Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
June 19, 2024
Effective Date August 16, 2023
CASE NO(S).:
OLT-23-000397
PROCEEDING COMMENCED UNDER section 11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.13.
Referred by:
Katie O'Connell
Objector:
Objector:
Objector:
Objector:
Objector:
AI and Trudy Burgers
Jamie-Lyn Chant
Kody Drown
Matthew, Filomena, and Robin Marsh
James and Liz Iglesias
Subject:
Application for a Category 3 - Class "A" license
Description:
To permit extractions of aggregate in a pit above the water table
Reference Number:
Licence No. 626504
Property Address:
21878 County Road 27 - Lot 16, Concession 2
Municipality/UT:
Thames Centre/Middlesex
OLT Case No.:
OLT-23-000397
OLT Lead Case No.:
OLT-23-000397
OLT Case Name:
Burgers v. Thames Centre
Heard:
August 16, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel/Representative*
5026367 Ontario Inc.
Marc Kemerer
Mathew Filomena & Robin Marsh
Self-represented*
James and Liz Iglesias
Self-represented*
MEMORANDUM OF ORAL DECISION DELIVERED BY M.A. SILLS AND JACKIE DENYES ON AUGUST 16, 2023 AND ORDER OF THE TRIBUNAL
1The matter before the Tribunal is a referral from the Minister of the Ministry of Natural Resources and Forestry (“MNRF”) of an application by 5026367 Ontario Inc. (“Applicant”) for a Category 3 – Class “A” Licence to permit extraction of aggregate in an above water pit (“Application”), pursuant to section 11(5) of the Aggregate Resources Act, R.S.O. 1990 c. A. 13 (“ARA”).
2The MNRF received and has referred to the Tribunal seventy-seven (77) Letters of Objection to the proposed pit. In August 2022, a Notice of Response was provided to the Objectors by the MNRF. Thereafter, a Confirmation of Objection was received from Jamie-Lyn Chant; Kody Drown; Matthew, Filomena and Robin Marsh; James and Liz Iglesias; and Al and Trudy Burgers (“Objectors”).
3The collective concerns raised by the Objectors are primarily: environmental and health impacts; air pollution; road safety concerns due to increased truck traffic and the cost of future road repairs; loss of agricultural lands; decreased property values; noise, dust, and visual impacts; site rehabilitation; hours of operation and the duration of the aggregate operation.
4An Objector is entitled to be a Party in the hearing of an Application referred to the Tribunal by the Minister.
CONTEXT TO THE APPLICATION
5The lands that are the subject of the Application are owned by Pat and Jane Elliott and located at 21878 County Road 27 – Lot 16, Concession 2, in the Municipality of Thames Centre, in the County of Middlesex (“Subject Property”/ “Site”).
6The Subject Property is a farm parcel approximately 35.4 hectares (ha) in area situated on the west side of Nissouri Road (County Road 27) and the north side of Thorndale Road (County Road 28). The Subject Property maintains a single detached dwelling and a cluster of farm buildings, and is used for the cultivation of field crops. The northwest corner of the Site contains natural heritage features in the form of woodlands.
7The area proposed to be licensed is approximately 14.2 ha in size of which 12 ha are being proposed as the extraction area (“Elliott Pit”). With a total estimated aggregate volume of one (1) million tonnes, the lifespan of the Elliott Pit is expected to be three to five (3 – 5) years. Water well and borehole records indicate that sand and gravel material is present at depths up to 20 metres (“m”). Testing of the sand and gravel at the Site confirmed that the silica content is typical of construction grade silica in Southern Ontario.
8Extraction is proposed to occur in two (2) phases, first starting on the east side of the Site and then moving west. Temporary berms are proposed to mitigate the noise and visual impacts of the pit operation along Nissouri Road and Thorndale Road, with an extended berm on the north side. These berms are designed to comply with the Ministry of the Environment, Conservation and Parks (“MECP”) Guidelines, and reflect the technical recommendation of the Noise Impact Assessment (“NIA”) conducted by the Applicant’s Consultant. The extracted lands are proposed to be progressively rehabilitated back to an agriculture use utilizing on-site soil resources.
9Of note, on August 16, 2022, the Municipality adopted Official Plan Amendment No. 26 (“OPA 26”), redesignating part of the Subject Property from ‘Agricultural’ to ‘Extractive Industrial’. On December 12, 2022, Zoning By-law No. 94-2022 (“ZBL”) was passed by the Municipal Council, rezoning the lands where the Elliott Pit is to be located from Agricultural (A) to Extractive Industrial (M3). There were no appeals of OPA 26 or the ZBL, and consequently, the M3 zoning for the proposed licensed area is currently in full force and effect.
10The following technical reports with recommendations were submitted to the MNRF to support the Application:
Natural Environmental Technical Report (“NETR”) prepared by Terrastory Environmental Consultants (January 2021);
Hydrogeological Assessment prepared by EXP Services Inv. (January 2021);
ARA Summary Statement prepared by Esher Planning Inc. (January 2021);
ARA Site Plans prepared by Harrington McAvan Ltd. (January 2021);
Stage I and Stage II Archaeological Assessment prepared by Lincoln Environmental Consulting Corp (October 2020); and
NIA Report prepared by HGC Engineering Ltd. (December 2020).
PLANNING EVIDENCE
11Melanie Horton was retained by the Applicant in July 2020, to prepare an application for a Class “A” Category 3 above water pit licence under the Aggregate Resource Act (the “Application”). Ms. Horton is a Registered Professional Planner and a Full Member of the Ontario Professional Planners Institute and the Canadian Institute of Planners.
12Ms. Horton confirmed that the total tonnage limit for the Site is 300,000 tonnes. With a total estimated resource volume of approximately 950,000 tonnes, the expected lifespan of the Elliott Pit three to five (3-5 years) further limits the potential for impacts and will allow the Site to be returned to an agricultural use much quicker than is typically the case with the rehabilitation of aggregate operations. In accordance with the MNRF regulation there will be no extraction within 1.5 m of the water table.
13The proposed hours of pit operation is 7 a.m. to 7 p.m. Monday to Friday and 7 a.m. to noon on Saturday. The pit will not operate on Sundays. The truck volume to/from the Site will be at most, 12 trucks per hour. The proposed hours of operation are consistent with other aggregate operations in the area.
14Equipment to be used on the Site includes a crushing and screening plant with a loader, an excavator and rock trucks. The deposit is primarily sand with limited crushing activities being anticipated. Ms. Horton explained that processing at similar operations typically takes place in ‘campaigns’ where aggregate is processed and stockpiled over a period of several weeks in order to create an inventory of products for the upcoming construction season.
15The processing area will be located at the extreme western edge of the Subject Property, as far away as possible from the residences in the Wye Creek Subdivision.
16In response to the issues and concerns raised by the remaining Objectors, Ms. Horton confirmed that a detailed NIA was completed that evaluated noise impacts from the pit operation on nearby residences based on worst-case operational scenarios (i.e. the pit operating at maximum levels of production). The noise mitigation measures require that an acoustic berm 3 m in height be constructed along the eastern limit of the licensed area. However, in response to a request from local residents the Applicant has voluntarily agreed to increase the height of the berm to 4 m.
17In addition to the perimeter berm the noise control measures also include a requirement for an acoustic barrier on the pit floor beside the processing equipment. There were no technical concerns identified by the Province or the Municipality with the scope of the assessment or the conclusions of the Report.
18The NIA Report concluded that with the inclusion of the recommended noise mitigation measures, noise levels from the Elliott Pit will be in compliance with Provincial Noise Guidelines. The NIA was peer reviewed by Stantec with no outstanding issues being identified.
19Dust control measures include limiting truck speed, restricting vehicle movement, using the shortest designated routes, regular watering of on-site roads/unpaved areas, and where needed, periodic application of MECP approved dust suppressants to heavily travelled areas (such as the entrance to the Site), the placement of barriers (stockpiles, fences, trees, etc.) near or adjacent to dust sources, and the required use of water sprays on the portable crushing/screening equipment.
20Thorndale Road is an arterial road and is designed to carry truck traffic. It is designated under the Municipality’s Official Plan as a “Haul Route”.
21The County Engineer and the Director of Public Works for the Municipality have reviewed the Application and have not identified any concerns with respect road network capacity or traffic safety, or imposed or requested any conditions related to any road improvements deemed to be necessary, including with respect to the request by Objectors to widen the road and/or to provide a separate bike/pedestrian lane along the road. The Applicant has indicated that they are willing to plant trees along Thorndale Road to create a visual screen from the proposed operation.
22A significant woodlot and the potential for significant wildlife habitat was identified on the Subject Property. The NETR included a full assessment of impacts to natural heritage features and ecological functions, including habitat for species at risk on the Site and the adjacent lands. Multiple field surveys were undertaken to inform the recommendations and conclusions of the NETR. In accord with the recommendations a 15 m setback will be maintained from both the woodlot and the western boundary of the property. A peer review of the NETR has been completed by the MNRF.
23Progressive and final rehabilitation of the gravel pit is a requirement of the ARA and is enforced by the MNRF. The requirements for the rehabilitation of the Elliott Pit are detailed on the Site Plans and are consistent with Provincial Standards.
24The operation of the extraction will be phased. The phasing is designed to allow for the rehabilitation of the Site as early as possible during the course of the aggregate extraction operation. Rehabilitation will be undertaken progressively, with the final land use plan being to restore the extraction area to an agricultural use.
25The Site Plans reflect the technical recommendations from all the reports and are designed to minimize any potential negative impacts on the adjacent land uses from the operation of the Elliott Pit.
26The Site Plan Conditions represent the obligations of the licensee, and are enforceable by the MNRF under the ARA. One of the requirements is that an annual Compliance Assessment Report detailing the activities at the Site be provided to the MNRF, the County and the Municipality in September of the year.
27Based on the foregoing, it is Ms. Horton’s professional opinion that the Application appropriately addresses and meets all matters set out in section 12 of the ARA and should be approved.
SUBMISSIONS BY THE OBJECTOR PARTIES
28The Objector Parties made oral submissions at the Hearing but did not call any witnesses or provide any expert reports or studies.
29Mr. Iglesias told the Tribunal he understands the need for a gravel pit and due process, and in his view the Elliott’s would be the best people to operate a pit “because they have a reputation of building things right”. However, he does have an ongoing concern about pedestrian safety along Thorndale Road and the Fanshaw Trail System. He indicated he is hopeful that someone will make a bike path and/or a pedestrian trail along Thorndale Road.
30Mr. Marsh, who works as a millwright in a local gravel pit, is challenging the sufficiency of the dust suppression methods to be deployed at the Elliott Pit. It is his contention that concerns have been raised that have not been addressed, such as what will be done when the dust leaves the Site and gets over onto houses and cars, and how the dust will be kept down at midnight or on a Sunday. He told the Tribunal that it has been his experience that even with water trucks and sprayers, the on-site dust will be discharged from the pit, including from over the top of the berm.
CLOSING SUBMISSIONS
31Mr. Kemerer submits that the Application is supported by a Planning Report and other Professional Reports that have been reviewed by the MNRF, the Ontario Ministry of Agricultural and Rural Affairs and Stantec, and meets all the criteria established by section 12 of the ARA.
32Mr. Kemerer requested that the Tribunal approve the Application and provide an oral decision “today”.
FINDINGS AND DISPOSITION
33In arriving at this disposition the Tribunal has reviewed the comprehensive technical reports, considered and accepted the planning evidence and professional opinions of Ms. Horton, and given due regard to the concerns raised by the Objector Parties.
34As the Tribunal indicated in its’ Oral Ruling at the conclusion of the hearing, the concerns raised by the Objectors overall are commonly held apprehensions in regard to aggregate resource extraction operations.
35Albeit the Tribunal is cognizant of these concerns, it also is mindful of the reality that aggregate is a naturally occurring resource that is a necessary and high-demand commodity for building construction and road infrastructure.
36Among other considerations, in deciding whether the licence should be issued the Tribunal is required to have regard to the matters identified in section 12 of the ARA. The Tribunal is satisfied that the Application as modified, and subject to the conditions of Site Plan approval, meets the established criteria set out in section 12 of the ARA.
37It is also worthy of note that the ARA establishes strict standards and guidelines for the approval, management and ongoing operation of aggregate extraction pits, including a future site rehabilitation plan, as well as annual compliance reporting.
38Turning to the issues and concerns raised by Mr. Iglesias, as the Tribunal clarified the creation of a bike lane / pedestrian trail is not a matter that is within the jurisdiction of the Tribunal.
39In regard to Mr. Marsh’s concern about dust nuisance, the Tribunal is satisfied that the dust control measures as proposed are both appropriate and adequate.
ORDER
40THE TRIBUNAL DIRECTS the Minister to issue the licence.
41Pursuant to the authority provided by Rule 24.3 of the Ontario Land Tribunal Rules of Practice and Procedure, this Order comes into effect on August 16, 2023.
“M.A. Sills”
M.A. SILLS
VICE-CHAIR
“Jackie Denyes”
JACKIE DENYES
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.