Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 31, 2024
CASE NO(S).: OLT-24-000285
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Jacob Bicz
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit the use of a lot for a bulk water sales business
Reference Number: ZBA 16-23-ES
Property Address: 1760 Colborne St E
Municipality/UT: Brant/Brant
OLT Case No.: OLT-24-000285
OLT Lead Case No.: OLT-24-000285
OLT Case Name: Bicz v. Brant (County)
Heard: October 22, 2024, by Video Hearing December 2, 2024, by Video Hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Jacob Bicz | C. Boyd |
| County of Brant | R. Welchman |
MEMORANDUM OF ORAL DECISION DELIVERED BY JENNIFER GOLD ON OCTOBER 22, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1On October 22, 2024, the Tribunal convened a second Case Management Conference (“CMC”) for an Appeal brought by Jacob Bicz (“Appellant”) pursuant to s.34(11) of the Planning Act against the decision by the County of Brant (“County”) to refuse an application for a Zoning By-law Amendment (“ZBA”). A continued Case Management Conference took place on December 2, 2024, to address the contents of the draft Procedural Order (“PO”) and Issues List (“IL”). The subject property is 1750 Colborne Street East (“subject property”).
2The Appellant operates a bulk water delivery company delivering water to wells, cisterns, ponds, and water holding tanks, as well as recreational pools. The application proposes to rezone a 1.8 hectare (“ha”) portion of the 25.6 ha subject property from Agriculture (A) to Agricultural – Special Exception with a hold (h-A-XX) to facilitate the creation of a new lot in the agricultural area with a reduced front yard setback (21 metres) for the Agricultural zone and limit the uses to a bulk sales establishment and accessory uses. The balance of the subject property is proposed to be rezoned to Agricultural Site Specific (A-YY) to recognize the reduction in the lot area which will fall short of the lot area requirement for the Agriculture zone.
HEARING
3Following consultation respecting the Tribunal’s calendar and the availability of Counsel and the Parties, a four-day Hearing on the Merits by Video Hearing (“VH”) was agreed upon commencing on Tuesday, March 4, 2025 at 10 a.m.
4Parties are asked to log into the VH at least 15 minutes before the start of the event to test their video and audio connections:
GoTo Meeting: https://global.gotomeeting.com/join/656004293
Access code: 656-004-293
5Parties, witnesses, and observers 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
6Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling in to an audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889. The access code is 656-004-293.
7Individuals 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 VH to ensure that they are properly connected to the event at the correct time. Questions prior to the Hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
PROCEDURAL ORDER
8A draft PO had not been finalized in advance of the second CMC. The Tribunal ordered that a draft PO be submitted to the Tribunal on or before Friday, November 1, 2024. At the request of the parties, this date was extended to Friday, November 8, 2024. The parties notified the Tribunal that they could not consent to all of the issues. A further Case Management Conference was convened on Monday, December 2, 2024, to address the PO and IL.
9The Appellant disputed the inclusion of the following issues in the IL included by the County:
Is the proposed use considered a "Warehouse”?
Is the proposed use considered a “Transport/Truck Terminal”?
Are there any other sites within the County that are zoned for the proposed use?
10The Appellant argued that these issues were not relevant, and the Appellant is not seeking a ZBA related to a warehouse or transport/truck terminal. The Appellant argued that the inclusion of these issues unnecessarily increased the complexity of the hearing and the parties’ expenses as their experts will have to address these issues.
11It is the County’s view that an understanding of the Appellant’s business and how it operates will showcase that it can more appropriately be considered a warehouse or transport/truck terminal (rather than bulk sales establishment), both of which the County would argue is not an appropriate use in an agricultural area. Additionally, the County argued that the appropriateness of an alternative area for the Appellant’s business is certainly a relevant consideration if there is a finding that the Waterman business is not an agricultural use, as policy 4.3.5.1.4 of the 2024 Provincial Policy Statement ("PPS”) would apply, which specifically requires that an alternative location be evaluated for the use, if the Applicant were of the position that the use may still be permitted in the area.
12The Merit Hearing is a hearing de novo. It would be procedurally unfair to curtail the County the issues that it wishes to raise. The issues that the County wishes to include in the IL for the Merit Hearing are relevant as the Tribunal will make factual findings regarding the proposed use for the subject property upon hearing the evidence. Defining the proposed use may engage policy 4.3.5.1.4 of the PPS. The Tribunal will include the disputed issues set out above in the IL.
13Given that the Appellant was not expecting these issues to be raised, the Tribunal offered to postpone the Merit Hearing. However, the Appellant confirmed that they wish to proceed.
14The Tribunal has received the PO, which it has reviewed and found acceptable. The fixed dates for the Hearing of the Merits and for the pre-Hearing timeline are provided for in the PO, appended to this Decision as Attachment 1.
ORDER
15THE TRIBUNAL ORDERS THAT:
A four-day Merit Hearing by Video shall commence on Tuesday, March 4, 2025 at 10 a.m.
The Procedural Order appended as Attachment 1 to this Decision shall govern the conduct of this proceeding.
No further notice is required.
This Member is not seized.
“Jennifer Gold”
JENNIFER GOLD
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