Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 16, 2024 CASE NO(S).: OLT-23-000469

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

Applicant/Appellant: Dragana Anna Jocic Suykens Subject: Consent - refused by Approval Authority Description: To create one new residential lot Reference Number: FL/B-20:46 Property Address: 13 Herbert Place (13 Herbert Place) Municipality/UT: Hamilton/Hamilton OLT Case No: OLT-23-000469 OLT Case Name: Jocic Suykens v. Hamilton (City)

Heard: February 13-16 and 23, 2024, by Video-Hearing with final written closing submissions filed on March 7, 2024

APPEARANCES:

Parties Dragana Anna Jocic Suykens

Counsel Nancy Smith Anna Toumanians

Parties City of Hamilton

Counsel Paula Boutis

DECISION DELIVERED BY N. EISAZADEH ON AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION/BACKGROUND

1Dragana Anna Jocic Suykens (“Applicant” or “Ms. Jocic”) submitted an application seeking a consent to sever (“Consent”) her property located at 13 Herbert Place (“Subject Property”), in the City of Hamilton (“City”). Ms. Jocic, along with her husband Luke Hewitt, desire to sever the approximate 2.06 acre Subject Property into two approximately equal lots of just over one acre each. The retained lot would maintain the existing single-family detached dwelling and driveway access from Herbert Place (“Retained Lot”), while the newly severed lot is proposed to accommodate one new single-family detached dwelling fronting Hauser Place (“Severed Lot”). Both the Retained and Severed Lots would be privately serviced with independent private well and upgraded septic systems to incorporate advanced treatment systems¹.

2In 2009, the City had conditionally granted a Consent, however that approval lapsed. A new application was submitted in July of 2020, and was initially supported by City Staff for approval subject to conditions, one of which required Geotechnical and Hydrogeological Report(s) to demonstrate that the proposed lot sizes could support the development proposal in terms of water supply and wastewater disposal to the satisfaction of Source Water Protection Staff. The Applicant requested that the application instead be tabled so that the City Source Water Protection Opposition be addressed prior to a Committee of Adjustments (“Committee”) hearing.

3The hydrogeological work was undertaken, and reports were prepared and submitted by the Applicant. A new Staff Report dated April 6, 2023, subsequently recommended that the application be denied for non-conformity with the sustainable servicing policies of the City’s Rural Hamilton Official Plan (“RHOP”). On April 20, 2023, the Committee followed that recommendation and denied the application. The Applicant then appealed to this Tribunal on May 3, 2023, from which this Decision arises.

4For the reasons that follow, the Tribunal determines that this appeal should be allowed, and provisional consent should be given for the proposed Consent, subject to the conditions set out below.

PROPOSED CONSENT

5The Consent seeks to sever the Subject Property into two parcels as follows:

Retained Lands

I. This application will create the lot to the West, labelled Part 1 on the Draft Reference Plan. This lot would comprise 0.42 hectares (1.03 acres) with 88.33 metres (“m”) of frontage onto Herbert Place, 40.39 m on Hauser Place, and a lot area of 4426.4 square metres (“m²”) (or 1.09 acres).

Severed Lands

II. This application will create the lot to the East, labelled Part 2 on the Draft Reference Plan. This lot would comprise 0.42 hectares (1.03 acres) with 44.35 m of frontage onto Hauser Place, a depth of 92.10 m, and a lot area of 4116.58 m² (or 1.01 acres).

LEGISLATIVE FRAMEWORK

Consent to Sever – s.53(19) of the Planning Act

6The Consent application requires an analysis of the following considerations:

I. The threshold question in accordance with s. 53(1) of the Planning Act² (“Act”) and that the Tribunal be satisfied that a plan of subdivision is not necessary for the proper and orderly development of the municipality and can proceed by way of application for Consent;

II. Under s. 53(12), has regard for the criteria set out in s. 51(24) of the Act which includes, inter alia: that the proposed Consent has regard to the effect that the Consent will have on matters of Provincial interest set out in s. 2 of the Act; whether the proposed Consent is premature or in the public interest; whether the Consent conforms to the RHOP including the Greensville Rural Settlement Area Plan (“Greensville Plan”); the suitability of the land for the purposes for which it is to be subdivided; the dimensions and shapes of the proposed lot, and the adequacy of utilities and municipal services;

III. As required by s. 3(5) of the Act, be satisfied that the approval of the proposed provisional Consent is consistent with the Provincial Policy Statement 2020 (“PPS”) and the Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”), and conforms to such other Provincial Plans that may be applicable including, in this case, the Greenbelt Plan 2017 (“Greenbelt Plan”);

IV. Has regard to the decision of the approval authority relating to the Consent application that is before the Tribunal and the information and material that was before the approval authority in making the decision;

V. Under s. 53(12), consider and impose such conditions as may be determined to be reasonable, having regard to the nature of the proposed Consent, and such conditions may include such requirements as are set out in s. 51(25) of the Act; and

VI. Whether the giving of provisional Consent to the Applicant, with any required conditions, represents good planning in the public interest.

THE EVIDENCE, ANALYSIS AND FINDINGS

Undisputed Facts and the Core Issues

7There is no dispute that the development proposal does not require a plan of subdivision and can proceed by way of Consent application.

8The Parties also agree that the Consent does not offend any Zoning By-law Amendment (“ZBA”) performance standards as both the Retained and Severed Lands comply with zoning standards including minimum lot size. Put differently, the Consent will not result in undersized lots pursuant to the zoning standards which require a minimum of 0.4 hectares (“ha”) or 1 acre in lot area. It is also not disputed that there is no policy in the RHOP that restricts the size of the proposed lot to less than that proposed from a strict planning perspective, in that that they are not undersized based on the established character of the neighbourhood.

9The proposed lot sizes do come into question from a potential public health and safety perspective. That is, s. 2 of the Act requires that the proposal have regard for matters of Provincial interest including the protection of public health and safety. This Provincial interest is reflected in the PPS and implemented in the RHOP. At a high level, the public health and safety interest calls into question whether the implementation of advanced treatment septic systems on each of the proposed severed lots might eventually result in insufficient nitrate abatement such that would lead to groundwater contamination over the acceptable drinking water limits for private well owners. To that end, the Parties agree that the nitrate levels must be less than 10 milligrams per litre at the Subject Property boundaries. They also agree that a conventional septic system on each of the proposed severed lots would fail to achieve the required nitrate level. Where the Parties diverge is in relation to their respective positions on the City policy prohibition against (and long-term reliability of) advanced treatment systems in the adequate abatement of nitrate, the monitoring/maintenance of those systems, and enforceability of any nitrate abatement violations.

10This disagreement between the Parties raises four overarching issues on this Appeal:

I. Do the City’s Guidelines for Hydrogeological Studies and Technical Standards for Private Services Hydrogeological Guidelines (“Hydrogeological Guidelines”) form part of the RHOP and what is the appropriate standard of its review and application?

II. Does the long-term performance of advanced treatment systems jeopardize public health and safety?

III. Are there appropriate monitoring and enforcement mechanisms available to ensure adequate nitrate abatement using an advanced treatment septic system?

IV. If the answers to the above two questions leads the Tribunal to grant an approval of the Consent application, should that approval be subject to any conditions?

11The balance of this Decision shall organize around these four overarching issues, after first addressing the Tribunal’s ruling on notable evidentiary objections.

Evidentiary Objections and Rulings

12The Tribunal received voluminous documentary and visual evidence, and heard oral evidence from the following witnesses:

On Behalf of the Applicant:

i. Andrew Joseph Lakatos, a Registered Professional Planner qualified to provide expert opinion evidence in the area of land use planning, without contest.

ii. Scott Jeffrey, a Professional Engineer qualified to provide expert opinion evidence in the areas of hydrogeology, geotechnical engineering and geo-environmental engineering, despite objection.

iii. Anne Egan, a Professional Engineer qualified to provide expert opinion evidence in the area of on-site wastewater management engineering, without contest.

On Behalf of the City:

v. Jennifer Catarino, a Registered Professional Planner qualified to provide an expert opinion in the area of land use planning, without contest.

vi. Ahmad Sarwar, a Geoscientist and Hydrogeologist qualified to provide an expert opinion in the area of hydrogeological assessment for onsite private servicing for water and wastewater as well as rural land use planning and policy in the context of hydrogeological assessment, despite objection.

vii. Cameron MacDougall, a Geoscientist and Hydrogeologist qualified to provide an expert opinion in the area of hydrogeological assessments, despite objection.

viii. Jorge Caetano, a registered Supervisor/Manager with the Ministry of Municipal Affairs and Housing with Certified Building Code Official Designation from the Ontario Building Officials Association, and current Manager Plan Examination/Deputy Chief Building Official in the Building Division at the City of Hamilton, who was qualified, without contest, to provide expert opinion in the area of interpretation, administration, and enforcement of the Ontario Building Code (“OBC”)³ under the Ontario Building Code Act (“OBC Act”).⁴

13Respecting the City’s expert witnesses, objections arose from a fundamental disagreement as to the proper manner in which experts are to be qualified in proceedings before this Tribunal. Counsel for the Applicant, Nancy Smith, submitted that the proper qualification of experts is to identify their area of designation or “expertise”, and not designate or label the expert by the subject matter on which they can provide an opinion. She states, for example, Mr. Sarwar’s proper qualification is not an expert “in the area of hydrogeological assessment”, but rather as a Geoscientist and Hydrogeologist. In other words, “hydrogeological assessment” is not an expert designation, rather it would be Geoscience and/or Hydrogeology, which would then permit him to share his professional views on hydrogeological assessment or rural planning policies in the hydrogeological context.

14On the other hand, Counsel for the City, Paula Boutis, stated that the proper way to qualify experts before this Tribunal is not by the designation or title, but rather to be clear on the area or subject matter in which they are permitted to opine, based on their particular designation. Ms. Boutis added that defining the subject area in which the expert is qualified to provide evidence is important because it sets the parameters of that evidence.

15In its ruling, the Tribunal stated that the expert witnesses shall be recognized by their designation and are qualified by nature of their respective profession and education to provide expert opinion evidence in the subject area governed by that profession/education, or where applicable, in the more particularized area that an expert may have specialized training or focus. Each respective witness was, accordingly, qualified as set out in paragraph [13], above. It is standard Tribunal practice to delineate the subject area in which a particular expert may provide professional opinion, for the reason that the Tribunal is not necessarily making a declaration of expert designation. To put another way, the Tribunal recognizes where a witness may have a particular designation(s), education, training, or experience that would qualify him or her to provide a professional opinion in a particular area of specialized knowledge that is of assistance to the Tribunal in understanding technical information or facts, and in rendering its ultimate decision.

16In arriving at this ruling, it was apparent that Ms. Smith was not objecting to the ability of the City’s experts to provide professional opinion in the areas tendered by Ms. Boutis for each witness. Rather, the dispute related more to whether the wording of the qualification precluded any particular expert, outside of the land use planning discipline, to provide opinion on planning policy. In this regard, Ms. Boutis submitted that experts without a proper land use planning qualification could not opine on planning or policy matters. This appeared to be of particular concern with respect to Mr. Sarwar, who had specialized training in land planning holding a Masters Degree in Planning, and particularly in the context of hydrogeological assessments. Ms. Boutis submitted that she was not disputing the City’s experts’ particular designations with Ms. Smith; but that where one held specific education or experience in planning matters, she was unaware of how else to recognize that specialization without making the request for qualification on that particular subject matter or area.

17Ms. Smith rejected the notion that experts in other disciplines are not permitted to speak to planning or policy matters where those planning policies are within the area of expertise of that witness. She stated that planning policies and the entire land use system deal with a much wider reach than strictly land use planning, including for instance, cultural heritage, natural heritage, transportation, servicing, etc., which are all captured by the PPS and implemented through Official Plans throughout the Province. She stated that to suggest only those with Planning designations could opine on planning policy matters was incorrect and contrary to the common Tribunal practice to receive opinions from multidisciplinary experts on planning policies within the area of expertise of that expert witness.

18On this nuance, the Tribunal found Ms. Smith’s position to be correct, and, following the Tribunal’s ruling on the manner in which the expert witnesses would be qualified, directed that opinion on planning policies would be received in relation to the subject area or expertise of a given witness. Any further submissions as to the weight of such evidence, or whether the opinion falls outside of the proper area of expertise, was directed to be made on closing submissions.

19In its closing submissions, the Applicant did so make submissions in support of the Tribunal’s latter direction, citing North End Neighbours v. Hamilton (City)⁵. In that decision from a predecessor body of the Tribunal, the Ontario Municipal Board correctly stated that the question of official plan conformity is a legal question which, in some instances, may be determined on the basis of expert land use planners, or in others, “on the basis of other evidence entirely, without any recourse to expert planners’ testimony.” The Tribunal agrees that in hearings where official plan policy addresses areas of expertise other than planning (transportation, servicing, cultural heritage, natural heritage, etc.), qualified witnesses with an expertise in those fields may assist the Tribunal with its task of determining such questions of law, being the interpretation of official plan policy, and the Tribunal shall decide the weight to be given to such evidence, if any.

20A further brief mention respecting the qualification of the Applicant’s expert witness, Mr. Jeffrey, is of note. Ms. Boutis objected to Mr. Jeffrey’s qualification, not because she contested his designations or training. Rather, the objection went to the relevance of his qualifications as a geotechnical and geo-environmental engineer, which Ms. Boutis submitted went beyond the scope of the issues in dispute which dealt strictly with hydrogeology/hydrogeological assessments. Ms. Boutis was content with the qualification being limited to hydrogeology and stated that a witness’s designation in other disciplines is not a proper ground for expert qualification during a Hearing where those other disciplines are not in issue.

21Mr. Jeffrey provided testimony during a Voir Dire on the qualifications issue. As a high-level overview, he stated that geotechnical engineering relates to soil, rock or groundwater; while hydrogeology relates to both physical and chemical characteristics of groundwater and how it flows. The two are not only closely related, but hydrogeology forms a component of the consideration of larger geotechnical projects. Geo-environmental engineering is a broad focus related to geochemical composition of soil and groundwater and assessing contaminants of concern, potential adverse affect of those impacts to human and ecological receptors, and ways in which those impacts may be mitigated through remediation or engineered controls. Ultimately, Mr. Jeffrey stated that the three disciplines are highly interrelated, interconnected and integrated.

22Based on Mr. Jeffrey’s testimony on the Voir Dire regarding the interconnectedness of each discipline, the Tribunal was satisfied and did so qualify Mr. Jeffrey to provide expert opinion evidence in all three areas of discipline. It further directed that any issue respecting relevance or weight of said evidence could be made during closing submissions.

Issue One: The Hydrogeological Guidelines

23The first overarching issue asks whether the Hydrogeological Guidelines form part of the RHOP and what is its appropriate standard of review and application to this appeal? A recount of some history is important to contextualize this issue.

The Freelton Decision and Subsequent Staff Reports

24In 2019, this Tribunal (or the Ontario Local Planning Appeal Tribunal, as it then was) approved the use of advanced treatment systems when it approved a 20-lot residential subdivision on a total lot area of approximately 0.2 ha in the rural community of Freelton, in the City of Hamilton⁶. That Decision has come to be referred to as the “Freelton” Decision. City Staff were not supportive of the Freelton application for much of the same reasons as raised on this appeal - the use of advanced treatment systems and concerns related to the operation and monitoring of those systems. Staff took the position then, as supported by City Council, that nitrate-reducing technologies were not specifically approved and accounted for under the OBC, which made monitoring and enforcing those systems problematic. Ms. Egan also testified at the Freelton Hearing, among other witnesses, and this Tribunal ultimately accepted evidence that the advanced treatment systems would achieve the necessary nitrate abatement to comply with the required drinking water standards at the property boundaries and that the OBC contained general enforcement provisions that would require the system owner to maintain the proper functioning of the system and permit its inspection by the City as required.⁷

25In the wake of the Freelton Decision, City Staff published two reports with respect to the use of advanced treatment systems in the City, the first dated December 8, 2020 (the “2020 Staff Report”) and the second dated March 21, 2023 (the “2023 Staff Report”).

26The 2020 Staff Report cites that it was prompted by the Freelton Decision which it states has adverse implications for residential development in rural areas across the City. It suggests a comprehensive review of the use of advanced treatment systems “with a view to proposing policies and by-laws for the appropriate construction, use and maintenance of systems while also bringing the issue to the attention of the provincial government and requesting appropriate regulation” (Exhibit 3, PDF Page 1062). The 2020 Staff Report resulted in a Council resolution for Staff to report back to the Committee by June 2021 on proposals for the implementation of regulation, monitoring and enforcement of advanced treatment systems, if any, by way of City policies or by-laws.

27It appears between the 2020 Staff Report and the return date of June 2021, there was no further report conveyed back to Council. Minutes of Meeting from Consulting and Engineering Firm retained by the City, Cambium (Exhibit 3, PDF Page 170), reflect that in February 2022, Ms. Jocic and Mr. Hewitt met with Mike Christie, the former project manager at the City for Source Water Protection, Water and Waste Water Systems Planning, where it was discussed that a Council meeting was scheduled for March 2, 2022, the purpose of which was to address advanced treatment system regulation. The Record does not reflect a March 2022 Council meeting having ever taken place. The next event in the timeline is the 2023 Staff Report.

28The 2023 Staff Report, among other things, reviewed the legal framework and implications of monitoring obligations on the City regarding the use of advanced treatment systems. In its recommendations, the report advocates against pursuing municipal policy or by-law that would accept advanced treatment systems in justifying development on site characteristics such as lot size, fractured bedrock or soil conditions due to what it sets out as the long-term performance concerns of those systems and legal enforcement issues (the latter of which were each raised as issues on the present appeal and are addressed further below). Instead, the report suggests revisions to the (then) 2013 Hydrogeological Guidelines. In so doing, the report highlights the key provisions of the RHOP dealing with sustainable private servicing and minimum sustainable lot size requirements which require proponents to demonstrate that there will be no off-site impacts of the proposed servicing regime through the submission of a hydrogeological study – a study that the report states must be prepared in accordance with the City’s Hydrogeological Guidelines. The report further states:

To avoid confusion and provide clarification, it may be necessary to amend the RHOP to prohibit the use of tertiary systems. This will be reviewed as part of Phase 3 of the Growth-Related Integrated Development Strategy/Municipal Comprehensive Review (“GRIDS 2/MCR”) exercise in 2023.⁸

The Hydrogeological Guidelines

29In his evidence, Mr. Sarwar led the Tribunal through Staff’s proposed amendments to the 2013 Hydrogeological Guidelines: namely, to remove the sample advanced treatment system nitrate calculation for “demonstration purposes only” in its Appendix B4, and to reflect its policy position that the City would not support advanced treatment systems to justify development of undersized lots in a new Appendix D.⁹

30On behalf of the City, Ms. Boutis submits that the amendments to the Hydrogeological Guidelines were adopted by Council in November 2023, and prior to that, incorporated into the RHOP by reference upon the adoption of Official Plan Amendment (“OPA 5”), by By-Law 13-284. Appendix C of OPA 5, setting out the policies in relation to infrastructure, states the following under policy 5.1.1:

… [T]he proponent shall be required to submit a hydrogeological study completed in accordance with Section F.3.2.2 – Hydrogeological Studies of this Plan and Hydrogeological Study Guidelines as may be approved or amended from time to time. [emphasis added]

31Two further administrative amendments were subsequently made to these policies through OPA 23 (By-Law 19-301) and OPA 26 (By-Law 21-004) which did not impact the language related to the approvals or amendments. On cross-examination, the City’s Planning witness, Ms. Catarino, was questioned on how the Hydrogeological Guidelines could hold the same effect in law as the RHOP policies if they could not be challenged. Ms. Catarino’s evidence was that the time to challenge the Guidelines was when they were incorporated into the RHOP, referring only to OPA 23 and OPA 26. Ms. Boutis submits this does not make OPA 5 irrelevant or negate the basic proposition of Ms. Catarino’s evidence which would equally apply to OPA 5. She states that those entitled to notice of OPA 5 would have had the opportunity to appeal the amendment and challenge the substance of the Guidelines at that time.

32Ms. Boutis referred to the Applicant’s cited case of Sentiel (Broadway) Holdings Inc. v. Toronto (City )¹⁰ at paragraph 29 for the proposition that Guidelines are not part of an Official Plan unless the Official Plan has been specifically amended to incorporate them. Ms. Boutis further cited the Divisional Court in IN8 (The Capitol) Developments Inc. v. Building Kingston’s Future¹¹ as similarly confirming that Guidelines form part of Official Plan policy if they are incorporated by reference into the plan. Even if her argument is rejected, Ms. Boutis submits that the Guidelines cannot be ignored. At a minimum, she states the Guidelines would be relevant to any general question of good planning and public interest, and that regard must be had for their intent and applicability, particularly considering the public health and safety issues at play in this case.

33In contrast, Ms. Smith argues that the Hydrogeological Guidelines can inform the hydrogeological study methodologies and analysis required, but cannot and do not have the same effect, in law, as enshrined Official Plan policies. Ms. Smith cites Associate Chair Wilson Lee in the aforementioned Sentiel decision who stated:

…guidelines are not part of the Plan unless the Plan has been specifically amended to incorporate them. They simply are not the same as the enshrined Official Plan policies. They have not been tested by the vigour of the evaluation process pursuant to the Planning Act. As such, they do not enjoy the same legal status of the effective Official Plan or zoning by-law. A punctilious insistence on the requirements of the guidelines without a thoughtful and responsive evaluation, in the Board's view, may have results less than felicitous. Nonetheless, designers and decision-makers such as Council or the Board should have regard for the Guidelines by evaluating their intents and in their applicability, attribute the requisite weight to inform one's opinion. It should be treated as a tool; not a millstone.¹² (emphasis added)

34Ms. Smith argues that it would be incorrect to read the Hydrogeological Guidelines setting out the City’s policy into the RHOP since City policy does not determine Planning Act applications as it has not been tested by the vigour of the public evaluation process under the Planning Act. Ms. Smith further turns to the evidence of the Applicant’s planner, Mr. Lakatos, who stated that Guidelines do not form part of Official Plan policy precisely because they change from time to time. She also argues that the Clergy Principal helps to clarify that the Guidelines could not be held to the same degree as Official Plan Policy since Clergy could theoretically apply to Official Plan policies in effect at the time an application is made but could not apply to Guidelines.

35Ms. Smith submits that the timeline of action (and inaction) by the City does not reflect a genuine concern for public health and safety with respect to advanced treatment systems. She submits that to date, there have been no new policies or by-laws for the regulation, monitoring and enforcement of advanced treatment systems for residential developments, no RHOP amendment to avoid confusion and provide clarity, and no review as part of Phase 3 of the GRIDS 2/MCR exercise, as contemplated in the 2020 and 2023 Staff Reports.

Findings on Issue One – The Hydrogeological Guidelines

36I find that the amendments to the Hydrogeological Guidelines adopted by Council in November 2023 do not form part of the RHOP in the way that the City argues they should be applied in this case. On this issue, the submission and evidence made on behalf of the Applicant are more persuasive.

37Both parties relied on the case of Sentiel. The key words in the Sentiel decision are that “guidelines are not part of the Plan unless the Plan has been specifically amended to incorporate them.” (emphasis added)¹³ I find that the incorporation by reference to the Hydrogeological Guidelines in OPA 5 requires only that a hydrogeological study be completed in accordance with those Guidelines, which may be amended from time to time. This is not the same as to say that any amendment to those Guidelines, and particularly entire new policy which go beyond assessment methodologies, would be given the same effect and status as Official Plan policy by nature of its prior incorporation by reference (i.e. OPA 5) without specific further amendment to the Official Plan to that effect. Indeed, it was City Staff’s own recommendation in its 2023 Staff Report that it would be prudent to amend the RHOP to specifically prohibit the use of advanced treatment systems; however, no steps for such an amendment were undertaken.

38To find differently on this issue would effectively allow evasion of the vigorous public evaluation process mandated by the Planning Act that former Associate Chair Wilson Lee referred to in Sentiel. I do not accept the evidence of Ms. Catarino that the public had a proper and fair opportunity to challenge the City’s policy position on advanced treatment systems inserted into the 2023 amendment to the Hydrogeological Guidelines by way of an appeal of OPA 23, OPA 26, or OPA 5. It would be impractical to expect proponents to have the foresight to appeal the words “as may be approved or amended from time to time” because those words might import a City’s future evolving policies to be held to the same standard and effect as Official Plan Policy. Moreover, Ms. Smith’s argument on the Clergy Principal cannot be ignored. While both Parties agree that Clergy does not apply in this case, the concept does highlight that inconsistency would result if the 2023 amendments to the Guidelines (for which Clergy could not apply) were held to the equivalent standard of Official Plan policy when the same amendment to an Official Plan could have been avoided through theoretical use of the Clergy Principal.

39Additional support for this finding can be found in the RHOP itself. The Greensville Rural Settlement Area policy 3.5.13.4, expressly contemplates the advanced sewage treatment system as part of a hydrogeological study recommendation:

3.5.13.4 Residential development, by Plan of Subdivision or by consent to sever, shall be based upon a professional hydrogeologic and soils study, prepared and reported to the satisfaction of the Province, the City, and the Niagara Escarpment Commission. Such a hydrogeologic study shall include, but not necessarily be limited to, the percolation rate and grain size distribution of the soil, the amount of overburden to the depth of at least seven feet, the depth of the water table if less than 10 feet, and an impact assessment of the proposed subdivision or consent on the local water resources. The assessment must consider both on-site and off-site impacts related to the quantity and quality of water. All development shall be permitted only in accordance with the results of the study and on lots capable of accommodating a Class 4 (septic tank and tile bed) or Class 6 (aerobic) septic system including and area equal to the original tile bed area which is left free of development or hard surfaces to provide for a replacement tile bed in the event of failure to the original system, as determined by the City. Residential development is subject to conformity with policies in Sections A.3.5.12.5 to A.3.5.12.9 inclusive, and A.3.5.13, Volume 2 of this Plan. [emphasis added]¹⁴

40Another example of RHOP policies is 3.2.5.1 dealing with Hydrogeological Studies directly, which states:

Hydrogeological Studies

3.2.5.1 The City shall prepare and adopt Guidelines for Hydrogeological Studies and Technical Standards for Private Services to provide direction regarding the technical assumptions and methodologies to be followed in the preparation of hydrogeological study reports. These guidelines shall be used by proponents and professionals when preparing hydrogeological studies. Until such time as Guidelines for Hydrogeological Studies are adopted by Council, hydrogeological studies shall be completed according to accepted best practices, to the satisfaction of the City.¹⁵ [emphasis added]

41When asked to reconcile this conflict between the RHOP and the Hydrogeological Guidelines, Ms. Catarino testified that the Guidelines prevail. I disagree and accept the submissions of Ms. Smith that this interpretation would run contrary to the structure set out within the RHOP itself. Under Chapter D of the RHOP, policy 5.0 plainly states that lands in the Rural Settlement Area shall be subject to the general policies and Secondary Plan policies. Under Chapter F, regarding implementation, it is expressly set out that:

Secondary Plans and Rural Settlement Area Plans are used to provide detailed and community specific guidance to growth and change in smaller geographic areas of the City. They identify more detailed land uses densities, design requirements, infrastructure requirements and other implementing actions appropriate for the community. These Plans are not intended to repeat the policies in Volume 1 of this Plan, but to supplement Volume 1 policy directions and land use designations. Once Secondary Plans are completed, they are adopted as amendments to this Plan. [emphasis added]

42For all of these reasons, and as stated in the Sentiel decision, I view the policy position within the Hydrogeological Guidelines here as only an interpretive tool for which regard may be had, and not a millstone that defeats the subject Consent application by default.

43The next question is whether the Applicant’s hydrogeological study completed by Peto MacCallum Ltd. and dated April 30, 2019 (“Hydrogeological Study”), adequately satisfies the Hydrogeological Guidelines. Ms. Boutis submits a failure to satisfy the Hydrogeological Guidelines is a failure to conform with the RHOP. While there was much technical evidence presented and heard on the Hydrogeological Study conducted, the key difference of opinion on whether the Study has adequate regard for the Guidelines rests on whether the Applicant is permitted to use an advanced treatment system in presenting calculations under the predictive assessment model for achieving the required standards at the property boundary or was bound to use a conventional system.

44Ms. Boutis submits that advanced systems were never permitted to be used in the predictive assessment calculation, even prior to the 2023 amendments to the Guidelines. In support of this position, evidence was received from Mr. Sarwar that even prior to the 2023 amendments to the Guidelines, the sample calculations for advanced systems in the Guidelines were for “demonstration purposes only”. Mr. Sarwar testified further that under the Guidelines for sewage disposal, section 3.2.2 sets out that:

all proposed development on private services will be reviewed on the basis of its capability to support primary sewage disposal system and to accommodate a reserve discharge site or leaching bed for the system effluent by maintaining an area of vacant and suitable land in an appropriate location.

It was Mr. Sarwar’s opinion that this language evidences that studies must be based on conventional systems only and not advanced systems.

45Under section 3.3.3 of the Guidelines dealing with the Hydrogeological Study Report Details for sewage, subsection (e) requires predictive assessment calculations in accordance with Ministry of the Environment, Conservation and Parks Procedure D-5-4, Technical Guideline for Individual On-Site Sewage Systems: Water Quality Impact Risk Assessment (“MECP D-5-4”). The MECP D-5-4 outlines an approach to evaluate the potential groundwater impacts resulting from development and is based on the use of conventional septic systems. However, within the “Application of the Guidelines” section 3.0, it is expressly stated within the MECP D-5-4 itself, that:

… This guideline may not apply to non-standard individual on-site systems which are specifically designed to reduce nitrate loadings. It should be emphasised that MOEE encourages the development of new technologies for the treatment of domestic sewage waste. The Ministry will entertain proposals for development which incorporate new technologies. Contact your regional MOEE office for information on these types of systems. [emphasis added]

46The MECP has clearly set out since 1996 that it encourages innovation, however has not updated its guideline since. I agree with Ms. Egan’s evidence that the procedure, and the City’s Hydrogeological Guidelines based on this procedure, are outdated and have not kept pace with the advancement of sewage treatment technologies. The purpose of the MECP D-5-4 is to protect the environment and public health by ensuring development at a scale that will not result in the degradation of groundwater in exceedance of acceptable limits. Applied to the case at bar, the objective is to achieve a nitrate level at the property line within the requisite drinking water standards of 10mg/l. If an advanced treatment system can achieve that objective, then outdated methodologies within a guideline, which of itself encourages consideration of new technologies, ought not be a bar to considering such technology. Particularly considering policy 3.5.13.4 of the RHOP which itself contemplates advanced systems in Hydrogeological Studies. Additionally, the MECP expressly encourages new technologies, and so too does the Tribunal where it is satisfied such technologies are viable and do not pose any risk to the health and safety of the public.

47Accordingly, I do not find that the Study had insufficient regard for the Hydrogeological Guidelines by nature of the fact that an advanced treatment system was used for the predictive assessment modelling. In regard to the Study itself, there was no dispute that when an advanced treatment system is used, and following the predictive assessment calculations as set out in the Guidelines, it would achieve less than the minimum safety standards for nitrate levels at the property boundary and that evidence need not be restated here. The dispute among the experts and the parties regards the long-term reliability of an advanced system, and the feasibility of the City’s ability to monitor and enforce any operational violations from a nitrate contaminant perspective.

Issue Two: Long-Term Performance of Advanced Treatment Systems

48The 2020 Staff Report sets out the following concern over the performance issues of advanced treatment systems:

…Based on data available to Hamilton Water, the proposed nitrate-reduced systems often initially perform adequately but can quickly decline in performance, even with regular, comprehensive maintenance. Hamilton Water has concerns that if nitrate reducing technologies become widely accepted to justify undersized lots in the rural area, the risks of poor septic system performance would lead to degraded groundwater quality for private well owners and increase acute and chronic health risks to these residents...¹⁶ [emphasis added]

Ms. Smith argues that the “data” referred to was not included in the report or presented at the hearing.

49The 2023 Staff Report sets out the following additional concerns over the performance issues of advanced treatment systems:

• In 2022, Building Division conducted an analysis of advanced systems within the City compiling a database totalling 145 systems; approximately 50 of which are reported to have records of enforcement actions due to failing systems, failure of submitting annual sampling results, or lack of a maintenance contract.¹⁷
• Based on data available to Hamilton Water, nitrate-reducing systems can quickly decline in performance even with regular comprehensive maintenance.¹⁸
• A technical memorandum from the MECP Source Protection Branch reports that nitrate-reducing systems increase the risk of groundwater contamination from pathogens (such as E. coli), which presents a more acute health risk to neighbouring private well owners.¹⁹
• MECP cites that up to 35% of these systems do not perform as intended.²⁰

50Ms. Smith argues that the data alluded to in these listed concerns, as well as the MECP memo, were not included in the Report nor tendered as evidence at the Hearing. Accordingly, she submits that there is no real evidence that advanced treatment systems are prone to long term performance issues such as would impugn the public health and safety policies set out in the PPS and RHOP. Ms. Smith relies on the extensive evidence of Ms. Egan. Ms. Egan explained that while she had not seen the MECP memo alluded to, she did review a December 15, 2014 MECP letter included in the Joint Book of Documents and pointed out that letter did not properly describe advanced systems and the treatment performed before the water even reaches the leaching bed. Ms. Egan opined that this could erroneously lead to suggesting that a conventional system is safer but that is not the case. Additionally, she pointed out that the 2017 OBC changes required certification standards for advanced systems which require rigorous testing. Ms. Egan also stated that she expected the majority of the approximate 50 systems with enforcement issues noted above to be related to administrative matters. In cross-examination the City’s witness, Mr. Caetano, confirmed this and that only 2 matters were being dealt with in the Courts.

51Ms. Boutis submits that Ms. Egan’s testimony on the issue was highly problematic because the question of the City’s concern over the long-term performance of advanced systems is not relevant. Ms. Boutis submits that a proper analytical framework ought not go behind the City’s RHOP which incorporated by reference the Hydrogeological Guidelines, because the role of the Tribunal is not to question the basis of Official Plan Policy but to apply it as against the relevant Planning Act tests. Accordingly, she states even if the City’s concerns embodied in the policy choices incorporated into the RHOP by OPA 5 were flawed, which it does not concede, those are not properly on trial. Ms. Boutis makes the same argument respecting the evidence received in relation to enforcement concerns under the OBC, which she states is relevant solely to the basis for the policy decision of the City which is “not on trial.” Ms. Boutis further submits that a decision was made not to object to Ms. Egan’s qualification and scope of examination given what occurred in the Freelton decision, but rather proffer its own experts for the purpose of the Hearing.

Findings on Issue Two: Long-Term Performance of Advanced Treatment Systems

52I do not accept Ms. Boutis’ submissions on the relevance of the scope of Ms. Egan’s testimony. I must point out first that no objection was raised during the course of the Hearing, nor at its outset, nor during any of the testimony of Ms. Egan. These evidentiary issues were first raised only in closing submissions. Additionally, the core issues on this Appeal are centered around whether the application poses a risk to public health and safety. Accordingly, considering the long-term performance and reliability of the technology of advanced treatment systems goes to the heart of the issues.

53I also do not accept the submissions made regarding the reliability, credibility, and weight to be given to Ms. Egan’s evidence as a design engineer. I note that Ms. Egan clarified during cross-examination questions on her qualification that she is in fact a Professional Engineer who also does field work to study soil conditions to ensure regulatory requirements are met including the OBC and is not strictly a “design” engineer. She was qualified, without objection, to provide expert opinion evidence in the area of on-site wastewater management engineering. As set out at paragraphs [18] and [19] above, the Tribunal has noted that it is common practice to receive evidence on planning and other policies from non-planning expert witnesses where those policies address a more particularized area of expertise.

54In this case, it is acknowledged that Ms. Egan has limited experience in enforcement, planning, or municipal law, strictly speaking. However, her engineering-based knowledge of advanced treatment systems, their mechanics, components, and operations, in relation to the language of policy and guidelines is not only permissible but is also appropriate. Indeed, a professional engineer with such intimate technical knowledge may at times be of more assistance to the Tribunal in understanding and applying provisions of policy over even a building code expert who may lack the same level of technical knowledge. Additionally, I found Ms. Egan to be very forthcoming and impartial in her testimony. I reject the arguments made impugning her objectivity on the basis of her longstanding work with Ontario Onsite Wastewater Association which was described as an advocacy body for onsite sewage systems, and as a member of its External Relations Committee with outreach relationships to government and other bodies. Ms. Egan stated that she does not actively advocate for anything as part of her memberships and associations. She is a regulated professional under the Professional Engineers of Ontario with ethical obligations thereunder and executed her Acknowledgement of Expert’s Duty Form. There is no indication that Ms. Egan’s evidence was biased.

55Ms. Egan testified that advanced treatment systems are not a new technology. She explained the difference of an advanced system from a conventional one. Conventional systems typically encompass two compartments which separate solids from liquid sewage – the solids settle at the bottom of the tank while the liquid floats to the surface within the tank which temporarily stores the material until it is emptied. Some anaerobic digestion of the solids occur, but once the solids are emptied, the remaining liquid effluent flows out of the tank into a leaching bed for further treatment. Ms. Egan explained that 70% of the sewage treatment with conventional systems occurs in the leaching bed and soil which is why a sufficient area and depth of soil is required to provide sufficient treatment and infiltration capacity. Typically, there is no measurable level of nitrogen treatment provided with conventional systems. Unlike conventional systems, Ms. Egan stated that advanced systems provide an additional level of treatment of the liquid effluent through an additional biological filtration which would typically be performed by a leaching bed in a conventional system. In this way, Ms. Egan testified that reliance on the soil of the leaching bed for treatment is substantially reduced since the majority of treatment occurs in the treatment unit itself. A more controlled treatment process is achieved, particularly because treatment units can include additional equipment and processes to provide removal of nutrients, including nitrates, not available with conventional systems. Ms. Egan opined that advanced treatment systems provide more robust and sustainable servicing alternative than conventional systems, and have been proven within Ontario to provide reliable sewage treatment for more than 30 years.

56While advanced treatment systems are not new, Ms. Egan explained that there is now certifications for certain systems, including the proposed Waterloo Biofilter treatment unit, under the CAN/BNQ 3680-600 standard. Ms. Egan’s evidence was that certification to this standard requires a “robust treatment unit that can withstand a rigorous cold-weather testing protocol and consistently produce the required effluent quality.” The standard also mandates random field audit testing each year for field verification of performance in order to maintain its certification.

57I accept Ms. Egan’s evidence and opinion. Ms. Egan has extensive knowledge with respect to advanced treatment systems. She stated she reviewed performance data for the proposed Waterloo Biofilter system from independent third-party testing as well as field results for both residential and commercial use applications. She also explained the proposed system was tested under the Environmental Technology Initiative which is a 24-month cold weather testing program in the United States. It produced effluent with total nitrogen concentration at 14 mg/l. Under the Environmental Technology Verification program, another 14-month cold weather testing program, it produced levels at 13 mg/l. Applied to the conditions of the Subject Property, Ms. Egan testified that the proposed system could reduce nitrate by 50% when only a 27% removal is required. In her opinion, the proposed system can consistently and reliably for the long-term achieve nitrogen removal to the standard required levels.

58Recognizing that all machines can eventually break down, Ms. Egan explained that there is typically little to no oversight or enforcement provided on conventional systems by regulators because it is assumed they are functioning if there is no evidence of failure. She described it as “out-of-sight, out-of-mind” since a conventional system is assumed to work unchecked indefinitely as long as the effluent stays below ground. However, she stated that by the time a conventional system failure manifests itself in the form of breakout at the ground surface, it may have been providing inadequate treatment of effluent for many years. In contrast, Ms. Egan testified that use of advanced systems requires a maintenance contract between unit owners and a maintenance provider. Regular effluent sampling and testing is also required to ensure ongoing performance. Therefore, unit owners are compelled to have more awareness of their systems as there is more monitoring on a consistent basis.

59The Tribunal prefers the evidence of Ms. Egan that the use of advanced treatment units allows treatment to be performed in a more controlled environment within the treatment unit itself and not the soil which provides a defined point of control to monitor the performance of the system and which, overall, provides a more robust and sustainable servicing alternative than conventional systems.

Issue Three: Monitoring and Enforcement Mechanisms

60The next overarching issue deals with whether there are appropriate and reasonable mechanisms available for the monitoring and enforcement of nitrate abatement using an advanced treatment septic system.

61The 2023 Staff Report sets out the following concerns over legal enforcement associated with the performance of ATSs:

• From a legal perspective, a number of issues arise when considering tertiary systems. Municipalities have no legislated standards against which to enforce performance of these systems. Under the Municipal Act, municipalities can enter into long-term monitoring agreements with property owners for private sewage systems but the authority to monitor construction, operation and maintenance of private sewage systems is tied to a site plan or subdivision agreement. These agreements cannot directly regulate system performance but rather are limited to requiring monitoring and remedial action if the system is not performing as anticipated. The City would be required to seek a Court order to enforce the agreement. As such, and based on the current regulatory environment, the use of tertiary septic systems with advanced treatment transfers unacceptable risks and costs from the developer to the City;
• Tertiary systems are typically more expensive to install, operate and maintain. Once a development is approved that relies on tertiary septic system technology, the City has no legal means to ensure that type of system remains on the property in perpetuity. At any point in the future after the approval, property owners could apply for a building permit to install a conventional septic system that requires less maintenance and long-term obligations. The City would have to rely on a development agreement (i.e. Consent, Site Plan, Subdivision or Condominium) to deny the permit, even if the permit meets the OBC standards; and,
• Under s.35 of the Building Code Act, municipalities cannot enact policies or bylaws where construction standards are more restrictive than the OBC. This restricts the creation of a municipal by-law that addresses regulatory gaps as it relates to enforcing performance of tertiary septic systems.

62Much of the evidence received at the Hearing on these points, and in relation to the monitoring and enforcement mechanisms for advanced treatment units, involved enforcement under the OBC. The Applicant submits that the City’s enforcement concerns are not relevant to the Planning Act tests to be applied by the Tribunal. The City submits that evidence regarding enforcement under the OBC is also not relevant, in so far as it only relates to the policy decision of the City which policy decision is “not on trial”. The Tribunal agrees that the evidence received in respect of enforcement under the OBC is of limited use in this matter. First, it does not form part of the Planning Act tests that must be considered for the purposes of the subject application and this Appeal. Secondly, disputes involving whether technical requirements of the OBC are followed (referring to compliance with the OBC), inspection, permit applications, and enforcement orders or violations, fall under the purview of the Ontario Building Code Commission and are not matters within the jurisdiction of this Tribunal. Any determinations made about whether something is or is not enforceable under the OBC would hold no weight under an appeal under the proper authority. Accordingly, the analysis of monitoring and enforcement mechanisms of advanced treatment systems is of limited utility and must tread the waters carefully to deal solely with planning considerations. The question here, therefore, is whether there is adequate monitoring and enforcement mechanisms available for an advanced treatment unit to ensure the health and safety of the public – and not, whether nitrate abatement functions of advanced units are enforceable under the OBC; which, in the opinion of this Tribunal, should be the case given that they are an approved technology under the OBC where they meet the applicable laws²¹.

63The Applicant submits that there are multiple monitoring and enforcement mechanisms that go beyond the OBC as set out by Ms. Egan in her evidence. They include:

• Conditions of draft plan approval
• Subdivision agreements or Consent Agreements
• Registration on title
• Service and maintenance agreements
• Agreements of purchase and sale
• Homeowner education and awareness programs
• Discretionary Sewage System Re-Inspection Programs

64The issue respecting these enforcement mechanisms rests with whether they are appropriate conditions to be imposed on an approval of the Consent.

65A list of proposed conditions was entered as Exhibit 9 at the Hearing (“Conditions”) and are appended as Attachment 1 to the Order below. They include a further Hydrogeological Study prior to the application for building permits to detailed specifications, and a detailed monitoring agreement between the City and Applicant which is to include provisions for operation, maintenance, monitoring, reporting, notification and corrective actions, deficiencies, insurance, and financial securities (“Agreement”). The Agreement is subject to a 10-year recurring review, and is to be registered on title, in perpetuity.

66The City submits that while the Conditions are necessary and relevant to ensure public safety in the event that the Tribunal grants the Consent, its first position is that they are neither reasonable nor equitable. The main basis for its position is, first, that conditions cannot be supported where a severance is not supportable under the Hydrogeological Guidelines and RHOP. I have already addressed through this Decision the reasons why they City’s arguments and submissions on conformity are rejected.

67The second basis for its position against the Conditions is that, (a) forcing the Conditions, including private agreements, onto an unwilling Municipality is unreasonable, and (b) transferring the cost and “burden of private infrastructure” onto the public tax base as well as the resources, allocation and budget of the City is inequitable. To that end, while the City’s first position rejects the Conditions entirely – it did engage with the Applicant to attempt to settle or agree on a list of Conditions as the proverbial, “worst-case scenario” if the Consent were to be approved in terms of what it considered would be required to mitigate any risks to public health and safety.

68It appears the Applicant misapprehended the basis for engaging in the list of agreed proposed Conditions and did not understand that the City would be asserting an unreasonable and inequitable argument. Accordingly, the Applicant submits that they now only support their initial list of conditions contained within the Witness Statement of Mr. Lakatos at pg. 60, which were drafted with the input of Ms. Egan and Mr. Jeffry. The Applicant’s proposed conditions also relate to a monitoring and a consent agreement but is substantially less extensive than the City’s Conditions, comprising 11 items in total and without the requirement for insurance and security. The Applicant submits that Exhibit 9 was only entered in an attempt to narrow the issues to respond to the City’s enforcement concerns under the OBC, which its experts do not concede but rather reject as invalid.

69Turning strictly to the implementation of an Agreement as an enforcement mechanism (the key sub-conditions of which are dealt with below in the discussion under Conditions), in support of the City position Mr. Sarwar’s evidence was that such a condition generally placed an unreasonable burden on the City’s operations, which is what its Appendix D policies within the Hydrogeological Guidelines were designed to avoid. In cross-examination, Mr. Sarwar did confirm there were no policies in force that would restrict the City’s ability to enter into monitoring agreements.

70Mr. Caetano’s evidence was that there are other enforcement options available outside the OBC including an Agreement. However, he stated that he is only responsible for the OBC and those matters would fall outside of his scope of expertise in that once a condition of Consent was cleared, the City would be left to manage the long-term advanced systems requirements. He did however agree that both subdivision agreements and consent agreements, when registered on title, “run with the land” in that in the event of a change in ownership, they bind future owners. On cross-examination, Mr. Caetano also admitted that under section 4.22(iii)(2) of the City’s Zoning By-law, which sets out that approved waste disposal and water supply shall be provided and maintained to the satisfaction of the Chief Building Official, empowers that Official to refuse a building permit for a conventional system in a circumstance where a future owner might attempt to change their system from an advanced unit to a conventional one.

71In contrast, Ms. Egan’s evidence was that the City’s position suggests that advanced treatment owners are likely to neglect their operation and maintenance obligations shifting the burden onto the City, when in fact, her experience informed her that is not true. In her opinion, advanced treatment owners have a greater awareness of their system and their responsibility for regular maintenance and monitoring. Ms. Egan further pointed to various examples of development in different municipalities, including Hamilton, where advanced systems were approved including with conditions involving monitoring and maintenance agreements.

Findings on Issue Three: Monitoring and Enforcement Mechanisms

72Agreements regarding the monitoring and maintenance of advanced systems can, and regularly have been, imposed as conditions of approval pursuant to subsection 51(26) of the Planning Act. Section 23 of the Municipal Act provides authority for municipalities to enter into monitoring agreements for private sewage works, and through a condition of consent approval requiring such an agreement, the same can be entered into with a City.

73If the City wished to assert its policy position against advanced treatment systems, for the reasons it contends the Conditions are unreasonable and inequitable, that ought to be done by way of express amendment to the RHOP which would undergo the vigorous public evaluation process pursuant to the Planning Act – as was recommended in the 2023 Staff Report. The imposition of such conditions is not new. The Freelton decision is but the latest in a line of many such cases.

74Indeed, Ms. Smith presented the numerous cases wherein advanced treatment systems have been approved in various jurisdictions, many with conditions of approval that address such monitoring and enforcement mechanisms.²² Additionally, the concerns raised in the 2023 Staff Report regarding future change to conventional systems was adequately addressed. Property owners who, for whatever reason, may attempt to later change an advanced system to a conventional one would require a building permit, which Mr. Caetano admitted himself could be denied.

75Accordingly, I prefer the evidence of Ms. Egan that there are adequate mechanisms for monitoring and enforcing the performance and function of advanced treatment systems which ensures that the requisite standard of nitrate concentration is maintained at the property boundary. Specifically, through Consent Agreements, registration on title, service and maintenance agreements, homeowner education and awareness programs and discretionary sewage system inspection programs – all of which can be implemented through the Conditions of approval. Beyond general statements of an unreasonable burden on City resources, neither Mr. Caetano nor Mr. Sarwar could present any evidence which support that these are not permissible or viable enforcement mechanisms.

Issue Four: Conditions

76Beyond the reasonableness and equity argument regarding the monitoring and consent Agreement, the other key dispute between the Parties on the Conditions within Exhibit 9 rests with the necessity and reasonableness of Condition 2(n) allowing full replacement of the system by the City as a corrective measure under “monitoring” as well as the provision requiring financial security. The City proposed $60,500 and a letter of credit as financial security. While the Applicant challenges the entirety of the provision, not being contained within its own list of conditions with Mr. Lakatos’ proposed conditions, it states the amount is excessive and unsupported.

77Mr. Sarwar spoke to the quantum of security. He testified that he arrived at the $60,500 based on his correspondence with vendors and conversation with Mr. MacDougall which indicated that a full replacement cost of the entire system could be above $50,000, and that the cost of an “additional tank” was $20,000 alone. In addition to this amount, Mr. Sarwar testified it was appropriate to include a further $10,500 quantum for the costs associated with the monitoring obligations which he based on rough calculations for the hourly time associated with said monitoring. On cross-examination, Ms. Sawar confirmed he did not include those calculations or copies of correspondence within this Witness Statement. He also admitted he did not have any evidence to support that the City budget was unable to accommodate the monitoring requirements. Mr. Sarwar further admitted that if an advanced system failed on a particular property, it would be his expectation that the homeowner would do everything in their power to resolve the issue to avoid plumbing and sewage issues on their own property.

78In contrast, Ms. Egan provided an estimate (Exhibit 16) that she obtained from Waterloo Biofilter which showed Mr. Sarwar’s cost calculation to be overestimated. The quote indicates, as testified to by Ms. Egan, that a Model 2000 Waterloo Biofilter unit would cost $17,416. She stated that the City’s quoted $20,000 for an additional tank may have been referring to an add-on WaterNOx unit that increases nitrogen removal from 50% to 90% which was not necessary for the proposed lots. Assuming that an additional tank was necessary as a corrective measure, the information she received from Waterloo Biofilter indicated that additional cost to be $9,500. She estimated the costs associated with installation to be between $5,000-$7,500. Combined, Ms. Egan estimated the total cost of replacing and/or implementing corrective measures to be between $32,000 to $35,000. In coming to these figures, Mr. Egan clarified that the calculations did not include the leaching bed component since there was no dispute that component was enforceable under the OBC as with any other Class 4 system.

79Notwithstanding her evidence on what she states is the more accurate figure for full replacement cost, Ms. Egan opined that security for a full replacement of a system was not warranted given it is based on an extreme case scenario where a homeowner refused to maintain their system. It is her opinion that the amount of $5,000 is more reasonable for financial security, if the Tribunal was so inclined to impose such a Condition, for the cost of replacing only the minor components of the system required for nitrogen removal.

Findings on Issue Four: Conditions

80I find that the list of proposed Conditions (Exhibit 9) that are appended as Attachment 1 to the Order below are relevant, necessary, reasonable and equitable.

81Given that determinations on OBC enforcement go beyond the scope of the legislated tests under the Planning Act for a Consent application, I am of the view that the City’s proposed List of Conditions (Exhibit 9) are more appropriate under the circumstances than those supported by the Applicant and included at page 60 within Mr. Lakatos’ Witness Statement.

82With respect to Condition 2(n), I find that the full replacement cost is appropriate, necessary, relevant and equitable to mitigate any possible risks to public health and safety that may arise in the event of system failure in a circumstance in which, and for whatever reason, a homeowner may be unable to rectify within a reasonable time. To that end, I prefer the evidence of Ms. Egan as to the more accurate costs of a full replacement based on the estimate obtained from Waterloo Biofilter. Mr. Sarwar’s evidence was unsupported by any documentation.

83Accordingly, the Consent is approved based on the Conditions as tendered by the City, with the exception that the Financial Securities provision shall be amended to reflect that a total of $32,500 shall be required per proposed new residential lot for a total amount of $65,000.

SUMMARY

84Having reviewed through my analysis the key issues in dispute, I find the Hydrogeological Study to be reasonable and appropriate and, combined with the Conditions, addresses all concerns related to private servicing and groundwater. The proposed advanced treatment system will enable infill intensification and per the Conditions of approval will require mandatory testing at the expense of the owner as well as adequate security on each of the lots in the event corrective action is required for a full system failure.

85I accept the evidence put forward by the Applicant’s witnesses, and namely its Planner, Mr. Lakatos, who opined that proposed severance has sufficient regard for matters of Provincial Interest and criteria for consideration of Consents set out in s. 2 and 51(24) of the Planning Act, and is consistent with the PPS and the Growth Plan which encourages development within designated Settlement Areas of local OPs. The Subject Lands are located within the Greensville Rural Settlement Area designation of the Greenbelt Plan, which permits infill and intensification of Settlement Areas/Hamlets. I accept Mr. Lakatos’ evidence that the proposal conforms to the RHOP which permits infill single detached lots through Consents, is compatible with the existing character of the area and able to accommodate private services without impacting ground water quality and quantity as per the Hydrogeological Study. I also accept his evidence that the proposal complies with the single detached dwelling regulations of the residential zoning in the ZBL.

ORDER

86THE TRIBUNAL ORDERS THAT the appeal is allowed, and the provisional consent is to be given subject to the Conditions set out in Attachment 1 to this Order.

“N. Eisazadeh”

N. EISAZADEH MEMBER

Ontario Land Tribunal Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

ATTACHMENT “1”

Proposed Conditions of Approval

Standard Committee of Adjustment Conditions

1. The owner shall submit a deposited Ontario Land Surveyor’s Reference Plan to the Committee of Adjustment Office, unless exempted by the Land Registrar. The reference plan must be submitted in pdf and also submitted in CAD format, drawn at true scale and location and tied to the City corporate coordinate system. (Committee of Adjustment Section)

2. The owner shall pay any outstanding realty taxes and/or all other charges owing to the City Treasurer. (Committee of Adjustment Section)

3. The owner submits to the Committee of Adjustment office an administration fee, payable to the City of Hamilton, to cover the costs of setting up a new tax account for each newly created lot. (Committee of Adjustment Section)

4. That, the owner submits a Hydrogeological Report prepared by a qualified professional in support of the proposed severance to the satisfaction of City’s Source Protection Section.

5. That the Owner enter into with the City of Hamilton and register on title of the lands, a Consent Agreement, having an administrative fee of $4,850.00 (2023 fee) to address issues including but not limited to: grading and drainage to a suitable outlet on the conveyed and retained parcels (detailed grading plan required), erosion and sediment control measures (to be included on the grading plan); cash payment requirements for items such as street trees (City policy requires one (1) street tree/lot, stormwater management infrastructure and securities for items that may include: lot grading ($10,000.00 grading security), driveway approaches, and any damage during construction (unknown costs at this time). Cash payments mentioned above are subject to change (To the satisfaction of the Manager of Development Engineering).

6. The owner shall submit survey evidence that the lands to be retained (“Part 1”), including the location of any existing structure, parking and landscaping conform to the requirements of the Zoning By-Law or alternatively apply for and receive final approval of any variances from the requirements of the Zoning By-Law as determined necessary by the Planning and Economic Development Department (Planning Division – Zoning Section).

Special Conditions

Prior to the Application for Building Permits

1. That the applicant shall submit and receive approval for a Hydrogeological Study to the satisfaction of the Director of Hamilton Water, which shall include but not limited to:

a. Install and maintain a sentinel monitoring well located hydraulically down- gradient of the wastewater treatment system, adjacent to the property boundary. The sentinel monitoring well will be screened within the effluent receiving aquifer. The sentinel monitoring well will be located and installed to the satisfaction of the Director of Hamilton Water.

b. A groundwater sample from the sentinel monitoring well shall be collected and analyzed for total ammonia, nitrate, nitrite, and TKN. The purpose of the sampling is to establish baseline water quality conditions within the effluent receiving aquifer. The concentration of nitrate at the property boundary, within the effluent receiving aquifer, shall be confirmed to be less than 10 mg/L.

c. The nitrate dilution calculations provided by PML shall be re- calculated to confirm the boundary concentration of nitrate in the effluent receiving aquifer. The latest report (‘Technical Summary’ by Peto MacCallum Limited, dated Dec 16, 2022) states that a advanced treatment system should achieve a minimum effluent reduction target of 50% for nitrogen to ensure its concentration at property boundary is below 10 mg/L.

d. The completion of a water supply assessment following all of the criteria outlined in the City of Hamilton Guidelines for Hydrogeological Studies and Technical Standards for Private Services.

Prior to the Issuance of Building Permits

2. That the Owner and the City shall enter into and register on title the subject lands an agreement respecting private services, for the ongoing monitoring of groundwater and the installation and maintenance of an advanced treatment system which has capacity to reduce nitrate by at least 50%, with applicable provisions for insurance, financial securities, and corrective actions, up to and including replacement of the system, to the satisfaction of Director, Hamilton Water, which shall include but is not limited to:

Operation and Maintenance:

a. To properly operate and maintain, at no expense to the City, the advanced treatment unit within the Subject Lands in a manner satisfactory to the City and in accordance with the approved plans and specifications, the provisions of the Agreement and all applicable legislation, regulations, by-laws, orders and guidelines;

b. The advanced treatment system must be tested in accordance with CAN/BNQ 3680-600 (On-site Residential Wastewater Treatment Technology) or similar or successor standards and must demonstrate capacity to produce treated effluent that satisfies a minimum of 50% reduction for total nitrogen, to the satisfaction of Director, Hamilton Water;

c. To retain a person, company or entity to operate and maintain the advanced treatment unit and that person, company or entity shall be appropriately qualified and trained and authorized by the manufacturer to service and maintain that type of treatment unit.

d. That upon Occupancy, the Owner shall inspect and sample the advanced treatment unit in accordance with the Agreement.

Monitoring:

e. Ensuring that the nitrate concentration in the groundwater is maintained below 10 mg/L (Ontario Drinking Water Standards) at the property boundary.

f. Ensuring that the nitrate concentration at the outlet of the advanced treatment unit is maintained below 20 mg/L.

g. Inspections of the advanced treatment system by a qualified sewage system contractor or service provider who is authorized by the manufacturer to inspect, service and maintain that type of treatment unit.

h. Sampling of the treated wastewater effluent by the owner for cBOD5, total suspended solids (TSS), total ammonia, nitrate, nitrite and TKN. Results must be reported to the Director, Hamilton Water.

i. Sampling of the groundwater from the sentinel well for total ammonia, nitrate, nitrite, and TKN.

j. The following post-development advanced treatment system inspection and sampling schedule (subsections c and d above) shall apply:

a) Year 1 and 2 – Quarterly (March, June, September and December of each calendar year)

b) Annually for the life of the system thereafter unless nitrate is reported at elevated concentrations from the effluent or at the property boundary (from the sentinel monitoring well). If elevated concentrations of nitrate are noted, then quarterly sampling and/or inspections shall be re-instated and mitigation measures shall be applied. Quarterly effluent sampling from the treatment unit should continue until it can be demonstrated that effluent quality is satisfactory. Further, enhanced sampling of the sentinel well as further stipulated in Paragraph (k) shall be implemented.

k. The following post-development sentinel well sampling schedule (subsections above) shall apply:

a) Year 1, 2 and 3 – Annually (Between June and Sept of each calendar year)

b) If nitrate concentrations are less than 10 mg/L at the property boundary after 3-years of sampling, then further sampling of the sentinel well can be discontinued.

c) If nitrate concentrations are found to exceed 10 mg/L at the property boundary, then an enhanced quarterly sampling of the sentinel well shall be implemented until it can be demonstrated that effluent quality is satisfactory.

l. The sample location of the advanced treatment system shall be from a location immediately prior to discharge to the dispersal bed.

m. Daily wastewater flow volume (L/day) analyzed through a flowmeter installed before the leaching bed. This may include pump run time meters or other meters that can provide an accurate volumetric flow rate.

n. The groundwater quality monitoring of the sentinel well will include sampling for total ammonia, nitrate, nitrite, and TKN. The monitoring would take place on a quarterly basis, and after 1-year, it can be reduced to an annual basis if the groundwater quality maintains a concentration of 10 mg/L or less of nitrate nitrogen. If the nitrate concentration in the sentinel well exceeds 10 mg/L, the owner is required to implement corrective measures forthwith to improve effluent and groundwater quality. If corrective measures are required, the groundwater quality monitoring would continue on a quarterly frequency until improvements are demonstrated to the satisfaction of Director, Hamilton Water. If corrective measures fail or are not taken by the owner, Hamilton Water may, in consultation with the manufacturer of the treatment unit, take any corrective actions required, including its full replacement, to restore proper functionality of the treatment unit.

Annual Report:

Annual reporting (in PDF format) prepared by a Qualified Person (P.Eng., P.Geo.) shall be submitted during the term of this Agreement no later than March 31st of the following year (the “Annual Monitoring Date”) to the satisfaction of Director, Hamilton Water (the “Annual Report”).

The Annual Report shall include all items described above for the previous calendar year (January to December), including inspection reports, effluent monitoring results, interpretation of the monitoring data, description of any operating problems encountered and corrective actions taken, maintenance and repairs records, certificate of analysis (incl. chain of custody) for the lab water quality results, summary of the calibration and maintenance carried out on the advanced treatment unit subject to monitoring, and any actions taken in response to exceedances and achieved results, including any additional groundwater quality monitoring of the sentinel well.

The annual report shall include the recommendations for resolving any non- compliance, Default or Deficiency, which the Owner shall immediately implement and document in the subsequent annual report.

Notification and Corrective Actions:

If monitoring of the sewage effluent and/or sentinel well identifies groundwater quality exceedances, then the property owner shall promptly notify (via E- Mail) the City of Hamilton, including intended corrective actions to be pursued.

Deficiencies:

For clarity, failure to comply with any of the provisions of Section2, including but not limited to failure to provide the information stipulated in this agreement, failure to achieve treatment targets and failure to take any corrective action to remedy the results of any testing described in these sections as required by the City, in its sole discretion, shall be sufficient to constitute a Deficiency.

Financial Securities:

The Owner shall provide financial securities in the amount of $32,500 per proposed new residential lot for a total amount of $65,000, including providing the City with a satisfactory copy of a letter of credit.

General:

Subject to a 10-year recurring review to the satisfaction of Director, Hamilton Water, the terms and conditions of this Agreement shall remain in force in perpetuity and are to be registered on title, binding all future owners. Subject to aforementioned review, the current and all future property owners under the terms of this agreement shall be required to only utilize an advanced treatment system and shall be restricted from the use of any other type of system (i.e., conventional system), to be effective in perpetuity.

3. A Notice regarding the agreement required by Condition 2 shall be registered on title, to the satisfaction of the Director, Hamilton Water (or their delegate), to expressly indicate the Owner’s responsibility in this regard.

NOTES:

Prior to a person performing any work on, in or around a public tree an application for a permit shall be submitted t

Footnotes

1. 1This Decision will use the term “advanced treatment system” and notes, as was confirmed by the evidence and agreed by the Parties, that “advanced treatment system” is synonymous with use of the former term “tertiary treatment system”. Both are acknowledged as being referred to as “Class 4, Level IV Treatment Units” under Part 8, Division B, of the Ontario Building Code (“OBC” O. Reg. 332/12: Building Code under Building Code Act, 1992, S.O. 1992, c. 23.), and prior to their incorporation in the OBC in 1998, referred to as “Class 6 (Aerobic Systems)” under Volume 2, Chapter A, Flamborough Rural Settlement Areas of the Rural Hamilton Official Plan.
2. 2Planning Act, R.S.O. 1990, c. P.13.
3. 3O. Reg. 332/12: Building Code under Building Code Act, 1992, S.O. 1992, c. 23.
4. 4Building Code Act, 1992, S.O. 1992, c. 23.
5. 5North End Neighbours v. Hamilton (City), [2017] O.M.B.D. No. 332 at paras. 23-29.
6. 62417985 Ontario Inv. v. Hamilton (City), [2019] LNONLPAT 921 [“Freelton”].
7. 7Request for Review dismissed by LPAT [Exhibit 3, PDF Page 44]. Leave to appeal to Divisional Court dismissed with costs [Exhibit 3: Joint Book of Documents, PDF Page 55].
8. 82023 Staff Repot, Exhibit 1: Joint Book of Documents, PDF Page 1077.
9. 9See Exhibit 1: Joint Book of Documents, PDF Page 1083 for redlined proposed amendments to the 2013 Hydrogeological Guidelines.
10. 10Sentiel (Broadway) Holdings Inc. v. Toronto (City), [2014] O.M.B.D [“Sentiel”].
11. 11IN8 (The Capitol) Developments Inc. v. Building Kingston’s Future, 2020 ONSC 6151 at para 26 & 31.
12. 12Sentiel, supra note 10 at para 29. See also Romandale Farms Ltd. v. Markham (City) 2018 LNONLPAT 712 at paras 42-43.
13. 13Sentiel, supra note 10 at para 29.
14. 14Rural Hamilton Official Plan: Exhibit 1, Joint Document Book of the Parties, Tab 60, PDF Pg. 1492; See also supra note 1 respecting the outdated language of Class 4 and Class 6 units both referring to advanced treatment systems.
15. 15Rural Hamilton Official Plan: Exhibit 1, Joint Document Book of the Parties, Tab 60, PDF Pg. 1483.
16. 162020 Staff Repot, Exhibit 1: Joint Book of Documents, PDF Page 1077.
17. 172023 Staff Report, Exhibit 1: Joint Book of Documents, PDF Page 1073.
18. 18Ibid, PDF Page 1079.
19. 19Ibid.
20. 20Ibid.
21. 21Ontario Building Code Act, supra note 4 at subsection 8(2); Ontario Building Code, supra note 3 at s.1.4.1.3
22. 222417985 Ontario Inc. v. Hamilton (City), [2019] LNONLPAT 921; Gauthier v. Hamilton (City), [2012] O.M.B.D. No. 861; Ottawa (City) v. Ottawa (City), [2014] O.M.B.D. No. 943; Hood v. Muskoka Lakes (Township), [2009] O.M.B.D. No. 939.