Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 19, 2024

CASE NO(S).: OLT-23-000640

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13 as amended

Applicant and Appellant: Red Maple Land Company Inc.

Subject: Minor Variance

Description: Minor Variance application to permit a reduced Minimum Distance Separation | setback of 200m, whereas the By-law requires 565m

Reference Number: A04-2023

Property Address: 8648 Highway 6

Municipality/Upper Tier: Wellington North/County of Wellington

OLT Case No.: OLT-23-000640

OLT Lead Case No: OLT-23-000640

OLT Case Name: Red Maple Land Company Inc. v. Wellington North (Township)

Heard: November 9 and 10, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
Red Maple Land Company Inc.	Eric Davis, Giovanni Giuga
Township of Wellington North	Chris Manning

DECISION DELIVERED BY S. DEboer AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal was the appeal by Red Maple Land Company Inc. (“Appellant”) under s. 45(12) of the Planning Act due to the Township of Wellington North’s (“Township”) Committee of Adjustment (“COA”) decision to deny the Minor Variance Application (“Application”) for the property municipally known as 8648 Highway 6 (“Subject Lands” or “SP”).

2The nature of the Application was requesting relief from the required Minimum Distance Separation (“MDS 1”) setback requirements for a Type “A” land use.

3The requested Application was needed by the Appellant as the result of a condition from a proposed Consent Application that was approved by the County of Wellington Planning and Land Division Committee (“Application B122-22”).

4The Appellant’s Application was needed to reduce the MDS setback from the required 565 metres to a setback of 200 metres for a proposed residential dwelling.

5The Application was heard by the COA on June 5, 2023. The Planning Report from the County of Wellington Planning Department (“Planning Staff”) that accompanied the Application recommended the approval of the Application. The COA denied the Application citing that the relief requested through the Application was not minor in nature.

6The Appellant filed an appeal of the COA’s decision on June 22, 2023.

7The Subject Lands are located on the corner of Highway 6 and Sideroad 10 West, in the Township. The total size of the Subject Land is approximately 61.3 hectares. The Application before the Tribunal affects the consent application, which would sever off approximately 3.0 hectares for a rural residential parcel and retain the remaining 58.3 hectares as Agricultural Type “A” lands. The severed portion would be located at the northwest corner of the SP and would abut the corner of Highway 6 and Sideroad 10 West.

8The Subject Lands are locally zoned as Agriculture “A” and Natural Environment “NE”. Application B122-22 would sever off the three hectares located on the corner of Highway 6 and Sideroad 10 West. The frontage of Application B122-22 is approximately 279 metres on Sideroad 10 West. The retained lands would have a frontage of 208 metres on Highway 6. The severed lands are located in the NE portion of the SP.

THE HEARING

9The following items were marked as Exhibits to the hearing:

• Exhibit 1 Will Say Witness Statement of Henry Van Ankum
• Exhibit 2 Witness Statement of Douglas Stewart
• Exhibit 3 Douglas Stewart Reply Statement
• Exhibit 4 Rob Stovel Witness Statement
• Exhibit 5 Rob Stovel Reply Statement
• Exhibit 6 Darren Jones Chief Building Witness Statement
• Exhibit 7 Township Document Book
• Exhibit 8 Municipal Submission Record
• Exhibit 9 Updated MDS Mapping

Witnesses for Appellant

Henry Van Ankum

10Mr. Van Ankum is the property owner adjacent to the Appellant’s lands. The municipal address of his property is located at 8627 Highway 10. Mr. Van Ankum’s lands and buildings were the main focus of the original Minor Variance application concerning the MDS 1 and the calculations used to determine the distance to the Appellant’s lands.

11Mr. Van Ankum gave testimony concerning his property and more specifically, the type of agricultural operation that occurs on his property. Mr. Van Ankum took the Tribunal through his operation and that he is currently a cash crop farmer and a hog farmer. His hog farm operation has been in existence since 2004. The current hog barn is the barn located farthest away from the Subject Lands.

12Mr. Van Ankum confirmed for the Tribunal that his property contains a total of six buildings. Five of the buildings are for his farming operation and one is his dwelling. The buildings were marked for the Tribunal’s benefit as:

• Building 1 – bank barn
• Building 2 – former livestock barn
• Building 3 – farm equipment storage
• Building 4 – farm equipment storage
• Building 5 – hog operation barn
• Building 6 – owner’s dwelling

13Mr. Van Ankum stated that the bank barn has not been used for livestock since he has owned the property. He purchased his property in 2011 and the bank barn is not in such a state of disrepair that it is not safe for any farm function let alone housing cattle or hogs.

14Mr. Van Ankum stated that the former livestock building is used only for storage. Mr. Van Ankum stated that he has taken out all of the services that would be needed in order to facilitate cattle or any other form of livestock. To return this barn to the state of being deemed for livestock would cost more money than he feels would be fiscally responsible to make it a viable farm option. He does not plan on returning this barn to a state that could be used for livestock.

15Concerning the farm equipment storage buildings, Mr. Van Ankum stated that this building cannot house livestock and is used only for farm equipment storage and for the storage of cash crops such as hay. The silos attached are only used for the storage of grain.

16Mr. Van Ankum stated that the hog operation barn is the only barn that currently houses any livestock. The hog operation started in 2004 and there are no plans to use any of the other barns on his property for hogs or any livestock.

17Mr. Van Ankum confirmed that he did not allow the Chief Building Officer onto his property as requested by the Township as he felt there was no need for the Officer to inspect the barns to determine if the barns were fit to hold livestock. Mr. Van Ankum stated that the only barn that currently houses or has the ability to house livestock is the current hog barn, which is the barn located farthest away from the Appellant’s lands.

18Mr. Van Ankum stated that he does not object to the Appellant’s requested Minor Variance Application nor to the consent application as he does not feel either will impact his current farming operation.

Douglas Stewart

19Mr. Stewart was retained by the Appellant to review the Minor Variance Application and to provide expert opinion evidence as to the COA’s decision to refuse the Application.

20Mr. Stewart took the Tribunal through the Appellant’s Application and the site mapping to give the Tribunal a fulsome background of the Application.

21Mr. Stewart informed the Tribunal that the Minor Variance Application was needed as a condition for the conditionally approved Consent Application. Mr. Stewart noted that there were not any appeals of the Consent Application filed by the Township concerning the Consent Application.

22Mr. Stewart confirmed that the SP is zoned Prime Agricultural as per the Official Plan (“OP”) and zoned Agricultural and Natural Environment in the Zoning By-law (“ZBL”). With this in mind, the MDS 1 provisions apply to this Application.

23Mr. Stewart gave his opinion that Planning Staff had to make assumptions concerning Mr. Van Ankum’s barns and uses since Mr. Van Ankum did not allow the Chief Building Officer onto his property to assess the barns in question. Mr. Van Ankum did not provide any evidence to the Application at the COA meeting other than a letter of support to the Appellant.

24It was Mr. Stewart’s opinion that Planning Staff had to make assumptions due to not knowing the state and uses of Mr. Van Ankum’s barns. The Planning Staff made correct assumptions of using the closest barn to the SP to make their calculations.

25Since there was not any further information that could be obtained by the Appellant concerning Mr. Van Ankum’s barns and barn uses, Mr. Stewart opined that the closest barn was used to create the requested Minor Variance MDS 1 calculation of 200 metres.

26Based on the review of the evidence provided by Mr. Van Ankum and his site visit to Mr. Van Ankum’s property, it was Mr. Stewart’s opinion that the only barn that is capable of any livestock operation is the swine barn that is located farthest away from the SP. Mr. Stewart confirmed the evidence of Mr. Van Ankum that the other barns are not capable of housing livestock, however, this cannot be taken as an expert opinion, just his observances of the barns on the Van Ankum property.

27Mr. Stewart gave his opinion that there were two more barns in question that must be taken into account concerning the MDS 1. These barns are located on the SP. These barns in question are the “100-year-old Barn” and the “Former Tie-Stall Dairy Barn”.

28Mr. Stewart opined that after inspecting these barns in person, only the 100-year-old Barn would meet the criteria of being able to house livestock. With this in mind, the MDS I calculation would need to be taken into account based on the anerobic digesters that are located on the SP.

29It was Mr. Stewart’s opinion that the 209 metres that was calculated by Planning Staff was correct. Even though this MDS 1 arc crossed onto the SP, the arc would not interfere with the proposed location of the proposed dwelling on the SP. This leaves the MDS 1 calculation for the Van Ankum property as the only issue before the Tribunal.

30Mr. Stewart opined that a Minor Variance is needed for relief from the MDS 1 calculation. Due to the evidence presented to the Tribunal today concerning the Van Ankum farm, the amount of relief being sought should change from a total of 365 metres of relief to a new total of 80 metres of relief.

31It was Mr. Stewart’s opinion that MDS 1 Guideline 16 applies to this hearing due to the information provided by Mr. Van Ankum and corroborated by Mr. Stewart. The photo evidence and viva voce evidence demonstrates that the swine barn is the only barn on the Van Ankum’s farm that is capable and currently, does house livestock.

[Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

32Mr. Stewart gave his opinion that the Application before the Tribunal is on provincial interest as per s. 2 of the Planning Act. The Application addresses issues inter alia concerning the protection of ecological systems, the protection of agricultural resources, protection of public health and safety and of sustainable development. The Application before the Tribunal does meet the interest as per s. 2.

Provincial Policy Statement (“PPS”) and the Minimum Distance Separation (“MDS”) 1 Formulae

33Mr. Stewart took the Tribunal through a review to the MDS and the PPS policies that apply to the file before the Tribunal.

34Mr. Stewart opined that the Application before the Tribunal meets Policies 1.1.5.8, 2.3.3.3 and 2.3.6.1(b) objectives. These Policies pertain to the creation of new lots in rural and prime agricultural areas. These new lots must comply to the MDS formulae. It was Mr. Stewart’s opinion that the Application before the Tribunal meets the MDS formulae due to the new information that has been provided by Mr. Van Ankum and his livestock facility.

Growth Plan for the Greater Golden Horseshoe (“Growth Plan”)

35Mr. Stewart opined that the Growth Plan defines the MDS formulae. Policy 2.2.8.3(g) requires that settlement area expansion comply with the MDS formulae. It was Mr. Stewart’s opinion that the new evidence of Mr. Van Ankum demonstrates that the MDS formulae can be met and the Application complies with the Growth Plan.

FOUR TESTS OF A MINOR VARIANCE

General Intent and Purpose of the Official Plan (“OP”)

36It was Mr. Stewart’s opinion that the Minor Variance Application was a condition of approval for the Consent Application. The Planning Staff considered the Minor Variance Application and stated that the requested relief to a total MDS I distance of 200 metres was appropriate and did meet the general intent and purpose of the OP.

37Mr. Stewart opined that the Planning Staff correctly established that the 200-metre MDS I setback based on the information they could gather without the consent of Mr. Van Ankum. However, now that the Tribunal has received further evidence concerning the barns and the nature of their state and use, a more modest relief of 80 metres from the swine barn would be more appropriate and would still meet the general intent and purpose of the OP.

38Mr. Stewart gave his opinion that the Consented Lands are not located on an area of the property that could be deemed as taking away active prime agricultural land. The Consented Lands are located in the “Natural Environment” zoning as per the ZBL and have never been farmed at any time.

39It was Mr. Stewart’s opinion that the Minor Variance would not result in the Consented Lands to be the closest dwelling to the swine barn. There is another existing dwelling located approximately 370 metres from the swine barn whereas the Appellant’s dwelling would be located approximately 418 metres from the swine barn.

40It was Mr. Stewart’s opinion that the 80 metres he recommends for relief would meet the general intent and purpose of the OP.

General Intent and Purpose of the Zoning By-law (“ZBL”)

41Mr. Stewart gave his opinion that, once again, Planning Staff correctly calculated the MDS 1 based on the information that was available to them at the time of the Minor Variance Application. Once again, based on the information provided to the Tribunal during this hearing, the new recommended MDS 1 relief should only be a total of 80 metres as the swine barn is the only active livestock operation on the Van Ankum farm.

42The proposed location of the dwelling, on the Consent Lands, will be outside of the 80-metre relief zone and would be outside of the originally requested relief of 365 metres. Planning Staff believed that the 365 metres was appropriate and did recommend that the Application be approved as presented to the COA.

43Based on these reasonings, it was Mr. Stewart’s opinion that the Application meets the general intent and purpose of the ZBL.

Desirable and Appropriate Development of the Land

44Mr. Stewart opined that the Consented Land are vacant and are not used for any agricultural purposes. The Subject Lands are considered to be “Natural Environment” as therefore cannot be used for agriculture. The Subject Lands can be used to house a dwelling as purposed by the Consent Application. The location of the Consented Lands are on the corner of the entire parcel and no other use can be made of these lands. The Grand River Conservation Authority did not have any objection to the proposed minor variance application before the COA.

45Mr. Stewart agrees with the Planning Staff’s opinion that the Application is an appropriate and desirable use of the land.

Minor in Nature

46It was Mr. Stewart’s opinion that the Application before the Tribunal would not result in the proposed dwelling on the Consented Lands to be the closest dwelling to a confirmed livestock operation. As per the information presented to the Tribunal, the only current livestock operation is the swine barn that is the farthest barn from the Application. The Tribunal has been shown that there is at least one dwelling that is currently closer to the swine barn than the current Application. With this in mind, the application before the Tribunal is minor in nature.

47Mr. Stewart opined that no prime agricultural lands will be taken out of use nor will any prime agricultural lands be directly affected by this application.

Conclusionary Opinion

48It was Mr. Stewart’s overall opinion that the Appellant has demonstrated that the four tests have been met. The relief from the MDS 1 calculation should be based on the distance to the only current livestock operation barn – which in this case – is the swine barn. The relief that should be granted is a reduction in the MDS 1 guidelines from 565 metres to 485 metres (an 80-metre reduction).

49The approval of the Application before the Tribunal will not affect the prime agricultural lands of any of the neighbouring properties. The Application does not result in the loss of any prime agricultural lands and makes good land use planning of the proposed Consented Lands.

50The Application before the Tribunal is of provincial interest as per s. 2 of the Planning Act. The Application has demonstrated to be consistent with the PPS, conforms to the Growth Plan, conforms with the OP and the ZBL. The MDS 1 requested relief is appropriate and represents good planning.

Witnesses for the Township

Chief Building Officer Darren Jones

51Mr. Jones gave oral evidence-in-chief pertaining to Building Code Compliance to establish which barn on the Van Ankum farm would be used to measure the MDS distance for the Township.

52Mr. Jones took the Tribunal through the photos that he had taken from outside of the Van Ankum farm as he was not allowed to inspect the barns themselves to determine which barn could be used to measure the MDS.

53Based on the fact that he could not determine which barns are being used for livestock, it was his recommendation that the closest barn had to be used for the measurement due to the lack of access to the farm. If he would have been granted access, this may have changed his position as to which barn would be appropriate to use for the MDS. As such, he felt that his recommendation to use the closest barn was correct for the MDS.

Rob Stovel

54Mr. Stovel took the Tribunal through his Witness Statement and his calculations of the MDS formulae. He agrees with Mr. Stewart that the MDS formulae is the root of the issue between the Parties in this Appeal.

55Mr. Stovel agrees with the assessment given by Mr. Stewart concerning the pole barn and the tie-stall barn located on Mr. Van Ankum’s property. He agrees that these barns are in good condition and are not used for livestock purposes. However, Mr. Stovel’s assessment is that since these barns are in good condition, these barns could be turned back into livestock operations and due to these barns potentially being turned back into livestock operations, these barns should be used for the start of the MDS calculation.

56Mr. Stovel gave his opinion that the Appellant’s existing farm operation must be taken into account when completing MDS calculations. It was his opinion that the calculation used by the Township were incorrect due to discrepancies on the Farm Data Sheets.

57Mr. Stovel opined that the new MDS calculations based on the activity on the Appellant’s lands should be an arc of 282 metres from the livestock barn and 354 metres from the anaerobic digester. These new calculations were agreed upon by Mr. Stewart.

58It was Mr. Stovel’s opinion that these new MDS calculations for the Appellant’s farm demonstrates that the proposed variance is not minor in nature as the arc limits the area that a new dwelling can be built to meet the MDS formulae concerning the Appellant’s farm operation.

59It was Mr. Stovel’s opinion that the MDS calculation that should be used concerning the Van Ankum farm would be the pole barn and tie-stall barn since they are still in good condition and could potentially be used for livestock in the future. Using these barns as the basis for the MDS calculation, it was his opinion that the relief that would be required is still too great to be considered minor in nature.

60Mr. Stovel gave his opinion that since the Application is in a “Prime Agricultural” area, must be noted that according to the County’s OP concerning “Prime Agricultural” areas is that these areas are to be considered “Agricultural First” as per Policy 6.4.2 of the OP. The OP also clearly states that any other land uses must meet the MDS formulae as per Policy 6.4.10. Policy 10.3.1 concerning new lots does not allow new residential lot creation in Prime Agricultural Areas.

Overall Opinion

61It was Mr. Stovel’s overall opinion that the Application before the Tribunal does not meet the MDS requirements. The Application is therefore not consistent with the PPS and does not meet the four tests of a minor variance. It was his opinion that the creation of this non-farm lot in a prime agricultural area would not be supportive of agriculture in the local area and should not be approved.

ANALYSIS AND FINDINGS

62In coming to a determination on the Appeal before the Tribunal, the Tribunal must have regard to the information and evidence provided to it during the hearing and through closing submissions. The Tribunal must also have regard for the evidence and decision that was made by the COA.

63Based on the information provided before the COA and their decision, the Tribunal finds that the decision at that time was appropriate in refusing the application as it deemed the requested relief as to be not minor in nature. It must be noted that Planning Staff had recommended approval of the Minor Variance Application.

64The Tribunal finds that the Planning Staff made an appropriate deliberation of using the barn closest to the Subject Lands due to a lack of access to Mr. Van Ankum’s farm to assess the barns.

65The Tribunal recognizes the new evidence that was presented to the Tribunal. This evidence was in the form of Mr. Van Ankum’s witness statement, oral testimony and the photos that were presented in terms of his farm are the farm buildings and his farming operation.

66Based on Mr. Van Ankum’s evidence, the Tribunal finds that the only barn that can be deemed as appropriate to use for the MDS calculation is the current swine operation barn, which is the barn that is located farthest away from the Subject Lands.

67Using the swine operation (Barn No. 5, as per the evidence) the new MDS calculation would be a relief amount of 485 metres. This relief amount was confirmed through the testimony of Mr. Stewart.

68The Tribunal finds that this new relief amount is less than the amount requested through the original Application, as such, the Tribunal deems that the new requested relief does not require any further notice for the Application before the Tribunal.

69Through the testimony and evidence of the witnesses, the Tribunal prefers the evidence of Mr. Stewart concerning the MDS relief. Mr. Stewart has demonstrated to the Tribunal that the new relief request is consistent with the PPS and conforms to the Growth Plan. The Application meets the general intent and purpose of the Official Plans (“OP”) of the County and the Township. The Application meets the general intent and purpose of the Zoning By-law, is desirable and an appropriate use of the lands and is minor in nature.

70As for the MDS calculations concerning the Appellant’s lands, the Tribunal finds that the arc calculations that were agreed upon by both land use planning experts is appropriate and no MDS relief is required in context of where a new dwelling can be built on the severed lands.

71The lands that are being severed have not been nor can they be used as Prime Agricultural Lands. Therefore, the Tribunal finds that no Primary Agricultural lands are being taken out of farmable production.

72The Tribunal notes that through the materials provided, the Grand River Conservation Authority had no objection to the original relief request by the Appellant.

73The Tribunal finds that the Application as presented to the Tribunal is appropriate and should be approved with a new MDS 1 calculation of 485 metres.

Bill 150

74Since the conclusion of the Merit Hearing held by the Tribunal, and prior to the issuance of the Decision, the Tribunal reached out to the Parties to seek input concerning the passing of Bill 150, Planning Statute Law Amendment Act, 2023, which enacts the Official Plan Adjustments Act, 2023. This Bill received Royal Assent on December 6, 2023, and its enactment may have had impacts on the potential outcome of this matter. Both the Appellant and the Township responded to the Tribunal stating that Bill 150 did not have an impact on this matter.

ORDER

75THE TRIBUNAL ORDERS that the appeal is allowed in part, and the variance to grant a Minimum Distance Separation 1 distance relief of 485 metres is allowed pertaining to a condition for the Severance Application B122/22.

“S. deBoer”

S. DEBOER 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.