Francis v. Norfolk County, 2024 CanLII 40915

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 02, 2024

CASE NO(S).: OLT-23-001034

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

Applicant/Appellant: Jarran Francis

Subject: Consent

Description: To Amend/Remove conditions within the approval

Reference Number: BNPL2023198

Property Address: 1366 Cockshutt Road, Simcoe Ontario

Municipality/UT: Norfolk County

OLT Case No.: OLT-23-001034

OLT Lead Case No.: OLT-23-001034

OLT Case Name: Francis v. Norfolk County

Heard: January 10, 2024 by video hearing

APPEARANCES:

Parties Jarran Francis Norfolk County (“County”)

Counsel Self represented Brian Duxbury

DECISION DELIVERED BY A. SAUVE AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Mr. Francis is appealing a decision of the Committee of Adjustment (“C of A”) to approve his Consent application. His application was approved but he takes issue with two of the conditions imposed.

2The Consent application concerns a parcel of Prime Agricultural Land having no frontage, a width of 36.9 metres (“m”), a depth of 13 m, and having an area of 478 square metres (“sq. m”) and retain a parcel having an area 130 hectares (321 acres (“ac”)). The intention is for the parcel to be added to an existing residential lot located immediately adjacent to the west.

3The subject lands are located on the northeast side of Cockshutt Road and Concession 13 Townsend, in the Geographical Township of Townsend, Norfolk County. The lands to be severed have historically been used for agricultural production of field crops, however, they are now idle. The lands being retained by Mr. Francis are actively used for the production of field crops. Surrounding land uses are agricultural, with a relatively low prevalence (six dwellings) of rural residential lots along Concession 13 Townsend and Cockshutt Road.

4Mr. Francis identified two technical reasons for the consent application:

1. Due to a deficiency in the rear lot line setback for the single detached dwelling, detached garage, well, pool, and pool’s deck, these structures are in violation of the prescribed rear yard setback requirement. It is likely building permits, if requested, either were not accurate describing the distance of the setback or there was an administrative error in recognizing these deficiencies.

2. That due to the 5.08 m setback distance between the residential lot’s well and rear lot line, the Best Management Practices (“BMPs”) identified by the Ontario Ministry of Agriculture Food and Rural Affairs (“OMAFRA”) which recommend a minimum 15 m distance between a well and a source of contamination cannot be met. The rear lot is agricultural land. These lands receive applications of nitrates and other contaminates seasonally or yearly.

5On September 20, 2023 the C of A approved the Consent application with the following conditions:

1. Receipt of a letter from Norfolk County indicating that their requirements, financial or otherwise have been satisfied.

2. That a Survey be submitted showing the required rear yard setback of the existing detached dwelling, detached garage, pool, and deck on benefitting parcel are no greater than the minimum zone provisions of the Community Development Department.

3. That a survey be submitted showing the location of the well on the benefitting property and the setback distance is no greater then 15 meters to the rear lot line.

4. That a well water test for the well located on the lands be submitted demonstrating the presence of contaminants.

5. That a one square foot portion of land presently owned by Jarran Frances and Katelyn Laforme be conveyed to the abutting road allowance owned by Norfolk County.

6. The Section 50(3) or (5) of the Planning Act shall apply to any subsequent conveyance or transaction.

7. That the severed parcel becomes part and parcel of the abutting lands presently owned by Jarran Frances and Katelyn Laforme.

8. That the solicitor acting in the transfer provides their undertaking in the following manner: “In consideration of the Certificate of Official, I undertake to ensure that at the time of the registration of the said Certificate of Official or deed upon which time it has been affixed, the name of the registered owner of the abutting lands is the same as that of the Grantee in the said deed”.

9. Receipt of three copies of the deed for the severed parcel of land, or if filling by electronic registration, receipt of the PIN print-out and three copies of the Transfer in preparation from the solicitor acting in the transfer.

10. That the solicitor acting in the transfer provides an undertaking to provide the Secretary-Treasurer with a copy of the first page of the Receipted Transfer upon the completion of the electronic registration.

11. That the included conditions must be fulfilled and the Certificate of Official for consent be issued by the Secretary- Treasurer on or before the lapsing date noted below after which time the consent will lapse.

6Mr. Francis filed this appeal to amend one condition and remove another:

1. Amend condition #3 to read –to be in line with the surveys already completed by Mr. Francis and Norfolk County to be a setback distance no greater than 18m.

2. Remove condition #4

7Mr. Francis’ position is that the border adjustment is minor, the land in question is merely a buffer between agricultural land and the well, and, while the well is not yet contaminated, the boundary adjustment will prevent contamination from occurring.

8The County’s position is that a non contaminated well location should not be used as a basis to sever land. Proof of contamination must exist. Also, condition #3 is required as proof that the detached dwelling, detached garage, pool, and deck do not meet the Zoning By-Law.

9In determination of this Appeal pursuant to s. 53(19) of the Planning Act (“Act”) and deciding whether the Proposed Consent should be granted, with such conditions that may be required, the Tribunal must consider and decide the following:

a. The Tribunal must be satisfied that a plan of subdivision is not necessary for the proper and orderly development of the municipality and can proceed by way of application for consent pursuant to s. 53(1) of the Act;

b. The Tribunal must then, pursuant to s. 53(12), have regard for criteria set out in s. 51(24) 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 consent conforms to the Official Plan (“OP”); and the suitability of the land for the purposes for which it is to be subdivided;

c. As per 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 2020 Provincial Policy Statement (“PPS”) and conforms to any applicable Provincial Plans;

d. The Tribunal must also have regard to the decision of the approval authority to the consent application and the material and information that was before the approval authority in making the decision;

e. The Tribunal may, pursuant to s. 53(12), also consider and impose such conditions as may be determined to be reasonable, having regard to the nature of the Proposed Consent and such conditions may include such requirements as are set out in s. 51(25) of the Act; and

f. The Tribunal will decide whether giving the provisional consent to the Applicant, with any required conditions, represents good planning in the public interest.

EVIDENCE

10The Tribunal heard from three witnesses at the Hearing. Mr. Francis provided evidence himself and his second witness was Ms. Kimberly Smith. Ms. Smith’s company, Pay Dirt Inc., owns the abutting property and is the potential recipient of the severed land. The County called one witness, Ms. Hannelore Yager who is a candidate member of the Ontario Professional Planners Institute.

11Ms. Smith was able to provide the Tribunal with some background of the properties and a verbal description of the ‘lay of the land’. Ms. Smith told the Tribunal that she has been involved in active farming all of her life and currently farms 3000 ac with her son. While she was unable to provide planning evidence to the Tribunal her knowledge of the area was helpful. Ms. Smith also explained to the Tribunal how ‘sludge’ is spread on her farm as a fertilizer.

12Mr. Francis brought the Tribunal to the PPS s. 2.3.3.2 which states “In prime agricultural areas, all types, sizes and intensities of agricultural uses and normal farm practices shall be promoted and protected in accordance with provincial standards.” Mr. Francis then opined that ‘normal farm practices’ should be consistent with the Nutrient Management Act, the Safe Drinking Water Act and the Ontario Water Resources Act.

13The culmination of his argument is that s. 12(2) of O. Reg 372/07 – Ontario Water Resources Act – states that wells shall be 15 m from any source of contaminants. The sludge that Ms. Smith spreads on her farm is a contaminant and it is less than 15 m from his well.

14On cross examination Mr. Francis informed the Tribunal that he has had the well water tested and it was not contaminated. However, Mr. Francis went on to explain that the well water was tested during a period that was not close to when sludge was applied or when the fields were sprayed. Mr. Francis stated that his goal with this application is to prevent contamination from occurring.

15The Tribunal then heard from the County’s witness, Ms. Yager who is a candidate member of the Ontario Professional Planners Institute and currently works for the County as a Planner. After going over Ms. Yager’s CV and Acknowledgement of Expert Duty, and with the consent of Mr. Francis, the Tribunal qualified Ms. Yager to provide expert opinion evidence in the field of Land Use Planning.

16Ms. Yager provided evidence to the Tribunal that the PPS provides guidance on lot adjustments in Prime Agricultural Areas being permitted for legal or technical reasons. Ms. Yager stated that the land in question is in a Prime Agricultural Area. Ms. Yager went on to state that the Norfolk County Official Plan (“OP”) also provides direction on lot adjustments in these areas that conforms with the direction in the PPS.

17Ms. Yager then brought the Tribunal to s. 2.3.4.2 of the PPS which states, “Lot adjustments in prime agricultural areas may be permitted for legal or technical reasons”. She went on to testify that legal or technical reasons are defined by the PPS as “severances for purposes such as easements, corrections of deeds, quit claims, and minor boundary adjustments, which do not result in the creation of a new lot”.

18Ms. Yager told the Tribunal that the submitted application identifies that the use of the lands to be severed are “idle agriculture”. Ms. Yager also told the Tribunal that the application identifies that there is a concern for contaminants, due to the application of fertilizers. In her opinion, however, the spraying of fertilizers meets the definition of normal farm practices in the PPS and the Farming and Food Production Protection Act, 1998. The application of fertilizers also is included in the definition of an “agricultural operation” in the Farming and Food Production Protection Act, 1998.

19She went on to testify that the application provides two justifications for the boundary adjustment: 1) to correct a deficiency in the Zoning By-law of Norfolk County affecting the garage, pool and deck, and 2) to increase setback distance between the well and property line to address a health and safety hazard caused by agricultural applications to the soil, in accordance with Ontario Ministry of Agriculture and Rural Affairs’ Best Management Practices and O. Reg 903 which requires a well shall be a minimum distance from a source of contamination.

20Ms. Yager further informed the Tribunal that there are no Zoning By-law or Ontario Building Code requirements regarding setbacks between a well and a property line. Ms. Yager also testified that a Certificate of Analysis, provided by Mr. Francis, indicates that as of September 19, 2023 there are no contaminants which exceed the maximum concentrations identified in O. Reg 169/03: Ontario Drinking Water Quality Standard.

21Ms. Yager opined that since there appears to be no source of contaminants on the subject lands and no evidence of contamination in the drinking water, a proposal to sever a parcel of land from agricultural production in order to expand the setback distance from the existing well to an existing or potential source of contamination caused by agricultural applications is not a verifiable justification unless a contamination is found that demonstrates a risk to public health and safety.

22Ms. Yager also informed the Tribunal that the Zoning By-Law of Norfolk County does identify required setback distances between structures and buildings to a property’s lot line. She opined that the survey submitted by Mr. Francis and staff review of Building Department records determined that Norfolk County issued a building permit in error – specifically, that the permit issued for the attached garage did not ensure compliance with the Zoning By- Law. She went on that there are other existing structures (pool and deck) that also appear to be deficient.

23Ms. Yager opined that facilitating compliance with the ZBL for existing buildings and structures is a genuine technical reason.

24Ms. Yager’s opinion is that the technical justifications provided for the boundary adjustment need to be verifiable.

DECISION

25The Tribunal found the evidence of Mr. Francis and Ms. Smith compelling and of assistance, however, the Tribunal was unable to accept their conclusions.

26The Tribunal accepts the uncontroverted evidence of Ms. Yager in its entirety.

27The Tribunal finds that the consent to sever with the conditions imposed by the C of A is consistent with the PPS, does not require a plan of subdivision, have regard to matters of provincial interest, conform to the Official Plan, and therefore constitute the protection of prime agricultural land as a resource while ensuring the protection of public safety is considered.

ORDER

28The Tribunal Orders that the appeal is dismissed and the conditions imposed on the provisional consent by the Decision of the Committee of Adjustment remain in effect.

“A. Sauve”

A. SAUVE 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.