in the Hearing, the Tribunal accepts that due to the topography of the Subject Property, including the steep slopes, the only location for the Development Proposal would be the northern side of the peninsula.

182The Subject Property is well vegetated with trees, shrubs, and groundcover, and this is particularly so for the northern side of the peninsula.

183The Tribunal finds that the removal of some vegetation to be replaced with a gravel pathway in the shoreline buffer would not unduly impact the visual aesthetic of the Subject Property or the view thereof by the neighbours or from the lake.

Regard pursuant to [ss. 2.1(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec2.1subsec1_smooth) and [(2)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec2.1subsec2_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) – Council’s Decision

184In making its decision, the Tribunal has had regard for the information/materials that Council considered, and the decision that Council made in respect of Part Two of the Application.

185The Tribunal accepts the evidence in the Hearing that finds that the Town did not follow the typical Community Planning Permit Review Process, as outlined in the CPPBL, and illustrated on Figure 2 thereto. As a first step, the Town is to prepare a checklist and determine if additional plans and/or studies are required to evaluate an application, and that the extent of issues to be addressed within individual technical reports, impact assessment, or site evaluation studies are to also be established in advance of the Town circulating and giving public notification of the application. In this case, the Town was in receipt of the Planning Justification Report and the DFO Letter, but that no additional technical reports in support of the Application were requested. In the typical process, circulation comments of agencies, such as the District, can also trigger the identification of additional technical studies to be undertaken to either assess the Application or be recommended to be conditions of approval. In this case, the Town prepared the Recommendation Report in advance of the receipt of the District’s comments, and the Application came to Council for its decision.

186Council had a Recommendation Report outlining concerns with the Application and several objections to the Development Proposal before it, including those concerns related to environmental sensitivities of the Wetland, as elaborated upon in the Participant Statements. The Tribunal heard opinion evidence that the Council was informed, at the April 12, 2023 meeting, of the District’s recommendation for an EIS to be undertaken, and consideration of the Application to be deferred.

187In the Tribunal’s view, Council had sufficient information before it for its decision on the Application to be deferred. This would have afforded the Applicant the opportunity to undertake an EIS (as the Applicant had agreed to do), thereby seeking more information and answers to the concerns regarding the environmental sensitivities of the Subject Property and surrounding natural heritage features (i.e., wetland), and allowing an opportunity for the Applicant to work to address the concerns raised by Town staff. However, in fairness to Council, the evidence in the Hearing was that the Town’s planner did not support the need for a deferral, as he did not support any increase in SAA.

188The Tribunal agrees with the opinion evidence of Dr. Wicks, and is of the opinion that it would have been better for an EIS to have been undertaken prior to Council making its decision on the Application. Doing so could have provided clear answers related to the merits of the Development Proposal and perhaps would have distilled some of the concerns with respect to the impact on natural features and areas.

189Nevertheless, s. 1.17 of the CPPBL allows that an application can be provisionally approved with conditions, such as the preparation of plans and technical studies discussed in this Decision, and with conditions for additional permits (approvals) that may need to be obtained from other agencies. On this basis, the Tribunal finds that the Application can be provisionally approved with a condition to undertake an EIS, should the Tribunal be satisfied that the statutory tests are met.

Regard pursuant to [s. 2](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec2_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) – Matters of Provincial Interest

190The Tribunal has had regard to matters of provincial interest in s. 2 of the Act and is satisfied based on the evidence in the Hearing that the scope of the works associated with the Development Proposal are small in scale and localized. Further, that matters of provincial interest are sufficiently addressed by way of the policies of the PPS, DOP, and TOP that are applied in evaluating the Application, and in this case the Tribunal is satisfied that conditions for the implementation of the recommendations of an EIS and for approvals and permits from DFO and the MNRF are appropriate.

Consistency with the PPS (2020)

191The Tribunal finds that the Application is not inconsistent with the PPS, based on the evidence in the Hearing, in that the Development Proposal is intended to be outside of the Wetland (despite it not being designated as a significant wetland), development is not precluded from occurring in T1FH, and by way of condition, will be required to meet DFO and MNRF requirements. In this case, a condition for the implementation of the recommendations of an EIS should be implemented.

Conformity with the DOP

192The Tribunal is satisfied that there is no issue of conformity with the DOP based on the evidence in the Hearing and by virtue of the comments on the Application by the District.

Conformity with the TOP

193The Tribunal finds that the policies of the TOP do permit limited compatible development adjacent to wetlands, where measures are implemented to protect a wetland from site alteration, removal of vegetation, or alteration of drainage and development setbacks, and the Tribunal is satisfied that by way of condition of approval, the EIS will serve as the appropriate technical study in keeping with the policies of the TOP related to the protection of wetland and natural shoreline features and buffers.

194As noted in the Decision, DFO is the authority with respect to fish habitat and the Tribunal is satisfied that DFO in its review, upon the re-submission of a revised Proposed Site Plan that implements the findings and recommendations of the EIS, will determine what, if any, works may be permitted in the lake in the vicinity of T1FH.

195The policies of the TOP also allow for an increase in maximum SAA where justification is provided, and site characteristics warrant. The Tribunal accepts the Applicant’s evidence and is satisfied that an increase of 3.9 m in width on a lot within excess of 120 m would not be out of character with the waterfront character of Fox Lake.

Compliance with the CPPBL

196In considering whether to approve and issue a Permit under the CPPBL, the Tribunal has looked at the provisions of the CPPBL.

197In s. 1.14.4 of the CPPBL, the Tribunal notes that the language in the provision is “may” be denied, not “shall” be denied, where the criteria for variations set out in ss. 1.20.1 and 1.20.2 of the CPPBL are not met, and an application is not in conformity with the TOP. Hence, it is the Tribunal’s view it has “discretion in arriving at its opinion”, not only on whether the criteria are met and whether there is conformity with the TOP, but also whether to approve an application or not.

198In accordance with s. 1.20.2 of the CPPBL, when applying the s. 1.20.1 criteria, the applicant is required to demonstrate that a development proposal meets all applicable criteria and creates no adverse impact or includes measures to be implemented to avoid or mitigate the adverse impact, prior to the approval and issuance of the Permit. As discussed previously in this Decision, the CPPBL allows for provisional approval, or approval in principle subject to conditions. A technical report, such as an EIS, would be a reasonable condition in this case because the District recommended it. Both the Town’s planner and the Town’s biologist gave opinion evidence that such a technical study is required, and the Applicant’s planner gave evidence that the Applicant agrees to do it. Should the Applicant fail to provide an EIS that demonstrates that the development would not create an adverse impact for which certain measures could not be implemented to mitigate the impact satisfactorily, the condition would not be fulfilled, and the Permit would not be approved and issued.

199Based on the evidence in the Hearing, the Tribunal is of the view that the opinions of the Town’s planner was clouded by concerns related to the development (buildings, structures, landscaping) that had been carried out in the past on the Subject Property and how those were viewed in the context of the new (current) planning policy, namely the provisions and standards in the CPPBL. The Town’s planner formed his opinion that the Subject Property was not in compliance with the CPPBL and that he could not support any relief from the maximum SAA, nor any additional development on the Subject Property, and he did not deviate from this in the Hearing.

200The Tribunal is of the view that the consideration of the merits of Part Two of the Application is separate from the consideration of the merits of Part One of the Application. This is not to say that in the context of the requested relief (variation(s)) that existing structures and elements are not included in the calculation of the SAA.

201The Tribunal finds that in this Hearing, there was no evidence that the Development Proposal will cause an adverse impact, including on any of the Wetland, steep slopes, or T1FH. Rather, the evidence in the Hearing supports a finding that a technical study be prepared to confirm that there will not be an adverse impact on the natural features and areas, in this case the Wetland and T1FH, and to determine what, if any, mitigation measures should be implemented.

202The Tribunal finds that there is relief required in the form of the variation(s) to be able to comply with the CPPBL, and the criteria set out in s. 1.20.1 of the CPPBL must be met (tests #1-7). The Tribunal prefers the evidence of the Applicant’s planner with respect to the merits of the variation to increase the maximum SAA and finds that the increase from 23.5 m to 27.4 m is supportable, and based on the reasons set out above, the Tribunal finds that on balance the criteria can be met.

203The Tribunal agrees that the Applicant should be able to decide which structures and elements to count towards the maximum permitted SAA on the Subject Property, based on the same principle set out in this Decision pertaining to Part One of the Application.

Good Planning

204Process is an important component of good planning. In this case, the Tribunal finds that the evidence in the Hearing leans heavily towards the approval of Part Two of the Application for the Development Proposal. However, there are some unknowns to be addressed in respect of technical details and potential mitigation measures, and for which the imposition of conditions is appropriate.

205As set out in s. 1.17 of the CPPBL, provisional approval may be granted if the Tribunal is satisfied that the Application may proceed subject to the fulfilment of any condition(s) that the Tribunal deems appropriate, and that the condition(s) are to be fulfilled within one (1) year of the provisional approval being granted. An extension to this timeline may be given upon request, in one-year intervals to a maximum of four intervals. Ultimate issuance of the Permit is not guaranteed (if the condition(s) cannot be fulfilled).

206The Tribunal is satisfied that, should the condition(s) be fulfilled, the resulting development will represent good planning and the public interest will be served.

CONCLUSIONS

207In conclusion, the Tribunal finds that there is not a direct correlation between Parts One and Two of the Application, and that they should not be dependent upon one another in terms of final approval and issuance of a Permit.

208Based on the evidence and submissions of the Parties in the Hearing, the Tribunal is satisfied that Part One of the Application has regard for matters of provincial interest in s. 2 of the Act, is consistent with the PPS, conforms with the DOP and TOP, complies with the CPPBL, and represents good planning. For the reasons set out in this Decision, the Tribunal finds that no condition(s) of approval are necessary, and that the Permit can be issued, without condition, by the Town.

209Based on the totality of the evidence and submissions in the Hearing, and having had regard to the decision of Council, the Tribunal is satisfied that the criteria under s. 1.20.1 of the CPPBL for the variation(s) are met, subject to a condition requiring the preparation and submission of an EIS in accordance with the directions set out in this Decision. Further, the Tribunal finds that Part Two of the Application for the Development Proposal has regard for matters of provincial interest in s. 2 of the Act, is consistent with the PPS, conforms with the DOP and TOP, complies with the CPPBL, and represents good planning, based on the satisfaction of the conditions of provisional approval.

210With respect to Part Two of the Application, as noted in the Decision, one of the concerns raised in the Hearing is the validity of the boundary of the Wetland shown on the Proposed Site Plan, and the Application is predicated on the location of the Proposed Development being outside of the Wetland. The Tribunal finds that there is absolutely no justification to encroach into the Wetland for the purposes of a boat launch, particularly when, as noted above, there are at present opportunities for some forms of watercraft to be launched from the Subject Property.

211The Applicant should consider how vital it is to their enjoyment of the Subject Property to determine in their own minds whether they choose to pursue the additional approvals for the launch, as there is no guarantee of a success. The outcome will be determined by way of the findings and recommendations of the technical studies, including an EIS, which will determine the boundary of the Wetland, as it exists at present, and an understanding that the technical studies are to be part of the information/materials provided to DFO and the MNRF, and that the findings of the EIS will shed light as to whether there is an ability to obtain all the requisite approvals/permits for the issuance of a Permit for the Development Proposal.

212In the event the Applicant decides not to pursue the Development Proposal, the Tribunal confirms that the evidence in this Hearing supports the approval of the requested relief to increase the maximum SAA from 23.5 m to 27.4 m to allow for the existing structures and landscaping elements within the shoreline buffer to remain, so long as the cumulative width of the SAA does not exceed 27.4 m.

Conditions of Provisional Approval

213The Tribunal offers the following directions with respect to the conditions of provisional approval:

214The Applicant shall undertake the preparation of an EIS, having a scope that aligns with the evidence of Dr. Wicks in the Hearing. More particularly, the EIS is intended to address the requirements set out in the TOP, including confirming the limit of the Wetland as it exists at present, and identifying the potential impacts to the natural features on the Subject Property and the adjacent Wetland, and including making recommendations to mitigate any adverse impacts.

215The Applicant shall undertake revisions to the Proposed Site Plan to refine the boundary of the Wetland in accordance with the findings of the EIS, to clearly depict the structures and elements within the SAA to be retained on the Subject Property and those structures and elements to be removed, such that there is compliance with the maximum permitted SAA of 27.4 m on the Subject Property, and to provide drawings and technical details which clearly depict the proposed site alterations for the proposed access path between the driveway and the shoreline, and the boat launch in-water works.

216The Applicant shall make a re-submission to DFO for its review, in respect of the potential for impacts on T1FH, and which re-submission shall be based on the findings of the EIS, a revised Proposed Site Plan, and details for the construction of the boat launch, as informed by the recommendations of the EIS. The Town shall be copied on the submission package to DFO and its reply.

ORDER

217THE TRIBUNAL ORDERS THAT the appeal by Josephine Buchman under subsection 12(2) of O. Reg. 173/16 of the Planning Act, R.S.O. 1990, c. P.13, as amended, is allowed in part.

218THE TRIBUNAL ORDERS THAT in accordance with the Town of Huntsville Community Planning Permit By-law 2022-97, the Ontario Land Tribunal grants FINAL APPROVAL to PART ONE of Community Planning Permit File No. CPP/07/2023/HTE, the purpose and effect of which is to recognize an existing 56 square metre private cabin, a 58 square metre attached deck, and to provide relief from s. 4.3.4 of Community Planning Permit By-law 2022-97 (Class 2 – Council Variation) to:

i) Recognize a 28 metre front yard set back for the existing 160 square metre dwelling;

ii) Recognize a 28.3 metre front yard set back for an existing 10 square metre gazebo;

iii) Recognize a 23 metre yard setback for the existing attached 86 square metre unenclosed deck; and

iv) Recognize a 29.5 metre yard setback for an existing attached 26 square metre unenclosed deck.

219THE TRIBUNAL ORDERS THAT the Town of Huntsville shall ISSUE a Class 3 Permit for PART ONE of Community Planning Permit File No. CPP/07/2023/HTE.

220AND THE TRIBUNAL ORDERS THAT in accordance with the Town of Huntsville Community Planning Permit By-law 2022-97, the Ontario Land Tribunal grants PROVISIONAL APPROVAL to PART TWO of Community Planning Permit File No. CPP/07/2023/HTE, the purpose and effect of which is to permit the Development Proposal (i.e., development of a boat launch and an associated 3.9 metre wide access path), and to provide relief from s. 2.4.4 of Community Planning Permit By-law 2022-97 to permit an increase in the maximum cumulative permitted Shoreline Activity Area width from the existing 23.5 metres to the proposed 27.4 metres.

CONDITIONAL UPON:

The approval of the Development Proposal is conditional on the following being fulfilled prior to Permit issuance:

i) The preparation and submission of a scoped Environmental Impact Study to confirm the limit of the Wetland, assess the impact of the Development Proposal on the natural features on the Subject Property and the adjacent Wetland, and to make recommendations to mitigate any adverse impacts, if and as necessary, to the satisfaction of the Town of Huntsville;

ii) The preparation and submission of a revised plans/drawings, including a Revised Proposed Site Plan, showing locations and technical details of the proposed site alterations for the access path between the driveway and the high-water mark of Fox Lake and of the proposed in-water boat launch works, to the satisfaction of the Town of Huntsville; and,

iii) The submission of a Letter from Fisheries and Oceans Canada confirming that the proposed in-water boat launch works will not likely result in a contravention of the Fisheries Act or Species at Risk Act, and outlining requirements for mitigation measures and development control techniques to be implemented.

FINAL APPROVAL

Upon issuance of the above conditions of provisional approval being fulfilled in accordance with subsection 1.17 of Community Planning Permit By-law 2022-97, as amended, a Class 3 Community Planning Permit be issued on condition of:

i) The issuance by the Ministry of Natural Resources and Forestry of a Crown Land Use Permit; and

ii) The Development Proposal being undertaken in accordance with a Community Planning Permit, including plans and drawings.

221The Tribunal remains seized of this matter until the issuance of the final Community Planning Permit and may be spoken to by the Parties in the event any problems arise in relation to the directions of the Tribunal and the fulfilment of the conditions for the ultimate issuance of the Permit.

“S.L. Dionne”

S.L. DIONNE 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.

APPENDIX A – HISTORY AND BACKGROUND TO THE APPLICATION

In December 2019, the Applicant purchased the Subject Property. At the time there was an open Building Permit (“BP”) application file, for a deck attached to the existing bunkie. Any issues were identified and rectified so that the BP application was closed before the transfer of ownership to the Applicant.

In Summer 2020, the Applicant approached the Town seeking permission to construct a boat launch on the Subject Property. At the time, it was determined that an application for a Minor Amendment to the Site Plan Agreement (“SPA”) would be required. Additionally, Town Staff identified that comments from DFO were needed in order for Town Staff to evaluate the appropriateness of the proposed boat launch given the presence of Type 1 Fish Habitat. Town Staff indicated that the location of the proposed boat launch would need to be located outside of the wetland.

A submission on behalf of the Applicant was made to the DFO in early December 2020, based on the proposed location of the boat launch being outside of the limit, as shown on the Approved Site Plan, of the wetland. Also, an application for SPA was submitted to the Town in mid-December 2020.

A DFO letter of advice was issued on February 3, 2021 (not February 3, 2020 as noted on letter), concluding that if DFO’s advice is followed, the proposed boat launch would not likely contravene s. 34.2(1) and s. 35(1) of the Fisheries Act or s. 32, s. 33 and s. 58(1) of the Species at Risk Act. The letter details the measures to be implemented to avoid and mitigate potential for prohibited effects to fish and fish habitat (Exhibit 2, Tab 19, PDF Pages 302 to 304). Notification in advance of starting work is to be provided to DFO.

During a site visit by Town Staff as part of the review of the application for SPA, it was determined that several of the existing buildings and structures on the Subject Property were not precisely as shown on the Approved Site Plan, and that some were encroaching into the required 30 m shoreline setback. There were also additional structures identified within the 15 m shoreline buffer, such as lower height decks.

In October 2021, Town Staff suggested that an Ontario Land Surveyor (“OLS”) be retained to confirm the setbacks to the High Water Mark (HWM) for the various buildings and structures on the Subject Property. It is noted that the period of time that the application was being reviewed and evaluated by the Town coincided with the COVID-19 pandemic; a period in time in which it was common to encounter delays as a result of service/market disruptions. The impact on the Application was that it was difficult to retain an OLS. As the alternative, the Applicant opted to submit an application for Minor Variance (“MV”) in October 2022 to address the potential zoning non-compliances identified by Town Staff.

In January 2023, during the review of the applications for MV and SPA, the Town introduced a new Community Planning Permit system for planning approvals and adopted the CPPBL (combining zoning and site plan control). The MV and SPA applications were transitioned under this new planning system for the Town.

In February 2023, Town Staff advised that additional relief from the new CPPBL would be required, to recognize the area of the proposed boat launch access route, by way of an increase to the maximum cumulative width of shoreline structures and amenity areas. The Application was amended accordingly.

The Application was scheduled to be considered at the Town Planning Council meeting of April 12, 2023.

The Applicant’s Planner submitted that he was advised in writing, on or about April 5, 2023, that Town Staff would not support the relief to increase the maximum cumulative width for shoreline structures and amenity areas on the Subject Property, and that the Applicant made a written request that the Application be deferred, to give the Applicant time to look at the potential for removal of existing structures as a swap to the area for the boat launch access route so that the current width would not need to increase.

The District of Muskoka issued its comments on the Application on April 6, 2023 (Exhibit 2, Tab 24, PDF Page 399-400), recommending deferral of the Application pending the submission of an Environmental Impact Study (“EIS”) being undertaken to look at the location of the proposed boat launch and determine that there will be no negative impacts on the natural features or their ecological functions (i.e. wetland). Further, the District’s letter indicated that to address the matter of the Type 1 Fish Habitat along the frontage of the property in the general vicinity of the proposed boat launch, the Applicant has submitted the letter from DFO, which concludes that provide the recommendations contained in the letter are implemented the proposal will not likely result in a contravention of the Fisheries Act or Species at Risk Act, and that appropriate development control techniques should be used to implement these recommendations.

The Recommendation Report was finalized and circulated to Town Planning Council on about April 7, 2023. No reference to the District of Muskoka comments were included therein.

The Application was not removed from the Town Planning Council Agenda for April 12, 2023. The Applicant advised the Town of its willingness to undertake the EIS, however the Applicant’s request for deferral was denied.

The Town Planning Council’s decision was based on the Town Staff Recommendation Report dated April 12, 2023 (“Recommendation Report”), as well as oral and written submissions by the Applicant, Participants, and Town Staff.