July 2, 2024

Nancy Mills and Catherine Hess v. Township of Muskoka Lakes, 2024 CanLII 65186

Case Summary

The applicants appealed a condition imposed by the Township of Muskoka Lakes on a provisional consent to sever a waterfront property. The disputed condition required an agreement to use specific soils or technologies for phosphorus retention in the septic system. At a settlement hearing, the parties jointly requested approval of the consent without the soil condition. Relying on uncontroverted expert planning evidence, the Tribunal found the condition unreasonable as it lacked clarity and was superseded by the Building Code Act. The Tribunal approved the revised consent, finding it consistent with the Provincial Policy Statement and in conformity with applicable official plans.

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 02, 2024

CASE NO(S).: OLT-24-000423

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

Applicant/Appellants: Nancy Mills and Catherine Hess

Subject: Consent – Appeal of conditions

Description: To create one additional lot and grant an easement for private hydro infrastructure access

Reference Number: B/54/23/ML

Property Address: 1532 Acton Island Road

Municipality/UT: Muskoka Lakes/Muskoka D

OLT Case No.: OLT-24-000423

OLT Case Name: Nancy Mills and Catherine Hess v. Township of Muskoka Lakes

Heard: June 20, 2024, by Video Hearing

APPEARANCES:

Parties

Counsel

Catherine Hess Wendy Mills Nancy Mills (“Applicants/Appellants”)

Marc Kemerer

Township of Muskoka Lakes (“Township”)

Edward Veldboom

DECISION DELIVERED BY ASTRID J. CLOS AND NEHAD ALLAM AND ORDER OF THE TRIBUNAL

Link to Order

1The Tribunal convened a Settlement Hearing with respect to an appeal brought pursuant to s. 53(19) of the Planning Act (“Act”) by the Applicants/Appellants of a condition imposed by a decision for a Provisional Consent (“Consent”) application in relation to the property municipally addressed as 1532 Acton Island Road (“Subject Property”) located in the Township of Muskoka Lakes.

2The Subject Property is approximately 6.7 hectares (“ha”) in area with shoreline on Lake Muskoka. The Subject Property has frontage on Acton Island Road which is a public road maintained year-round.

3The Consent would permit the creation of one new severed lot and an easement for a private hydro service. The severed lot is approximately 2.71 ha in area, with approximately 134.1 metres (“m”) of frontage on Acton Island Road. The severed lot contains a two-storey boathouse with associated docks including a dwelling on the second floor, a one-storey sleeping cabin, a separate dock, a laundry building, a detached garage, and two sheds.

4The retained lot is approximately 4.0 ha in area with approximately 199.6 m of frontage on Acton Island Road. The retained lot contains a one and one-half-storey dwelling, detached garage, carport, gazebo, tennis court, associated change room with bathroom, and studio building.

5On March 13, 2024, Township Council granted the Provisional Consent Application B/54/23/ML (HESS & MILLS) provided the following conditions are fulfilled,

i. “That a satisfactory registrable description (deed) of the Severed Lot, together with any required rights-of-way or easements, be submitted to the Township along with a registered copy of the reference plan;

ii. That confirmation be received that the Township is satisfied that the Resultant Lots are satisfactory for on-site sewage disposal and that any problems identified with any existing sewage system be corrected to the satisfaction of the Township;

iii. That a right-of-way be established over the Retained Lot in favour of the Severed Lot to provide mainland access or that the availability of an Entrance Permit be confirmed by the Township’s Operational Services Department for the Severed Lot;

iv. That the owner(s) enter into a Consent Agreement with the Township pursuant to Section 51(26) of the Planning Act. Said Agreement shall be registered against the title of the lands and contain provision(s) to the satisfaction of the Township whereby the owner agrees:

a. To use soils that have a demonstrated ability to effectively retain phosphorus or equivalent septic abatement technologies, which may include the use of soils with appropriate elemental composition to bind phosphorus or pre/post-treatment phosphorus controls over the long-term, for a private on-site sewage disposal system on the Severed and Retained Lots; and

v. That a Zoning By-law Amendment Application be approved to provide exemptions from Waterfront Residential (WR1) Zone maximum cumulative dock width requirements for the Severed Lot.”

(emphasis added)

6On April 5, 2024, the Applicants appealed the approved Provisional Consent. The appeal was filed to request the Tribunal to amend the conditions of approval by striking condition iv. (“Soil Condition”),

iv. That the owner(s) enter into a Consent Agreement with the Township pursuant to [Section 51(26)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-