Town of Caledon v. 2649723 Ontario Ltd., 2024 CanLII 16992

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 29, 2024

CASE NO(S).: OLT-23-000365

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Town of Caledon

Applicant: 2649723 Ontario Ltd.

Subject: Consent – Appeal of Approval

Description: To convey the portion of the property known as 0 Heart Lake Road as lot addition to the subject property at 14085 Heart Lake Road.

Reference Number: B 016 -20

Property Address: 14085 Heart Lake Road

Municipality: Town of Caledon

OLT Case No.: OLT-23-000365

OLT Lead Case No.: OLT-23-000365

OLT Case Name: Caledon (Town) v. Caledon (Town)

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Town of Caledon

Applicant: 2710401 Ontario Inc.

Subject: Minor Variance – Appeal of Approval

Description: To meet the deficiency of a minimum lot area and a minimum lot frontage of the subject property

Reference Number: A026-20

Property Address: 14085 Heart Lake Road

Municipality: Town of Caledon

OLT Case No.: OLT-23-000366

OLT Lead Case No.: OLT-23-000365

Heard: In Writing

APPEARANCES:

Parties

Counsel/Representative*

2649723 Ontario Ltd.

2710401 Ontario Inc.

Jeff Greene*

Town of Caledon

Max Rubin

DECISION DELIVERED BY DAVID BROWN AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal concerns an Appeal filed pursuant to s. 45(12) of the Planning Act, R.S.O. c. P.13 (the “Act”) and an Appeal filed pursuant to s. 53(19) of the Act by the Town of Caledon (“Town”) against two decisions of the Town’s Committee of Adjustment (“COA”) which granted Provisional Consent for a lot addition and granted a minor variance to permit a reduced lot frontage and lot area.

2The Application for Minor Variance (the “Variance”) affects the property located and known as 14085 Heart Lake Road (“Variance Property”). The Variance Property is occupied with a detached residential dwelling. The Application for Consent (the “Consent”) affects the lands abutting the Variance Property on the north, south and east sides (“Consent Property”). The Consent Property is currently vacant and has a “u” shape surrounding the Variance Property with frontage on Heart Lake Road north and south of the Variance Property. The Consent proposes to sever the portion of the Consent Property to the rear (east) of the Variance Property and attach the severed lands to the Variance Property. The result is that the portion of the Consent Property to the north of the Variance Property will be separated from the portion of the Consent Property to the south of the Variance Property, thereby creating two separate retained parcels.

3The COA approved the Variance and Consent attaching conditions to each approval. The COA received comments from the Region of Peel (“Region”) and the Town Planning Department recommending that the Applications be refused. No objections were raised by the other commenting agencies including the Toronto and Region Conservation Authority (“TRCA”) and various Town departments.

4The Town appealed the decisions citing that the approval of the Variance and Consent “contradicts” the Prime Agricultural Land Use and Protected Countryside Lands policies contained within the Greenbelt Plan, 2017 (“Greenbelt Plan”). Further, the Town had requested, as a condition of approval, that a second Application for Consent be submitted for the creation of a new lot, being the second retained lot proposed. The COA did not include the requested condition.

5Subsequent to the filing of the Appeals, the Town entered into settlement discussions with 2649723 Ontario Ltd. and 2710401 Ontario Inc. (the “Applicants”) and negotiated a settlement of the Appeals. The Town advised that the Town and the Applicant have settled the issues with respect to the Appeals and requested that the Tribunal convene the proceedings as a Settlement Hearing pursuant to the Rule 12 of the Tribunal’s Rules of Practice and Procedure (the “Rules”).

6The Tribunal directed that a Settlement Hearing is to be conducted in writing pursuant to Rule 21 of the Rules and directed the Parties to file their submissions in writing.

SUBMISSIONS AND ANALYSIS

7The Town filed an Affidavit sworn by Muhammad Shahid Mughal on January 25, 2024, in support of the Settlement. The Affidavit was marked as Exhibit 1. Mr. Mughal is a Registered Professional Planner and currently an Intermediate Planner with the Town.

8Mr. Mughal reviewed the Variance and Consent and outlined how the Proposed Conditions of Provisional Consent, marked as Exhibit 3, addresses the concerns of the Town and resolves the issues identified with the Consent.

9In consideration of the matters of provincial interest set out in s. 2 of the Act and the criteria for the consideration of the subdivision of land in s. 51(24) of the Act, Mr. Mughal advised that the Proposed Conditions of Provisional Consent address these matters by requiring:

a. confirmation that the two retained lots and the resultant lot, being the Variance Property and the severed lands, comply with the Town’s Zoning By-law, No 2006-50 (“ZBL”)

b. that the Applicant submit a Natural Heritage Evaluation / Environmental Impact Study,

c. the approval of a Predevelopment Site Plan prior to any works being undertaken on the Consent Property, and

d. development approval from the Town and the TRCA prior to any site alteration occurring on the Consent Property.

10The Variance Property and the Consent Property are currently zoned A1, Agricultural in the ZBL. Mr. Mughal explained that s. 10.4 of the ZBL states that if a lot does not meet the lot size provisions of the Agricultural zone, the RR, Rural Residential zone standards may be applied. Mr. Mughal proffered that the two retained lots and the resultant lot will meet the minimum lot frontage and lot area provisions of the RR zone, and thus the Variance is not required. Therefore, the condition relating to the need to file further Applications for Minor Variance are unnecessary.

11Mr. Mughal reviewed the Provincial Policy Statement, 2020 (“PPS”) and the Greenbelt Plan policies as they apply to the Consent noting that the Consent Property forms part of the Natural Heritage System (“NHS”) within the Protected Countryside. He opined that the Consent does not conflict with the policies of the Greenbelt Plan or the PPS.

12The Region Official Plan (“ROP”) designates the Consent Property as Rural System and as Prime Agricultural Area. Mr. Mughal proffered that the Prime Agricultural Area policies provide for a range of agricultural types, sizes and intensities of use. The condition of a Predevelopment Site Plan Approval will ensure the protection of the NHS and create conformity with the ROP.

13The Town’s Official Plan (“TOP”) designates the Consent Property as within the Prime Agricultural Area and Greenbelt Plan Protected Countryside. In reviewing the policies of the TOP, Mr. Mughal opined that with the determination that the newly created lots comply with the ZBL, the lots are not impacting the agricultural policies and do not constitute the fragmentation of agricultural lands.

14Mr. Mughal concluded that the Proposed Conditions of Provisional Consent will “embrace sound planning practice and protect the provincial and municipal planning interest” and satisfy the PPS, the Greenbelt Plan, the ROP and the TOP, and result in lots that comply with the ZBL.

15It was the recommendation of Mr. Moghul that the Appeal of the Variance be allowed, and the decision of the COA be overturned. He further recommended the Consent be approved subject to the Proposed Conditions of Provisional Consent being attached.

FINDINGS

16The Tribunal, having considered the uncontroverted affidavit evidence of Mr. Moghul, accepts the opinions proffered by Mr. Moghul and allows the Appeals in part. The Variance is not authorized, and the Consent is granted subject to the Proposed Conditions of Provisional Consent.

17Section 2 of the Act identifies the protection of ecological systems, including natural areas, features and functions as a matter of provincial interest as well as the protection of agricultural resources. The Consent Property is a relatively small property that is not currently farmed and includes an NHS as identified by the TRCA and the Town. The Tribunal is satisfied that the proposed use of the Consent Lands will ensure the protection of the NHS and will not impact on the agricultural resources. Other matters of provincial interest will be addressed during the consideration of future development applications.

18The Tribunal reviewed the TOP and notes the objective of the Prime Agricultural Area policies is to protect and promote agricultural uses and normal farm practices in the Prime Agricultural Area. Further, the TOP “generally discourages” new lot creation, “in order to limit fragmentation and conserve large parcels of land for agricultural uses as promoted by this Plan...”. The Tribunal finds that the Consent Property is not a large property as contemplated in the TOP. The limited size of the Consent Property and unusual configuration would impact the ability to achieve the goals of the Prime Agricultural Area policy framework. The Tribunal finds that the Consent conforms with the overarching policy framework of the Prime Agricultural Area designation as the integrity and function of the areas prime agricultural use is not impacted and the NHS will be protected.

19In consideration of the PPS, the Tribunal reviewed the policies in s. 2.3.4 of the PPS and finds that the policies do not specifically address the nature of severance as being contemplated in the Consent. The Tribunal finds that the intent to ensure lots are of sufficient size appropriate for the type of agricultural use common in the area does not apply, as the Consent Property is currently too small to support the type of agricultural uses found in the area. The Tribunal finds that the agricultural-related uses policy is the most applicable and the resultant lots can accommodate the proposed use including the water and sewer services required. The Tribunal accepts the evidence of Mr. Moghul and finds that the Consent does not impact the Agricultural Policies of the PPS and is generally consistent with the intent of the PPS.

20The Greenbelt Plan identifies the Consent Property as within the Protected Countryside designation and forming part of the NHS. The Lot Creation policies in the Greenbelt Plan include similar language to the PPS. The limited size and unusual configuration of the Consent Property together with the goal of protecting the NHS results in the parcel not being viable for agricultural use. The Tribunal accepts the evidence of Mr. Moghul and is satisfied that the Consent conforms to the objectives of the Greenbelt Plan.

21The Proposed Conditions of Provisional Consent require that the Applicant identify, locate, and protect the limits of the NHS through studies and setbacks thereby addressing the policies of the ROP as proffered by Mr. Moghul. The Tribunal accepts this opinion and finds that the Consent conforms to the ROP.

22The criteria to be considered for the subdivision of lands as set out in s. 51(24) of the Act includes, amongst other matters, considering the dimension and shape of the proposed lots, conservation of natural resources and flood control, the suitability of the land for the purposes for which it is to be subdivided, and conformity to the Official Plan. The Tribunal finds that the resultant lot configuration results in appropriately shaped lots that resolves the existing undesirable lot configuration. The proposed lots are suitable for residential use and the identification of the extent of the NHS impacting the Consent Property will be confirmed and the appropriate buffers will be implemented. As set out above, the Tribunal is satisfied that the Consent conforms to the TOP and the ROP.

23The Tribunal finds that the Settlement should be approved. The Tribunal allows the Appeal of the Variance as the Town has confirmed that the relief sought is not required and the Variance Property conforms with the ZBL. Further, the Appeal of the Consent is allowed in part, and the Provisional Consent is to be given subject to the conditions as set out in the Recommended Conditions of Provisional Consent in found in Exhibit 3.

ORDER

24THE TRIBUNAL ORDERS that the Appeal filed pursuant to Section 45(12) of the Planning Act is allowed and variance to By-law No. 2006-50 is not authorized.

25THE TRIBUNAL ORDERS that the Appeal filed pursuant to Section 53(19) of the Planning Act is allowed in part, and the Provisional Consent is to be given subject to the following conditions being fulfilled to the satisfaction of the Secretary-Treasurer of the Committee of Adjustment for the Town of Caledon:

1. That the Secretary-Treasurer’s Certificate fees shall be paid, in the amount current at the time of the issuance of the Secretary-Treasurer’s Certificate.

2. That the Secretary-Treasurer receive a draft reference plan(s) for approval by the Planning Department and the Legal Services Section.

3. That the Secretary-Treasurer and Legal Services Section receive the required number of prints of the resultant deposited reference plan(s).

4. That the Secretary-Treasurer receive written confirmation from the Legal Services Section indicating that the Applicant has provided the following items:

a. Draft Transfer prepared to the satisfaction of Legal Services for the subject consent application.

b. Draft Application to Consolidate Parcels including the severed lands (Part of PIN 14295-0046 (LT)) and the abutting lands (PIN 14295-0045 (LT).

c. Signed Solicitor’s Undertaking to provide the registered documents listed in (a) and (b) immediately after registration of the same.

5. That the Secretary-Treasurer receive a letter from the Zoning Administrator confirming that two individual lots created as a result of the Provisional Consent Approval pursuant to Ontario Land Tribunal Case File No. OLT-23-000365 (Municipal File: B 016-20) satisfy all applicable zoning by-law standards. The owner/agent must submit a development plan/draft reference plan (drawn to scale in metric) certified by an Ontario Land Surveyor showing sufficient detail for staff to assess compliance with all the applicable standards.

6. That the Secretary-Treasurer receive confirmation from the Town’s Landscape Architect that Cash-in-lieu of parkland dedication be paid in accordance with Town of Caledon By-law No: 2022-042.

7. That the Secretary-Treasurer receive written confirmation from the Town’s Finance Department that there are no financial obligations outstanding.

8. That the Secretary-Treasurer receive written confirmation from the Town’s Planning Department that the Applicant has submitted a Natural Heritage Evaluation / Environmental Impact Study to the satisfaction of the Town.

9. That the Secretary-Treasurer receive written confirmation from the Legal Services Section indicating the Applicant has entered into and registered on the Title of the newly created south parcel and newly created north parcel, a Consent Agreement with the Town of Caledon that requires a Toronto and Region Conservation Authority permit (pursuant to Ontario Regulation 166/06) to be obtained prior to any site alteration and/or development on the subject parcels. As a component of Toronto and Region Conservation Authority’s permitting process, technical studies (e.g., an Environmental Impact Study) may be required to meet applicable tests and associated policies for implementation of the regulation.

10. That the Secretary-Treasurer receives written confirmation from the Planning Department indicating the Applicant has provided a Predevelopment Site Plan to the satisfaction of the Town, denoting the proposed driveway, buildings, well and on-site septic field locations, to ensure the site can accommodate development of a single detached dwelling outside of the wetland and their respective Key Natural Heritage Features, Key Hydrologic Features, and Vegetation Protection Zone area. The Site Plan shall provide sufficient dimensions to illustrate compliance with setback requirements.

11. That the Secretary-Treasurer shall receive confirmation from the Town’s Municipal Numbering staff that the Applicant has: submitted the necessary documentation (site plan), provided confirmation that the proposed new driveway/entrance has been staked, provided confirmation that the new driveway/entrance has been approved by the Town, confirmed a street address for the new entrance has been issued, and that the applicant has submitted all required fees for the purchasing of a “green” municipal number sign, all to the satisfaction of the Town.

26The Tribunal may be spoken to should a matter arise in connection with the implementation of this Order.

“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.