Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 04, 2024 CASE NO(S).: OLT-23-001296
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Alain Aubry Subject: Consent Description: To create a new residential lot Reference Number: H-044/23 (Aubry) Property Address: 1029 Wishbone Lane Municipality/UT: Minden Hills/Haliburton C OLT Case No.: OLT-23-001296 OLT Lead Case No.: OLT-23-001296 OLT Case Name: Aubry v. Haliburton (County)
Heard: March 01, 2024 by Video Hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Alain Aubry | Self-represented* |
| County of Haliburton | John Ewart |
DECISION DELIVERED BY A. MASON AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This is the decision pertaining to a one-day Merit Hearing of an appeal by Alain Aubry (“Appellant”), pursuant to Section 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), concerning a refusal by the Land Division Committee (“Land Committee”) of the County of Haliburton (“County”) of an application for consent to create one new rural lot (“Severance”) with respect to the lands located at Part Lot 3, Concession 6, in the Geographic Township of Minden (“Township”) municipally known as 1029 Wishbone Lane (“Subject Property”).
2Having considered the evidence and submissions of the Parties, the Tribunal finds that the Severance is contrary to the official plan policies of both the Township and the County, as well as matters of Provincial interest under s. 2 of the Act and the Provincial Policy Statement, 2020 (“PPS”), and therefore does not constitute good planning. The Tribunal dismisses the appeal.
REQUESTS FOR PARTICIPANT STATUS
3In advance of the Merit Hearing, the Tribunal received four written requests for Participant Status from individuals either adjacent to the Subject Property or in close proximity with an interest in the matter. All four requests for Participant Status opposed the Application on the basis that: (1) the Severance would create a backlot in contravention of the Township’s policies, and (2) that it would facilitate development contrary to the environmental policies of the Province, County and Township with respect to Mountain Lake. Neither the Appellant nor the County objected to the Requests for Participant Status. The Tribunal considered the written requests and found they raised important issues for it to consider in order to understand and adjudicate the matter fully and are reasonably related to the Severance. As such, the Tribunal granted Participant Status to Lynne McKenzie, Sharon Matteer, Clare Butler, and Brian Smith and took their written submissions into consideration in evaluating the Severance.
FILING OF DOCUMENTS
4At the outset of the Merit Hearing, the Appellant objected to the filing of the County’s book of documents and materials (“Book of Documents”) and took the position that it should be excluded from consideration by the Tribunal as it was filed nine days in advance of the commencement of the Merit Hearing. The Appellant referred to Tribunal issued Directions Notice for the hearing event and the instructions therein specifying that documents to be relied on by the Parties were to be filed ten days in advance of the hearing of the matter. The Appellant alleged that, as a result of the one-day late filing, he was precluded from properly considering the material in the Book of Documents or filing responding material.
5The Tribunal notes that the Book of Documents was filed electronically on February 21, 2023, and the Merit Hearing was conducted on March 1, 2023. Under Rule 3.1 of the Tribunal’s Rules of Practice and Procedure (“Rules”), the time between two events is “…is computed by excluding the day on which the first event occurs and including the day on which the second event occurs” where the first event is the day the hearing event is scheduled. Following the formula in Rule 3.1, the Appellant is correct that the County filed the Book of Documents nine days in advance of the Merit Hearing, rather than ten days in advance.
6The Tribunal weighed the potential prejudice to the Appellant of allowing the Book of Documents to be considered by the Tribunal despite being filed nine days in advance of the Merit Hearing. The Tribunal found that the Book of Documents consisted of reports and appended correspondence, as well as excerpts from the County Official Plan (“County OP”) and the Township Official Plan (“Township OP”) and relevant policies that were all on the public record and previously provided to the Appellant through the municipal planning process. As a result, the Tribunal concluded that the one-day late filing by the County posed no prejudice to the Appellant since he was already in possession, or could reasonably have been in possession, of all individual materials in the Book of Documents. The Tribunal found that the Book of Documents merely provided a compendium of pre-existing documents for the convenience of the Tribunal and the Parties, and it introduced no new evidence on behalf of the County.
7The Tribunal exercised its discretion under Rule 3.2 to extend or reduce the time for filing documents in consideration of the Tribunal’s mandate “to offer the best opportunity for a fair, just, expeditious, and cost-effective resolution of the merits of the proceedings”. The Tribunal ruled that the Book of Documents was admissible on behalf of the County and marked it as Exhibit 2 to the proceeding.
BACKGROUND AND SITE CONTEXT
8The Subject Property is irregularly shaped with a lot area of 1.098 hectares and approximately 122 meters of frontage on Gainer Road that is municipally maintained year-round. A private road, Wishbone Lane, bisects the Subject Property from east to west. The Subject Property also has 12.8 meters of shoreline frontage on Mountain Lake.
9The Subject Property is designated Waterfront under the Township OP and the County OP. Under the Township OP, the Waterfront designation permits recreation-based residential uses limited to single detached dwellings in the form of shoreline/linear development or backlot development. Under the Township Zoning By-Law (“Township ZBL”), the Subject Property is zoned Shoreline Residential.
10Mountain Lake is a natural cold water lake trout lake that is classified as “at capacity” by the Ministry of Natural Resources and Forestry indicating the lake is sensitive to nutrient input from shoreline development and vulnerable to degradation. This classification is adopted in the County OP and the Township OP for Mountain Lake in the “Lake Trout Lake – at Capacity” designation.
11On the east side of the Subject Property, there is an existing single detached dwelling constructed in and around 2007 and a detached garage fronting onto Mountain Lake accessed via Wishbone Lane and referenced by the municipal address of 1029 Wishbone Lane (“Main Dwelling”). An older original guest cabin/storage building (“Sleeping Cabin”) with a detached garage and several smaller accessory structures are located on the west side of the Subject Property with the municipal address of 1016 Gainer Road. The Dwelling Unit and the Sleeping Cabin are each serviced by an individual septic and well water system.
12Prior to 2007, the primary dwelling on the Subject Property was the Sleeping Cabin. Subsequently, a building permit to construct the new Main Dwelling on the lakefront addressed at 1029 Wishbone Lane was issued in 2007 to a previous owner (“Building Permit”). A condition of the Building Permit was that the use of the Sleeping Cabin be converted to a “sleeping cabin” as defined under the Township Zoning By-Law 06-10 (“Township ZBL”), defined as follows:
An accessory building no larger than 35 square meters separate from the principle residential dwelling, located on the same lot as the principle building, for sleeping accommodation, or for the occasional accommodation of guests. A sleeping cabin shall not contain cooking or kitchen facilities and shall not be used to provide monetary gain but may contain sanitary facilities.
13In May 2023, the Appellant applied to the Township seeking consent for the Severance to create one new residential lot with an area of 0.45 hectares and a frontage of 61 meters on Gainer Road (“Severed Parcel”). The Severed Parcel would contain the Sleeping Cabin with its existing private servicing systems and other accessory structures. If granted, the Severance would result in the retained parcel being comprised of 0.65 hectares with a frontage of 12.8 meters on Mountain Lake and 61 meters on Gainer Road (“Retained Parcel”). The Retained Parcel would contain the Main Dwelling, private servicing systems, and accessory structures.
14In July 2023, Township Council received a staff report (“Township Report”) recommending the Severance be denied on the basis that it did not conform to policies in the Township OP prohibiting backlot development and was not consistent with provincial policies for the protection and conservation of water and ecological systems such as lakes designated as “at capacity,” including Mountain Lake. Following the recommendations in the Township Report, Council denied the Severance. Despite the lack of endorsement from the Township, the Applicant referred the Severance to the County for consideration. On November 13, 2023, the Land Committee received a second staff report (“County Report”) adopting the analysis and recommendation in the Township Report and advocating denial of the Severance on the additional basis that it was not in conformity with County policies on the creation of new lots in a shoreline situation. The Land Committee followed the recommendation in the County Report and denied the Severance, and the Applicant appealed that decision to the Tribunal.
LEGISLATIVE FRAMEWORK
15Where there is an appeal of an application for consent to create a new lot under s. 53(19) of the Act, the Tribunal must consider and decide the following issues:
a. Section 53(1) of the Act requires the Tribunal to be satisfied that a plan of subdivision is not necessary for the proper and orderly development of the municipality and that the proposed creation of a new lot can proceed by way of application for consent;
b. Section 53(12) requires the Tribunal to have regard for the criteria set out in s. 51(24) of the Act, which includes:
i. Have regard to the effect that the Severance will have on matters of Provincial interest set out in s. 2 of the Act, such as the protection of ecological systems and the conservation of water;
ii. Consider whether the Severance is premature or in the public interest; and
iii. Whether the Consent conforms to the municipal official plans.
c. Section 2.1 requires regard to the decision of the approval authority relating to the Severance that is before the Tribunal and the information and material that was before the approval authority in making the decision; and,
d. Section 3(5) of the Act requires the Tribunal to be satisfied that the approval of the Severance is consistent with the PPS, and conforms to such Provincial plans that may be applicable;
16In answering the above tests, the Tribunal considers whether the granting of the proposed Severance represents “good planning” and is in the public interest.
EVIDENCE AND ANALYSIS
Appellant’s Position in Support of the Severance
17The Tribunal put the self-represented Appellant under oath at the outset of the Merit Hearing so that his submissions could be considered evidence for consideration by the Tribunal.
18The Appellant explained to the Tribunal that he disagreed with the conclusion in the Township Report and the County Report that the Severance contravened the policies of the PPS and that the referenced provisions of the Township OP and the County OP were applicable to the Severance at all. The Appellant took the position that, since the Sleeping Cabin was the original dwelling unit on the Subject Property prior to the construction of the Main Dwelling under the Building Permit, there was no change of use that would implicate the policies considered by the approval authorities and prohibit the proposed Severance. From this, the Appellant asserted that, since the Sleeping Cabin was the original dwelling and on a separate septic system, the policies in the County OP and the Township OP that consider the implications of new development on the shoreline of an at-capacity lake were misapplied.
19The Appellant also took the position that the denial of the Application by the Township and the County was premised on the fundamental misapprehension that the Appellant intended to redevelop the Sleeping Cabin into a new four-bedroom year-round dwelling if the Severance were granted. The Appellant provided factual evidence that he had not submitted any development applications for new construction on the proposed Severed Lot and that a recent new septic field was installed only to replace aging infrastructure for the Sleeping Cabin. As a result, the Appellant asserted that there would be no increased impact from new development on Mountain Lake if the Tribunal granted the Severance.
20Lastly, the Appellant took the position that the Severance should be granted since it would enable the Sleeping Cabin to be occupied full time as a dwelling unit again and thereby assist in addressing a recognized housing shortage in the municipality.
Township and County Position
21Under summons, the County called Amanda Dougherty, Senior Land Use Planner for the Township and pursuing the Registered Professional Planner designation, to provide opinion evidence in land use planning. Upon review of Ms. Dougherty’s background and extensive involvement with the Severance since the original pre-consultation meeting between the Appellant and the Township, the Tribunal qualified Ms. Dougherty to provide land use planning opinion evidence on the matter.
22Ms. Dougherty explained that she was the author of the Township Report provided to Township Council that recommended the Application be denied and that such recommendation was ultimately endorsed by Council.
23The County also presented Adam Kozlowski, a Registered Professional Planner and Senior Planner for the County, to provide opinion evidence on its behalf. Upon reviewing the background and relevant involvement in the matter, the Tribunal qualified Mr. Kozlawski to provide opinion evidence in land use planning in the matter at hand.
24Mr. Kozlawski explained that he was the author of the County Report provided to the Land Committee that recommended denial of the Appellant’s application for Severance. The Land Committee followed the recommendation in the County Report and denied the Application.
25The evidence provided by Mr. Kozlowski and Ms. Dougherty in their respective reports and orally at the Merit Hearing was overlapping and provided a consistent land use planning opinion that the proposed Severance was not consistent with the PPS, did not conform to specific policies of the Township OP and the County OP, and therefore did not constitute good planning. The policies in the Township OP and the County OP operate similarly and are addressed below:
Conformity with the Township OP:
26Ms. Dougherty provided testimony that s. 3.2.3.5.2 of the Township OP sets out policies that provide for new recreation-based residential development within the Waterfront designation, including the Subject Property, and requires new lots to have a minimum lot area of 0.4 hectares, a minimum lot frontage of 60 metres and front on or abut the shoreline. Ms. Dougherty opined that although the Severed Lot met the minimum area required under s. 3.2.3.5.2, it did not have shoreline frontage and therefore constituted a “backlot” under s. 3.2.3.5.4 in the Township OP (“Backlot Policy”). The Backlot Policy specifies that a lot without shoreline frontage shall not be permitted to be created except where the retained land and the severed lands jointly comprise a parcel located in both the Rural and Waterfront designations. Ms. Dougherty explained that lands within 300m of the shoreline are designated as Waterfront under the Township OP, and lands beyond that limit are designated Rural. Therefore, only a very large parcel of land would have both Waterfront and the Rural designation.
27Ms. Dougherty opined that the purpose of the Backlot Policy was to restrict permission for the creation of a new lot unless the parcel of land is large enough that the new lot would be located more than 300m from the shoreline at the point where the Rural designation starts. Ms. Dougherty offered the opinion that, at such a large distance from the lake, the influence of the new lot and buildings would be minimized on the lake function and water quality.
28Ms. Dougherty opined that since the Subject Property is entirely within the Waterfront designation and the Severance thereby constitutes a backlot, it is prohibited unless a specific exception in s. 3.2.3.1.1.5 applies, such as:
a. Both the severed and retained lot have an existing dwelling and septic tile field, and the use is, and will remain residential;
b. The septic tile fields on the new lot will be located more than 300 meters from the shoreline, the drainage flow to the lake from the septic tile field will be more than 300 meters, and the lake is not an at-capacity lake listed in the Township OP; or
c. The scale and density of the development shall be less than currently on the property and a net reduction in phosphorus loading on the lake through a Lake Impact Assessment will be demonstrated.
29Ms. Dougherty opined that none of the exemptions above that would allow backlot development were applicable to the Subject Property since it is entirely within 300m of the lakeshore, the existing septic tile field for the Sleeping Cabin drains toward Mountain Lake, which is an at-capacity lake, and the Appellant did not provide a Lake Impact Assessment.
30Ms. Dougherty provided further testimony that Mountain Lake is designed as an “at capacity lake” under s. 3.2.3.1.1.3 of the Township OP, is highly sensitive to shoreline development, and is considered to be at development capacity without certain supporting technical studies. Under s. 6.2.2.8 of the Township OP, severances will not be considered where the creation of a new lot may have a negative impact on natural features, and environmentally sensitive areas, or surrounding lands. Since the proposed Severance would redesignate the Sleeping Cabin from an occasional use to a dwelling with continual use, Ms. Dougherty opined that it is reasonable to assume that the change in use has a reasonable potential for a greater impact on Mountain Lake. Ms. Dougherty concluded that the Severance does not conform to Township policies generally prohibiting development on Mountain Lake.
Conformity with Country OP:
31In the County Report and in oral testimony, Mr. Kozlowski agreed with Ms. Dougherty’s opinion that the Severance is not in conformity with the Township OP.
32Mr. Kozlowski informed the Tribunal that the Severance also does not conform with s. 5.3.12.7 of the County OP, which provides that new lot creation on the shoreline of a lake designated “Lake Trout Lake – at Capacity,” such as Mountain Lake, is only allowed under similar exceptions found in the Township OP, such as where:
a. The septic tile fields on the new lot are set back at least 300m from the highwater mark of the lake, or such that drainage from the tile fields would flow at least 300 metres to the lake; or
b. A new lot is created to separate existing habitable dwellings, each having a separate existing approved septic system, provided the land use will not change.
33Mr. Koslowski opined that none of the above exceptions apply to the Severance since the Subject Property contains the Main Dwelling and the Sleeping Cabin that are difference defined uses under the Township ZBL,and the Subject Property is entirely within 300m of Mountain Lake and drains thereto. Mr. Koslowski concluded that as a result, thethe proposed Severance does not conform with the policies in the County OP and should not be allowed.
Consistency with the PPS:
34Mr. Kozlowship and Ms. Dougherty both opined that the proposed Severance is not consistent with the policies under s. 2.2 of the PPS with respect to protecting and preserving water resources that lists guidance, goals, and objectives with respect to the protection of sensitive water facilities, specifically:
c. Section 2.2.1 requires planning authorities to protect, improve or restore the quality and quantity of water by:
i. Section 2.2.1(b): minimizing potential negative impacts;
ii. Section 2.2.1(f)(ii): implementing necessary restrictions on development and site alteration to protect, improve or restore vulnerable surface water features and sensitive ground water features; and
iii. s.2.2.2(h) ensure consideration of environmental lake capacity.
d. Section 2.2.2 directs development and site alteration to be restricted in or near sensitive surface water features and sensitive ground water features such that these features and their hydrologic features are protected, improved or restored.
35Since Mountain Lake is classified as “at capacity” and sensitive to additional development, both witnesses concluded that matters of Provincial interest in protecting water quality and the ecological function of lakes would not be upheld if the Severance were granted.
ANALYSIS and FINDINGS
36The Tribunal is satisfied that the threshold question is answered that, for the purposes of s. 53(1) of the Act, a plan of subdivision is not necessary for the Severance.
37The Tribunal finds that the Building Permit requirement to change the original cabin use as the main dwelling to Sleeping Cabin under the Township ZBL to satisfy the condition that only one dwelling unit can be located on a lot is the key fact in the case at hand. At the moment the Building Permit was issued, the historic use of the Sleeping Cabin as the main dwelling with its own septic system evaporated for the purposes of evaluating the Severance. Although this may be a technical change of use since the structure and the septic system remain the same as they were before 2007, the Tribunal finds that application of the definition from the Township ZBL is sensible and necessary to apply the policies under the PPS, Township OP, and County OP and evaluate potential negative impacts on Mountain Lake as a sensitive water feature.
38While the Appellant was incredulous that the Sleeping Cabin, a structure that was previously the main dwelling unit, was prohibited from being converted back into its previous use by the applicable policies, the Tribunal finds this outcome reasonable. The logic of the Township policy on this point is evident: a sleeping cabin is an occasional use that will, presumptively, not impact Mountain Lake to the same extent as a fully occupied dwelling. Whether or not any physical change to the Sleeping Cabin septic system or building took place from that time until today is irrelevant since under, the Township ZBL, its use was replaced by the Main Dwelling on the Subject Property.
39The uncontested opinion evidence presented by Mr. Kozlowski and Ms. Dougherty was thorough and conclusive that the proposed Severance runs afoul of both the County OP and the Township OP on policies that control severances in situations where a backlot condition would be created and in close proximity to Mountain Lake. The rationale behind the Backlot Policy was clearly presented by Ms. Dougherty and the Tribunal finds it to be a logical mechanism to establish a hurdle for new shoreline development that has a reasonable probability of negatively impacting the water quality of a sensitive lake.
40The Tribunal accepts the uncontested evidence of the witnesses that the Severance is contrary to policies in the PPS and s. 2 of the Act with respect to preserving and enhancing sensitive water resources such as Mountain Lake. No evidence was presented by the Appellant to sway the Tribunal from the conclusion reached in the Township Report, County Report and the decisions rendered previously by Township Counsel and the Land Committee.
41In this case, the Township OP, County OP, and PPS act in concert to establish an interconnected policy network to both consider and control the creation of new lots. The Tribunal sees nothing in the application of these policies to the case at hand that creates an unreasonable result and rather finds application of an orderly development scheme that requires consideration of the unique environmental context of Mountain Lake.
42Having thoroughly considered the written documentation and oral testimony of the Parties and for the reasons set out above, the Tribunal finds that the proposed Severance is not consistent with matters of Provincial interest in the PPS and under s. 2 of the Act with respect to water resources and does not conform to policies of the Township and County that prohibit backlot development adjacent to a lake that is classified as “Lake Trout – at Capacity” by the Ministry of Natural Resources and Forestry.
ORDER
43THE TRIBUNAL ORDERS that the appeal is dismissed.
“A. Mason”
A. MASON MEMBER
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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.