Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 19, 2024
CASE NO(S).: OLT-23-000974
PROCEEDING COMMENCED UNDER section 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant: Walker & Vanderheyden
Subject: Consent
Description: To create one new residential lot
Reference Number: 2023-B-09
Property Address: 8 Caswell Road
Municipality/UT: Tay/Simcoe
OLT Case No.: OLT-23-000974
OLT Lead Case No.: OLT-23-000974
OLT Case name: Walker & Vanderheyden v. Tay (Township)
Heard: January 10, 2024 by Video Hearing
APPEARANCES:
Parties
Counsel/Representative*
Andrew Walker and Callum Vanderheyden (“Applicants/Appellants”)
Self-represented*
Township of Tay (“Town”)
Carly Emmett
DECISION DELIVERED BY JENNIFER GOLD AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Applicants applied for a consent to sever (“Consent Application”) to permit the creation of two lots from one at the property located at 8 Caswell Road in the Township of Tay (“Subject Property”). The Committee of Adjustment (“Committee”) for the Township of Tay (“Township”) refused the application on September 20, 2023, and the Applicants then appealed.
2The Tribunal heard from one expert witness, namely Mr. Todd Weatherell, presented by the Township and who is qualified to provide land use planning evidence. His curriculum vitae and signed Acknowledgement of Expert’s Duty were included in Exhibit 2.
3The Tribunal received the benefit of the Applicant’s Document Book that was made Exhibit 1 to the Hearing, the Township’s Document Book that was made Exhibit 2 to the Hearing, and Planning Act excerpts from the Township that were made Exhibit 3 to the Hearing. The Tribunal received written closing submissions from the parties. The Tribunal also reviewed Participant Statements from Jerry Lush, Dave Patton, and Brad Griffith. These individuals were granted Participant status.
ISSUES
4In the determination of this appeal pursuant to s.53(19) of the Planning Act (“Act”) and deciding whether the proposed consent should be granted, the Tribunal must consider and decide on the following issues:
(a) The Tribunal must address the threshold question in accordance with s. 53(1) of the Act and be satisfied that a plan of subdivision is not necessary for the proposed and orderly development of the municipality and can proceed by way of application for consent. In this appeal, this issue does not apply given that only a single consent to sever is sought;
(b) The Tribunal must then, under s. 53(12), have regard for the criteria set out in s. 51(4) of the Act, which includes: that the proposed consent has regard to the effect that the consent will have on matters of provincial interest set out in s. 2 of the Act; whether the proposed consents are premature or in the public interest; and whether the consents conform with the County of Simcoe Official Plan (“County OP”) and Township of Tay (“Township OP”) as well as applicable Zoning By-law; the suitability of the land for the purposes for which it is to be subdivided; and the dimensions and shapes of the proposed lots;
(c) As required by s. 3(5) of the Act, the Tribunal must, in its decision, be satisfied that the approval of the proposed consent is consistent with the Provincial Policy Statement 2020 (“PPS”) and conforms to such Provincial Plans that may be applicable, which in this case is A Place to Grow: The Growth Plan for the Greater Golden Horseshoe (“Growth Plan”);
(d) The Tribunal must also have regard to the decision of the approval authority relating to the consent application that is before the Tribunal and the information and material that was before the approval authority in making the decision;
(e) The Tribunal may, under s. 53(12) also consider and impose such conditions as may be determined to be reasonable, having regard to the nature of the proposed consents, and such conditions may include such requirements as are set out in s. 51(25) of the Act; and
(f) Generally, the Tribunal will decide whether the giving of provisional consent to the Applicants, with any required conditions, represents good planning in the public interest.
SUBJECT PROPERTY AND PROPOSED SEVERANCE
5The Subject Property is located east of the Village of Victoria Harbour in the Township of Tay, in an area commonly referred to as “Caswell Beach”. The Subject Property is located along the north side of Caswell Road with a frontage of approximately 35 metres. Caswell Road is maintained year-round by the Township. The use of the Subject Property is residential, and there is currently a single-family dwelling of 71.54 square metres on the Subject Property. The Subject Property has an area of 1625.80 square metres.
6Tay Township is a rural and small urban municipality with four villages, including Victoria Harbour, which is adjacent to the area locally known as “Caswell Beach” (according to the Applicants), where the Subject Property is located. The subject lands and the neighbourhood around the subject lands are primarily zoned “Shoreline Residential” according to General Zoning By-law No. 2000-57 (“ZBL”) and consist of single-family dwellings.
7The Applicants seeks to sever the Subject Property to permit the creation of two lots from one and thereby create a new residential lot. The lot frontage of the retained lot would be 19.2 metres and the lot frontage of the severed lot would be 15.85 metres. The retained lot would have a lot area of 0.0785 ha, and the severed lot would have a lot area of 0.0725 ha. If granted, zoning by-law amendments or minor variances will be required as neither the existing lot nor the severed and retained lot will meet the minimum requirements for the Shoreline Residential Zone.
EVIDENCE AND ANALYSIS
8The Tribunal received the testimony of the Applicants who were self-represented. It also received the expert planning evidence of the Township’s witness, Mr. Todd Weatherell. The Applicants did not present any expert evidence.
9The Applicants were of the view that the Consent Application was consistent with the PPS. Mr. Weatherell opined that the Consent Application is not consistent with the PPS. The PPS provides policy direction on matters of provincial interest related to land use planning and development. The intent of the PPS is to build strong and healthy communities while, at the same time, promoting efficient land use and development patterns. Section 1.1.5 addresses rural lands in municipalities, and Section 1.1.5.2(c) states that permitted uses on rural lands in municipalities include “residential development, including lot creation, that is locally appropriate”.
10The character of the area surrounding the Subject Property is low-density. The area is not a Settlement Area, and this rural community is near the shoreline. While there have been lot severances in the past, Mr. Weatherell testified that none have been granted since the adoption of the current OP and ZBL. One property municipally known as 25 Sallows was re-zoned from Open Space to Shoreline Residential to permit a residential dwelling. The creation of two under-sized lots for residential development is not locally appropriate. Such a proposal would be more locally appropriate in a settlement area in the Township as opposed to rural lands. Outside of settlement areas, development and intensification should be limited.
11The Subject Property is located in the Rural Area of the Growth Plan. According to Section 2.2.9 Rural Areas, Sections 3 and 6 state:
3 – Subject to the policies in Section 4, development outside of settlement areas may be permitted on rural lands for:
(a) The management or use of resources;
(b) Resource-based recreational uses; and
(c) Other rural land uses that are not appropriate in settlement areas provided they:
i. Are compatible with the rural landscape and surrounding local land uses;
ii. Will be sustainable by rural service levels; and
iii. Will not adversely affect the protection of agricultural uses and other resource-based uses, such as mineral aggregate operations.
6 - New multiple lots or units for residential development will be directed to settlement areas but may be allowed on rural lands in site-specific locations with approved zoning or designation in an official plan that permitted this type of development as of June 16, 2006.
12It is clear that the Growth Plan places the focus of new growth and development towards settlement areas. The Subject Property is not in a settlement area. As addressed in the following paragraph of this decision, the proposed retained lot and severed lot do not conform with the current County OP, Township OP, and ZBL. The Consent Application is not compatible with the rural landscape and surrounding local land uses. This community where the Subject Property is located is not an area where intensification and growth are desirable.
13The Subject Property is designated as “Rural” in the County OP. Mr. Weatherell informed the Tribunal that the general intent and purpose of the County OP with respect to this designation is to protect low-density residential areas. He concluded that the proposed consent to sever does not conform with the general intent and purpose of the County OP.
14The Subject Property is designated “Shoreline Residential” according to the Township of Tay OP. Section 4.1.2.1.1 states that “The Shoreline Residential” designation recognizes the existing shoreline residential areas and communities in the Township and is intended to protect the low-density shoreline residential character of these areas. Development in the shoreline communities shall be compatible with existing land uses in the adjacent areas”.
15Regarding consents to sever, Section 3.11.2.1 states, “the proposed lot and the lot to be retained shall be of an appropriate size and have adequate frontage for the existing and proposed uses, and the severed and retained lots shall comply with the provisions of the implementing zoning by-law”. The ZBL requires lots to have a minimum lot size of 2000 square meters, and a minimum lot frontage of 30 metres. The proposed severance does not conform with the Township OP and the ZBL. Even if there are properties in the area of the Subject Property, they pre-date the adoption of the Township OP and ZBL and possibly the amalgamation of the Township.
16The Tribunal accepts the expert evidence of Mr. Weatherell that the proposed consent to sever is not consistent with the PPS, the Growth Plan, the County OP, the Township OP, and the ZBL. The Applicants did not offer any contradictory expert evidence. The Consent Application does not represent good planning.
ORDER
18THE TRIBUNAL ORDERS that the appeal is dismissed.
“Jennifer Gold”
JENNIFER GOLD
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.