Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 24, 2024
CASE NO(S).: OLT-22-004372
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Nelson Aggregate Co. Property Owner: 546958 Ontario Limited Property Owner: Bestway TV and Appliances Limited Subject: Failure of Approval Authority to announce a decision respecting a Proposed Official Plan Amendment Description: to permit the expansion of the Nelson quarry Reference Number: 505-04-20 Property Address: 2226, 2232, 2244, 2280, 2292, 2300, 2316, 2330 No. 2 Side Road and 5235 Cedar Springs Road Municipality/UT: Burlington/Halton OLT Case No: OLT-22-004372 OLT Lead Case No: OLT-22-004372 OLT Case Name: Nelson Aggregates Co. v. Burlington (City)
PROCEEDING COMMENCED UNDER subsection 11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.10.
Applicant: Nelson Aggregate Co. Objector: Alejandra Calle Objector: Alex Brock Objector: Anna Denvir et al. Description: Proposed extension to its Burlington Quarry on lands located to the south and west of the existing Burlington Quarry. Reference Number: License No. 626477 Property Address: 2226, 2232, 2244, 2280, 2292, 2300, 2316, 2330 No. 2 Side Road and 5235 Cedar Springs Road Municipality/UT: Burlington/Halton OLT Case No: OLT-22-004888 OLT Lead Case No: OLT-22-004372 OLT Case Name: Nelson Aggregate Co. v. Natural Resources and Forestry (Ministry)
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Nelson Aggregate Co. Subject: Failure of Approval Authority to announce a decision respecting a Proposed Official Plan Amendment Description: The purpose of the application is to amend the Maps of the Halton Region Official Plan to permit the expansion of the existing quarry. Property Address: 2226, 2232, 2244, 2280, 2292, 2300, 2316, 2330 No. 2 Side Road and 5235 Cedar Springs Road Municipality/UT: Burlington/Halton OLT Case No: OLT-22-004886 OLT Lead Case No: OLT-22-004372 OLT Case Name: Nelson Aggregates Co. v. Halton (The Regional Municipality)
PROCEEDING COMMENCED UNDER subsection 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended.
Applicant/Appellant: Nelson Aggregate Co. Respondent: Niagara Escarpment Commission Subject of appeal: Refusal of a Development Permit Application to allow for development related to the proposed quarry operations. Reference No.: H/E/2020-2021/108 Property Address: 2226, 2232, 2244, 2280, 2292, 2300, 2316, 2330 No. 2 Side Road and 5235 Cedar Springs Road Municipality/ UT: Burlington/Halton OLT Case No.: OLT-23-000541 OLT Lead Case No.: OLT-22-004372 OLT Case Name: Nelson Aggregate Co. v. Ontario (Niagara Escarpment Commission)
PROCEEDING COMMENCED UNDER subsection 10(3) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended.
Applicant/Appellant: Nelson Aggregate Co. Respondent: Niagara Escarpment Commission Subject of appeal: Referral of the application to amend the Niagara Escarpment Plan to redesignate the lands from Escarpment Rural Area to Mineral Resource Extraction Area to expand the existing aggregate resource extraction operation Reference No.: PH 219 20 Property Address: 2226, 2232, 2244, 2280, 2292, 2300, 2316, 2330 No. 2 Side Road and 5235 Cedar Springs Road Municipality/ UT: Burlington/Halton OLT Case No.: OLT-23-000631 OLT Lead Case No.: OLT-22-004372 OLT Case Name: Nelson Aggregate Co. v. Ontario (Niagara Escarpment Commission)
Heard: April 3, 2024 by Video Hearing
APPEARANCES:
Parties Nelson Aggregate Co. Counsel David White, QC
Parties City of Burlington Counsel Rodney Northey Jessica Boily
Parties Regional Municipality of Halton Counsel David Germain Chris Barnett Kelly Yerxa
Parties Niagara Escarpment Commission Protecting Escarpment Rural Land Counsel Ken Hare Demetrius Kappos David Donnelly
Parties Conserving Our Rural Ecosystems of Burlington Inc. Counsel David Donnelly
MEMORANDUM OF DECISION DELIVERED BY W. DANIEL BEST AND M. A. sills ON APRIL 3, 2024 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This Decision and Order relate to the hearing of the third Case Management Conference (“CMC”) regarding an appeal by Nelson Aggregate Co. (“Nelson”) pursuant to s. 22(7) of the Planning Act, R.S.O. 1990, c. P. 13, as amended (“Act”), for official plan amendments to permit the extraction of aggregate materials. Nelson also made an application (“permit application”) to extract aggregate and to approve Site Plans for that licence under the Aggregate Resources Act, R.S.O. 1990, c. A.10 (“ARA”). The permit application was referred by the Ministry of Natural Resources and Forestry (“MNRF”) to the Tribunal pursuant to s. 11(5) of the ARA, to determine whether a licence should be issued.
2Two related Niagara Escarpment Commission (“NEC”) Appeals, OLT-23-000541 and OLT-23-000631 (“NEC Appeals”) are included for the purpose of a consolidation with the Planning/ARA Appeals. The NEC Appeals are for a second CMC and notice for the case management date has been given by the Tribunal.
3The purpose of this CMC is to address the request of the City of Burlington (“City”) to amend the September 6, 2023 Notice of Undertaking (“September Notice”) filed by Nelson regarding the proposed extension of Nelson’s existing Burlington Quarry.
4The proposal consists of two expansions respectively: an expansion west that is located at Part Lot 1 and 2, Concession 2 (the “West Quarry Extension”); and an expansion south on the other side of No. 2 Side Road that is Part Lot 17 and 18, Concession 2 (the “South Quarry Extension”), together, the proposed expansions (“Proposed Expansions”).
5The proposed licence area is 78.3 hectares (‘ha”), and the proposed extraction area is 50.2 ha. The South Quarry Extension is 18.3 ha with a proposed extraction area of 14.5 ha. The South Quarry Extension consists of lands currently used for agricultural crops. The West Quarry Extension is 60.0 ha with a proposed extraction area of 35.7 ha. The West Quarry Extension consists of lands currently used as a golf course.
6The proposed extension includes six phases. Phases 1 and 2 are located to the south of the existing quarry and Phases 3-6 are located to the west of the existing quarry. Within the proposed extension there will be no processing and the extracted aggregate will be transported to the existing Burlington Quarry for processing and shipping to market, utilizing the existing entrance/exit and haul route. Aggregate transported from the South Extension (Phases 1&2) will be transported by crossing No. 2 Side Road and aggregate transported from the West Extension (Phases 3-6) will be transported by internal haul routes on the quarry floor.
7The City’s motion sought the following relief from the Tribunal:
a. Add to the list of hearings, all hearings that are or may be required to be held including with respect to:
i. a new or amended permit to take water (“PTTW”), pursuant to section 34 of the Ontario Water Resources Act (“OWRA”).
ii. a new or amended Environmental Compliance Approval (“ECA”), pursuant to section 53 of the OWRA and Part II.1 of the Environmental Protection Act (“EPA”); and
iii. an amended Site Plan for the existing Burlington Quarry pursuant to section 13 of the Aggregate Resources Act (“ARA”); and
b. Confirm Nelson’s description of the “Undertaking” that is before the Tribunal as “the expansions to both the south and to the west of the existing Burlington Quarry as well as the proposed changes to the existing Burlington Quarry”.
c. An order directing that all matters listed in the September Notice be heard and decided by the Tribunal as part of the consolidated hearing; or in the alternative, that the Tribunal hear all evidence and submissions on those matters and defer the final decision with such terms, conditions and directions as are appropriate in light of its findings during the consolidated hearing.
8The Regional Municipality of Halton (“Region”) in its Notice of Response to the Motion supported the request for relief set out by the City, and confirmed it adopts and relies on the evidence put forward by Burlington.
9The Niagara Escarpment Commission (“NEC”) instructed counsel and staff to support the consolidation of the proposed Niagara Escarpment Plan Amendment and Development Permit Application with the related Act and ARA Appeals currently before the Ontario Land Tribunal.
10Protecting Escarpment Rural Land (“PERL”) and Conserving Our Rural Ecosystems of Burlington Inc. (“CORE”) through Counsel advised support of the City’s motion.
11In the September Notice, Nelson advised that a total of five hearings before the Tribunal are required pursuant to the Act, the ARA, and the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2 (“NEPDA”), for which a request for consolidation was made. Nelson identified two additional hearings that may be required pursuant to the Ontario Water Resources Act, R.S.O. 1990, c. O.40 (“OWRA”) and the EPA.
12Nelson’s response to the Motion of the City requested the following relief:
a. Defer the application for a PTTW and the application for an ECA until it is determined whether one or more hearings will be required, pursuant to the provisions of the OWRA and the EPA.
b. Deny the City’s request that the Notice of Undertaking be amended to include an amendment to the existing Site Plans.
c. Confirm that the Undertaking before the Tribunal includes the expansions to both the south and to the west of the existing Burlington Quarry as well as the proposed changes to the existing Burlington Quarry.
d. Consolidate the five required hearings listed in the September Notice.
13In consideration of the Notice of Motion, the following materials were identified as Exhibits at the March 7, 2024 Case Management Conference (“CMC”) and marked as follows:
Exhibit 1 – City of Burlington Amended Motion Record dated October 18, 2023.
Exhibit 1A – Compendium of the City of Burlington dated March 1, 2024.
Exhibit 1B – City of Burlington Book of Authorities dated September 26, 2023.
Exhibit 2 – Responding Motion Record of Nelson Aggregate Company dated October 4, 2023.
Exhibit 3 – Notice of Response to Motion of Halton Region dated October 4, 2023.
CONTEXT
14The Motion before the Tribunal is to determine if the relief requested by the City is warranted.
15The Parties are in agreement that the September Notice includes the expansions to both the south and to the west of the existing Burlington Quarry as well as the proposed changes to the existing Burlington Quarry.
CONSOLIDATION OF HEARINGS
Position of the City
16The City advanced the position that it is beyond dispute that the terms of the OWRA and EPA provide that either of these approvals may require a hearing and as such each approval is subject to mandatory consolidation.
17The City positioned that since Nelson had requested approval of an ARA site plan amendment (“SPA”) for the existing quarry to permit the proposed extensions, the amendments to the site plans should be subject to mandatory consolidation.
18There is an existing inter-agency protocol that applies to all new or expanded mineral aggregate extraction proposals in the Region that establishes a Joint Agency Review Team (“JART”). The Region established the present JART shortly after Nelson advised of its Proposed Expansions.
19The June 2023 JART Report identified deficiencies respecting cumulative effects, air quality, archaeology and cultural heritage, natural heritage, traffic impact, visual impact, rehabilitation plan, adaptive management plan, surface and ground water modelling and the plan for a single, integrated operation.
20The City stated that the threshold requirements that triggers consolidated hearings under the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6 (“OLTA”) are substantially unchanged from the Consolidated Hearings Act, R.S.O. 1990, c. C.29.
21The City relies on the Divisional Court Decision Ontario (Joint Board under Consolidated Hearings Act) v. Ontario Hydro 1993 CarswellOnt 263, to demonstrate that Nelson’s position to defer approvals is contrary to precedent and that procedural constraints rather than efficiency should govern which proceedings are consolidated.
22The City argues that Nelson relies on policy and not law with respect to the issue of consolidation. The City continued that Nelson cites Governmental policy that prohibits proponents from applying for and the Ministry from considering PTTWs and ECAs before land use determinations are made.
23The City argued that Nelson has not provided the referenced policy and the City is not aware of any such policy. The City continued that even if such a policy existed, the Divisional Court precedent provides clarity that “no mere policy is a bar to consolidation.”
24The City advised that section 21(2) of the OLTA applies to both of Nelson’s Proposed Expansions and that Nelson was required to give notice to this Tribunal pursuant to subsection 21(3) and sought to do so in May and September of 2023. The City argues that the Notices were incomplete as Nelson’s May and September Notices omitted reference to its ARA SPA at the existing quarry. The amendments Nelson seeks may trigger a subsequent request by the Minister for amendment or submission of a new site plan. Any such decision by the Minister may result in a hearing.
25The City reasoned that under the ARA, any MNRF change to Nelson's application to amend its existing site plan may give rise to a hearing and that the Tribunal has the authority to require conditions be imposed on any site plan associated with the undertaking before it. The City continued that the NEPDA prohibits the MNRF from addressing any site plan amendments unless and until this Tribunal grants Nelson's Development Permit application.
26The City maintained that consolidated hearings serve many objectives, including the streamlining of approval processes, efficient hearings, avoiding duplicative regulatory processes and preventing inconsistent regulatory decisions. The City continued that if the additional approvals are not consolidated and the proposed extensions are approved, there is a significant risk that a future hearing(s) may be required, resulting in delay and inconsistencies, or the granting of approvals without the appropriate conditions reflecting the Tribunal Decision.
27The City contended that the consolidated hearings regime is designed to ensure a single, streamlined hearing can replace a multitude of hearings. The City continued that even where certain approvals might normally be sought later, or where applications have not yet been made, the purposes of the consolidated hearings regime still require full consolidation.
28The City advanced the position that in Dufferin Aggregates, Re, 2016 CarswellOnt 13775 (“Dufferin Aggregates”), the proponent listed the same OWRA and EPA approvals as Nelson. The City stated that Dufferin Aggregates reflects a proposal to expand an existing quarry within the Niagara Escarpment and therefore triggered similar technical and statutory frameworks as the current Nelson application.
29The City submitted that it is clear from Dufferin Aggregates that the starting point for modern quarry expansions in the Niagara Escarpment is a full consolidation of all hearings that are or may be required pursuant to OLTA.
30The City reasoned that the right time to make a decision on deferral is not now, but after the Parties and the Tribunal have addressed the issues in the hearing in a comprehensive manner, and so that any deferral can be accompanied by conditions that are informed by the Tribunal’s understanding of the issues and weighing of the evidence.
Position of Nelson
31Nelson acknowledged that the PTTW and the ECA under the OWRA and the EPA are included and part of the September Notice. Nelson requested that the Applications and OLT Hearings for the City Official Plan Amendment, the Region Official Plan Amendment, the Aggregate Licence, NEC Plan Amendment, and the NEC Permit be consolidated into a single Hearing.
32Nelson submitted that the Ministry of Environment Culture and Parks (“MECP”) will not approve applications for PTTWs until approvals have been obtained under NEPDA and the ARA.
33Nelson’s deferral request for the OWRA Applications is based on the reasons set out by the Joint Board in its 2009 decision on a similar motion brought by the City on the first Nelson Quarry expansion application.
34Nelson argued that it is the established practice for proponents in pits and quarries applications to apply for OWRA and ECA permits and approvals after the Consolidated Hearing and the requirement to obtain such permits and approvals has been a condition imposed by the Tribunal in relation to quarry extensions applications.
35Nelson advised that the JART review did not raise the order of approvals as a concern. Water quality and quantity are issues that will be addressed in the context of the applications that are presently before the Tribunal under the ARA, NEPDA and the Act.
36Nelson argued that the ARA SPA has no possibility for a hearing and therefore, this application is not part or the undertaking and does not fall within the jurisdiction of a consolidated hearing.
37Nelson submitted that the SPA to the MNRF is pursuant to section 13(2) of the ARA. The purpose of the amendment is to integrate the operations of the existing quarry with the operations of the new proposed quarry expansions. Nelson posited that if there is no appeal of the decision of the MNRF on the SPA, there is no possibility of a hearing. If there is no possibility of a hearing, the consolidated hearing provisions do not apply.
38Nelson argued that the City referenced an application under section 13(1) of the ARA, where the Minister proposes a Site Plan amendment, and in this situation the proponent does have the right of appeal which would result in a hearing. Nelson continued that the City is making reference to a section that has no bearing on this proposal and cannot be used to “backdoor” a Consolidated Hearing.
39Nelson contended that MNRF has reviewed the ARA application, the proposed SPA, and the supporting hydro-geological investigations. MNRF has advised that all its concerns and issues have been addressed. Nelson noted that MNRF is a Party to these proceedings and has given no indication or suggestion that it intends to propose amendments to the Site Plans for the existing Burlington Quarry.
40Nelson submitted that it first applied for an expansion of its Burlington Quarry in 2004 and during the Consolidated Hearing the City brought forward a motion to consolidate the OWRA Applications with the hearings under the ARA, NEPDA and the Act. Nelson noted that the City’s motion at that time was almost identical to the current motion before this Tribunal.
41Nelson submitted that the Joint Board issued an interim decision on October 29, 2009, and denied the motion.
42Nelson argued that the City fails to give the Tribunal any reason why its decision on this motion should be any different than the 2009 decision of the Joint Board.
FINDINGS AND ANALYSIS
43Nelson confirmed in its response to the City’s motion that the Undertaking before the Tribunal includes the expansions to both the south and to the west of the existing Burlington Quarry as well as the proposed changes to the existing Burlington Quarry.
44It is clear from the submissions of the Parties that the proposal is an extension that will result in operations being integrated into the existing quarry.
45It is clear from Nelson’s submissions that the PTTW and the ECA under OWRA and the EPA are included and part of the September Notice.
Amend the Notice of Undertaking to Defer the OWRA and EPA Applications
46For all of the reasons that follow, the Tribunal will exercise its right under s. 6 of O. Reg. 351/21: Consolidated Hearings (“O. Reg. 351/21”) under OLTA and defer the application for a PTTW and the application for an ECA until it is determined whether one or more hearings will be required, pursuant to the provisions of the OWRA and the EPA.
47In his Affidavit, Brian Zeman, the land use planner for Nelson, noted in his experience that the MECP refuses PTTW applications where the land use approvals are not in place. Mr. Zeman cites the MECP Technical Guidance document for PTTW and provided two cases to support his position.
48In his Affidavit, Mr. Zeman provided a Notice of Refusal for a PTTW issued to Olympia Sand and Gravel dated February 13, 2007, to support Nelson’s position that in advance of land use approvals a PTTW application will be refused:
The Director needs to consider if the water is not currently being used, whether there is a reasonable prospect that the person will actually use the water in the near future. As the necessary planning, zoning and operation approvals and licenses have not been received and in some cases, have not yet been applied for, it does not appear that you will actually use the water in the near future. The EBR posting/or the refusal noted consultation affecting the decision included Zoning applications and aggregate license to be decided prior to the issuance of a permit.
49Mr. Zeman opined that in the Dufferin Aggregates Acton Quarry Extension application, the proponent issued its Consolidated Hearing Notice in 2016 and included the PTTW and ECA Water Permits under the OWRA in the notice. At the time of the notice, Dufferin Aggregates had not filed the Water Permits but was intending to file and consolidate Water Permits at the Acton Quarry Extension hearing. The MECP opposed the consolidation of the OWRA permits and Dufferin Aggregates and MECP entered into minutes of settlement that deferred the OWRA applications until approval of the ARA license, NEP Amendment, NEC Development Permit, Region OPA and local OPA.
50Mr. Zeman advised that deferral of OWRA applications is a consistent approach in Halton Region for other mineral aggregate operations and cited a number of examples in his affidavit.
51The Tribunal has the authority to impose as a condition the requirement to obtain the OWRA and ECA permits and approvals as a condition in relation to quarry extensions applications.
52Nelson has been forthright on the approvals required and the City has known about the OWRA Water Permits since the beginning of the process in 2019.
53Water quality and quantity issues will be addressed in the context of the applications currently before the Tribunal under the ARA, NEPDA and the Act. Should the applications be approved, the Tribunal has the authority to impose conditions with respect to the OWRA approvals.
54NEPDA requires that a Development Permit is obtained before other approvals are given. It stands to reason that if a Development Permit is not granted, there would be no need to make applications under the OWRA.
55MECP is aware of the Nelson applications and is not a Party to the proceedings.
Amend the Notice of Undertaking to Include Amending the Existing Site Plans
56For the reasons that follow, the Tribunal will not exercise its right under s. 4 of O. Reg. 351/21 to amend the September Notice to include the existing Site Plans.
57The City argued that Nelson requested approval of an ARA site plan amendment for the stated purpose “to integrate the existing Burlington Quarry with the proposed Burlington Quarry Extension”. The City advanced the position that the SPA is central to the issues before the Tribunal and must be considered by this Tribunal during the Consolidated Hearing.
58The City maintained that The JART Report stated that there were concerns by the agencies of a conflict between Nelson’s plans for the existing quarry and the NEP. In reviewing the site plan amendment, JART noted that:
[ … g]iven that the proposed site plan amendments were driven by Nelson’s expansion plans, many of the issues identified apply equally to the existing quarry license and, in particular, to the amended site plan for which the applicant is seeking approval. Many comments raised during the technical review considered the proposal as a single, integrated operation with integrated effects.
59Nelson argued that it had applied to MNRF for an SPA for the existing Burlington Quarry, pursuant to section 13(2) of the ARA. Nelson continued that if there is no appeal of the decision of MNRF on the SPA and there is no possibility of a hearing, then the consolidated hearing provisions do not apply.
60MNRF is a Party to these proceedings and has given no indication nor suggested that it intends to propose amendments to the Site Plans for the existing Burlington Quarry.
61Nelson maintained that the ARA SPA for the existing Burlington Quarry is approved by MNRF after Applications for the Extension are approved, and that this application is not appealable to the OLT.
NEXT STEPS
62A one-day CMC is scheduled to commence at 10 a.m. on Tuesday, August 27, 2024 at 10:00 a.m. to address the matter/s of the Procedural Order (“PO”) and Issues List (“IL”).
63Parties and Participants are asked to log in to the Hearing by video at least 15 minutes before the start of the event to test their video and audio connections:
GoTo Meeting: https://global.gotomeeting.com/join/709076365
Access code: 709-076-365
64Parties and Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html
65Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: +1 (647) 497-9373 or Toll-Free: 1-888-299-1889. The access code is 709-076-365.
66Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the CMC and Hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the Hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
ORDER
67THE TRIBUNAL ORDERS THAT the Motion for Directions brought by the City of Burlington to amend the Notice of Undertaking by Nelson Aggregates Co. is dismissed.
68THE TRIBUNAL ORDERS THAT that the Notice of Undertaking by Nelson Aggregates Co. includes the expansions to both the south and to the west of the existing Burlington Quarry as well as the proposed changes to the existing Burlington Quarry and the motion is granted in this regard.
69THE TRIBUNAL ORDERS THAT the application for a Permit To Take Water and the application for an Environment Certificate of Approval pursuant to the provisions of the Ontario Water Resources Act and the Environmental Protection Act be deferred until it is determined that a Hearing(s) will be required.
70THE TRIBUNAL ORDERS THAT Tribunal File No.(s) OLT-22-004372; OLT-22-004888; OLT-22-004886; OLT-23-000541; and OLT-23-000631 are consolidated, in accordance with Rule 16.2 of the Tribunal’s Rules of Practice and Procedure and the motion is granted in this regard.
71The Panel may be spoken to through the Tribunal’s Case Coordinator if there are any issues that arise with respect to the implementation of this Order.
“W. Daniel Best”
W. DANIEL BEST
MEMBER
“M.A. Sills”
M.A. SILLS
VICE-CHAIR
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.