Hale et. al. v. Durham (Region)
ISSUE DATE: May 07, 2024
CASE NO(S).: OLT-24-000134
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant (jointly): Garfield Payne, Shelly Payne, Lance Payne and Jennifer Hale
Subject: Consent
Description: To sever three portions of lands
Reference Number: LD086/2023
Property Address: 2173 Newtonville Road
Upper Tier: Durham
OLT Case No.: OLT-24-000134
OLT Lead Case No.: OLT-24-000134
OLT Case Name: Hale et. al. v. Durham (Region)
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant (jointly): Garfield Payne, Shelly Payne, Lance Payne and Jennifer Hale
Subject: Consent
Description: To sever three portions of lands
Reference Number: LD087/2023
Property Address: 2173 Newtonville Road
Upper Tier: Durham
OLT Case No.: OLT-24-000135
OLT Lead Case No.: OLT-24-000134
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant and Appellant (jointly): Garfield Payne, Shelly Payne, Lance Payne and Jennifer Hale
Subject: Consent
Description: To sever three portions of lands
Reference Number: LD088/2023
Property Address: 2173 Newtonville Road
Upper Tier: Durham
OLT Case No.: OLT-24-000136
OLT Lead Case No.: OLT-24-000134
Heard: April 12, 2024 by Video Hearing
Parties and Counsel/Representative*
Garfield Payne, Shelley Payne, Lance Payne, Jennifer Hale: Garfield Payne*
Regional Municipality of Durham: Cindy Boyd
Municipality of Clarington: J. Mark Joblin
MEMORANDUM OF ORAL DECISION DELIVERED BY C. HARDY ON April 12, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Garfield Payne, Shelley Payne, Lance Payne and Jennifer Hale (collectively, the "Appellant") applied to the Regional Municipality of Durham ("Region") Land Division Committee ("Committee") for three consents to sever the property located in the Municipality of Clarington ("Municipality") known municipally as 2173 Newtonville Road ("subject property"). Region Planning staff recommended approval of the consents, subject to various conditions, and the Committee approved the consents subject to the recommended conditions. The Appellant appealed four of the conditions of consent pursuant to s. 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended ("Act").
2The Appellant applied to the Committee for three consents to sever, which would create a total of three new lots (two within the Hamlet and one outside of the Hamlet) as follows:
- LD 086/2023 – proposed 0.2 ha residential building lot located within the Hamlet of Newtonville;
- LD 087/2023 – proposed 3.33 ha future development lot located within the Hamlet of Newtonville; and
- LD 088/2023 – proposed 72.5 ha vacant farm parcel located outside the Hamlet of Newtonville.
The proposal retains a 42.2 hectare ("ha") agricultural lot located outside of the Hamlet of Newtonville, which contains an existing single detached dwelling and a farm building.
3There is no appeal before the Tribunal, regarding the findings of the Committee, on the merits of the consent applications. The Appellant's appeal reasons were restricted to one condition relating to LD 086/2023, one condition relating to LD 087/2023 and two conditions relating to LD 088/2023 as follows:
LD 086/2023
- The applicant shall pay the Municipality an amount in lieu of conveying land for park or other public recreational purposes under Section 53 (12.1) and (13) of the Planning Act, R.S.O., c.P.13. This payment is equivalent to 5% of the value of the severed parcel. To determine the value of the land, the applicant shall retain a certified Land Appraiser to prepare a land appraisal. Alternatively, and at the discretion of the Director of Planning & Infrastructure Services, a purchase and sale agreement within six months prior to the execution of the Consent Agreement will be used to base the land value.
LD 087/2023
- The applicant shall pay the Municipality an amount in lieu based off the appraised value of a 0.4 ha (1 Acre) rural residential parcel of conveying land for park or other public recreational purposes under Section 53 (12.1) and (13) of the Planning Act, R.S.O., c.P.13. This payment is equivalent to 5% of the value of a 0.4 ha (1 Acre) portion of the severed parcel. To determine the value of the land, the applicant shall retain a certified Land Appraiser to prepare a land appraisal. Alternatively, and at the discretion of the Director of Planning & Infrastructure Services, a purchase and sale agreement within six months prior to the execution of the Consent Agreement will be used to base the land value.
LD 088/2023
- The applicant shall pay the Municipality an amount in lieu based off the appraised value of a 0.4 ha (1 Acre) rural residential parcel of conveying land for park or other public recreational purposes under Section 53 (12.1) and (13) of the Planning Act, R.S.O., c.P.13. This payment is equivalent to 5% of the value of a 0.4 ha (1 Acre) portion of the severed parcel. To determine the value of the land, the applicant shall retain a certified Land Appraiser to prepare a land appraisal. Alternatively, and at the discretion of the Director of Planning & Infrastructure Services, a purchase and sale agreement within six months prior to the execution of the Consent Agreement will be used to base the land value.
- That the applicant shall demonstrate to the satisfaction of the Region of Durham Planning Division that any required works and recommendations resulting from an Archaeological Study and any further studies be completed, and a clearance letter from the Ministry of Citizenship and Multiculturalism is obtained and submitted to the Region for the archaeological study.
PRELIMINARY MATTERS
4The Tribunal addressed a number of preliminary matters, at the outset of the hearing, including the conversion of the merit hearing to a Case Management Conference as discussed below.
5The hearing was the first event for the appeal and, as such, the Tribunal confirmed with Counsel that there were no known issues arising from the Tribunal-issued notice of the appeal.
6In advance of the hearing, the Tribunal was in receipt of a written request for party status from the Municipality explaining that three of the appeal grounds concern the Municipality's conditions related to parkland dedication and, as such, it has a genuine interest in the appeal. The Tribunal granted the Municipality's party status request on consent. The Tribunal confirmed that there were no other persons or entities present seeking status in the appeal.
7The Region and the Municipality were both represented by their respective legal Counsel. The collective Appellants were self-represented and based on the filed documents, appeared to have common interests and positions. The Tribunal inquired and confirmed that Garfield Payne was intending to act as a representative for all Appellants. Although he is a lawyer, Mr. Payne confirmed with the Tribunal that he was not acting in his capacity as a legal representative, but rather, in a personal capacity as a joint owner of the subject property. He further advised that Lance Payne may also speak on behalf of the collective Appellants regarding the archaeological condition. The Tribunal explained to the Appellants that Rule 4.1 of the Tribunal's Rules of Practice and Procedure requires written authorization for a representative to act on behalf of a party. The Tribunal directed the Appellants to file the respective Confirmation of Representation with the Tribunal following the hearing.
8On the eve of the hearing, the Tribunal received Minutes of Settlement entered into between the Appellant and the Municipality relating to the three parkland dedication conditions. The Region explained to the Tribunal that it was currently in productive settlement discussions with the Appellant relating to the sole remaining archeological condition and as such, the Parties were requesting an adjournment of the hearing on consent. The intent of the adjournment was to provide additional time for further discussion and attend at a future date to either present settlements to the Tribunal or in the alternative, present a contested settlement relating to the settled parkland dedication conditions and the disputed archeological condition.
9The Tribunal reminded the Parties that last minute adjournment requests are reserved for unavoidable emergencies. Upon hearing the submissions of the Parties, the Tribunal determined that, in the circumstances, an adjournment and conversion of the merit hearing to a Case Management Conference pursuant to Rule 17.5(g) of the Tribunal's Rules of Practice and Procedure was appropriate. The additional time would allow the Parties to reach an amicable resolution of the archeological condition, if discussions continued to be productive.
NEXT STEPS
10As requested, the Tribunal scheduled a merit hearing by video on Thursday, June 13, 2024 commencing at 10 a.m. The hearing has been scheduled as a contested settlement hearing with the caveat that the Parties, through Counsel for the Region, may request conversion to a full settlement hearing if appropriate.
11Parties 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:
https://global.gotomeeting.com/join/709076365
Access code: 709-076-365
12Parties 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
13Persons 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.
14Individuals 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 hearing by video 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.
15The Tribunal acknowledges that the Parties submitted documentation that, each intended to rely upon, had the merit hearing proceeded as scheduled. If the Parties wish to file any further submissions, the Tribunal directed that these be received by the Tribunal on or before Friday, June 7, 2024.
ORDER AND DIRECTIVES
16The Tribunal orders as follows:
- The Municipality of Clarington is a Party in this proceeding;
- The adjournment request is granted and the hearing is converted to a Case Management Conference pursuant to Rule 17.5(g) of the Tribunal's Rules of Practice and Procedure; and,
- The merit hearing, in this appeal, will be held by video hearing on Thursday, June 13, 2024 at 10 a.m.
17There will be no further notice and this Member is not seized, however, will remain available for case management subject to the Tribunal's calendar.
18The Tribunal so orders and provides the above directives for the purposes of the case management of the appeal.
"C. Hardy"
C. HARDY VICE-CHAIR
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.