Farhi Farming Corporation v. Middlesex Centre (Municipality), 2024 CanLII 48188

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 21, 2024

CASE NO(S).: OLT-24-000056

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

Applicant and Appellant: Farhi Farming Corporation

Subject: Application for Consent – Appeal of Refusal

Description: To permit the severance of a residence surplus to a farm operation as a result of consolidation

Reference Number: B-20-2023

Property Address: 14387 Ilderton Road

Municipality/UT: Middlesex Centre/Middlesex

OLT Case No.: OLT-24-000056

OLT Lead Case No.: OLT-24-000056

OLT Case Name: Farhi Farming Corporation v. Middlesex Centre (Municipality)

Heard: May 6, 2024, by Video Hearing

APPEARANCES:

Parties

Counsel

Farhi Farming Corporation

Jack Sousa

Municipality of Middlesex Centre

Paula Lombardi (in absentia)

MEMORANDUM OF ORAL DECISION DELIVERED BY JACKIE DENYES ON MAY 6, 2024 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This matter consists of an appeal pursuant to section 53(19) of the Planning Act (the “Act”) regarding an application for Consent to Sever the lands legally described as Part of Lot 16, London Concession 10, in the Municipality of Middlesex Centre (the “Municipality”), County of Middlesex (the “County”), municipally known as 14387 Ilderton Road (“Subject Property”). The application is to split the Subject Property into two lots by means of a surplus farm dwelling severance.

2On November 15, 2023, Farhi Farming Corporation (the “Applicant” / “Appellant”) made an application to Council of the Municipality of Middlesex Centre in Municipal file B-20-2023 for a Consent to Sever a residence considered surplus to a farm operation as a result of consolidation (the “Consent Application”) from the Subject Property.

3On December 20, 2023, the Municipality of Middlesex Centre refused the application, citing that the proposal is not consistent with the Provincial Policy Statement, 2020 (“PPS”) and does not conform to the County of Middlesex Official Plan and the Middlesex Centre Official Plan (“OP”) and, that approval of such Consent Application would further exacerbate the potential loss of prime agricultural lands.

4Immediately before the commencement of the first Case Management Conference (“CMC”) in this proceeding, the Tribunal was advised that, on consent, the Parties sought to convert the CMC to a Settlement Hearing. The Municipality did not appear.

SUBJECT PROPERTY, ZONING AND SURROUNDINGS

5The Subject Property is situated in an agricultural area of the Municipality. It is generally located on the southeast corner of Ilderton Road (Middlesex County Road 16) and Richmond Street (Provincial Highway No. 4). This parcel measures approximately 38.4 hectares (“ha”) in area and has approximately 457 metres (“m”) of frontage on Ilderton Road and approximately 544 m of total flankage along Richmond Street. At present, no additional development or demolition is proposed on the Subject Property.

6The Subject Property is designated Agricultural Area pursuant to Schedule A of the County’s OP and zoned Agricultural (A1) per Schedule A of the Middlesex Centre’s Comprehensive Zoning By-law 2005-005 (“Zoning By-law”). The Subject Property is regulated by the Upper Thames River Conversation Authority. It contains a Natural Heritage Feature, as identified by the Middlesex Natural Heritage Systems Study, as Significant Woodlands pursuant to Schedule B of the Municipality’s OP.

7The Subject Property is approximately 94.99 acres (“ac”) and is predominately used for agricultural purposes, with most of the property under active cultivation. The Subject Property currently contains a single detached dwelling and a detached accessory structure utilized as part of the agricultural operation.

PURPOSE AND EFFECT

8The purpose and effect of the Consent Application is to sever a surplus farm residence on a lot having approximately 10.4 m (95 feet) of frontage along Ilderton Road and an area of approximately 4.99 ac. The residence is rendered surplus to the Appellant because of a farm consolidation. The lands associated with the surplus residence are referred to as the Severed Parcel.

9The Retained lot would maintain a broken frontage of approximately 446.5 m along Ilderton Road and an area of approximately 90 ac. This Retained Parcel would be maintained as farmland in crop production. No loss of active farmland would occur because of this severance. The detached accessory structure would also remain part of the Retained Parcel and be used as part of the existing agricultural operation.

10The existing laneway from Ilderton Road to the single detached dwelling is approximately 280 m in length. Access to the Retained Parcel would be provided by the laneway used for the Severed Parcel through an easement to be entered into and registered on title to both the Retained and Severed Parcels.

EVIDENCE AND ANALYSIS

11The uncontroverted evidence in support of the Appeal was provided by Scott Allen, Member of the Canadian Institute of Planners (MCIP) and Registered Professional Planner (RPP), who was qualified by the Tribunal to provide opinion evidence as an expert in land use planning.

12Four Exhibits were filed during the hearing:

1. Administrative Notice dated March 14, 2024 (Exhibit 1);
2. Affidavit of Scott Allen (Exhibit 2); and
3. Signed Minutes of Settlement with Conditions (Exhibit 3).
4. Minutes of Settlement attached to this Order and Decision for reference purposes only (Exhibit 4).

LEGISLATIVE TESTS

Provincial Policy Statement

13It was the opinion of Mr. Allen that the proposed severance is consistent with the PPS. In particular, he said it is consistent with PPS policy 2.3.1, which states that prime agricultural areas shall be protected for long-term use. Mr. Allen stated that:

(i) The proposed severance does not result in the loss of any agricultural lands under active production. The existing agricultural operation on the Subject Property is approximately 36.4 ha in area, and the same area will remain in agricultural production following the proposed severance.

(ii) The Minutes of Settlement includes a requirement that the Applicant enter into an agreement with the Municipality to advise future owners of the Severed Parcel of normal farm practices occurring in the area as outlined in the Farming and Food Production Protection Act, 1998, S.O. c.1, as amended.

14Further commenting on Policy 2.3.4.1(c), which permits lot creation for a residence surplus to a farming operation in prime agricultural areas, Mr. Allen testified:

(i) The new lot is not utilized for agricultural purposes;

(ii) Is limited to a minimum size needed to accommodate the residential use and appropriate sewage and water services; and,

(iii) The existing access, by way of a common private laneway, will be retained through an agreement or easement registered on title.

15Mr. Allen further testified that the Minutes of Settlement include a condition requiring the applicant to enter into an agreement with the Municipality acknowledging that new residential dwellings are prohibited on any vacant remnant parcel of farmland created by the granting of the severance which also satisfies PPS policy 2.3.4.1(c)(2), which states:

2. 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, or based on municipal approaches which achieve the same objective.

County of Middlesex Official Plan

14As outlined in his report, Mr. Allen indicated that the County’s OP provides the overall land use policy direction for the County and its various settlement areas and includes lot creation policies for prime agricultural areas. He specifically referred to section 2.2.2.1, which states that all land in the County, except lands located in settlement areas, are designated as Agricultural Area under the County’s OP and are considered as prime agricultural lands. This includes the Subject Property.

15Section 4.5.3.4. of the County’s OP sets out the criteria for the severance of surplus residences in this designation, which are relevant to this Consent Application:

a) Consent to sever a residence surplus to a farming operation as a result of farm consolidation may be permitted, provided the residence was built at least 10 years prior, the new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services, and provided new residential dwellings are prohibited on any vacant remnant parcel of farmland created by the severance.

16It was the opinion of Mr. Allen that the following considerations of the Consent Application satisfy the prescribed severance criteria:

i. The residence situated on the Severed Parcel was constructed prior to January 1, 1999;

ii. The Severed Parcel is to be limited in size to accommodate the existing residence, on-site water and sanitary disposal facilities and the access driveway. To ensure compliance, a condition of the severance requires the Applicant to confirm that the Severed Parcel being proposed accommodates on-site water and sanitary disposal facilities through the preparation of a survey by an Ontario Land Surveyor. As well, a condition of the severance requires an appropriate contingency area to be established for the private sewage disposal system servicing the residence situated on the Severed Parcel; and

iii. The applicant will be required to acknowledge, through an agreement entered into with the Municipality and registered on title, that new residential dwellings are prohibited on any vacant remnant parcel of farmland created by the granting of the severance.

Middlesex Centre Official Plan

16Mr. Allen identified that section 1.2 of the Municipality’s OP is intended to provide for the orderly growth and development of the Municipality and includes goals and policies relating to land use, agricultural and settlement areas, the classification of natural systems, and economic, social, and servicing matters.

17He further identified section 10.3.2.2, which prescribes policies for proposals to sever lands situated within the agriculture designation. Mr. Allen referred to subsection d) specifically as follows:

d) Consent to sever a residence surplus to a farming operation as a result of farm consolidation may be permitted, provided the following conditions are satisfied:

i. Farm consolidation occurs or has occurred through acquisition of an additional farm property;

ii. The farming operation consists of at least two farms. The farms may be located in different municipalities and the registered ownerships of the farms need not necessarily be identical provided it is demonstrated that the farms are operated as a single operation;

iii. The farming operation demonstrates that the acquired farm has rendered a residence surplus to the needs of the operation;

iv. The residence was constructed prior to January 1, 1999;

v. The residence is habitable, as determined by the Municipality’s Chief Building Official;

vi. The lot for the surplus farm residence is limited to the minimum size needed to accommodate the use and appropriate sewage and water services, including contingency areas. The loss of agricultural land shall be avoided wherever possible when determining an appropriate lot size. Environmental features, including but not limited to natural heritage features and hazards, will also be avoided when determining an appropriate lot size;

vii. That safe ingress/egress for vehicles is possible for both resulting lots…

xi. A notice is registered on the title of the lot that is to accommodate the surplus farm residence, specifically notifying future owners of normal farm practices as outlined in the Farming and Food Production Protection Act, 1998, as amended;

xii. New residences are prohibited on any remnant farm lot resulting from the severance, specifically through the Municipality’s Comprehensive Zoning By-law;

xiii. If the remnant farm lot does not meet the minimum lot area and lot frontage, standards of the Comprehensive Zoning By-law, the new minimum lot area and lot frontage that result are to be recognized through an implementing zoning by-law amendment. This requirement shall not apply if the remnant farm is merged in title with an abutting farm; and

xiv. There are no negative impacts on natural and built heritage features as a result of the severance.

18Through the evidence presented, Mr. Allen indicated that subsections i to iii confirm that the owner of the Subject Properties, Farhi Farming Corporation, has numerous agricultural holdings. The residence located on the Subject Property is surplus to the farming operation.

19Respecting policies iv and v, the residence was constructed prior to January 1, 1999, and, to his understanding, is habitable.

20Policy vi for the surplus farm residence is limited to the minimum size required to accommodate the use and appropriate sewage and water services; to avoid loss of productive farmland, the lot configuration of the Severed Parcel purposely excludes the portion of the Subject Property under active cultivation, and the Severed Parcel also excludes the Natural Feature situated on the Subject Property in order to minimize the lot area required for the Severed Parcel.

21Regarding policy vii, the existing residence and farming operation are currently accessed by way of a common private driveway from Ilderton Road, and an agreement or easement will be required to be registered on title. The existing laneway is of sufficient size to ensure no disruption to the residence, agricultural operations or vehicular traffic using Ilderton Road. It should provide safe ingress/egress for vehicles to the Retained and Severed Parcels.

22Addressing policies xi and xii, as set out in the Minutes of Settlement, a severance agreement is required to be entered into and registered on title between the Applicant and the Municipality, notifying future owners of the Severed Parcel of normal farm practices occurring in the area and on the Retained Lands. The agreement is also required to acknowledge that new residential dwellings are prohibited on any vacant remnant of farmland created by the granting of the severance.

23Regarding policy xiii, an implementing Zoning By-law Amendment or Minor Variance may need to be obtained by the Applicant to satisfy the Zoning By-law regulations applicable to the Severed and Retained Parcels.

24Respecting policy xiv, the granting of the severance does not result in any negative impacts on the Natural Features or any built heritage features.

25Mr. Allen recited a brief history of the Official Plan Amendment (“OPA 59”). Council of the Municipality approved OPA 59 on May 18, 2022 to reflect a Municipal Comprehensive Review/General Official Plan Update with regard to matters of provincial interest set out in Section 2 of the Act, consistency with the PPS, alignment with the County OP, and to generally update the Middlesex Centre OP. OPA 59 was subsequently approved with modifications by the Council of the County on September 26, 2023. This amendment has been appealed to the Tribunal (OLT-23-00173) by several parties and is not currently in force.

26It was Mr. Allen’s opinion that OPA 59 does not materially change the intent of the severance policies applicable to this Consent Application.

FINDINGS

27In determining this matter, the Tribunal has considered Mr. Allen’s uncontroverted viva voce evidence, the documents filed, and the Minutes of Settlement contingent upon conditions, to make an informed decision.

28Upon inquiry by the Tribunal and confirmed by Counsel, the Tribunal is satisfied and finds that pursuant to section 51(25) of the Act, the conditions to the Consent set out in Attachment 1 to this order are reasonable having regard to the nature of the development proposed.

29The Tribunal is satisfied and finds, upon confirmation by Counsel, that pursuant to section 53(41) of the Act, the conditions to the Consent can be fulfilled and are achievable within a two-year time frame from the date of this decision.

30The Tribunal is satisfied and finds the proposed Consent Application has regard to the matters of provincial interest set out in section 2 of the Act, is consistent with the PPS, conforms to the County and the Municipality’s OPs through the conditions to be imposed on the Consent, and has regard to the criteria set out in section 51(24) of the Act.

ORDER

31THE TRIBUNAL ORDERS THAT the appeal is allowed, and the provisional consent is to be given subject to the conditions set out in Attachment 1 to this Order.

“Jackie Denyes”

JACKIE DENYES

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.

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