Oxford (County) v. Oxford (County) Land Division Committee, 2024 CanLII 40916

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 02, 2024

CASE NO(S).: OLT-23-001024

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

Appellant: County of Oxford

Applicant: Schell, Elizabeth M., and Longlade, Frank Steve

Subject: Consent

Description: To facilitate an agricultural lot addition and the retention of a lot containing an existing dwelling for non-farm rural residential purposes

Reference Number: B23-39-3

Property Address: 505194 Old Stage Road

Municipality/UT: County of Oxford

OLT Case No.: OLT-23-001024

OLT Lead Case No.: OLT-23-001024

OLT Case Name: Oxford (County) v. Oxford (County) Land Division Committee

Heard: January 12, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel/Representative*

County of Oxford (“County”)

Alex Ciccone

Elizabeth Schell and Frank

Self-Represented*

Longlade (“Applicants”)

DECISION DELIVERED BY A. SAUVE AND ORDER OF THE TRIBUNAL

Link to Order

BACKGROUND

1This is a Hearing of an appeal of a decision of the County of Oxford Land Division Committee (“Committee”) approving the application for severance on September 7, 2023, which was certified on September 14, 2023. The County of Oxford (“County”) filed an appeal of the decision on October 3, 2023. The staff report had recommended denying the proposed severance. The lands are located within an agricultural area, in the northerly portion of the Township of Norwich, in the County. The lands are described as Part Lot 15, Concession 4, former Township of East Oxford, and municipally known as 505194 Old Stage Road (“Subject Lands”).

2The application for severance is to facilitate an agricultural lot addition and the retention of a lot containing an existing dwelling for non-farm rural residential purposes. It is proposed that approximately 19.8 hectares (“ha”) (49 acres (“ac”)) of agricultural lands, containing one existing agricultural building, will be severed from the subject lands and added to the vacant agricultural parcel to the immediate west.

3The lot to be enlarged is described as Part Lot 16, Concession 4 in the former municipality of East Oxford, and is vacant and is also in agricultural cash crop production. The lot to be enlarged is 28.35 ha (70 ac) in size and is under the ownership of Stageview Poultry Ltd. The lot to be enlarged also contains an open municipal drain.

4Once severed, the retained lands would be 8,094 square metres (“m2”) (2 ac) in size, with 94.6 metres (“m”) (310.3 feet (“ft”)) of frontage on Old Stage Road, and an approximate depth of 90.8 m (298 ft). The lot to be retained contains an existing single detached dwelling with an attached garage (built in 2004), and a horse barn, approximately 186.7 m2 (2,010 square feet (“ft2”) in size (also built in 2004). It is proposed that the existing horse barn would be removed.

5The Subject Lands were created as a result of a previous severance to create an undersized agricultural parcel. The previous severance was conditional upon the owners establishing a viable livestock farming operation on the Subject Lands. The Applicants are now proposing to remove the existing barn that was required to be established as per the previous application.

6Surrounding land uses are predominately comprised of cash crop agricultural operations. Woodlands that have been identified as Significantly Ecologically Important in the draft Oxford Natural Heritage Systems Study are located to the southwest of the Subject Lands, and lands identified as Provincially Significant Wetlands are located to the north. One existing non-farm rural residential dwelling is located to the northeast of the Subject Lands.

ISSUES

7The County takes the position that a Consent to sever agricultural lands must meet an exception in the Provincial Policy Statement, 2020 (“PPS”), which this application does not, and that the application conflicts with the policies in the County Official Plan (“OP”). The County also argued that allowing the severance would set a dangerous precedent, in that Prime Agricultural Land could be bought, a house built on it, and then severed. This process could continue until all the land becomes separate residential parcels, reducing the amount of Prime Agricultural Land in Ontario.

8The Applicant argued that what is proposed is actually a boundary adjustment, as no new parcel of land is to be created, just transferred to the neighbour. They also argued that the appeal was not brought in time by the County.

PARTICIPANT STATEMENT

9The Tribunal received one Participant status request by Mr. Chris Lee, owner of Stageview Poultry Ltd., which was granted on consent of the Parties. Mr. Lee is in favour of the severance.

EVIDENCE

Preliminary

10The Tribunal had the benefit of lay evidence and submissions proffered by Mr. Longlade and expert opinion evidence proffered by Heather St. Clair, a planner for the County.

11The following were made exhibits at the Hearing:

1. County of Oxford Notice of Decision;

2. Letter from Applicant to Tribunal;

3. Document Book of County of Oxford; and

4. Witness Statement of Ms. Heather St. Clair.

12Ms. St. Clair was the first witness in order to provide the Tribunal with a brief overview of the noncontroversial facts and to provide background information. Mr. Longlade then presented his evidence, and finally, Ms. St. Clair provided her planning evidence.

Evidence of Applicant

13Mr. Longlade provided testimony that, while he understands precedent is a concern for the County, that is not what is going to happen with this application. He further stated that what he is trying to do is create a larger farm, as undersized farms, such as his, are being pushed out of farming. That is why he views this application as more of a boundary adjustment.

14Mr. Longlade also believes the appeal was not filed in time. The decision was made on September 7, 2023. The date of certification, or notice, provided on the decision had September 8, 2023 on it. However, the ‘8’ was scratched off and replaced with ‘14’, with initials next to it. The time to file an appeal, according to s. 53(19) of the Planning Act (“Act”), is 20 days after the giving of notice. The appeal was filed October 3, 2023. Using the September 14, 2023 date, the deadline to appeal was October 4, 2023.

Applicable Law

15In determination of this appeal pursuant to s. 53(19) of the 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 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 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) of the Act, 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 of County

16After reviewing her Curriculum Vitae and Acknowledgement of Expert Duty, and without objection from the Applicant, the Tribunal found that Ms. St. Clair was able to provide expert opinion evidence in the field of land use planning on behalf of the County.

17Ms. St. Clair first brought the Tribunal to section 2.3 of the PPS, which directs that Prime Agricultural Areas are to be protected for long-term agricultural production. Permitted uses in Prime Agricultural Areas includes agriculture, agriculture related uses, and on-farm diversified uses. New land uses, including the creation of new lots, shall comply with the minimum distance separation formulae.

18She then brought the Tribunal to section 2.3.4.1 of the PPS – Lot creation in Prime Agricultural Areas is discouraged and may only be permitted for:

a) Agricultural uses, provided the lots are of a sufficient size for the type of agricultural use(s) common in the area and are sufficiently large to maintain flexibility for future changes to the type or size of agricultural operations;

b) Agricultural-related uses, provided that any new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services;

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

• The new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services, and;

• 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 of Ontario or based on municipal approaches which achieve the same objectives, and;

d) For infrastructure, where the facility or corridor cannot be accommodated through the use of easements or rights-of-way.

19Ms. St. Clair also gave evidence that the PPS defines a “residence surplus to a farming operation” to mean “an existing, habitable farm residence that is rendered surplus as a result of a farm consolidation.”

20Ms. St. Clair opined that the application can be considered under section 2.3.4 (c) of the PPS, being a proposal to sever land for the purpose of farm consolidation, while retaining a lot containing a residence that would be surplus to the needs of the farm owner of the enlarged lot.

21She further opined that while she believes the application represents a farm consolidation and the retention of a surplus dwelling, as outlined in Part III of the PPS, the intent of this document is to provide the minimum standards with respect to land use policy direction, and to permit additional criteria to be applied by way of local policy directions through municipal OPs, which in this case provide more restrictive criteria for the creation of a non-farm rural residential parcel rendered surplus through a farm consolidation. Ms. St. Clair also stated that she does not believe the proposal would qualify for a farm consolidation and the retention of a lot containing a surplus farm dwelling, based on local policy criteria.

22Ms. St. Clair went on to state that the Subject Lands are designated as Agricultural Reserve on Schedule “N-1” Township of Norwich Land Use Plan, as contained in the OP. She then discussed sections 3.1.4.1, 3.1.4.4, and 3.1.4.4.1 of the OP. Ms. St. Clair opined that these policies state that farming must be the intended use of the land being conveyed and/or retained and that flexibility shall be achieved, such that farm parcels remain sufficiently large enough to permit a change in the commodity produced, and that the size and configuration of the parcels are suitable to the type of agricultural operations in the area and the type of operation proposed.

23Further, Ms. St. Clair provided evidence that the Subject Lands contain an existing farm dwelling, which was established in 2004. The OP provides in section 3.1.4.5 – Policies for Farm Residential Uses, that it is an objective to permit the development of on-farm dwellings that are required to support the farm activity, and that new dwellings will be established only for people associated with the farm activity. She further stated that farm dwellings are not permitted to be severed from the farm unit, except through farm consolidations in accordance with the policies of section 3.1.5.4.2 of the OP.

24Ms. St. Clair further testified that when considering proposals for non-farm rural residential development, the OP establishes a two-step review process in section 3.1.5.4.2 – Process for Evaluating Non-Farm Rural Residential Development.

25She then outlined the two-step test:

1. Step 1 of the review is to consider if the proposal is for an easement, right-of-way, correction of title, or boundary adjustment.

2. Step 2 provides policies that would result in the prohibition of non-farm rural residential development and states that approval to develop lands for non-farm rural residential development outside of a settlement area through severance will be denied should any of the following circumstances be present:

a) The determination that an on-site sewage disposal system cannot operate satisfactorily on the proposed site, or that an adequate supply of potable water is not available;

b) The proposal has no direct frontage onto a permanent public road; or,

c) The proposal involves the severance of the only farm dwelling contained on the lot. This prohibition does not apply to a proposal to retain an only farm dwelling existing at the date of adoption of the OP (December 13, 1995) through a farm consolidation.

26Ms. St. Clair went on to state that, in this instance, the existing dwelling on the lot to be retained was built in 2004, according to building permit records on file. She then opined that given the application involves the severance of the only farm dwelling contained on the lot, and the existing dwelling was constructed after December 13, 1995, the application qualifies for the prohibition policies outlined in Step 2 of section 3.1.5.4.2 of the OP.

27Ms. St. Clair further opined that because the application qualifies for the policies prohibiting non-farm rural residential development, it was her professional planning opinion that the application does not conform with the policies of section 3.1.5.4 of the OP for establishing a non-farm rural residential parcel.

28It was also Ms. St. Clair’s opinion that if section 3.1.5.4.2 of the OP is not adhered to (prohibiting the severance of Prime Agricultural Land with a non-farm dwelling built after December 13, 1995), this process could be repeated indefinitely to establish a series of residential dwellings on small lots. In summation, Ms. St. Clair opined that section 3.1.5.4.2 of the OP prohibits limitless residential development in Prime Agricultural Land.

DECISION

29Concerning the issue of whether the appeal was filed in time, the Tribunal finds that the correct date to use is the date of September 14, 2023. The Tribunal finds that it is common practice for minor changes on forms to be scratched off, corrected, and initialed. There is no evidence to support any other conclusion. Therefore, the appeal was filed on time.

30The Tribunal accepts the uncontroverted and thorough planning evidence of the County. The Tribunal finds that the consent application is not consistent with Part III of the PPS to recognize the ability of a local planning authority to exceed the minimum policy directives of the PPS; is not in conformance with the OP with respect to the decision making framework for evaluating non-farm rural residential development, as the policy directs that the only dwelling resulting from a farm consolidation is prohibited from being retained as a surplus dwelling if it was constructed after December 13, 1995; is not in conformance with the test for OP conformity, as established in section 10.3.4 of the OP for the granting of severance applications; is not in compliance with s. 2 of the Act with respect to the key criteria for severance as required under s. 53(12) of the Act; and is not representative of good land use planning.

ORDER

31THE TRIBUNAL ORDERS that the appeal is allowed, and the Consent is not to be given.

“A. Sauve”

A. Sauve

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.