Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 30, 2024 CASE NO(S).: OLT-23-000531

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant: Friends of Grass Lake Applicant: Harburn Holdings Ltd. Subject: Proposed Official Plan Amendment Description: To permit an 88-unit residential development consisting of suburban residential areas, mixed use areas, and environmental protection areas. Reference Number: D10-OPA-2021-001, 4624-OPA-001 Property Address: Part Lots 9 &10, Concession 8, Plan 9R-10423 Parts 1-5 Municipality/UT: Dysart et al/Haliburton OLT Case No: OLT-23-000531 OLT Lead Case No: OLT-23-000531 OLT Case Name: Friends of Grass Lake v. Haliburton (County)

PROCEEDING COMMENCED UNDER section 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant: Friends of Grass Lake Applicant: Harburn Holdings Ltd. Subject: Zoning By-law Amendment Description: To permit an 88-unit residential development consisting of suburban residential areas, mixed use areas, and environmental protection areas. Reference Number: BL 2023-87 Property Address: Part Lots 9 &10, Concession 8, Plan 9R-10423 Parts 1-5 Municipality/UT: Dysart et al/Haliburton OLT Case No: OLT-23-001071 OLT Lead Case No: OLT-23-000531

Heard: December 11, 2023, by Video Hearing

APPEARANCES:

Parties Counsel

Friends of Grass Lake David Donnelly

Harburn Holdings Ltd. Kim Mullin Mithea Murugesu

Municipality of Dysart et al/Haliburton Edward Veldbloom

County Of Haliburton Stephen Stone Jeff Iles

Highland Creature Corporation Raj Kehar

MEMORANDUM OF ORAL DECISION DELIVERED BY CARMINE TUCCI ON December 11, 2023 AND ORDER OF THE TRIBUNAL

1This matter before the Ontario Land Tribunal (the “Tribunal”), is an appeal of the decision made to approve Official Plan Amendment (“OPA”) No. 1 to the Official Plan of the Municipality of Dysart et.al. (“DOP”) adopted by the Council for the Municipality of Dysart et.al. on September 29, 2022, via Zoning By-Law No. 2022-97 (“ZBA”), and modified by County Council on April 26, 2023.

2The purpose of the OPA and associated ZBA applications is to allow for a medium density residential and mixed-use highway commercial development. The proposed residential development is in the form of multi-unit buildings and proposes a total of eighty-eight (88) residential units at the Subject Lands.

3The Subject Lands are identified within the Urban Area under the County of Haliburton Official Plan (“CHOP”). The CHOP policies direct local Official Plans to designate the limit of settlement areas listed by the County, in order to direct growth on a local level. The Subject Lands is currently designated Environmental Protection (“EP”) and Rural.

4The purpose of this Case Management Conference (“CMC”) was to receive status updates from all Parties to organize the hearing of these Appeals.

5The Tribunal is in receipt of the Affidavit of Service sworn by Michelle Moore on November 10, 2023, and marked as Exhibit 1.

PARTY STATUS

6The Tribunal was presented with a request for Party status from Highland Creature Corporation (“HCC”). HCC is located at 1014 Peninsula Road, adjacent to the proposed development. Party status is sought to monitor the outcomes of this proceeding, specifically as it relates to ensuring water quantity and quality at their property is not impacted and ensuring that a holding condition is imposed on any approved Zoning By-law.

PARTICIPANT STATUS

7The Tribunal was presented with Participant status requests from the following:

1. Leora Berman
2. Donald Ross
3. Wendy Hampson (Lake Kashagawigamog Organization)

8The Tribunal heard a common theme amongst the Participant requests that being of water quality, supply, and capacity.

9The Tribunal heard a common theme amongst the Participant requests that being of water quality, supply, and capacity.

10There were no objections to the Status requests. Based on the information received, the Tribunal deemed the requests reasonable and valid and granted all requests.

11The Tribunal heard that the Parties are seeking a fifteen (15) day Hearing.

12The Tribunal hereby schedules a fifteen (15) day hearing of these Appeals commencing on Monday, November 25, 2024, at 10 a.m. as follows:

GoToMeeting: https://global.gotomeeting.com/join/519389173

Access Code: 519-389-173

13Parties and Participants are asked to log into the Video Hearing at least 15 minutes before the start of the event to test their video and audio connections.

14Parties and Participants 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 GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html

15Persons who experience technical difficulties accessing the GoToMeeting application, or who only wish to listen to the event, can connect to the event by calling into an audio-only telephone line: (Toll-Free) 1-888-299-1889 or +1 (647) 497-9373. The access code is as indicated above.

16Individuals 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 Video Hearing 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.

ORDER

17THE TRIBUNAL ORDERS that:

a. Party status is granted for Highland Creature Corporation in these proceedings;

b. Leora Berman, Donald Ross, and Wendy Hampson (Lake Kashagawigamog Organization), are granted Participant status in these proceedings;

c. The Procedural Order attached as Schedule A shall govern the conduct of these proceedings; and

d. A fifteen (15) day Hearing on the Appeal will proceed as scheduled above.

“Carmine Tucci”

CARMINE TUCCI

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.

SCHEDULE A

CASE NO(S).: OLT-23-000531

PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant Friends of Grass Lake

Applicant Harburn Holdings Ltd.

Subject: Proposed Official Plan Amendment

Description: To permit an 88-unit residential development consisting of suburban residential areas, mixed use areas, and environmental protection areas.

Reference Number: D10-OPA-2021-001, 4624-OPA-001

Property Address: Part Lots 9 &10, Concession 8, Plan 9R-10423 Parts 1-5

Municipality/UT: Dysart et al/Haliburton

OLT Case No: OLT-23-000531

OLT Lead Case No: OLT-23-000531

OLT Case Name: Friends of Grass Lake v. Haliburton (County)

PROCEEDING COMMENCED UNDER section 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant Friends of Grass Lake

Applicant Harburn Holdings Ltd.

Subject: Zoning By-law Amendment

Description: To permit an 88-unit residential development consisting of suburban residential areas, mixed use areas, and environmental protection areas.

Reference Number: BL 2023-87

Property Address: Part Lots 9 &10, Concession 8, Plan 9R-10423 Parts 1-5

Municipality/UT: Dysart et al/Haliburton

OLT Case No: OLT-23-001071

OLT Lead Case No: OLT-23-000531

PROCEDURAL ORDER

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on November 25, 2024, at 10:00 a.m. at https://global.gotomeeting.com/join/519389173.

3. The parties’ initial estimation for the length of the hearing is 15 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. The Issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on consent or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website (https://olt.gov.on.ca/tribunals/lpat/).

Requirements Before the Hearing

A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal, the other parties and to the municipal clerk a list of the witnesses and

9. the order in which they will be called. This list must be delivered on or before August 16, 2024, and in accordance with paragraph 23 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. Expert witnesses in the same field shall have a meeting on or before August 27, 2024, and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before September 26, 2024.

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

13. On or before October 11, 2024, the parties shall provide copies of their witness and expert witness statements to the other parties and to the Municipal Clerk and to the OLT case co-ordinator and in accordance with paragraph 23 below.

14. On or before October 11, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 23 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before October 25, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before October 31, 2024.

17. On or before November 12, 2024, the parties shall provide copies of their visual evidence to all of the other parties. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator, on or before November 15, 2024.

19. Any documents which may be used by a party in cross examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT case co-ordinator, on or before November 14, 2024.

20. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

21. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before November 14, 2024 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

23. All filing shall be electronic and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents email shall be governed by Rule 7.

24. A Summary of Filing Dates is set out in Attachment 4.

25. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

26. The purpose of this Procedural Order and the meaning of the terms used in this Procedural Order are set out in Attachment 5.

This Member is not seized.

So orders the Tribunal.

ATTACHMENT 1 - PARTIES AND PARTICIPANTS

PARTIES

Party Name Contact Information

1. Harburn Holdings Ltd. Wood, Bull LLP 65 Queen Street West, Suite 1400 Toronto, ON M5H 2M5 Kim Mullin / Mithea Murugesu Tel: (416) 203-5633 / 416-203-5634 E-mail: kmullin@woodbull.ca / mmurugesu@woodbull.ca

2. County of Haliburton 11 Newcastle Street Minden, ON K0M 2K0 Stephen Stone (Representative) Director of Planning Email: sstone@haliburtoncounty.ca

3. Municipality of Dysart et al Russell, Christie, LLP 505 Memorial Avenue Orillia, ON L3V 6J3 Ed Veldboom Tel: (705)-325-1326 Ext. 237 Email: eveldboom@russellchristie.com

4. Friends of Grass Lake Federation for the Environment Inc. Donnelly Law, Barrister and Solicitor 276 Carlaw Avenue, Suite 203 Toronto, ON M4M 3L1 David Donnelly Tel: (416) 572-0464 E-mail: david@donnellylaw.ca

Highland Creature Corporation WeirFoulds LLP 66 Wellington St W, Suite 4100, Toronto, ON M5K 1B7 Raj Kehar Tel: (416)-845-3237 E-mail: rkehar@weirfoulds.com

PARTICIPANTS

1. Leora Berman Tel: (705)-854-2888 Email: info@thelandbetween.ca

2. Donald Ross Tel: (416)-575-6790 Email: dross.manorhill@rogers.com

3. Wendy Hampson (Lake Kashagawigamog Organization) Tel: (705)-854-1410 Email: wendyj.hampson@bell.net

4. 458385 Ontario Inc. Tel: (705)-935-0380 Email: carolynlangdon3@gmail.com

ATTACHMENT 2 - ISSUES LIST

Note: The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the Tribunal at the hearing. The extent to which these issues are appropriate or relevant to the determination of the Tribunal at the hearing will be a matter of evidence and argument at the hearing.

Friends of Grass Lake Federation for the Environment Inc

1. Does the development proposal consisting of Official Plan and Zoning By-law Amendments for the subject lands (collectively the “development proposal”) have appropriate regard for the relevant matters of provincial interest enumerated in section 2 of the Planning Act, including the matters set out in sections 2(a), 2(h), 2(n), 2(p), 2(r) and 2(s) therein?

2. Is the development proposal consistent with the relevant policies of the Provincial Policy Statement (2020) (the “PPS”), in particular, but not limited to, the following policy sections:

• 1.1.3.2 and1.1.3.3 (Managing and Directing Land Use);
• 1.6.6, 1.6.6.2, 1.6.6.3 and 1.6.6.7 (Infrastructure and Public Service Facilities);
• 1.8 (Energy Conservation, Air Quality and Climate Change);
• 2.1, 2.1.5, 2.1.6, 2.1.7 and 2.1.8 (Natural Heritage); and
• 2.2.1 and 2.2.2 (Water)?

3. Is the development proposal in conformity with the relevant policies in the County of Haliburton Official Plan, 2017 (the “CHOP”), in particular, but not limited to, the following policy sections:

• 2.1 (Settlement Areas);
• 2.3 (General Policies);
• 2.4 (Intensification Targets);
• 5.3.1 (Environment Policies);
• 5.3.2 (Natural Heritage);
• 5.3.3 (Wetlands);
• 5.3.6 (Shorelines);
• 5.3.9 (Stormwater Management); and
• 5.3.12 (Waterbodies)?

4. Does the development proposal maintain the intent and principles of, and does it conform with, the Municipality of Dysart et al Official Plan, 2017 (the “DOP”) in particular, but not limited to, the following policy sections:

• 2.2, 2.2.1, 2.2.2 and 2.2.9 (Objectives of the Plan);
• 3.7.1 (Climate Change and Public Safety-General Policies);
• 3.7.3 (Climate Change and Public Safety-Stormwater Management); - 4.1 and 4.1.1 (Settlement Patterns);
• 4.2 (Sustainable Development);)
• 4.3.2 (Affordable Housing);
• 4.8 (Active Transportation and Recreation Trails);
• 5.1.1 (Water Resources – General Policy);
• 5.2.2 (Lake Capacity); and
• 5.3.4 (Natural Resources?

5. Has it been demonstrated that the proposed development and site alteration will have no negative impact on natural features or on their ecological functions?

6. Is the proposed development dark sky compliant?

7. Does the development proposal represent an overdevelopment of the site?

8. Does the development proposal fit within the character of adjacent and surrounding lands?

9. Does the development proposal adequately identify and address its feasibility with respect to matters related to sanitary sewer capacity?

10. Does the proposed development create adverse traffic impacts including, but not limited to, the safe and efficient operation of the Highway 21 and Peninsula Road intersection?

11. Is the proposed Zoning By-law Amendment appropriate, including with respect to whether it sufficiently regulates matters of built form including, height, density, massing, scale, setbacks and parking having regard for the subject lands, adjacent property and the character of the surrounding lands?

12. In the event that the Tribunal approves the proposed Official Plan and Zoning By-law Amendments, in principle, should a holding provision apply to the zoning by-law amendment? If so, what conditions should apply to the holding provision?

13. In the event that the Tribunal approves the proposed Official Plan and Zoning By-law Amendments, in principle, should: (a) the final order respecting the Official Plan Amendment application be withheld until such time as the Municipality advises the Tribunal that the Official Plan Amendment has been finalized to the satisfaction of the Commissioner of Planning and Infrastructure; and, (b) the final order respecting the Zoning By-law Amendment application be withheld until such time as the Municipality advises the Tribunal that the draft Zoning By-law Amendment has been finalized to the satisfaction of the Municipality’s Commissioner of Planning and Infrastructure.

14. Does the development proposal represent good land use planning and is it in the public interest?

Highland Creature Corporation

1. Does the proposed Official Plan Amendment (“OPA”) and Zoning By-law Amendment (“ZBA”) have regard for matters of provincial interest as set out in subsection 2 (e), (h), (o) and (p) of the Planning Act?

2. Are the proposed OPA and ZBA consistent with the Provincial Policy Statement (2020), specifically Section 1.6.6 and 2.2?

3. Does the proposed OPA and ZBA conform to the Haliburton County Official Plan, specifically policies related to water quality and quantity?

4. Does the proposed OPA and ZBA conform to the Dysart et al Official Plan, specifically section 3.3.4?

5. Do the proposed OPA and ZBA accommodate for sufficient drinking water that does not impact the quality and quantity of water available at adjacent wells located at 1014 Peninsula Road?

6. Should the “H” provision be imposed on the lands to be zoned H-RS-5, H-CH36 and H-EP1, to ensure that the proposed development does not adversely affect the quantity and quality of the water supply at 1014 Peninsula Road?

ATTACHMENT 3 - ORDER OF EVIDENCE

1. Harburn Holdings Ltd.
2. County of Haliburton
3. Municipality of Dysart et al.
4. Friends of Grass Lake
5. Highland Creature Corporation
6. Reply by Harburn Holdings Ltd.

ATTACHMENT 4 – SUMMARY OF FILING DATES

Date Event

August 16, 2024 Exchange of witness lists (names, disciplines and order to be called)

August 27, 2024 Expert meetings prior on or before this date

September 26, 2024 Agreed statement of expert witnesses (if any)

October 11, 2024 Exchange of witness statements and participant statements, summonsed witness outlines and participant statements

October 25, 2024 Parties to advise if all hearing days required

October 31, 2024 Exchange of reply witness statements

November 12, 2024 Exchange of visual evidence

November 15, 2024 Finalize joint document book

November 14, 2024 Hearing plan filed with Tribunal

November 25, 2024 Hearing commences

ATTACHMENT 5

Purpose of the Procedural Order and Meaning of Terms

Party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other Parties, and making submissions on all of the evidence. If an unincorporated group wishes to become a Party, it must appoint one person to speak for it, and that person must accept the other responsibilities of a Party as set out in the Order. Parties do not have to be represented by a lawyer, and may have an agent speak for them. The agent must have written authorization from the Party.

NOTE that a person who wishes to become a Party before or at the hearing, and who did not request this at the Case Management Conference, must ask the Tribunal to permit this.

Participant is an individual, group or corporation, whether represented by a lawyer or not, who may attend only part of the proceeding but who makes a written statement to the Tribunal on all or some of the issues in the hearing in accordance with Rule 7.7 of the Tribunal’s Rules of Practice and Procedure.

NOTE that such persons will likely not receive notice of a mediation or conference calls on procedural issues. They also cannot ask for costs, or review of a decision as Parties can.

Written and Visual Evidence:

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a Party intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a Party intends to present as evidence at the hearing.

Witness Statements:

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which the witness will discuss and the witness’ opinions on those issues; and a list of reports that the witness will rely on at the hearing.

An expert witness statement should include the expert’s (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons for the opinions and (5) a list of reports that the witness will rely on at the hearing.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a list of the issues which the participant will address and a short outline of the evidence on those issues; and a list of reports, relied upon, if any, which the participant will provide to the Tribunal for consideration of the written statement at the hearing.

Additional Information:

Summons: A Party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons. This request must be made before the time that the list of witnesses is provided to the Tribunal and the Parties (see Rule 13 on the summons procedure). If the Tribunal requests it, an affidavit must be provided indicating how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the affidavit, it will require that a motion be heard to decide whether the witness should be summoned.

The order of examination of witnesses: is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the Party presenting the witness;
• direct examination by any Party of similar interest, in the manner determined by the Tribunal;
• cross-examination by Parties of opposite interest;
• re-examination by the Party presenting the witness; or
• another order of examination mutually agreed among the Parties or directed by the Tribunal.