Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 08, 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 land

Reference Number: LD086/2023

Property Address: 2173 Newtonville Road

Municipality: Clarington

OLT Case No.: OLT-24-000134

OLT Lead Case No.: OLT-24-000134

OLT Case Name: Hale et al v. Clarington (Municipality)

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 land

Reference Number: LD087/2023

Property Address: 2173 Newtonville Road

Municipality: Clarington

OLT Case No.: OLT-24-000135

OLT Lead Case No.: OLT-24-000134

OLT Case Name: Hale et al v. Clarington (Municipality)

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 land

Reference Number: LD088/2023

Property Address: 2173 Newtonville Road

Municipality: Clarington

OLT Case No.: OLT-24-000136

OLT Lead Case No.: OLT-24-000134

OLT Case Name: Hale et al v. Clarington (Municipality)

Heard: June 13, 2024, by Video Hearing

APPEARANCES:

Parties	Counsel/Agent*
Garfield Payne (Co-Applicant) Shelly Payne (Co-Applicant) Lance Payne (Co-Applicant) Jennifer Hale (Co-Applicant)	Garfield Payne*
Regional Municipality of Durham	C. Boyd
Municipality of Clarington	J. Mark Joblin

DECISION DELIVERED BY K. HEWITT AND J. INNIS ON June 13, 2024, AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1Garfield Payne, Shelly Payne, Lance Payne and Jennifer Hale (the joint “Appellant”) applied to the Regional Municipality of Durham (“Region”) Land Division Committee (“LDC”) for three consents to sever the property known municipally as 2173 Newtonville Road (“Subject Property”), in the Municipality of Clarington (“Clarington”). The LDC approved the consents subject to the recommended conditions. As such, there is no appeal before the Tribunal on the merits of the consents but rather four conditions imposed, pursuant to s. 53 (19) of the Planning Act.

2The Appellant applied to the LDC to create a total of three new lots (two within the Hamlet of Newtonville (“Hamlet”) and one outside of the Hamlet) from the approximately 280 Acre Subject Property, retaining a 42.2 hectares (“ha”) agricultural lot located outside of the Hamlet, which contains an existing single detached dwelling and farm building. The Subject Property is zoned Agricultural, with the northern portion containing an Environmental Protection Area. The three severances are as follows:

• LD 086/2023 – proposed a 0.2 ha residential building lot located within the Hamlet;
• LD 087/2023 – proposed a 3.33 ha future development lot located within the Hamlet; and
• LD 088/2023 – proposed a 72.5 ha vacant farm parcel located outside of the Hamlet.

3Three of the conditions under appeal by the Appellant are related to cash-in-lieu of parkland dedication (“CIL”) for each consent, required by Clarington and adopted by the LDC. The fourth condition under appeal is related to the requirement for Stage 1 and Stage 2 archeological assessments, as required by the Region, for LD 087/2023 and LD 088/2023.

4On consent, the Parties provided the Tribunal with agreed-upon terms for both the CIL and the archeological assessment requirements. In regard to the CIL requirement, an appraisal would be undertaken by a certified land appraiser to determine the value for each of the proposed severed parcels, which would be retained by the Appellant at their expense. For LD 086/2023, the CIL dedicated rate would be 5% of the appraised value of the 0.2 ha proposed parcel. With respect to LD 087/2023 and LD 088/2023, the CIL dedicated rate of 5% would be applied to one acre of each of the proposed parcels, thus reducing the amount of CIL otherwise permitted under the Planning Act. Should any of the parcels be subject to future planning applications that would increase their residential density beyond what was covered by the proposed CIL payments, then these payments shall be applied as a credit by Clarington against future CIL requirements.

5The Parties requested that the condition of approval by the LDC pertaining to the archaeological study requirements for LD 087/2023 and LD 088/2023 be modified. As a future development block, LD 087/2023 will undergo an archeological assessment through the development process, and LD 088/2023 proposes to establish vacant agricultural lands. As such, neither of these consents would require the immediate need for an archaeological study. Thus, the Parties proposed the removal of the following condition:

ii) That the applicant shall demonstrate to the satisfaction of the Region for Durham, PLannig Division 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;

To ensure capturing the potential need for an archaeological assessment, should a dwelling be constructed on LD 088/2023, an archeological study would be limited to either of the two identified parts on the Registered Reference Plan and must be sufficient to satisfy the requirements of the province with respect to the archeological construction of a dwelling. A restrictive covenant will be implemented on these two identified parts in the Registered Reference Plan and may removed once the Appellant has proven significant construction of a dwelling on the Subject Property to the Region.

6This matter has been presented to the Tribunal as a settlement hearing. The Tribunal confirms that it has received, reviewed, and considered the following materials and submissions:

• The uncontested opinion evidence of Mitch Morawetz, a Registered Professional Planner, contained in his affidavit sworn June 7, 2024 (marked as Exhibit 1);
• The Appellant’s Position Statement, dated April 1, 2024 (marked as Exhibit 2);
• The Appellant’s Exhibit Book (marked as Exhibit 3);
• The Book of Documents, Region of Durham, dated April 2, 2024 (marked as Exhibit 4);
• The Book of Documents, Municipality of Clarington, dated April 2, 2024 (marked as Exhibit 5);
• The fully executed Minutes of Settlement with the Region of Durham (marked as Exhibit 7);
• The fully executed Minutes of Settlement with the Municipality of Clarington (marked as Exhibit 15); and
• The Parties’ oral and written submissions in support of the Settlement.

CONCLUSION

7The Tribunal recognizes that the aforementioned sworn affidavit and oral evidence provided by Mr. Morawetz reflects amendments to the recommended conditions of the LDC’s approved three consents, reached through the collaborative efforts of the Parties.

8The Tribunal accepts the opinion evidence of Mr. Morawetz as presented in his affidavit and oral evidence and similarly finds that the subject applications, as revised, have regard for matters of provincial interest found in section 2 of the Planning Act, is consistent with the Provincial Policy Statement, 2020, confirms with the Greenbelt Plan and the Growth Plan for the Greater Golden Horseshoe, 2020, conforms to both the Region Official Plan and Clarington Official Plan, and otherwise reflects principles of good land use planning.

ORDER

9THE TRIBUNAL ORDERS THAT the appeal of conditions is allowed and conditions to the Decision of the Regional Municipality of Durham Land Division Committee, dated December 4, 2023, are amended for LD 086/2023 (as set out in Attachment 1), LD 087/2023 (as set out in Attachment 2) and LD 088/2023 (as set out in Attachment 3) to this Order.

“K. Hewitt”

K. HEWITT MEMBER

“J. Innis”

J. INNIS 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

ATTACHMENT 1

LD086/2023: Conditions

1. That the applicant satisfy the financial requirements of the Regional Works Department.
2. That the applicant satisfy the requirements of the Regional Health Department as follows: That the dug well is properly abandoned as per the Ministry of the Environment’s Regulation 903 and a copy of the abandonment well record is provided to the Durham Region Health Department.
3. That the applicant satisfy the following requirements of the Municipality of Clarington: a. The applicant/owner must enter into a consent agreement with the Municipality of Clarington. b. All taxes shall be paid in full to the Municipality of Clarington prior to the issuance of a clearance letter. c. The applicant shall provide a draft reference plan for review by the Planning & Infrastructure Services Department, prior to the registration of the plan, and two (2) copies of the final reference plan once registered. d. The applicant shall ensure that any new lots created through a severance, whether retained or severed, comply with the applicable provisions of Zoning By-law 84-63. e. A Minor Variance application is required as a condition to facilitate the severance of file LD2023/086 for a reduction in lot area from 4,000 square metres to 2,020 square metres. f. The applicant shall pay the Municipality an amount in lieu of conveying land for park or other public recreational purposes under Section 53 of the Planning Act, R.S.O, c.P.13. This payment is equivalent to 5% of the value of the severed parcel, determined as of the day before the day the provisional consent is given, being December 3, 2023. To determine the value of the land, the applicant shall retain a certified Land Appraiser to prepare a land appraisal, to the satisfaction of the Deputy CAO of Planning and Infrastructure Services. The Consent Agreement will acknowledge the amounts of all cash in lieu payments received from the applicant. If the parcel is subject to future planning applications that would increase its residential density beyond what is covered by these cash in lieu payments then these payments will be applied as a credit by Clarington against any future parkland cash-in-lieu requirements.
4. That the applicant submit two copies of a registered plan on the subject parcel.
5. That the consent be subject to the following periods: • Expiry Date of Application LD 086/2023 is 2 years following the date of the Ontario Land Tribunal Order approving provisional consent.
6. That prior to the signing of the certificate by the Secretary-Treasurer that the consent has been given, the Secretary-Treasurer is to be advised in writing by the Regional Works Department that condition #1 has been carried out to its satisfaction.
7. That prior to the signing of the certificate by the Secretary-Treasurer that the consent has been given, the Secretary-Treasurer is to be advised in writing by the Region of Durham Health Department that condition #3 has been carried out to its satisfaction.
8. That prior to the signing of the certificate by the Secretary-Treasurer that the consent has been given, the Secretary-Treasurer is to be advised in writing by the Municipality of Clarington that condition #4 has been carried out to its satisfaction.
9. That prior to the signing of the certificate by the Secretary-Treasurer that the consent has been given, the Secretary-Treasurer is to be satisfied that the time periods outlined in condition #6 have been adhered to.

ATTACHMENT 2

LD087/2023: Conditions

1. That the applicant satisfy the following requirements of the Municipality of Clarington: a. The applicant/owner must enter into a consent agreement with the Municipality of Clarington. b. All taxes shall be paid in full to the Municipality of Clarington prior to the issuance of a clearance letter. c. The applicant shall provide a draft reference plan for review by the Planning & Infrastructure Services Department, prior to the registration of the plan, and two (2) copies of the final reference plan once registered. d. The applicant shall ensure that any new lots created through a severance, whether retained or severed, comply with the applicable provisions of Zoning By-law 84-63. e. The applicant shall pay the Municipality an amount in lieu of conveying land for park or other public recreational purposes under Section 53 of the Planning Act, R.S.O., c.P.13. This payment is equivalent to 5% of the value of one acre of the severed parcel, determined by the value per acre of the severed lands as of the day before the day the provisional consent is given, being December 3, 2023. For greater clarity, the value of the full proposed parcel would be determined by the appraisal, followed by that value being divided by the number of acres within the proposed parcel. This would determine the value of one acre of the severed parcel. To determine the value of the land, the applicant shall retain a certified Land Appraiser to prepare a land appraisal, to the satisfaction of the Deputy CAO of Planning and Infrastructure Services. The Consent Agreement will acknowledge the amounts of all cash in lieu payments received from the applicant. If the parcel is subject to future planning applications that would increase its residential density beyond what is covered by these cash in lieu payments then these payments will be applied as a credit by Clarington against any future parkland cash-in-lieu requirements.
2. That the applicant submit two copies of a registered plan on the subject parcel.
3. That the consent be subject to the following periods: • Expiry Date of Application LD 087/2023 is 2 years following the date of the Ontario Land Tribunal Order approving provisional consent.
4. That prior to the signing of the certificate by the Secretary-Treasurer that the consent has been given, the Secretary-Treasurer is to be advised in writing by the Municipality of Clarington that condition #2 has been carried out to its satisfaction.
5. That prior to the signing of the certificate by the Secretary-Treasurer that the consent has been given, the Secretary-Treasurer is to be satisfied that the time periods outlined in condition #4 have been adhered to.

ATTACHMENT 3

LD088/2023: Conditions

1. That the applicant satisfy the requirements of the Regional Planning and Economic Development Department as follows: “a) For construction of a dwelling, an archaeological study of LD088/2023 subject lands shall be limited to only the first of the two parts identified on the future Registered Reference Plan in accordance with the map attached to the LD088/2023 Conditions as Schedule A. The scope of the study shall be sufficient to satisfy only the requirements of the province with respect to archaeology clearance for construction of a dwelling on either of two identified parts on the Registered Reference Plan and that Province or the Appellants shall communicate such to the Region. b) The Appellants shall provide the Region with a deed for stamping that indicates, via a Registered Reference Plan, the scoped areas to which Provincial clearance of an archaeological study will be required. c) The Appellants shall include on the deed the following restrictive covenant in both of the two scoped areas (indicated as parts within the Registered Reference Plan): ‘No dwelling shall be permitted on Part(s) (X)(Y) [(lands to be formally identified by the future Registered Reference Plan)] of these lands without the Provincial clearance of the required archaeological impact study, and the consent of the Regional Municipality of Durham.’ d) To unencumber the title of the parcel, the consent of the Regional Municipality of Durham to remove the Restrictive Covenant on the same two (2) parts referred to in the Registered Reference Plan shall be granted once the Appellants provide evidence that there has been a dwelling substantially completed either on the part studied in (a) or on part of LD 088/2023 where no archaeological study was required.”
2. That the applicant satisfy the following requirements of the Municipality of Clarington: a. The applicant/owner must enter into a consent agreement with the Municipality of Clarington. b. All taxes shall be paid in full to the Municipality of Clarington prior to the issuance of a clearance letter. c. The applicant shall provide a draft reference plan for review by the Planning & Infrastructure Services Department, prior to the registration of the plan, and two (2) copies of the final reference plan once registered. d. The applicant shall ensure that any new lots created through a severance, whether retained or severed, comply with the applicable provisions of Zoning By-law 84-63. e. The applicant shall pay the Municipality an amount in lieu of conveying land for park or other public recreational purposes under Section 53 of the Planning Act, R.S.O., c.P.13. This payment is equivalent to 5% of the value of one acre of the severed parcel, determined by the value per acre of the severed lands as of the day before the day the provisional consent is given, being December 3, 2023. For greater clarity, the value of the full proposed parcel would be determined by the appraisal, followed by that value being divided by the number of acres within the proposed parcel. This would determine the value of one acre of the severed parcel. To determine the value of the land, the applicant shall retain a certified Land Appraiser to prepare a land appraisal, to the satisfaction of the Deputy CAO of Planning and Infrastructure Services. The Consent Agreement will acknowledge the amounts of all cash in lieu payments received from the applicant. If the parcel is subject to future planning applications that would increase its residential density beyond what is covered by these cash in lieu payments then these payments will be applied as a credit by Clarington against any future parkland cash-in-lieu requirements.
3. That the applicant submit two copies of a registered plan on the subject parcel.
4. That the consent be subject to the following periods: • Expiry Date of Application LD 088/2023 is 2 years following the date of the Ontario Land Tribunal Order approving provisional consent.
5. That prior to the signing of the certificate by the Secretary-Treasurer that the consent has been given, the Secretary-Treasurer is to be advised in writing by the Regional Planning and Economic Development Department that condition #1 has been carried out to its satisfaction.
6. That prior to the signing of the certificate by the Secretary-Treasurer that the consent has been given, the Secretary-Treasurer is to be advised in writing by the Municipality of Clarington that condition #2 has been carried out to its satisfaction.
7. That prior to the signing of the certificate by the Secretary-Treasurer that the consent has been given, the Secretary-Treasurer is to be satisfied that the time periods outlined in condition #4 have been adhered to.