11923811 Canada Inc. v. Trent Lakes (Municipality), 2024 CanLII 72565

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 22, 2024

CASE NO(S).: OLT-23-001046

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: 11923811 Canada Inc.

Subject: Application to amend the Zoning By-law – Refusal of application

Description: Proposing the construction of rental cottages, a boathouse, and an accessory dwelling

Reference Number: 21-08 Lennox

Property Address: 16 Fire Route 94A

Municipality/UT: Trent Lakes/Peterborough

OLT Case No: OLT-23-001046

OLT Lead Case No: OLT-23-001046

OLT Case Name: 11923811 Canada Inc. v. Trent Lakes (Municipality)

Heard: June 26-28, 2024, by video hearing

APPEARANCES:

Parties

Counsel

11923811 Canada Inc.

Jennifer Savini

(“Applicant”)

Municipality of Trent Lakes

Laura Dean

(“Municipality”)

Bill Jackson (“Jackson”)

John Ewart

DECISION DELIVERED BY JEAN-PIERRE BLAIS AND ORDER OF THE TRIBUNAL

Link to order

INTRODUCTION

1The Applicant seeks to develop a site municipally known as 16 Fire Route 94A in the Municipality, County of Peterborough (“Subject Property”) to construct a dry slip boathouse (approximately 800 square feet), three rental cabins (approximately 900 square feet each) and an accessory building in the form of a single detached dwelling (approximately 2000 square feet). The dry slip boathouse may be constructed as of right. The accessory building is proposed as a living accommodation for the owner to operate the business and maintain the Subject Property.

2The Applicant applied to amend the Municipality’s Zoning By-law (“ZBA”) to re-zone the Subject Property from Shoreline Residential – Private Access (SR-PA) to a site-specific Tourist Commercial Exception (TC-xx). The specific performance standards include a reduction to the minimum required lot area from 4.0 hectares to 0.65 hectares, a reduction to the minimum water yard setback for the proposed dwellings and a reduction to the minimum water yard setback for the proposed septic system.

3The Appeal is brought pursuant to section 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended (“Act”), due to the Municipality’s refusal of the ZBA.

4On February 21, 2024, the Tribunal held its first Case Management Conference (“CMC”) to organize the appeal, address status requests and establish next steps in this proceeding.

5At the CMC, Jackson was made a Party to the proceeding. His property is close to the Subject Property. Jackson made representation to Council opposing the application and presented evidence of an expert in land use planning at the Hearing.

LOCATION AND CONTEXT

6The Subject Property is designated as ‘Commercial’ under the Municipality’s Official Plan (“Municipal OP”) and was rezoned from ‘Tourist Commercial’ to ‘Shoreline Residential – Private Access (SR-PA)’ in 2002. Principal commercial uses, such as the proposed recreational cabin establishment, are not permitted within the SR-PA zone.

7The Subject Property is a narrow peninsula on the north shore of Pigeon Lake comprised of 0.65 hectares and with approximately 300 metres of irregular shoreline frontage.

8The Subject Property currently has the derelict remains of ten former commercial cabins that were constructed in 1949. The Subject Property ceased to operate as a tourist commercial resort in the 1980s.

9The surrounding land uses include a mixture of permanent and seasonal shoreline residential uses, including to the immediate north.

10Following a pre-consultation meeting and the submission of required studies, the application was deemed complete on February 4, 2022. Municipal Planning Services Ltd., the Municipality’s planning consultant, recommended approval of the application on August 29, 2023, subject to caveats and adjustments.

11Notwithstanding the recommendation, Council refused the application in a very laconic decision dated September 5, 2023.

12During the hearing, a revised ZBA was proposed by the Applicant. All expert witnesses had the opportunity to express their professional opinion with respect to this revised ZBA. References below to the ZBA are references to this revised version.

EVIDENCE AND ANALYSIS

13In order to be successful, the Applicant must establish that the proposed development and the ZBA have regard to matters of provincial interest pursuant to s. 2 of the Act, are consistent with the Provincial Policy Statement 2020 (“PPS”) pursuant to section 3(5)(a) of the Act, conform to the Growth Plan for the Greater Horseshoe 2020 (“Growth Plan”) pursuant to section 3(5)(b) of the Act, conform to the County of Peterborough Official Plan 1994 (“County OP”) pursuant to section 24 of the Act and conform to the Municipal Official Plan (“Municipal OP”) pursuant to section 24 of the Act. Counsel for the Applicant acknowledged in her final arguments that her client had the onus to establish alignment with these statutory requirements on this de novo appeal.

14The Tribunal considered the evidence of three planners:

a. Diana Keay, the Manager of land use planning services with D.M. Wills Associates Limited, who was retained by the Applicant and was qualified by the Tribunal to give expert opinion evidence in land use planning;

b. Michael Barton, President of MB1 Development Consulting Inc., who was retained by the Municipality and was qualified by the Tribunal to give expert opinion evidence in land use planning; and,

c. Kent Randall, the Principal Planner and Director of EcoVue Consulting Services Inc., who was retained by Jackson and was qualified by the Tribunal to give expert opinion evidence in land use planning.

15It was common ground that the matter before the Tribunal should be considered pursuant to the 1994 County OP and not pursuant to the new County OP, which was adopted in 2023, but has yet to be fully approved.

POSITION OF PARTIES

16The Applicant submits that its modest proposal for a tourist establishment for rental cabins meets all the legislative test under the Act. For the Applicant, the proposal constitutes a respectful and compatible redevelopment of a historical fishing resort on a commercially designated property. The Applicant advanced evidence which in its view indicated similar commercial developments in the area.

17For the Municipality and Jackson, the proposed development did not meet the statutory tests, did not constitute good planning and the appeal should be dismissed. They argued, amongst other things, that the proposed development and the ZBA did not have regard to certain matters of provincial interest under section 2 of the Act, were not consistent with certain aspect of the PPS, did not conform to the Growth Plan, the County OP and the Municipal OP, and placed too much emphasis on site plan control to address deficiencies in the proposal. They specifically argued that the proposed ZBA does not conform to Policy 5.3.3.5 of the County OP, which (subject to certain exceptions that do not apply on the facts of this case) does not permit new development unless it is accessible by a public road that is maintained year-round. Jackson also argued that the private road is in part within a floodplain of Pigeon Lake and is in such a state that it could not assure appropriate access by emergency vehicles.

ANALYSIS

18The Tribunal heard considerable evidence on numerous issues including transportation considerations, the presence of a floodplain on part of the proposed development’s road access, compatibility to the surrounding residential uses, the 30-metre vegetative protective zone, access by emergency vehicles and the potential nuisance to neighbours. However, the outcome of this case turns entirely on whether the Applicant’s proposed project is a “new development” or a “redevelopment” as this will be conclusive as to whether the proposed development and the ZBA conform to the County OP as provided by section 24 of the Act.

19Policy 5.3.3.5 of the County OP provides that “new development is not permitted if it is not accessible by a public road maintained year-round [emphasis added].” The County OP provides that local plans may include policies permitting new development in a limited number of cases which are inapplicable in the present circumstances.

20In Mr. Randall’s clear, crisp, and succinct professional opinion, the proposed ZBA does not conform to Policy 5.3.3.5 of the County OP. He opined that the proposed development was not a residential development but a commercial development to provide temporary accommodation. Such a new development cannot be on a private road, in his view, under the County OP.

21Mr. Barton, in his unfocused evidence, came to the same conclusion. He opined that new commercial development, which includes tourism development, must be on a public road.

22By contrast, Ms. Keay testified that in her professional opinion the ZBA conformed to the County’s OP. She attempted to characterize the Applicant’s proposal as a “redevelopment” of an existing tourist facility designed to meet the emerging tourist demand and markets. She recognized that the Applicant’s proposal is located on a private road, but she pointed out that the Traffic Impact Study (“TIS”) concludes that, given the low traffic volume generated by the development, the Subject Property is not anticipated to have any significant impact on the normal traffic operations of the road network, now or in the future. She also opined that the Subject Property is an existing lot of record on a private road within a commercial designation.

23Counsel for the Applicant attempted to argue, based on the cross-examination of Mr. Randall, that the proposed development constituted a “redevelopment” under the definitions of the PPS and the Growth Plan. Be that as it may, for the Tribunal the issue of “new development” is to be assessed under the County OP. It is equally not probative for the Tribunal that the County, as a commenting agency, did not raise concerns based on Policy 5.3.3.5 of the County OP.

24The Tribunal prefers the evidence of Mr. Randall and Mr. Barton and finds that the proposed development and the ZBA do not conform to the County OP.

25The Applicant’s proposal will be developed on a private road and would require the crossing of over 13 private properties. Fire route 94 and 94A, which must be used to reach the Subject Property, are typical cottage roads lined with gravel and with a width of about three meters. Both these Private Roads must be used to gain access to Nichol’s Cove Road, which is a two-lane road owned and maintained by the Municipality.

26The Tribunal finds that it is untenable to argue that what the Applicant is proposing is a “redevelopment” and not a “new” development for the purposes of Policy 5.3.3.5 of the County OP. Everything in this development will be new. The Subject Property has not been a fishing resort since the 1980s. Even Ms. Keay testified that the resort has not been in operation for “40 plus” years and that there is no legal non-conforming use. The Applicant’s proposal does not involve the use of any of the existing structures nor the existing sceptic system. The new cabins would be placed further away from the shoreline. There would be fewer cabins than in the old fishing resort and they would be larger than the ten derelict cabins. This is not surprising as the derelict cabins have no windows, appear unstable, some have collapsed, and others are falling apart. Land planning and environmental concerns have evolved considerably since the 1940s and 1980s which results in this proposal being a significantly new development with no link to the former development. Moreover, tourist expectations are also considerably higher in terms of comfort and amenities.

27Counsel for the Municipality correctly pointed out that Ms. Keay, the Applicant’s expert witness, characterized the development as a new development in more than one instance in her Witness Statement and did not object to that characterization during her cross-examination.

28The TIS report’s conclusion about traffic impact being manageable on the private road is irrelevant for the purposes of Policy 5.3.3.5 of the County OP. The core issue is conformity to the County OP which prohibits new development on a private road.

29The Tribunal also notes that the Applicant filed no concurrent application to amend the County OP, including Policy 5.3.3.5.

CONCLUSION

30The Applicant has failed to establish that the ZBA and the proposed development are in conformity with the County OP as required under section 24 of the Act, specifically conformity with respect to Policy 5.3.3.5. Given that the Applicant has not met its onus, the Appeal must be dismissed.

ORDER

31THE TRIBUNAL ORDERS THAT the Appeal is dismissed and the requested amendment to the Municipality of Trent Lakes Comprehensive By-law No. B2014-070 is refused.

“Jean-Pierre Blais”

JEAN-PIERRE BLAIS

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.