Brant Aggregates Ltd. v. Ontario (Ministry of Natural Resources and Forestry), 2024 CanLII 102766

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 15, 2024

CASE NO(S).: OLT-24-000231

PROCEEDING COMMENCED UNDER subsection 11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.8, as amended

Appellant: Brant Aggregates Ltd.

Objector: Jacqueline Accadia

Objector: Geoffrey Rowntree

Objector: Cody Snyder

Objector: Paul Snyder

Objector: Nancy Snyder

Objector: Tom and Marlene Phibbs

Objector: Bob J. Phibbs

Objector: Murray Roulston

Objector: Ryan Snyder

Objector: Doug Wilson

Subject: Application for a Class ‘A’ License

Description: To operate a quarry (below groundwater level) to remove crushed stone

Reference Number: License Application #626494

Property Address: Part Lot 10, 11 and 12, Concession 2

Municipality/UT: Walpole Township/County of Haldimand

OLT Case No.: OLT-24-000231

OLT Lead Case No.: OLT-24-000231

OLT Case Name: Brant Aggregates Ltd. v. Ontario (Ministry of Natural Resources and Forestry)

Heard: September 20, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel

Brant Aggregates Ltd.

Marc Kemerer

Cody Snyder, Paul Snyder,

Callum Shedden

Nancy Snyder, and Ryan Snyder

MEMORANDUM OF ORAL DECISION DELIVERED BY YASNA FAGHANI AND DAVID BROWN ON SEPTEMBER 20, 2024 AND DIRECTION OF THE TRIBUNAL

Link to Direction

INTRODUCTION AND BACKGROUND

1This Decision relates to a referral to the Tribunal from the Minister of Natural Resources and Forestry (“Minister”) of an application for a licence and objections thereto pursuant to s. 11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.8, as amended (“ARA”). Brant Aggregates Ltd. (“Applicant”) applied for a Class A licence (“Application”) for a property located on the south side of Regional Road 9, described as Part Lots 10, 11, and 12, Concession 12, Walpole Township, County of Haldimand (“Subject Property”).

2The Subject Property has an area of 93.7 hectares (“ha”). The Application proposes an extraction area of 57 ha and a maximum total annual extraction in the amount of 750,000 tonnes. Extraction will occur sequentially in four phases, commencing at the west side of the Subject Property, moving easterly, and then southerly. The extraction operations will include drilling and blasting of rock, and the loading and transporting of the rock by truck to the centrally located processing area on the Subject Property. Once processed, the stone will be transported off-site to an end user.

3The rehabilitation of the Subject Property will include the creation of a pond (43.9 ha), wetland areas around the shoreline (7.2 ha), and a naturalized upland area (6.32 ha) for a total of rehabilitated area of 57.42 ha.

4In its referral letter dated February 19, 2024, the Minister confirmed that the Ministry of Natural Resources and Forestry (“MNRF”) has no outstanding objections to the Application, and as such, will not be participating as a party at the Hearing before the Tribunal.

5Prior to the commencement of the Hearing, the Tribunal was advised that a Settlement had been reached between the Applicant and the Snyders. The Tribunal convened these proceedings pursuant to Rule 12 of the Tribunal’s Rules of Practice and Procedure.

6Counsel for the Applicant and counsel for the Snyders confirmed that Minutes of Settlement (“MOS”) have been endorsed by the Parties and advised that revisions to the proposed quarry operations have been captured on the revised Site Plan drawings (Exhibit 6), which are included as Attachment 1 to this Decision.

SUBMISSIONS

7The Tribunal considered the viva voce evidence and affidavit evidence from Melanie Horton, a qualified land use planner. Ms. Horton’s Affidavit, sworn on September 17, 2024, was marked as Exhibit 1.

8Ms. Horton reviewed the revised Site Plan drawings, which detailed the proposed phasing, the extraction details, conditions related to the operations of the quarry, and the comprehensive rehabilitation requirements. She noted that the requirements arising from the technical reports prepared in support of the Application have been included on the Site Plan drawings under the respective headings to which they relate.

Land Use Planning Considerations

9The Provincial Policy Statement, 2020 (“PPS”) recognizes the significance of mineral resources in Policy 2.5. Ms. Horton proffered that the PPS outlines policies designed to not only protect mineral resources, but to ensure their availability and contribution to the long-term prosperity of the Province of Ontario, while minimizing social, economic, and environmental impacts associated with aggregate operations. Ms. Horton opined that the proposal before the Tribunal is consistent with the PPS and is supported by the policies of the PPS.

10Ms. Horton advised that the Subject Property is designated Agriculture and Mineral Aggregate Resource Area in the Haldimand County (“County”) Official Plan (“HCOP”). The proposed quarry conforms to the policies of the of the HCOP and is a permitted use within the designation.

11The Subject Property is zoned Extractive Industrial (MX.1) in the Comprehensive Zoning By-law, which permits, amongst other uses, a stone quarry, a sand and gravel pit, and a crushing and screening plant.

Objectors

12Ms. Horton advised that the circulation of the Application attracted 10 objections from area residents. She summarized their concerns as: a) impacts of the proposed blasting; b) impacts of dust and noise; c) impacts on groundwater levels in private wells; and d) storm water runoff (Harrop Drain).

13Ms. Horton responded to the concerns relating to blasting impacts, explaining that they have been addressed through the Blast Impact Assessment (“BIA”) that was prepared in accordance with the guidelines of the Ministry of Environment, Conservation and Parks (“MECP”). The BIA included a number of recommendations that have been incorporated in the Site Plan drawings and concluded that there is a “zero-probability limit” with respect to damage potential arising from the operation of the proposed quarry. Aggregate operators are required to manage dust on site to comply with the provincial air quality standards, as regulated by the MECP, and Ms. Horton advised that operational plans have been designed to control dust and the Site Plan contains conditions to mitigate dust creation and impact. With respect to the noise concerns raised, Ms. Horton advised that a Noise Assessment was prepared and the recommendations arising from the Noise Assessment have been incorporated into the Site Plan conditions to ensure that noise generated is within the MECP noise regulations.

14With respect to concerns regarding possible impacts on groundwater levels in private wells, Ms. Horton advised that a Hydrogeological Review was conducted to evaluate the impact of the proposed quarry on groundwater resources within 500 meters of the proposed quarry. A groundwater monitoring program is proposed and will include monitoring wells onsite. Groundwater data will be reviewed quarterly, inside the limits of the Subject Property as the operations progress. The potential impact on private wells will also be monitored through a Water Well Complaint Response Program (“WWCRP”), which is detailed on the Site Plan drawings and includes the provisions of temporary water supply in the event of an impact on well-water levels. The Harrop Drain issue is resolved by conditions attached to the Site Plan drawings requiring buffers and protective fencing around the location of the Harrop Drain.

Section 12(1) of the ARA Considerations

15Section 12(1) of the ARA sets out the matters that the Tribunal shall have regard to when deciding whether the requested quarry licence should be issued or refused. These considerations are as follows:

a. the effect of the operation of the quarry on the environment;

b. the effect of the operation of the quarry on nearby communities;

c. any comments provided by a municipality in which the site is located;

d. the suitability of the progressive rehabilitation and final rehabilitation plans for the site;

e. any possible effects on ground and surface water resources, including on drinking water sources;

f. any possible effects of the operation of the quarry on agricultural resources;

g. any planning and land use considerations;

h. the main haulage routes and the proposed truck traffic to and from the site;

i. the quality and quantity of the aggregate on the site;

j. the Applicant’s history of compliance with the ARA and the regulations, if a licence or permit has previously been issued to the Applicant under the ARA or a predecessor of the ARA; and,

k. such other matters as are considered appropriate by the Tribunal.

16Ms. Horton responded to the matters identified in s. 12(1) of the ARA, stating that the potential effects of the proposed quarry on the environment have been examined through the Natural Environment Report, and the technical recommendations have been incorporated as conditions on the Site Plan drawings. The operations, phasing, and rehabilitation of the quarry have been designed to minimize impacts on neighbours and the community. Measures to control noise and dust and the impacts from blasting and truck traffic have been incorporated into the Site Plan drawings. Ms. Horton reiterated that the potential impacts on water resources have been examined in the Hydrogeology Review, and a groundwater monitoring program and the well-water interference complaint protocol have been developed to address any future concerns with well-water impacts. With respect to concerns regarding traffic volume and noise, Ms. Horton advised that trucks will use County roads designed to accommodate truck traffic. The anticipated operation will generate an average of 2.5 trucks per hour based on the expectation of between 150,000 and 250,000 tonnes of stone being extracted annually. Ms. Horton proffered that these traffic volumes will have minimal impact on the local road network.

17Ms. Horton advised the Tribunal that the Applicant currently operates another aggregates extraction operation in Brant County and there are no outstanding compliance issues or orders in connection with that operation. The Applicant has a good record of operating in accordance with the licencing conditions.

SETTLEMENT

18Ms. Horton advised that the MOS that the Parties in these proceedings have entered into have also addressed the concerns raised by the Participants, with the exception of one Participant. The MOS includes the revised Site Plan drawings (Exhibit 6), to be attached to the licence, that provide for the installation of well-water monitoring devices at the wells identified on the Site Plan drawings and located on properties belonging to the Snyders, and some of the Objectors. Ms. Horton submitted that while these wells are outside of the zone where impact to well-water supply could be anticipated, this condition will serve as an additional layer of protection and address the Objectors’ concerns. Furthermore, the MOS included revising the WWCRP to require a response within 24 hours of a complaint being received, and to include the Phibbs, Roulston, Wilson, and Snyders’ properties in that program.

19The remaining concerns raised by Ms. Accadia in her Participant Statement (Exhibit 5) related to the impact of blasting and traffic. She submitted that these concerns have been addressed through the BIA and Traffic Impact Study. The BIA recommended conditions which are included on the Site Plan drawings, and the truck traffic generated by the proposed quarry is expected to be an average of 2.5 truck trips per hour.

20In conclusion, Ms. Horton opined that the Application to permit a quarry operation at the Subject Property is consistent with the PPS, conforms to the HCOP, and has appropriate regard for the matters as set out in s.12(1) of the ARA. The proposed Site Plan drawings, as revised to include the additional matters addressed in the MOS, addresses the issues of the commenting agencies, the Objectors, and satisfy the requirements of the MNRF.

21Ms. Horton recommended that the Class A licence be approved, and the Tribunal direct the Minister to issue the licence in accordance with the Site Plan drawings filed as Exhibit 6 with the Tribunal.

ANALYSIS AND FINDINGS

22The Tribunal, having considered the uncontroverted testimony and affidavit evidence of Ms. Horton, is satisfied that the Application is consistent with the PPS, and conforms with the HCOP.

23Having considered the matters set out in s. 12(1) of the ARA, and the opinions proffered by Ms. Horton, the Tribunal finds that the Application, together with the revised Site Plan drawings filed with the Tribunal, have appropriate regard to the matters set out in s. 12(1) of the ARA, including the effect on the environment such as noise and dust, the effect on the surrounding community, the progressive rehabilitation of the quarry, the possible effects on groundwater, including drinking water, and truck traffic generated to and from the Subject Property.

24The Application has been the subject of extensive consultation and the issues raised have been sufficiently addressed through the reports and assessments filed in support of the Application. The Site Plan drawings include appropriate conditions to regulate the proposed quarry operation.

25The Tribunal finds that the objections raised have been appropriately addressed through the MOS and resultant conditions attached to the Site Plan drawings.

26Accordingly, the Tribunal finds that the Application should be approved, and the Class A licence issued in accordance with the Site Plan drawings filed with the Tribunal as Exhibit 6. For further clarification, the Site Plan drawings are those prepared by Harrington McAvan Ltd. and signed by Richard McAvan, referenced as Project Number 19-14 with a plot date of September 19, 2024, and attached to this Decision as Attachment 1.

DIRECTION

27THE TRIBUNAL DIRECTS the Minister of Natural Resources and Forestry to issue the licence to Brant Aggregates Ltd., subject to the prescribed conditions, and in accordance with the Site Plan drawings prepared by Harrington McAvan Ltd. under Project Number 19-14 with a plot date of September 19, 2024, and attached as Attachment 1 to this Decision.

“Yasna Faghani”

YASNA Faghani

member

“David Brown”

David BROWN

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