Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 27, 2024
CASE NO(S).: OLT-24-000815
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Florence Mountney
Appellant (jointly): Terry Mountney & Betty-Joan Trolley
Subject: Consent
Description: To permit the addition of a lot
Reference Number: B118/23
Property Address: 114 Moore Lane
Municipality/UT: Bancroft/Hastings
OLT Case No.: OLT-24-000815
OLT Lead Case No.: OLT-24-000815
OLT Case Name: Montney v. Bancroft (Town)
Heard: October 3, 2024 by Video Hearing and in writing on November 4 and 11, 2024
| Parties | Counsel/Representative* |
|---|---|
| Florence Mountney, Terry Mountney, and Betty-Joan Trolley | Connie Lamble |
| County of Hastings | Jason Budd* |
DECISION DELIVERED BY HUGH S. WILKINS AND N. ALLAM AND ORDER OF THE TRIBUNAL
Link to Order
1This Decision addresses an appeal brought by Florence Mountney, Terry Mountney, and Betty-Joan Trolley (“Appellants” or “Applicants”) regarding the approval by the County of Hastings (“County”) of an application for a Provisional Consent in relation to the property located at 114 Moore Lane (“subject property”) in the Town of Bancroft (“Town”).
2The subject property is owned by the Appellants. It is roughly 80 hectares in size with a dwelling and accessory buildings located on it. Apart from the area immediately around the dwelling and accessory buildings, the subject property is vacant and treed.
3The purpose of the proposed Provisional Consent is to rectify longstanding planning issues associated with a neighbouring 1,011 square metre (“m2”) piece of land located at 120 Moore Lane (“Neighbouring Land” or “Benefitting Land”). The Neighbouring Land abuts the subject property to the south and west. The Neighbouring Land does not have access to either a private or public road. Access is achieved by travelling over a prescriptive easement on the subject property. There is also a swimming pool on the Neighbouring Land that encroaches on to the subject property. The Appellants wish to sever a 1,011 m2 portion of the subject lands (“proposed Lands to be Severed”) and then gift it to the owners of the Neighbouring Land. This would provide the neighbours with road access and would resolve the swimming pool encroachment issue.
4The subject property is designated as “Rural - Waterfront” under the County’s Official Plan. There is a portion that is designated as “Environmental Protection” on the far side of the subject property, which would not be impacted by the proposed Provisional Consent.
5The proposed Retained Lands are zoned “Rural (RU)” and “Environmental Protection” and the proposed Lands to be Severed are zoned “Rural (RU)” and “Rural Residential (RUR)” under the Town’s Zoning By-law No. 27-2006.
6Moore Lane is privately owned, however, the Town has obligations to maintain it. The lane provides access to four separate properties in the area.
7On November 12, 2019, the County granted the proposed Provisional Consent subject to prescribed conditions. The Provisional Consent states:
The conditions of approval of Consent File No. B118/23 must be fulfilled no later than two years from the date of mailing of the consent decision:
In accordance with Section 53(42) of the Planning Act, 1990, a paper copy of the registered Reference Plan (survey), current Parcel Register(s) for the subject lands and a signed Acknowledgment and Direction with the Transfer (Deed) including a Schedule setting out the legal description of the new lot and the Transferor(s) and Transferee(s) full names shall be submitted to the County of Hastings’ Land Division Secretary, Liz Westerhof (westerhofl@hastingscounty.com ) in order that the Certificate of approval of the Committee may be affixed thereto. Please quote the Land Division File Number (B118/23) upon submission.
An Ontario Land Surveyor shall submit digital copies of the registered Reference Plan (survey), one in PDF and one in AutoCAD format, by email, to the Land Division Secretary Liz Westerhof (westerhofl@hastingscounty.com). Please quote the Land Division File Number (B118/23) and Reference Plan (survey) registration number upon submission.
An Ontario Land Surveyor shall submit a paper copy and an electronic copy of the registered Reference Plan (survey) in PDF format to the Town of Bancroft. Please quote the Land Division File Number (B118/23) and Reference Plan (survey) registration number upon submission.
The Owner(s) provides a cheque in the amount of $200 to the Town of Bancroft under Section 51.1(3) of the Planning Act, 1990, and upon receipt of same, confirmation be lodged with the Land Division Secretary from the Town of Bancroft.
The proposed severed and benefitting lands be rezoned from the Rural Residential (RUR) Zone to the Rural Residential – Exception XX (RUR-X) Zone to recognize existing accessory structures in the front yard, to recognize the deficient lot area, to provide consistent zoning and to recognize any other deficiencies that may be identified by the plot plan required in Condition No. 6. (Please contact the Town of Bancroft for the rezoning procedure).
That an Ontario Land Surveyor submit a detailed plot plan demonstrating the existing development on the proposed retained and benefitting lands, including wells, septic systems and all buildings and structures comply with the requirements of the Zoning Bylaw and Ontario Building Code. Any deficiencies discovered will require the appropriate planning relief approvals.
An Ontario Land Surveyor provides proof of title of Moore Lane (i.e. the ownership of the traveled/forced roads) across the entire frontage of the proposed severed, retained and benefitting lands with the Land Division Office. Upon determination of title, the width of Moore Lane be transferred to the Town, by registered Transfer (Deed) as follows:
a. The width of the road occupation owned by the applicant as may be determined by an OLS using existing surveys, legal descriptions, or boundary markers such as fence lines; and,
b. together with a. above, a minimum of 10 m (33 feet) from the center line of Moore Lane across the frontage of the severed, retained and benefitting lands; OR
c. Confirmation be lodged with the Land Division Office that the lands occupied by Moore Lane is currently deeded to the Town at the required width of a. and b. above, by providing a copy of the Transfer (Deed) and PIN Page for that portion of the road.
That the applicant conveys sufficient land, as determined satisfactory to the Town Manager of Infrastructure and Capital Projects for a maintenance and emergency vehicle turnaround at the end of Moore Lane.
That the owner of the benefitting lands provides proof of a legal right-of-way over the adjacent lands or obtain a safe site entrance directly from Moore Lane to the satisfaction of the Manager of Infrastructure and Capital Projects which may result in the review/change to the current E9-1-1 civic addresses.
The severed lands be transferred to “Owner(s) of the Benefitting lands” and a copy of the Transferee’s current Parcel Register be lodged with the Land Division Secretary.
Subsections 3 and 5 of Section 50 of the Planning Act, 1990 apply to any subsequent conveyance or transaction of or in relation to the parcel of land being the subject of this consent.
Confirmation from the Owner(s) solicitor that the severed and benefitting lands will merge on title,
or
To affect a merge in title of the severed lot and the benefitting lot, road widening along the frontage of the benefitting lot shall be conveyed to the Town of Bancroft to their satisfaction,
or
The solicitor of the Owner(s) may apply for a Certificate of Cancellation under Section 53(45) of the Planning Act for the benefitting land, subject to applicable fees to the Planning and Development Department, to allow the lot addition to merge on title with the benefitting parcel. A copy of the Instrument verifying the registration of the Certificate of Cancellation on title must be forwarded to the Land Division Secretary prior to the Certificate of Consent being issued.
- The solicitor for the Owner(s) shall submit an Undertaking to the Land Division Secretary to the following effect:
“I HEREBY PERSONALLY UNDERTAKE TO prepare land register an Application to Consolidate Parcels for those lands being the severed lands herein and those lands being the benefitting lands herein, and to provide the Land Division Secretary with the registered Application to Parcels as soon as possible after registration of the severance Transfer and designation of the new PIN to the severed lands.”
8The conditions that are in dispute are proposed Conditions 6 to 8. The Tribunal was informed that the County has agreed to waive proposed Condition 2.
9The Tribunal heard the appeal by video hearing on October 3, 2024. Upon request of the Tribunal, further written submissions were provided on November 4 and 11, 2024.
ISSUES
10In making a decision on a Provisional Consent appeal, the Tribunal must have regard to the matters of provincial interest set out in s. 2 of the Planning Act. The decision must be consistent with the Provincial Planning Statement (2024) (“PPS”) and it must conform with any applicable provincial plans under s. 3(5) of the Planning Act. The Tribunal must have regard to the criteria set out in s. 51(24) of the Planning Act when making its decision, including conformity with the County’s Official Plan. Finally, the Tribunal must consider whether the proposed conditions are reasonable under s. 51(25) of the Planning Act.
EVIDENCE AND SUBMISSIONS
11The Tribunal heard evidence and submissions from the County. The Appellants solely provided submissions.
County’s Evidence and Submissions
12The County called Justin Harrow to provide opinion evidence on its behalf. The Tribunal qualified Mr. Harrow to provide opinion evidence in the area of land use planning.
13Mr. Harrow opined that the proposed Provisional Consent is consistent with the PPS. He said no provincial plans apply. He opined that the proposed Provisional Consent also conforms with the County’s Official Plan. He said the relevant portion of the subject property is designated Waterfront Rural in which residential dwellings are permitted. He said the Town does not have an Official Plan.
14Regarding the criteria in s. 51(24) of the Planning Act, Mr. Harrow opined that the proposed Provisional Consent has regard to the matters of provincial interest in s. 2 of the Planning Act and he reiterated that it conforms with the County’s Official Plan. He opined that the proposed Provisional Consent represents good planning and ensures the orderly development of the lands. He said it would provide the Neighbouring Land with direct road access and would address the issue of the swimming pool that encroaches on to the proposed Lands to be Severed. He opined that it would not be good planning to deny the proposed Provisional Consent as the Consent rectifies these existing longstanding planning issues.
15Mr. Harrow reviewed each of the proposed Conditions and opined that they are consistent with the PPS, conform with the County’s Official Plan and are appropriate under s. 51(24) and s. 51(25) of the Planning Act. He stated that proposed Condition 6 requiring a detailed plot plan of the Neighbouring Land and Retained Lands is necessary to ensure that access by means of a new driveway on the Neighbouring Land is properly laid out taking into account the location of the existing dwelling, swimming pool, and the wells and septic system that are currently located on that property.
16Mr. Harrow stated that proposed Condition 7 requiring the dedication of land to the Town to enable the widening of Moore Lane and proposed Condition 8 on the dedication of land to create a turn-around area for municipal vehicles are necessary and permitted under s. 51(25) of the Planning Act. He said that these proposed conditions would ensure orderly development.
17Mr. Harrow reiterated that the Town has obligations to maintain Moore Lane, but that it does not own it. He opined that this should be rectified and ownership should be given to the Town. He acknowledged that there are other sections of Moore Lane that are not owned by the Appellants and that the Town would need to use other tools, such as expropriation, to acquire those lands from neighbouring property owners.
18Mr. Harrow stated that s. 51(25)(c) of the Planning Act, which addresses situations where a proposed severance abuts an existing highway, does not apply given that Moore Lane is privately owned and is not an existing highway.
19The County submits that when a proposed Provisional Consent involves a lot addition, the Tribunal must consider the appropriateness of the lands benefitting from the lot addition. It submits that the criteria in s. 51(24) of the Planning Act require, among other things, consideration of the impact of a proposed provisional consent on adjacent lands. It submits that the Tribunal is permitted under s. 51(25) to impose conditions that, in its opinion, are reasonable, having regard to the nature of the proposed development. It argues that these broad powers ensure that development proceeds in accordance with the criteria in s. 51(24) and with good planning principles. The County acknowledges that the Tribunal may not impose Orders binding on persons that are not Parties before it. In the present case, it submits that the proposed Conditions could be satisfied by means of a private agreement between them and the owners of the Neighbouring Land. Finally, the County submits that, based on s. 51(25)(b) of the Planning Act, it may impose conditions requiring the dedication of land for roadways, provided that the request is reasonable.
The Appellants’ Submissions
20The Appellants submit that proposed Conditions 6 to 8 are neither reasonable nor equitable. They submit that s. 1 of the Planning Act states that land use planning must be conducted in a manner that is fair, accessible, and timely. They argue that the cost of complying with proposed Conditions 6 to 8 is excessive and beyond their means. They submit that a survey of Moore Lane and the proposed turn-around area should not be required. They submit that these requirements are disparate from the Provisional Consent that is being sought and that the Town has the ability to achieve its goal of gaining ownership of the lane by fairer means. They submit that requiring the Appellants to provide lands to the Municipality for the road is not equitable given that other owners of the land over which Moore Lane crosses, and other users of the road, are not required to do the same. They submitted a sketch of the subject property and adjacent lands setting out the dimensions of the proposal.
ANALYSIS AND FINDINGS
21Based on Mr. Harrow’s opinion evidence, the Tribunal finds that the proposed Provisional Consent itself (apart from the proposed conditions) is consistent with the PPS and is appropriate having regard to the criteria set out in s. 51(24) of the Planning Act, including the matters of provincial interest set out in s. 2 of the Planning Act and conformity with the County’s Official Plan. The Tribunal finds that a plan of subdivision of the land is not necessary for the proper and orderly development of the Municipality.
Proposed Conditions to the proposed Provisional Consent
22Regarding whether the proposed Conditions are reasonable, as required under s. 51(25) of the Planning Act, the factors that the Tribunal generally considers are whether the proposed conditions are relevant, necessary, and/or equitable.
23Each of the proposed conditions that is in dispute is addressed below.
Proposed Condition 6
24As set out above, proposed Condition 6 to the proposed Provisional Consent states:
- That an Ontario Land Surveyor submit a detailed plot plan demonstrating the existing development on the proposed retained and benefitting lands, including wells, septic systems and all buildings and structures comply with the requirements of the Zoning Bylaw and Ontario Building Code. Any deficiencies discovered will require the appropriate planning relief approvals.
25This proposed condition requires that detailed plot plans of the existing developments on the proposed Retained Lands and the Neighbouring Land be submitted (presumably to the County). Mr. Harrow stated that the purpose of this proposed condition is to ensure that zoning standards are met in relation to the location of a new driveway on the Neighbouring Land, which would be needed to connect the existing dwelling there to Moore Lane.
26The Parties to this proceeding are the Appellants and the County. The owners of the Neighbouring Land are not Parties. In fact, under s. 53(19) of the Planning Act, as amended by Bill 23, they did not have the right to appeal Council’s decision. Section 53(12) and (12.1) of the Planning Act sets out the powers of the municipal Council in determining whether a provisional consent ought to given. It provides Council (and the Tribunal under s. 53(34)), with the authority to apply s. 51(25) to both the proposed Lands to be Severed and the Retained Lands. It does not explicitly provide authority to impose conditions on non-Parties.
27In its submissions, the County acknowledges that the Tribunal is not able to make orders binding people who are not parties to a proceeding before it. It concedes that the Tribunal cannot make an Order requiring the owners of the Neighbouring Land to take action. However, it argues that the proposed Conditions in question are not directed specifically at the owners of the Neighbouring Land. It submits that the proposed Conditions could be satisfied through a private agreement or arrangement between the Appellants and the owners of the Neighbouring Land.
28Proposed Condition 6 would require a surveyor to enter the Neighbouring Land (which is not owned by either Party to this proceeding) and complete a detailed plot plan on it. Based on the evidence and submissions before the Tribunal, the owners of the Neighbouring Land have not agreed to this. In past cases, the Tribunal has refused to impose conditions affecting neighbouring lands where there is evidence that the owners of those lands object to the conditions (see, for instance, Havenwood Properties (Central) Limited v. Brampton (City), 2019 CanLII 72641 (ON LPAT), at paragraphs 33-35). To do otherwise would be to make an Order that is inequitable and without practical effect. On this basis, the Tribunal finds that the provisions in proposed Condition 6 relating to the Neighbouring Land are not reasonable as they likely cannot be satisfied.
29In regard to the other requirement in proposed Condition 6 (that a survey be completed in relation to the existing development on the Retained Lands), the Tribunal notes that the existing development on the Retained Lands is some distance from the proposed driveway on the Neighbouring Land. As noted above, the purpose of the proposed Condition is to ensure that zoning standards are met in relation to the location of a new driveway on the Neighbouring Land. The proposed Condition does not affect either the Retained Lands or the proposed Severed Lands. The Tribunal finds that the imposition of the provision in proposed Condition 6 requiring a detailed plot plan for the existing development on the Retained Lands, which is not on the proposed Lands to be Severed, and is separate from the Neighbouring Land and any new driveway on the Neighbouring Land, is neither relevant nor necessary. For these reasons, the Tribunal finds that proposed Condition 6 is not reasonable.
Proposed Conditions 7 and 8
30Proposed Conditions 7 and 8 state:
- An Ontario Land Surveyor provides proof of title of Moore Lane (i.e. the ownership of the traveled/forced roads) across the entire frontage of the proposed severed, retained and benefitting lands with the Land Division Office. Upon determination of title, the width of Moore Lane be transferred to the Town, by registered Transfer (Deed) as follows:
a. The width of the road occupation owned by the applicant as may be determined by an OLS using existing surveys, legal descriptions, or boundary markers such as fence lines; and,
b. Together with a. above, a minimum of 10 m (33 feet) from the center line of Moore Lane across the frontage of the severed, retained and benefitting lands; OR
c. Confirmation be lodged with the Land Division Office that the lands occupied by Moore Lane is currently deeded to the Town at the required width of a. and b. above, by providing a copy of the Transfer (Deed) and PIN Page for that portion of the road.
- That the applicant conveys sufficient land, as determined satisfactory to the Town Manager of Infrastructure and Capital Projects for a maintenance and emergency vehicle turnaround at the end of Moore Lane.
31Addressing proposed Conditions 7 and 8, Mr. Harrow stated that the applicable subsection is s. 51(25)(b). It reads:
51(25) The approval authority may impose such conditions to the approval of a plan of subdivision as in the opinion of the approval authority are reasonable, having regard to the nature of the development proposed for the subdivision, including a requirement,
(b) that such highways, including pedestrian pathways, bicycle pathways and public transit rights of way, be dedicated as the approval authority considers necessary;
32Mr. Harrow opined that proposed Conditions 7 and 8 are necessary, but he did not elaborate why beyond stating that the Town has responsibilities for maintaining Moore Lane and, therefore, should own it. The County submits that s. 51(25)(b) does not limit the ability to request the dedication of highways to any specific areas on the subject lands. It submits that this subsection provides broad authority to require the dedication of any form of highway where the approval authority determines that it is reasonable. It submits that the proposed Provisional Consent would allow access to Moore Lane from the Neighbouring Land and the improvement of Moore Lane by the dedication of a turnaround is reasonably related to the proposed Provisional Consent.
33The County provided no authority or policy stating that the Town must own every road over which it has responsibility to maintain. Moreover, the evidence before the Tribunal is that, even if the Appellants dedicated portions of the Retained Lands to the Town for the road, other sections of Moore Lane that are not owned by the Appellants would remain privately owned. In other words, the dedication of the Appellants’ land would not solve the Town’s ownership issue. Mr. Harrow stated that the Town would need to use other tools, such as expropriation, to acquire land from other property owners in the area in order for it to obtain full ownership of Moore Lane. The Tribunal finds that it would be inequitable to require the Appellants to dedicate their lands for the road while other property owners would likely be paid through expropriation, or another process, if their lands are to be transferred to the municipality. The Tribunal also finds that, given that several property owners use Moore Lane for access, it would be inequitable to require only one of them, namely the Appellants, to dedicate lands. Based on this reasoning, the Tribunal finds that proposed Conditions 7 and 8 are neither necessary nor equitable. It finds that they are not reasonable.
Conclusions
34The Tribunal finds that the proposed Provisional Consent with the inclusion of proposed Conditions 1, 3 to 5, and 9 to 13 is consistent with the PPS and conforms with the County’s Official Plan. The Tribunal has had regard to the matters of provincial interest set out in s. 2 of the Planning Act and regard to the criteria in s. 51(24) of the Planning Act and finds that the inclusion of proposed Conditions 1, 3 to 5, and 9 to 13 is appropriate. It also finds that proposed Conditions 1, 3 to 5, and 9 to 13 are reasonable in accordance with s. 51(25) of the Planning Act. The Tribunal finds that the proposed Provisional Consent with the inclusion of proposed Conditions 1, 3 to 5, and 9 to 13 satisfies the applicable statutory tests and represents good planning.
35Having regard to the requirements in s. 51(25) of the Planning Act, the Tribunal finds that proposed Conditions 6 to 8 are not reasonable and should not form part of the provisional Consent.
36The conditions, as amended by the Tribunal, as set out above and in regard to form and content, are attached as Attachment 1 to this Order and Decision.
ORDER
37THE TRIBUNAL ORDERS that the Appeal is allowed, in part, and the Provisional Consent is to be given subject to the Conditions 1, 3 to 5, and 9 to 13 set out in Attachment 1 attached to this Order and Decision and in general conformity with the sketch attached as Attachment 2 to this Order and Decision.
“Hugh S. Wilkins”
HUGH S. WILKINS
VICE-CHAIR
“N. Allam”
N. ALLAM
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
CONDITIONS TO PROVISIONAL CONSENT
The conditions of approval of Consent File No. B118/23 must be fulfilled no later than two years from the date of mailing of the consent decision:
In accordance with Section 53(42) of the Planning Act, 1990, a paper copy of the registered Reference Plan (survey), current Parcel Register(s) for the subject lands and a signed Acknowledgment and Direction with the Transfer (Deed), including a Schedule setting out the legal description of the new lot and the Transferor(s)’ and Transferee(s)’ full names, shall be submitted to the County of Hastings’ Land Division Secretary, Liz Westerhof (westerhofl@hastingscounty.com), in order that the Certificate of Approval of the Committee may be affixed thereto. Please quote the Land Division File Number (B118/23) upon submission.
removed
An Ontario Land Surveyor shall submit a paper copy and an electronic copy of the registered Reference Plan (survey) in PDF format to the Town of Bancroft. Please quote the Land Division File Number (B118/23) and Reference Plan (survey) registration number upon submission.
The Applicants shall provide a cheque in the amount of $200 to the Town of Bancroft under Section 51.1(3) of the Planning Act, 1990, and upon receipt of same, confirmation shall be lodged with the County’s Land Division Secretary from the Town of Bancroft.
The proposed severed and benefitting lands shall be rezoned from the Rural Residential (RUR) Zone to the Rural Residential – Exception XX (RUR-X) Zone to recognize existing accessory structures in the front yard, to recognize the deficient lot area, to provide consistent zoning and to recognize any other deficiencies that may be identified by the plot plan required in Condition No. 6. (Please contact the Town of Bancroft for the rezoning procedure).
removed
removed
removed
The Applicants shall provide proof to the County of a legal right-of-way over the adjacent lands or of a safe site entrance directly from Moore Lane to the satisfaction of the Town’s Manager of Infrastructure and Capital Projects which may result in the review/change to the current E9-1-1 civic addresses.
The severed lands shall be transferred to “Owner(s) of the Benefitting lands” and a copy of the Transferee’s current Parcel Register shall be lodged with the County’s Land Division Secretary.
Subsections 3 and 5 of Section 50 of the Planning Act, 1990 shall apply to any subsequent conveyance or transaction of or in relation to the parcel of land being the subject of this consent.
The Applicants’ solicitor shall confirm with the County that:
a. the severed and benefitting lands will merge on title,
or
b. to affect a merge in title of the severed lot and the benefitting lot, road widening along the frontage of the benefitting lot shall be conveyed to the Town of Bancroft to its satisfaction,
or
c. a Certificate of Cancellation under s. 53(45) of the Planning Act for the benefitting land, subject to applicable fees, shall be submitted to the County’s Planning and Development Department, to allow the lot addition to merge on title with the benefitting parcel. A copy of the Instrument verifying the registration of the Certificate of Cancellation on title must be forwarded to the County’s Land Division Secretary prior to the Certificate of Consent being issued.
- A Solicitor’s Undertaking shall be submitted to the County’s Land Division Secretary to the following effect:
“I HEREBY PERSONALLY UNDERTAKE TO prepare land register an Application to Consolidate Parcels for those lands being the severed lands herein and those lands being the benefitting lands herein, and to provide the Land Division Secretary with the registered Application to Parcels as soon as possible after registration of the severance Transfer and designation of the new PIN to the severed lands.”