Ontario Land Tribunal
ISSUE DATE:
October 17, 2024
CASE NO(S).:
OLT-24-000698
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
George Thomas
Subject:
Consent – Conditions of provisional consent
Description:
To facilitate creation of two new lots
Reference Number:
B-086-2023
Property Address:
164 Concession Road 1
Municipality/UT:
Alfred and Plantagenet/Prescott and Russell
OLT Case No.:
OLT-24-000698
OLT Lead Case No.:
OLT-24-000698
OLT Case Name:
Thomas v. Prescott and Russell (United Counties)
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
George Thomas
Subject:
Consent – Conditions of provisional consent
Description:
To facilitate creation of two new lots
Reference Number:
B-087-2023
Property Address:
164 Concession Road 1
Municipality/UT:
Alfred and Plantagenet/Prescott and Russell
OLT Case No.:
OLT-24-000699
OLT Lead Case No.:
OLT-24-000698
Heard:
September 11, 2024 by Video Hearing
Parties
Counsel
George and Raffaelina
Devon Sivill
Thomas
Township of Alfred and
Greg Meeds
Plantagenet
United Counties of
Greg Meeds
Prescott and Russell
DECISION DELIVERED BY GEORGE Politis AND ORDER OF THE TRIBUNAL
Link to the Order
INTRODUCTION
1George Thomas (“Applicant”/“Appellant”) owns the property municipally known as 164 Concession Road 1 (“Subject Property”), in the Township of Alfred and Plantagenet (“Township”), in the United Counties of Prescott and Russell. He is seeking consent to sever the Subject Property to create two new lots. Planning Staff recommended the approval of the consent, and the Township approved the consent application subject to ten conditions. The Appellant appealed the decision to the Tribunal under s. 53(19) of the Planning Act (“Act”), with regards to the inclusion of Conditions 6 and 8. Mr. Thomas pleads that Conditions 6 and 8 of the Notice of Decision from the Township are redundant and/or unreasonable.
SUBJECT PROPERTY AND EFFECT OF PROPOSAL
2The Subject Property is located within the Township and is located along Lake Georges and is approximately two kilometers east of the Village of Treadwell. The Official Plan of the United Counties of Prescott and Russell (“UCPR OP”) indicates the presence of two fish habitats (watercourse and waterbody) and a significant woodland located on the eastern portion of the Subject Property. The Subject Property is bound to the north by Plantagenet Concession 1 and to the south by Lake Georges. To the east, the site is bound by Ruisseau du Lac Georges, and to the west, the site is bound by Part of Lot 1 Broken Front. The site is located within the Ottawa River Watershed and is within the jurisdiction of South Nation Conservation (“SNC”). The Subject Property is situated within a broader rural-residential area. The existing land use designation from the UCPR OP is rural.
3The Appellant is seeking to sever two parcels from an approximately 13.9 hectare (“ha”) property for future residential development.
4The difference in opinion between the Appellant and the Township lie with Conditions 6 and 8 of the conditions (found in Exhibit 2, Appellant’s Book of Documents), which requires the Applicant to provide:
a) a Hydrogeological Study and Terrain Analysis (“THA”) submitted in support of this consent application to be completed in accordance with the requirements of the UCPR Hydrogeological Report Checklist in order to ensure that the aquifer, the soil conditions, and the dimensions of the severed parcels can accommodate the proposed uses.
b) the acknowledgement and payment for all costs related to the peer review of the THA completed on behalf of the UCPR Approval Authority.
5The Appellant feels that the THA they submitted with their consultant fulfilled the requirements for the Application. The Appellant agreed with all of the other eight conditions and felt Conditions 6 and 8 were redundant and unreasonable.
CONSENT APPROVAL AUTHORITY CONDITIONS
6The following were the conditions approved with the consent application:
Required by the Township of Alfred and Plantagenet
That monetary compensation for park purposes, in the amount of $1,172.00, be paid to the Township of Alfred and Plantagenet.
That the land surveyor ensures that the setbacks between the new property lines and the existing buildings on the retained lot (B) are respected as prescribed in Zoning By-law No. 2009-50 of the Township of Alfred and Plantagenet.
Required by the South Nation Conservation
- That the landowner provides South Nation Conservation with the following written undertaking: “I acknowledge that the proposed property lines are a minimum distance of three metres from all existing private sewage systems”.
Required by UCPR - Public Works
- That the Owner conveys, if required, at no charge and encumbrances to the Corporation of the United Counties of Prescott and Russell, sufficient frontage across the retained and severed lands to provide for a road right-of-way as defined in the UCPR Official Plan and as amended, which currently prescribes a right-of-way measuring 26 metres for County Road 24. The Owner must provide to the Public Works Department a Draft Reference Plan that sets out the required widening which for this application shall represent one half of the Official Plan right of-way width. If the Owner’s Surveyor determines that the widening condition has already been satisfied, it must be indicated on the Draft Reference Plan and submitted to the Public Works Department for review and approval. In this event, the Approval authority of the United Counties of Prescott and Russell requires written confirmation from the Public Works Department that the widening is not required.
Required by the United Counties of Prescott and Russell - Planning
- That the applicant file with the approval authority of the United Counties of Prescott and Russell a copy of:
(a) a digital Portable Document Format (PDF) of the registered Reference Plan of the subject land prepared by an Ontario Land Surveyor registered in the Province of Ontario, and signed by the Registrar, confirming the frontage and area of the severed land. If the Registered Plan does not indicate the lot area, a letter from the Surveyor confirming the area is required. The registered Reference Plan must conform substantially with the sketch filed with the Application of Consent as submitted; and
(b) a clean georeferenced .dwg file showing only the new and existing parcel limits as shown on the registered Reference Plan.
That the Hydrogeological Study and Terrain Analysis submitted in support of this consent application be completed in accordance with the requirements of the UCPR Hydrogeological Report Checklist in order to ensure that the aquifer, the soil conditions, and the dimensions of the severed (A) parcel can accommodate the proposed uses.
That the applicant acknowledges and further agrees, if necessary, to make the modifications to the lot dimension stated in Section 5.0 of the application for consent to comply with the recommendations of the Hydrogeological Study and Terrain Analysis.
That the applicant acknowledges and further agrees to pay all costs related to the peer review of the Hydrogeological Study and Terrain Analysis completed on behalf of the UCPR Approval Authority.
That the applicant provide the approval authority of the United Counties of Prescott and Russell with a Transfer/Deed of Land conveying the severed lands, for use for the issuance of the Certificate of Consent.
That each condition be fulfilled, and that the approval authority of the United Counties of Prescott and Russell be so advised in writing by the Department or Agency requesting that the condition be imposed, no later than two years after the mailing of the Notice of Decision.
LEGISLATIVE FRAMEWORK
7With respect to this Appeal, in order to determine whether consent to severance should be granted (with such conditions that may be required):
a) The Tribunal must be satisfied that a plan of subdivision is not necessary for the proper development of the Town and can proceed by way of application for consent;
b) If the Tribunal is satisfied that a plan of subdivision is not necessary, regard must then be given to the criteria set out in s. 51(24) of the Act, including (but not limited to): whether the proposed consent is premature or in the public interest; whether there is conformity to applicable Official Plans; the suitability of the land for the purposes for which it is to be subdivided, and the dimensions and shapes of the proposed lots;
c) As with any planning decision, the Tribunal must be satisfied that the proposed consent is consistent with the Provincial Policy Statement 2020 (“PPS”) and conforms to any applicable Provincial Plan. The Tribunal must also have regard to the decision of the approval authority relating to the consent application and the information and material that was before it when making a decision;
d) Pursuant to s. 53(12) of the Act, the Tribunal may consider and impose such conditions as are determined to be reasonable, having regard to the nature of the proposed consent;
e) Finally, in general, the Tribunal will decide whether the proposed consent along with any required conditions, is representative of good planning in the public interest.
HEARING
8The Applicant/Appellant was represented by Counsel at the Hearing and did not call on any expert witnesses. Mr. Thomas testified to present information regarding the history of the Appeal and acknowledged that he was not an expert in land use planning.
9The Township was represented by Counsel at the Hearing.
10The only expert evidence before the Tribunal included the Testimony of Nicolas Denis, Planner for the Township, who prepared the report regarding the application. After reviewing his Curriculum Vitae and Acknowledgement of Expert’s Duty form, the Tribunal qualified Mr. Denis to provide opinion evidence in land use planning for both Parties.
11The Tribunal received and marked the following documents as Exhibits to the Appeal:
Exhibit 1 – Document Book (Applicant/Appellant)
Exhibit 2 – Document Book (Township)
12The Appellant was affirmed and testified that his intent was to sever the two new lots for a later use. The Appellant testified that:
a) he consulted with UCPR and discussed their concerns with a river running through the Subject Property. There were concerns of the need for Trout habitat to be protected;
b) he proceeded with the application process and procedures;
c) he had hired consultants to perform the required THA as per the requirements of the application;
d) he had conducted several water tests both in the warm dry seasons as well as the spring season;
e) all the water tests indicated that the well had sufficient water. He described his well as a dug well and reminded everyone that the dug wells had a bad reputation;
f) the pump tests that were performed in September and December 2021, were good. He testified that there was a total of seven (7) pump tests. Results from these tests are in Exhibit 2, page 65; and,
g) the THA was apparently adequate for the Consent Approval Authority (“CAA”) when reviewed by Ms. Poirier and that the original THA was compliant with the requirements of the CAA at such time as the Consent Applications were submitted.
13The Appellant testified that he is unable to meet the requirements of the CAA’s THA Checklist (Condition 6) without completing an entirely new THA, despite the fact that his present THA was adequate according to the SNC checklist. He stated that his THA was an applicable instrument and that he should not have to pay for another review (Condition 8). He stated that not only are these activities redundant, but also unreasonable. He explained that they were expensive and very time and effort intensive due to the UCPR subsumed hydrogeological approvals from SNC in the 2023/2024 fiscal year. He stated that his THA was conducted in 2021, completed in March 2022 and approved after a review in June 2022, using the SNC Checklist.
14In addition, the Appellant testified that:
a) in April 2023, he submitted the Consent Applications to the UCPR, having received all necessary approvals and pre-approvals to that point;
b) Mr. Denis, the manager, acknowledged the submission by stating, “We will be reviewing your application for completeness, and it will be ready for distribution in 6 weeks”; and,
c) no distribution occurred in accordance with that communicated timeline.
15The Appellant testified that:
a) in more than six months that preceded the UCPR’s next substantive communication on the Consent Applications, it would appear he stated that the CAA hired an engineer who subsequently created her own UCPR Consultant’s Checklist for THA and then, erroneously applied that checklist to the existing THA performed by the largest firm in Eastern Ontario (Lascelles Engineering),a firm universally recognized as competent to perform such studies by all levels of local government. The Appellant testified; and,
b) Jennifer Gorrell (the Township’s consultant) stated in her Memorandum, “The County may provide exceptions” (Because the initial THA was done in 2021 under the SNC Checklist and approved in 2022), but UCPR failed to exercise reasonable discretion thereby resulting in a procedural unfairness.
16The Appellant walked the Tribunal through his application process testifying that he had submitted the application with all the reports and results. He explained that in January 1, 2023 the County took authority over the required THA. The Appellant stated that Mr. Denis from the Town wanted more information and that he would be hiring a consultant to conduct a review that would determine the outcome of the application, whether it would be accepted or rejected.
17The Appellant testified that he received correspondence that his test results did not meet the required levels. The Appellant was referred to Mr. Denis, the Town Planner, and requested the Town to provide a summary of the reasons why the test results did not meet the requirements. The Appellant testified that Mr. Denis told him to contact Mr. Prevost who worked at the SNC. Mr. Prevost advised the Appellant to get another consulting firm in order to resubmit the new THA report.
18Raffaelina Thomas was affirmed and testified that she had kept a spreadsheet with checklists (Exhibit 2, page 337). The checklist for the THA study in 2021, prepared by her consultant at that time, was not aware of the required UCPR study. She stated in her testimony, that they were not treated fairly by the Town. She made several references to discrepancies regarding the Township’s consultants review of the results for the tests performed by her consultant.
19Mr. Denis was affirmed, and, in his testimony, he confirmed that the studies regarding safe drinking water as well as safe quantity of water is a prerequisite and precondition of the UCPR OP before the application is considered complete and used (Exhibit 2, Amendment, section 7.4.2 of the UCPR OP, page 182) as an example, see below:
Residential development in rural areas generally proceeds on the basis of private water and wastewater systems. Many rural areas throughout the United Counties have problems with the quantity and quality of their drinking water supply and wastewater treatment. The addition of a significant potential for new rural residential development in already problematic areas may exacerbate this problem.
20In his testimony, Mr. Denis stated that the option granted to the Appellant was Approval with ten conditions. Mr. Denis testified that he received the Appellant’s report and that it was reviewed by Ms. Gorrell the Town’s consultant. Mr. Denis testified that the Township hires consultants due to their not having one in house. This he stated is a standard practice in municipalities and Townships. Ms. Gorrell prepared the documents (Exhibit 1, Tab 44) and she had concerns with the results and the data and explained that there were parts that were missing in the report. Mr. Denis stated that he had several back-and-forth conversations with Mr. Thomas. Mr. Denis testified that he had told him that the Township did not hear from his consultant. He stated that it was necessary for the consultants to contact each other to discuss and review the results. Mr. Denis pointed out that only the owners Mr. and Mrs. Thomas were the ones reaching out to the Township’s consultant. Regarding s. 2 of the Act, Mr. Denis testified that Conditions 6 and 8 must be met in order to have regard for Provincial Interest such as subsections h, o and p as outlined below:
h) the orderly development of safe and healthy communities
o) the protection of public health and safety
p) the appropriate location of growth and development
21Mr. Denis testified that there are also Negative Impacts that have to be addressed related to the study that form part of the requirements for the UCPR OP. Mr. Denis stated that the removal of Conditions 6 and 8 would not be consistent with the UCPR OP. Mr. Denis testified that removing the conditions would not be consistent with s. 51(24) of the Act and would not represent good planning. Further, Mr. Denis testified as a land use planner that the removal of Conditions 6 and 8 would not be suitable for s. 53(12) of the Act. (Exhibit 2, Tab 26, pages 166- 168)
22While questioned during cross-examination, Mr. Denis remained firm. It was his opinion that the Township communicated effectively with the Appellants and explained to them that in order to determine that there are no negative impacts the THA must meet all the requirements for it to complete the application process and stated the following section of the PPS, see below:
1.6.6.4 Where municipal sewage services and municipal water services or private communal sewage services and private communal water services are not available, planned or feasible, individual on-site sewage services and individual on-site water services may be used provided that site conditions are suitable for the long-term provision of such services with no negative impacts. In settlement areas, individual on-site sewage services and individual on-site water services may be used for infilling and minor rounding out of existing development.
At the time of the official plan review or update, planning authorities should assess the long-term impacts of individual on-site sewage services and individual on-site water services on the environmental health and the character of rural settlement areas. Where planning is conducted by an upper-tier municipality, the upper-tier municipality should work with lower-tier municipalities at the time of the official plan review or update to assess the long-term impacts of individual on-site sewage services and individual on-site water services on the environmental health and the desired character of rural settlement areas and the feasibility of other forms of servicing set out in policies 1.6.6.2 and 1.6.6.3.
23Mr. Denis maintained that, in his opinion, the ten conditions meet the conditional approval (i.e., are consistent with the PPS, conforms with the UCPR OP, meets the requirements of s. 51(24) of the Act).
24It was in Mr. Denis’ overall professional opinion that the approval (subject to all ten conditions) is in the public interest, has regard for matters of Provincial Interest, conforms with the relevant Official Plans and represents good planning. He recommended the approved conditions including Conditions 6 and 8 are appropriate and reasonable.
ANALYSIS AND FINDINGS
25As a matter heard de novo, the Tribunal appreciates the oral and written submissions from the Appellants, however, they are not (by their own admission) Land Use Planners, and, as such, the Tribunal gave minimal weight to that portion of their testimony. They did not offer any expert planning evidence for the Tribunal’s consideration.
26The evidence provided by the expert witness stood uncontradicted by any other expert. It was clear that the Appellants supported the Approval with the exclusions of Conditions 6 and 8.
27The Tribunal finds that in terms of the criteria to be considered, allowing the Appeal without Conditions 6 and 8 for the submission of another THA and required payment would not be in the public interest (as required in s. 51(24) of the Act) as it would, according to the Appellant’s opinion, be redundant and unreasonable.
28The Tribunal is satisfied, based on the uncontroverted expert evidence presented, that the conditional approval for the consent application, subject to the ten conditions is appropriate, meets all required legislative tests and is, in general, representative of good planning in the public interest.
29In so finding, due regard has been given to matters of Provincial Interest, including but not limited to; the orderly development of safe and healthy communities and the appropriate location of growth and development.
30Regard has also been given to the decision of the Township and the information it had available when making its decision.
31The Tribunal determines that the conditional approval subject to all conditions (as granted by the Township) with the inclusion of Conditions 6 and 8 of the Consent Approval as well as any other recommended conditions should stand as they are reasonable and appropriate.
ORDER
32THE TRIBUNAL ORDERS THAT the appeal is dismissed and the Conditions imposed on the provisional consent by the Decision of the Consent Approval Authority of the Township of Alfred and Plantagenet dated June 11, 2024 remain in effect.
“George Politis”
GEORGE POLITIS
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.