Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 11, 2024

CASE NO(S).: OLT-23-000716

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

Applicant /Appellant: Joseph Stanley Lacey and Charlotte Anne Lacey Subject: Consent Description: To sever a Residential Lot Reference Number: B04-2023 Property Address: 9310 and 9312 Arkona Road Municipality/UT: Municipality of Lambton Shores OLT Case No.: OLT-23-000716 OLT Lead Case No.: OLT-23-000716 OLT Case Name: Lacey v. Lambton Shores (Municipality)

Heard: Monday, October 23, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
Joseph and Charlotte Lacey	Scott Snider, Anna Toumanians
Municipality of Lambton Shores	Analee Baroudi

DECISION DELIVERED BY S. DEBOER AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The matter before the Tribunal was the appeal by Joseph and Charlotte Lacey (“Appellants”) against the decision of the Municipality of Lambton Shores (“Municipality”) Committee of Adjustment (“COA”) to deny the Consent Application for the properties Municipally known as 9310 and 9312 Arkona Road (“Subject Lands”).

2The nature of the Application concerns severance of a residential lot having a frontage of 167 metres (“m”), depth of 167 m and a total lot area of 2.8 hectares containing two dwellings and a large shed, leaving a retained farm parcel having a lot area of approximately 37.9 hectares.

BACKGROUND OF APPLICATION

3The Subject Lands are located at the north-east corner of Arkona Road and Kennedy Line. The Subject Lands back onto the Ausable River at the abutting end of the property. The Subject Lands are located in an agricultural area (“Agricultural Area”) and are primarily used for a cash crop agricultural use. The Consent Application pertains to the south-central area of the property and abutting the Subject Lands’ easterly boundary. The Consent Application does not affect any arable lands pertaining to the current cash crop use.

4The Appellants have owned the Subject Lands for approximately 20 years or more. The Zoning By-law (“ZBL”) in effect at the time of purchase allowed for two dwellings to exist on an agricultural property. When the new Zoning By-law came into effect in 2003 (“ZBL 2003”), the Subject Lands then became a legal non-conforming use.

5Under s. 3.5(a) of the ZBL 2003, which states that nothing would impede or prevent any repairs or improvements to the existing dwellings, a rebuild of a dwelling would, however, not be permitted.

6In 2007, it was the intent of the Appellants to move to one of the dwellings on the Subject Lands. However, since the dwellings would not accommodate the needed room for the family, the Appellants applied for a Zoning By-law Amendment that would facilitate the replacement of one of the dwellings with a new, larger dwelling. The other dwelling would remain and not have its footprint altered.

7On March 5, 2007, the Council of the Municipality approved a site-specific ZBL on the Subject Lands with the following provisions:

1. a severance of either dwelling would not be permitted for any reason; and
2. the existing farm dwelling, that was not rebuilt, is not permitted to be enlarged.

8After the approval of the ZBL Application, the Appellants undertook the building of a new dwelling on the Subject Lands.

9On May 3, 2023, the Appellants filed a Consent Application to sever a residential lot containing the two dwellings that are on the Subject Lands.

10On June 28, 2023, the COA heard the Application and the recommendations on the Application from Planning Staff. The COA made the decision based on the Planning Staff recommendation to deny the Application.

11On July 18, 2023, the Appellant filed an Appeal with the OLT.

DAY OF MERIT HEARING

12At the Hearing of the merits, the Tribunal heard from three witnesses: Appellant Joseph Lacey, who provided the Tribunal with Will Say evidence concerning the Appeal; Ryan Ferrari, the land planning witness for the Appellant; and Will Nywening, the land planning witness for the Municipality. The land planning witnesses were approved on consent of the Parties that they were qualified to give expert opinion evidence in the area of land use planning concerning this file.

13The following items were marked as Exhibits for the Hearing:

Exhibit 1 – Joint Document Book Exhibit 2 – Will Say Statement of Joseph Lacey Exhibit 3 – Witness Statement of Ryan Ferrari Exhibit 4 – Reply Statement of Ryan Ferrari Exhibit 5 – Witness Statement of Will Nywening Exhibit 6 – Reply Statement of Will Nywening

14The Issues that are to be determined by the Tribunal are:

1. Does the proposed consent (“Proposed Consent”) protect the agricultural resources of the Province?
2. Is the Proposed Consent consistent with policies requiring the protection of prime agricultural areas for long-term use for agriculture?
3. Are the dwellings surplus to the farm operation as defined by the Provincial Policy Statement 2020, by the County of Lambton Official Plan, and by the Lambton Shores Official Plan?
4. Do the dwellings meet the criteria for severance of a surplus farm dwelling as stated in Provincial Policy Statement 2020 (“PPS”), County of Lambton Official Plan (“County OP”) and the Lambton Shores Official Plan (“Municipality OP”)?
5. Does the proposed severance conform to policies at 4.1.11 of the County OP and 4.2 of the Municipal OP respecting situations where two dwellings have been permitted on a farm parcel?
6. Does the proposed severance comply with existing site-specific zoning provisions at section 5.5 q) a) i) of the Zoning By-law 2003 that prohibits future severances?
7. Is the resultant lot size of the severed lands (residential portion) appropriate?
8. Is the resultant lot size of the remnant farm parcel appropriate?

Joseph Lacey

15Mr. Lacey explained to the Tribunal through his Witness Statement and oral testimony that he has been an active farmer in the area for more than 30 years. Over this period of time, he has bought more than 30 farming operations and consolidated them all into one farming operation. When he wanted to move to the Subject Lands in 2007, the existing dwellings were too small to house his family, and so he applied for the Zoning By-law Amendment in 2007. He agreed to the stipulations or conditions of the approved Zoning By-law in order to build a new family home.

16Mr. Lacey further explained that, due to the health of his wife and their current age, the farming operation has become too physically difficult for them. The intent is that his son and daughter, now both actively involved in the farming operation, will continue to run the farm. The intent of the Consent Application is to allow the two dwellings on the Subject Lands to be sold as it is the intention of the Appellants to move off the farm altogether and into the closest town.

17Mr. Lacey explained that, since it is their intent is to move off of the property, the dwellings can now be considered as surplus to the needs of the farming operation.

Ryan Ferrari

18Mr. Ferrari confirmed to the Tribunal that he was retained for the Appeal itself and was not a part of the original Consent Application process.

19Through the agreed Statement of Facts from both planners, there is no dispute that the Application meets the required Minimum Distance Separation (“MDS”) as the nearest livestock facility is over 1 kilometre (“km”) away from the Subject Property. No hydrogeological or geotechnical studies are necessary for the Application. It was also agreed upon that there will not be any issues affecting natural heritage if the severance is approved by the Tribunal.

Issues as Determined by the Appellant

20Does the Proposed Consent protect the agricultural resources of the Province?

21It was Mr. Ferrari’s opinion the farmland that is to be severed off is non-arable; therefore, no usable farmland is being severed from the farming operation. The use of the existing useable farmland will not be reduced because of the Application before the Tribunal.

22Mr. Ferrari opined that the proposal (“Proposal”) conforms to Chapter 7 of the Country’s OP. The two dwellings are currently serviced by municipal water services but use private septic systems for each dwelling. There will not be any changes to either dwelling as a result of the Application before the Tribunal.

23Is the Proposed Consent consistent with policies requiring the protection of prime agricultural areas for long-term use for agriculture?

24Mr. Ferrari opined that PPS Policy 2.3.1 requires that prime agricultural areas are to be protected for the long term. The retained portion of the Subject Lands would still be used for the current farming operation.

25As for the County OP, Mr. Ferrari opined that Policy 4.2 stipulates that an agriculture-related use is permitted as well as residential uses. No changes to the existing farmland are proposed. The existing dwellings would be a part of the parcel that does not contain any farming operation and will not negatively impact the retained farmland.

26In Mr. Ferrari’s opinion, Policy 4.3 of the County OP focuses on lands that are designated as Agricultural. These Policies include the protection of agriculture to ensure farm viability and avoid the fragmentation of farmland. A farm parcel should be a minimum size of 40 hectares. The Subject Lands are below the 40-hectare limit, with a total parcel size of 37.9 hectares. However, the Application does not result in a reduction of any farmable lands and thus complies to this policy of the County OP.

27Mr. Ferrari gave opinion that the Application exceeds the MDS standards; there will not be a loss of any prime agricultural areas if the Application is approved. Mr. Ferrari opined that, if a condition were to be added to the Application requiring a Zoning-By-law Amendment approval before final Consent is to occur, this would be an appropriate instrument to help protect this prime agricultural area.

28Are the dwellings surplus to the farm operation as defined by the Provincial Policy Statement 2020, County of Lambton Official Plan, and Lambton Shores Official Plan?

29Mr. Ferrari referred to the PPS s. 2.3.4.1, specifically 2.3.4.1(c) which states that lot creation in prime agricultural areas is discouraged, and may only be permitted for:

c) a residence surplus to a farming operation as a result of farm consolidation, provided that:

1. the new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services; and
2. the planning authority ensures that new residential dwellings are prohibited on any remnant parcel of farmland created by the severance. The approach used to ensure that no new residential dwellings are permitted on the remnant parcel may be recommended by the Province, or based on municipal approaches which achieve the same objective[.]

30As for the definition of a residence surplus to a farming operation, the PPS specifies this as:

an existing habitable farm residence that is rendered surplus as a result of farm consolidation (the acquisition of additional farm parcels to be operated as one farm operation).

31It was Mr. Ferrari’s opinion that the dwellings on the Subject Lands are habitable, and the Appellant has deemed them as surplus to his farming operation as a result of farm consolidation that has occurred in the last year. It was confirmed through the Appellant that all of the acquired farm lands were added to his existing farm operation and all of his parcels are in operation as one farm, including the parcel that contains the two dwellings that are the subject of this appeal. It was Mr. Ferrari’s opinion that, even though the Appellant lives in one of the dwellings, this does not limit him from deeming this dwelling along with the other dwelling as surplus.

32It was Mr. Ferrari’s opinion that the Appellant feels that the dwellings are no longer needed for the operation of the farm and should be deemed as surplus. The size of the Consent requested does not take any arable or useable existing farmland. The Consent area has been used for the dwelling since the Appellant bought the farm property many years ago. Mr. Ferrari opined that reducing the size of the requested Consent would not create any more arable lands that could be used to enhance the existing farming operation.

33Do the dwellings meet the criteria for severance of a surplus farm dwelling as stated in Provincial Policy Statement 2020, County of Lambton Official Plan and Lambton Shores Official Plan?

34As stated above, it was Mr. Ferrari’s opinion that the dwellings do meet the criteria for severance of a surplus dwelling. The dwellings are not necessary to the farming operation and, once again, do not change the arable lands that are used for farming on the property. All of the criteria have been met in the PPS, County OP and Municipality OP.

35Does the proposed severance conform to policies at 4.1.11 of the County OP and 4.2 of the local OP respecting situations where two dwellings have been permitted on a farm parcel?

36Mr. Ferrari gave opinion that policy 4.1.11 does not apply as no new residential structures are being added to the Subject Lands. The dwellings are not required for farm help necessary for the operation of the farm. As for Policy 4.2, Mr. Ferrari opined that the Application meets the MDS minimum standards, has been deemed surplus to the farming operation and that there will not be a dwelling built on the retained farm lot. As for the size of the lot in the Application, it was Mr. Ferrari’s opinion that no existing agriculturally used lands are being taken out of the farming operation. Both dwellings are adequately serviced, and no changes are needed to the services for the severance to occur.

37Mr. Ferrari’s opinion was that the existing minimum total lot size is under 40 hectares with the current lot size being 37.9 hectares including the current Consent Application before the Tribunal. However, the Consent Application does not take out any existing farmable lands. It was Mr. Ferrari’s opinion that the Policy’s intent is to protect farmable lands. Since there are not any farmable lands being taken out of use, this Policy is not applicable to the Application before the Tribunal.

38Does the proposed severance comply with existing site-specific zoning provisions at section 5.5 q) a) i) of the Zoning By-law that prohibits future severances?

39Mr. Ferrari pointed out that there is no construction proposed in this application. As for the site-specific Zoning By-law, he stated that it is unusual to have a specific provision concerning a future severance. He opined that this could be resolved with the approval of a Zoning By-law Amendment, which would be a recommended condition to the approval of the Application before the Tribunal.

40Is the resultant lot size of the severed lands (residential portion) appropriate?

41In Mr. Ferrari’s opinion, the Application contains two dwellings with a frontage and depth that is appropriate. The proposed lot size does not affect the farmable portion of the parcel and will leave the farm parcel with a lot area of approximately 35.3 hectares. The proposed size of the lot does not hinder the current farm operation and will contain all the necessary services (in this case, the septic systems for each dwelling and the in-ground heat system for the Appellant’s current home) without creating any impact to the farming operation.

42Is the resultant lot size of the remnant farm parcel appropriate?

43Mr. Ferrari opined that since there is not a significant change to the size of the farmable lands on the Subject Lands, the remaining farm parcel is appropriate. There is not a proposal before the Tribunal that would add another dwelling to the Subject Lands. The dwellings do meet the MDS requirements; the Proposal before the Tribunal does not take away any arable lands or lands that are currently farmable. The remnant size of the farm parcel is appropriate.

Overall Opinion

44It was Mr. Ferrari’s overall opinion that the Tribunal should approve the Consent Application as presented with conditions. It was his opinion that the Appellant should apply for a site-specific Zoning By-law Amendment to gain the following permissions:

1. remove the existing site-specific zoning provisions that prohibit future severances;
2. to prohibit a future farm dwelling to be constructed on the retained farm parcel; and
3. to correct the deficiency in the lot area of the retained agricultural lot.

45Once the Zoning By-law Application was approved by the COA, it was Mr. Ferrari’s opinion that the Consent Application could be put into effect.

46It was Mr. Ferrari’s opinion that the Application presented to the Tribunal has regards for Provincial Interest as per s. 2 of the Planning Act and meets the criteria set out in s. 51(24) of the Planning Act.

47The Application before the Tribunal meets the criteria of being a surplus farm dwelling as per the criteria contained in the PPS, the County OP and the Municipality OP.

48The Application with the conditions requested will be consistent with the PPS and conform to both the County and Municipality’s OPs. The Application represents good land use planning.

Will Nywening

49Mr. Nywening confirmed for the Tribunal that he oversaw and worked with the Planner who completed the planning report and recommendations on this file. He agrees with the planning report and the recommendations attached. He was satisfied and felt it was appropriate for the COA to deny the application.

50Mr. Nywening gave opinion that the property currently has a site-specific zoning provision that has been in existence since 2007. The zoning provision was agreed upon by the Appellant in 2007 in order for the Appellant to build his new primary dwelling. Without another approved Zoning By-law Amendment, consent cannot occur. The Appellant did not bring a Zoning By-law Amendment Application before Planning Staff or the COA. The Consent Application before the Tribunal would be in direct contravention of the current site-specific Zoning By-law.

51It was Mr. Nywening’s opinion that that Application is not consistent with the PPS and does not conform to the County OP (specifically s. 4.1.11), nor does it conform to the Municipality OP (specifically s. 4.2).

52Concerning the PPS, it was Mr. Nywening’s opinion that the land parcel is considered to be Prime Agricultural lands. With this understood and agreed upon, there are sections of the PPS [specifically 2.3.4.1(c)] which are most relevant to the file before the Tribunal:

2.3.4.1 Lot creation in prime agricultural areas is discouraged and may only be permitted for:

c) a residence surplus to a farming operation as a result of farm consolidation, provided that:

1. the new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services; and
2. the planning authority ensures that new residential dwellings are prohibited on any remnant parcel of farmland created by the severance. The approach used to ensure that no new residential dwellings are permitted on the remnant parcel may be recommended by the Province, or based on municipal approaches which achieve the same objective[.]

53Mr. Nywening took the Tribunal to the definition of a “residence surplus to a farming operation” in the PPS (s. 6.0):

Residence surplus to a farming operation: means an existing habitable farm residence that is rendered surplus as a result of farm consolidation (the acquisition of additional farm parcels to be operated as one farm operation).

54Mr. Nywening took the Tribunal to the size of the “retained farm parcel” in s. 2.3.4.1(a), which states that lot creation in prime agricultural areas is discouraged and may only be permitted for:

a) agricultural uses, provided that the lots are of a size appropriate for the type of agricultural use(s) common in the area and are sufficiently large to maintain flexibility for future changes in the type or size of agricultural operations[.]

55It was Mr. Nywening’s opinion that yes, the dwellings are habitable, but that there has not been a farm consolidation with this specific parcel that would fit into the interpretation of “as a result of farm consolidation”. It was also Mr. Nywening’s opinion that the requested severed size is too large when taking into consideration the total farm parcel size.

56It was Mr. Nywening’s opinion that the Appellant’s primary dwelling cannot be considered as surplus as he is still active in the farm operation. The fact that the Appellant is trying to sever off both dwellings also goes against the intent of the PPS concerning surplus dwellings as a result of farm consolidation. The requested lot size for the Consent Application for both dwellings does not meet what can be considered to be a minimum size and is not in keeping with the intent of the PPS.

57It was Mr. Nywening’s opinion that the PPS’s policies concerning farm surplus dwellings is permissive in nature and not mandatory and that each application must be examined on its own merits by the overlying planning authority – in this case being the County.

58It was Mr. Nywening’s opinion that the land parcel is classed Agricultural 1 to 3 and is considered to be of a prime agricultural area. The PPS Agricultural policies limit or minimize the types of non-farm uses. It was his opinion that these policies are in place to protect and accommodate agricultural activities and limit non-farm uses, including limiting surplus farm dwellings.

59It was Mr. Nywening’s opinion that the PPS does give municipalities some flexibility to decide through their OPs to permit surplus farm dwelling severances. Mr. Nywening reiterated that this is done on a case-by-case, permissive basis, not on a mandatory basis.

60Mr. Nywening opined that deeming a dwelling as surplus is not just of the farm owner’s doing; it must be done in conjunction and agreement with the overarching planning authorities – in this case, the Municipality and the County. Just because a farm owner has the option of declaring a dwelling surplus, this declaration is not an absolute until the planning authorities agree to it.

61In Mr. Nywening’s opinion, the lot size requested for Consent was of the Appellant’s choosing. It is the Municipality’s goal to minimize the size of severed lots on Agricultural land to as close to two acres or 0.8 hectares as possible. The requested Consent size of 2.8 hectares is too large when taking into consideration the total farm parcel size of 38.5 hectares. The total lot size before the Consent is below the Municipality’s minimum size required for an Agricultural parcel of 40 hectares as per Policies 4.3 and 4.7 of the Municipality OP. The Application before the Tribunal would maintain the farmable portion of the Parcel below the minimum requirements of the County as per the Polices listed above.

62Mr. Nywening opined that the retained portion of the farm lot would not be consistent with the PPS under s. 2.3.4.1(a) which states:

a) agricultural uses, provided that the lots are of a size appropriate for the type of agricultural use(s) common in the area and are sufficiently large to maintain flexibility for future changes in the type or size of agricultural operations[.]

63It was Mr. Nywening’s opinion that the Proposal’s layout and request of both dwellings inclusion into the Consent Application does not meet the requirements of the Consent being of a minimal size. The Proposal’s size is the choice of the Appellant and is too large of a lot to meet the standards of “minimum” in nature.

64Mr. Nywening opined that the Proposal will make the retained lot smaller in size than the Municipality’s minimum requirement. The Parcel is already smaller than the minimum requirements of the County. Mr. Nywening did confirm that yes, the current parcel’s actively farmed area is less than the parcel’s size. He did confirm that the area of the Consent Application did not affect the current farmed area of the Parcel. However, it was his opinion that taking the proposed lands out of the parcel will reduce the parcel’s flexibility and further limit the areas that could be considered for farming.

[Section 51(24)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec51subsec24_smooth) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

65Mr. Nywening referred to s. 51(24) of the Planning Act. It was Mr. Nywening’s opinion that the Application before the Tribunal does not meet multiple criteria of this section of the Act – specifically, sections 51(24)(a), (b), (c) and (f). These particular sections state:

66S. 51(24) In considering a draft plan of subdivision, regard shall be had, among other matters, to the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the Municipality and to:

(a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2;

(b) whether the proposed subdivision is premature or in the public interest;

(c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any;

(f) the dimensions and shapes of the proposed lots[.]

67In Mr. Nywening’s opinion, concerning s. 51(24)(a), the Application does not have regard for matter of Provincial interest, specifically, the protection of agricultural resources, and that the Application’s location is not appropriate for the growth and development of the area.

68Concerning s. 51(24)(b), it was Mr. Nywening’s opinion that the Application before the Tribunal is not in the public interest and the interests of the broader agricultural community. An application must be brought forward concerning the site-specific zoning of the Subject Lands, and this must have been done if the Tribunal were to approve the Application before it.

69As for s. 51(24)(c), Mr. Nywening opined that the lands are not suitable for the purpose of subdivision as there are lands in the Application that can be used for Agricultural purposes.

70Section 51(24)(f) focuses on the limited size needed for a Consent Application of this nature. Mr. Nywening opined that the size of the overall Consent Application does not meet the intent of this section of the Act. The size of the requested Consent is above the 0.8 hectares considered the ideal size for Consent of this nature, and the Appellant willfully requested the size of the lot in order to sell both dwellings with the proposed Severed Lands.

71It was Mr. Nywening’s overall opinion that the Subject Lands already have a site-specific zoning restriction that has been in place since 2007. This site-specific zoning was agreed upon by the Appellant as it was the position of the Appellant that both dwellings were needed at the time of the approved zoning. It was the intent of the site-specific zoning that both dwellings would remain with the farm parcel even if the Appellant were to sell the parcel. No further consent of the dwellings could be contemplated by the Appellant. The Proposal before the Tribunal does not meet the criteria of a surplus farm dwelling in a prime agricultural area. The Proposal before the Tribunal represents farm fragmentation and does not conform to the primary goals of the PPS, County OP and Municipality OP for prime agricultural areas. The proposal reduces the size of the remaining farm parcel below the standards of both the County OP and Municipality OP which should not be approved. The Proposal before the Tribunal does not represent good land use planning.

ANALYSIS, FINDINGS AND DETERMINATIONS

72The Tribunal has given regard to the evidence submitted and to the witness testimony and has given regard to the information presented to and to the decision made by the COA.

73The Tribunal must have regard to matters of Provincial interest as per s. 2 of the Planning Act, if the proposal before the Tribunal is consistent with the PPS, conforms to the County’s OP and conforms to the Municipality’s OP. The Proposal before the Tribunal must satisfy the criteria listed under s. 51(24) of the Planning Act.

74The areas of focus for this Decision before the Tribunal will be the PPS as to who and when a dwelling can be deemed as surplus for a farm operation in consideration of consolidation. The second area of focus will be the size of the proposed lot along with the retained farm parcel size. Thirdly, the Tribunal will focus on the criteria of a Consent Application in s. 51(24) of the Planning Act. And, lastly, the Tribunal will focus on compliance with the OP policies.

PPS

75The area of contention concerning the PPS is the deeming by the Appellant of the dwellings as surplus. As reiterated by both land planning witnesses above in this Decision, lot creation in prime agricultural areas is discouraged and only permitted in accordance with s. 2.3.4.1(c) of the PPS if:

(c) a residence surplus to a farming operation as a result of farm consolidation, provided that:)

1. the new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services; and
2. the planning authority ensures that new residential dwellings are prohibited on any remnant parcel of farmland created by the severance. The approach used to ensure that no new residential dwellings are permitted on the remnant parcel may be recommended by the Province, or based on municipal approaches which achieve the same objective[.]

76In a plain reading of s. 2.3.4.1(c), it clearly states that a residence can be deemed surplus to a farming operation as a result of farm consolidation. Based on the process that is to transpire as a result of this language, it is the Tribunal’s understanding that surplus is to occur when farm consolidation comes to pass. The Tribunal heard evidence that the Appellant has bought many farms over the last 30 years, with the last farm having been bought in 2022. However, the Subject Lands that are the focus of the consent have been in the Appellant’s hands since 2007.

77The PPS leaves a wide berth of interpretation as to what can be deemed as surplus, and when this can be determined. However, the farm or property owner cannot simply deem a dwelling as surplus without the approval of the overarching land planning authorities – in this case the County and the Municipality.

78The Tribunal heard submissions that both dwellings are habitable as per the section 6.0 definition of a residence surplus to a farming operation. It must be noted that all the language pertaining to “a surplus residence” is done so in the singular. Nowhere does the PPS state that multiple dwellings on the same farm parcel can be deemed as “surplus”.

79With regard to the Appellant’s own primary dwelling being deemed as surplus, this is another area needing further analysis. The Tribunal does understand that farming operations have evolved and the need for larger, more efficient farming operations will only enhance farming operations as a whole. However, deeming a farm owner’s primary dwelling as surplus while they are still living in the dwelling and still actively a part of the farming operation is considered by the Tribunal to be an overreaching definition of surplus.

Size of Consent Application

80The Tribunal finds that the size of the Proposal does take into account the area needed to allow enough room for such necessities as private sewage services, and, in the case of the Appellant’s main dwelling, the underground piping needed for the inground heat system. However, the Proposal requests that both dwellings be a part of the Application before the Tribunal. This results in a larger overall Consent request of 2.6 hectares. The result of the Application would see an already undersized farm parcel become smaller in size.

[Section 51(24)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec51subsec24_smooth) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

81The Tribunal must take into consideration s. 51(24) of the Planning Act regarding this Application. After review of this section of the Act, the Tribunal finds that if the Application were to be approved, an application would then have to be made to change the site-specific zoning of the Subject Lands. The Tribunal agrees with the opinion of both Parties concerning the need for a Zoning By-law Amendment approval for the Consent to conform to the County and Municipality’s OPs.

82With this in mind, the Tribunal finds that s. 51(24)(b) is the criteria that should be applied to the Application. The Appellant had intimate knowledge of the site-specific Zoning By-law Amendment as it was the Appellant himself who requested to build a new home on the Subject Lands and agreed to the site-specific zoning conditions that have been in place since 2007.

OP

83The Subject Lands were “undersized” prior to the Application. The Application will reduce the farm parcel size by 2.6 hectares. Granted, this farm parcel is part of a larger farming operation that is operated by the Appellant. Section 4.3 of the Municipality OP states that the minimum lot size for agricultural uses shall be generally 40 hectares or larger.

84Section 4.7 of the Municipality OP states that a minimum farm size of 40 hectares is required in a farm located in the designated Thedford Marsh Area. The Application is located within the Thedford Marsh Area and the parcel size is already under the 40-hectare minimum requirement. As such, the Tribunal finds that the Application before it further reduces the farm parcel size below the 40-hectare minimum required.

85The Appellant’s land planning witness recommended that, if the Application were to be approved by the Tribunal, a condition of the Consent would be a minor variance application requesting relief from the site-specific zoning. The County’s land planning expert recommended that, if the Tribunal were to grant the Application, relief from the Zoning By-law would still be required as a condition of the Application. It is the Tribunal’s determination that the Consent Application before it is premature.

Overall Determinations

86Due to the totality of the evidence provided, the Tribunal determines that the Consent Application is premature as per s. 51(24)(b) of the Planning Act as there is a need for a Zoning-By-law Application before the Consent Application can be approved. The current site-specific Zoning By-law does not allow for a severance of both of the dwellings from the Subject Lands – which was agreed upon by the Appellant in 2007. Without the site-specific Zoning By-law Amendment Application, the Tribunal finds that the Consent Application should be denied. Granted, the Tribunal could approve the Consent Application with a condition for the need for the Zoning By-law approval. However, the Tribunal finds that the Zoning By-law Application was not a part of the appeal before it, and as such, does not warrant adding it as a condition of approval to this Consent Application.

87The Tribunal finds that the Consent Application should be denied.

ORDER

88THE TRIBUNAL ORDERS that the appeal is dismissed and the provisional Consent is not to be given.

“S. deBoer”

S. DEBOER MEMBER

Ontario Land Tribunal Website: 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.