Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 18, 2024
CASE NO(S).: OLT-24-000893
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: AD Thompson Road Inc.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit 30 single-detached dwelling units and 72 semi-detached dwelling units, for a total of 102 residential units.
Reference Number: ZNPL2020144 & 28TPL2020142
Property Address: 220 Thompson Road West, Waterford
Municipality/UT: Norfolk
OLT Case No.: OLT-24-000893
OLT Lead Case No.: OLT-24-000893
OLT Case Name: AD Thompson Road Inc. v. Norfolk (County)
PROCEEDING COMMENCED UNDER subsection 51(39) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: AD Thompson Road Inc.
Subject: Proposed Plan of Subdivision - Refusal by Approval Authority
Description: To permit 30 single-detached dwelling units and 72 semi-detached dwelling units, for a total of 102 residential units.
Reference Number: 28TPL2020142
Property Address: 220 Thompson Road West, Waterford
Municipality/UT: Norfolk
OLT Case No.: OLT-24-000894
OLT Lead Case No.: OLT-24-000893
OLT Case Name: AD Thompson Road Inc. v. Norfolk (County)
Heard: November 6, 2024, by video hearing
APPEARANCES:
Parties
Counsel
AD Thompson Road Inc.
Nancy Smith Anna Toumanians (in absentia)
Norfolk County
Brian Duxbury
Lafarge Canada Inc.
Kim Mullen Sean Ovas
MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN T. MASTORAS ON NOVEMBER 6, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION AND BACKGROUND
1The matter before the Tribunal was a first Case Management Conference (“CMC”) relating to appeals under sections 34(11) and 51(39) of the Planning Act (“Act”) as a result of the County of Norfolk (“County”) refusal to permit a Zoning By-law Amendment (“ZBA”) and its related Draft Plan of Subdivision (“DPS”) (together the “Appeals”) regarding the property municipally known as 220 Thompson Road West (“Subject Property”).
2AD Thompson Road Inc. (“Appellant”/"Applicant") is seeking the ZBA and DPS to allow the redevelopment of the Subject Property permitting the construction of a mix of housing designs including 30 single-detached, and 72 semi-detached dwelling units, for a total of 102 residential dwellings. The proposed plan also includes 0.73 hectares (“ha”) Open Space (“OS”) as a buffer area and a 0.66 ha stormwater management pond (“Proposal”).
3The Proposal falls within the Waterford Urban Boundary and is located to the west of Blue Line Road and south of Thompson Road West, in the southwest area of Waterford. The total area of the subject land is 7.85 ha. The ZBA would change the existing ‘Development’ Zone to ‘Residential Type 2 (R2) Zone, and OS Zone, along with a special provision allowing a 3.0 metre side yard setback.
4A Compatibility Study formed part of the Application, and a County Planning staff report dated July 16, 2024, recommended approval of the Application with various conditions, including a noise assessment. The Application was refused by the County Council on the same date referenced above.
5An Affidavit providing Notice of this CMC, signed by Louise Clare Sudac on October 3, 2024, is marked as Exhibit 1.
STATUS REQUESTS
6The Tribunal was in receipt of one written Party Status Request from Lafarge Canada Inc. (“Lafarge”), who had previously shared their concerns with the County, dating back to 2021. Similar to the County’s issues, Lafarge focused on concerns with: the ZBA specifically; land use compatibility relating to sensitive uses on the Subject Property; adverse impacts on the Lafarge Plant’s continued ability to operate; air quality; and noise levels.
7There is also a written Participant Status Request from Bernie Debono, as represented by Stephanie Fleming, who’s property abuts both the Subject Property and the Lafarge property, which operates as Norfolk Disposal Services Ltd. (“Norfolk”). The primary concern is that the Proposal will adversely affect this property, and Norfolk expects to share a more fulsome written submission for the Tribunal’s consideration in the lead up to a scheduled Hearing.
8Counsel for the County and the Applicant did not express any concerns or objections to these Status requests and the Tribunal conferred Party status on Lafarge, and Participant status on Norfolk.
HEARING REQUEST AND PROCEDURAL ORDER
9The Parties agreed that a Hearing requiring five (5) days would be appropriate in the spring of 2025, and the Tribunal directed that a Hearing be scheduled to commence on Monday, March 10, 2025, to Friday, March 15, 2025, beginning at 10 a.m. by Video Conference.
10Parties and/or Participants and/or Observers are asked to log in to the event at least 15 minutes before it begins to test their video and audio connections:
GoTo Meeting: https://global.gotomeeting.com/join/638422541
Access code: 638-422-541
11Parties and/or Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoTo Meeting or a web application is available: https://app.gotomeeting.com/home.html
12Persons who experience technical difficulties accessing the GoTo Meeting application or who only wish to listen to the event can connect to it by calling in to an audio-only telephone line: +1 (647) 497-9373 or Toll Free 1-888-299-1889. The access code is: 638-422-541.
13Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the event to ensure that they are properly connected at the correct time. Questions prior to the event may be directed to the Tribunal’s Case Coordinator.
14The final draft Procedural Order was submitted on consent of the Parties following the CMC on November 8, 2024, which is hereby approved by the Tribunal and will govern future proceedings of the matter as set out below in Schedule 1, to this Order.
ORDER
15THE TRIBUNAL ORDERS that:
a) The date and particulars of the Hearing are set out above; and,
b) The directions provided in this Decision are so ordered.
16The Member is not seized on this matter.
17There will be no further notice.
“Steven T. Mastoras”
STEVEN T. MASTORAS
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.
SCHEDULE 1
ISSUE DATE: CASE NO(S).: OLT-24-000893
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: AD Thompson Road Inc.
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit 30 single-detached dwelling units and 72 semi-detached dwelling units, for a total of 102 residential units.
Reference Number: ZNPL2020144 & 28TPL2020142
Property Address: 220 Thompson Road West, Waterford
Municipality/UT: Norfolk
OLT Case No.: OLT-24-000893
OLT Lead Case No.: OLT-24-000893
OLT Case Name: AD Thompson Road Inc. v. Norfolk (County)
PROCEEDING COMMENCED UNDER subsection 51(39) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: AD Thompson Road Inc.
Subject: Proposed Plan of Subdivision - Refusal by Approval Authority
Description: To permit 30 single-detached dwelling units and 72 semi-detached dwelling units, for a total of 102 residential units.
Reference Number: 28TPL2020142
Property Address: 220 Thompson Road West, Waterford
Municipality/UT: Norfolk
OLT Case No.: OLT-24-000894
OLT Lead Case No.: OLT-24-000893
OLT Case Name: AD Thompson Road Inc. v. Norfolk (County)
PROCEDURAL ORDER
- The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.
Organization of the Hearing
The video hearing will begin on March 10, 2025 at 10:00 am at https://global.gotomeeting.com/join/638422541
The parties’ initial estimation for the length of the hearing is five (5) days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible. A summary of key dates is set out in Attachment 4.
The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).
The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.
The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.
Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.
Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.
Requirements Before the Hearing
A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before Tuesday, December 3, 2024 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.
Expert witnesses in the same field shall have a meeting on or before Friday, December 20, 2024 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties may prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before Thursday, January 9, 2025.
An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.
Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.
On or before Wednesday, January 29, 2025, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.
On or before Wednesday, January 29, 2025, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before Monday, February 3, 2025 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before Friday, February 21, 2025 the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
Parties may provide to all other parties and the OLT case coordinator a written response to any written evidence on or before Wednesday, February 12, 2025 and in accordance with paragraph 22 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case coordinator on or before Friday, February 28, 2025.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.
A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Friday, February 28, 2025 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.
All filings shall be submitted electronically. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.
A summary of procedural dates is set out in Attachment 4.
This Member is not seized.
So orders the Tribunal.
BEFORE:
Name of Member:
Date:
TRIBUNAL REGISTRAR
ATTACHMENT 1
PARTIES & PARTICIPANTS
PARTIES
- AD Thompson Road Inc.
TMA Law 25 Main Street West, Suite 2010 Hamilton, ON L8P 1H1
Nancy Smith Tel: 905.529.3476 Email: nsmith@tmalaw.ca
Anna Toumanians Tel: 905.529.3476 Email: atoumanians@tmalaw.ca
- Norfolk County
Duxbury Law 1 King Street West, Suite 500 Hamilton, ON L8P 1A4
Brian Duxbury Tel: 905.570.1242 Email: brian@duxburylaw.ca
- Lafarge Canada Inc.
Wood Bull LLP 65 Queen Street West, Suite 1400 Toronto, ON M5H 2M5
Kim Mullin Tel : 416.203.7160 Email: kmullin@woodbull.ca
Sean Ovas Tel : 416.203.7306 Email: sovas@woodbull.ca
PARTICIPANTS
- Norfolk Disposal Services Ltd.
Municipal Law Chambers TD Canada Trust Tower 161 Bay Street Suite 2700 Toronto, ON M5J 2S1
Stephanie Fleming Tel: 416.955.9533 ext. 106 Email: sfleming@mlawc.com
ATTACHMENT 2
ISSUES LIST
Norfolk County
Note: The identification of an issue on this Issues List does not mean that all parties agree that such an issue, or the manner in which it is expressed, is appropriate or relevant for the proper determination of the appeal. The extent of the appropriateness and/or relevance of the issue may be a matter of evidence and/or argument at the hearing.
Does the proposed plan of subdivision and zoning by-law amendment (“ZBA”) have sufficient regard to matters of provincial interest under Section 2 of the Planning Act including subparagraphs (h) - the orderly development of safe and healthy communities; (k) - the adequate provision of employment opportunities; (o) - the protection of public health and safety; and (p) - the appropriate location of growth and development?
Section 2.1 (1) of the Planning Act - shall have regard to a municipal decision
Is the proposed plan of subdivision and ZBA consistent with the Provincial Planning Statement (2024) and in particular the following policies:
a) 2.8.1.1 e)
Planning authorities shall promote economic development and competitiveness by: …
e) addressing land use compatibility adjacent to employment areas by providing an appropriate transition to sensitive land uses.
b) 2.8.2.1 - Employment Areas
Planning authorities shall plan for, protect and preserve employment areas for current and future uses, and ensure that the necessary infrastructure is provided to support current and projected needs.
c) 2.8.2.3 e) - Employment Areas
Planning authorities shall designate, protect and plan for all employment areas in settlement areas by: …
e) including an appropriate transition to adjacent non-employment areas to ensure land use compatibility and economic viability.
d) 3.5.1 - Land Use Compatibility
Major facilities and sensitive land uses shall be planned and developed to avoid, or if avoidance is not possible, minimize and mitigate any potential adverse effects from odour, noise and other contaminants, minimize risk to public health and safety, and to ensure the long-term operational and economic viability of major facilities in accordance with provincial guidelines, standards and procedures.
e) 3.5.2 - Land Use Compatibility
Where avoidance is not possible in accordance with policy 3.5.1, planning authorities shall protect the long-term viability of existing or planned industrial, manufacturing or other major facilities that are vulnerable to encroachment by ensuring that the planning and development of proposed adjacent sensitive land uses is only permitted if potential adverse affects to the proposed sensitive land use are minimized and mitigated, and potential impacts to industrial, manufacturing or other major facilities are minimized and mitigated in accordance with provincial guidelines, standards and procedures.
- Does the proposed plan of subdivision and ZBA conform with the County of Norfolk Official Plan (2006 as amended), and in particular:
a) Section 2.1 - The County Planning Vision - theme d) maintaining a high quality of life.
b) Subsection 2.2.4.2 c) - Maintaining a High Quality of Life - Objectives
Ensure that new development is designed in a manner that provides a safe, aesthetically appropriate, and stimulating environment.
c) Subsection 2.2.6.2 f) - A Well Governed, Well Planned and Sustainable County - Objective
f) Reduce conflicts between existing and proposed land uses through buffering, setbacks, landscaping and other measures, as appropriate.
d) Subsection 7.7.2 a) - Urban Residential Designation
a) Single, semi-detached and duplex housing forms shall generally have an average net density of 15 units per hectare (uph), save and except for land designated Urban Residential in the Courtland Urban Area, where private servicing limitations shall determine the density of development.
e) Subsections 7.12.2 d), e), f), g) and i) - Protected Industrial Designation Land Use Policies.
f) Subsections 8.8 b), e) and f) - Noise, Vibration, Odour and Light Emissions
b) New residential or other sensitive uses shall not be located in noise sensitive areas unless noise abatement techniques are employed to reduce the noise to an acceptable level.
e) The development of new industrial uses shall have regard for the Ministry of the Environment and Climate Change guidelines respecting separation distances between industrial uses and sensitive uses. In locating any sensitive land use in the vicinity of any established or approved business/employment use, the County shall have regard for the relevant Ministry of the Environment and Climate Change guidelines.
f) For any proposed development of a sensitive land use in proximity to a Provincial Highway and/or County road, a noise study may be required to be prepared by a proponent through a qualified acoustical consultant in accordance with the appropriate Provincial guideline to the satisfaction of the County, and/or other jurisdiction prior to development approval. The recommendations of the approved noise report shall be incorporated in the development agreement for implementation, as approved. The cost of noise studies and any other required supporting documentation shall be borne by the proponent. Costs incurred by the County in engaging peer review consultants to evaluate the proposal and supporting submissions shall be reimbursed by the proponent.
Are the Norfolk Disposal Services Limited and LaFarge Canada Inc. sites Class II or Class III industrial Facilities for the purposes of implementation of the D-6 Guidelines?
Have the Ministry of the Environment and Climate Change guidelines been appropriately addressed?
Is the use of a condition of draft approval for the plan of subdivision appropriate to address concerns regarding how noise data was collected?
What conditions of draft plan approval are required to ensure land use compatibility between the Lafarge Plant and the proposed residential uses.
Lafarge Canada Inc. (sheltering under Norfolk County’s Issues 1, 3, 4, 5, 6, 7 and 8)
Does the proposed zoning by-law amendment have appropriate regard for the matters of provincial interest set out in section 2 of the Planning Act, RSO 1990, c. P.13, in particular, sections 2 (h), (k), (o), and (p)?
Is the proposed zoning by-law amendment consistent with the Provincial Planning Statement (2024), in particular sections 2.8.1.1 (e), 2.8.1.3, 2.8.2.3 (e), and 3.5 (1) and (2)?
Does the proposed zoning by-law amendment conform with the County of Norfolk’s Official Plan, in particular, policies 2.2.4.2 (c), 2.2.6.2 (f), 7.12.2 (d), (e,) (f), (g), and (i), and 8.8 (b), (e), and (f)?
Will the proposed development have adverse impacts on the current and future operation of Lafarge’s concrete ready-mix plant at 2266 Blueline Road (the “Plant”), including any future expansion of the Plant?
Has an appropriate assessment of noise impacts of the Plant on the proposed development been completed and documented? Will the proposed development result in unacceptable noise impacts on the proposed residential land uses?
Does the proposed development contain appropriate separation, buffering, and other mitigation measures to minimize impacts from the Plant on the proposed residential uses?
ATTACHMENT 3
ORDER OF EVIDENCE
AD Thompson Road Inc.
Norfolk County
Lafarge Canada Inc.
AD Thompson Road Inc. (Reply)
ATTACHMENT 4
SUMMARY OF PROCEDURAL DATES
EVENT
DATE
List of Witness
Tuesday, December 3, 2024
Expert Witness Meeting
Friday, December 20, 2024
Agreed Statement of Facts & Remaining Issues
Thursday, January 9, 2025
Witness and Expert Witness Statements
Wednesday, January 29, 2025
Participant Statements
Wednesday, January 29, 2025
Confirm with the Tribunal if all the reserved hearing dates are required
Monday, February 3, 2024
Reply Witness Statements
Wednesday, February 12, 2025
Visual Evidence
Friday, February 21, 2025
Hearing Plan
Friday, February 28, 2025
Joint Document Book
Friday, February 28, 2025
OLT Hearing Commences
Monday, March 10, 2025