Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 01, 2024
CASE NO(S).: OLT-23-000948
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Enbridge Gas Inc.
Applicant: Bryan and Cheryl Arnold
Subject: Consent
Description: To create a permanent easement which would act as an access to a land-locked farm parcel
Reference Number: B-10-23
Property Address: Concession 5, Part Lot 17, Part SW ¼ Lot 17, 1300 Courtright Line
Municipality/UT: Township of St. Clair
OLT Case No.: OLT-23-000948
OLT Lead Case No.: OLT-23-000948
OLT Case Name: Enbridge Gas Inc. v. Arnold and St. Clair (Township)
Heard: December 4, 2023, by video hearing
APPEARANCES:
| Parties | *Counsel / Representative |
|---|---|
| Enbridge Gas Inc. | Jasmine Fraser |
| Bryan and Cheryl Arnold | *Self-Represented by Bryan Arnold |
| Township of St. Clair | *Carlie McClemens and Ken Melanson |
DECISION DELIVERED BY N. eisazadeh AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1This consent appeal raises the issue as to whether a proposed severance to create a permanent easement over a landowner’s property, which would overlay an existing access road to the benefit of a natural gas utility company, satisfies the requisite legislative planning tests and policy criteria to be considered in granting the consent.
DECISION
2For the reasons that follow, the Tribunal upholds the decision of the Committee of Adjustments (“COA”) and dismisses the appeal.
BACKGROUND AND CONTEXT
3The consent application is for the property known municipally as 1300 Courtright Line (“Subject Lands”) in the Township of St. Clair (“Town”) in the County of Lambton (“County”). The Subject Lands comprise a total of approximately 47 acres and has a frontage of approximately 961 feet (‘ft.”) onto Courtright Line. There is a neighbouring property immediately abutting the Subject Lands to the north described as Concession 5, Part Lot 17, N/W ¼ Lot 17 owned by 911964 Ontario Ltd. (the “Hendersons” and the “Henderson Property”, respectively).
4The Subject Lands are now owned by the Applicants, Bryan and Cheryl Arnold (“the Arnolds”). The Arnolds are successors to a gas storage lease agreement (“GSLA”) signed on November 17, 1960, by their predecessors in title to the Subject Lands, Frank Gardiner Arnold and Vera Loreen Arnold, and Imperial Oil Limited (now the Appellant, Enbridge Gas Inc. (“Enbridge”)).
5The GSLA grants sub-surface rights of the Subject Lands to Enbridge for the purpose of injecting, storing, and withdrawing gas, natural and/or artificial, in exchange for rent money. Briefly, the GSLA also grants Enbridge rights to the surface of the Subject Lands as necessary or incidental to the operations of Enbridge including entering on, using, and occupying as much of the surface of the Subject Lands as is necessary or convenient to carry on its operations set out in the agreement. The GSLA is registered on title to the Subject Lands as is a Notice of Claim to preserve the rights under the GSLA.
CONSENT APPLICATION AND PROPOSED SEVERENCE / EASEMENT
6The Henderson Property does not have its own exclusive access to any local or municipal roadway and has accordingly been referred to as “landlocked” in these proceedings and in the underlying consent application. It is noted, however, that there is a current right-of-way (“ROW”) present on the Subject Lands described as ‘Part 2’ which bisects the property mid-way from Courtright Line, running slightly diagonally in a northwesterly fashion to mid-way of the northern property line abutting the Henderson Property, which the Henderson’s have been using for access (“Part 2 ROW”).
7The consent application proposes a severance for the creation of an easement which would act as a permanent vehicular and pedestrian access for ingress and egress to the Henderson Property. The proposed easement would have a frontage of approximately 33 ft. from Courtright Line, a depth of approximately 2,091.7 ft. to the north property line, and an area of approximately 1.58 acres traversing horizontally across the easterly property line of the Subject Lands and is described legally as ‘Part 4’ of the Subject Lands (“Henderson Easement”). The remaining retained parcel of the Subject Lands would have a frontage of 790 ft. and an area of 46.9 acres.
8A laneway described as an access road currently exists along a portion of Part 4 where the Henderson Easement is proposed to be located, and while not a legally registered easement in and of itself, was constructed and remains in use by Enbridge pursuant to the GSLA (“Enbridge Access Road”). The Enbridge Access Road fronts Courtright Line and runs north along the easterly property line up to about mid-way of the depth of the property. The Enbridge Access Road is currently used to access a natural gas pool, named the Tecumseh Kimball-Colinville 54 (“TKC-54”) which is located on a separate adjacent property to the east. Both TKC-54 and the Subject Lands, including the Enbridge Access Road, are within an area designated by the Ontario Energy Board (“OEB”) as a Designated Storage Area (“DSA”), referred to as the Kimball-Colinville DSA.
9The Arnolds submitted an application for consent to the Town dated July 6, 2023. The application was supported by Town Staff Planner, Ezio Nadalin, through his Staff Planning Report dated August 17, 2023. A Public Hearing was held on August 28, 2023, wherein a second Town Planner, Ian MacDougall, appeared and summarized Mr. Nadalin’s report in his absence and confirmed support for the application. Agency comments were also read aloud, including one from Enbridge dated August 25, 2023, and a motion was carried by the COA approving the application subject to the conditions set out further below.
10Enbridge, being a “specified person” as defined in s.1(1) the Planning Act (“Act”), appeals the approval of the consent application pursuant to s.53(19) of the Act. In the alternative, should the Tribunal decide to uphold the decision of the COA, Enbridge requests that the Tribunal impose a condition that directs the Arnolds, along with the owners of the Henderson Property, to enter into a tri-party Access Easement Priority Agreement (“Priority Agreement”) with Enbridge that would, inter alia, provide for the priority of the GSLA and the rights of Enbridge for the use, operation and maintenance of the proposed new Henderson Easement, which would overlap the Enbridge Access Road, pursuant to the GSLA.
11The thrust of Enbridge’s position on the present appeal is that the Henderson Easement fails to have regard to s.51(24) of the Act and in particular: s.51(24)(g) respecting existing restrictions on the land; s.51(24)(b) that the proposed easement is not in the public interest; and s.51(24)(a) respecting the matters of Provincial interest set out in ss.2(c),(h),(n), and (o) being the conservation of natural resources, the orderly development of safe and healthy communities, the resolution of planning conflicts involving public and private interests, and the protection of public health and safety.
EVIDENCE, ANALYSIS, AND FINDINGS
12Mr. Arnold appeared on behalf of the Applicants who were self-represented at the Hearing. Enbridge was present and represented by legal Counsel, Jasmine Fraser. While the Town and County took no formal position on the appeal, two representatives appeared as Friends of the Tribunal, Carlie McClemens (Secretary Treasurer of the Town COA) and Ken Melanson (Manager of Planning & Development Services with the County).
13The Tribunal heard evidence from only one witness called by Enbridge, Mr. Chris Pincombe. While Mr. Pincombe is, by profession, a certified engineering technologist currently employed by Enbridge in the position of “Supervisor Lands & ROW Eastern CAN”, he was tendered to provide fact evidence only and was not sought to be qualified as an expert witness.
14Mr. Pincombe introduced the GSLA document and provided a brief history as follows:
The origin of the GSLA dates to when Enbridge first began exploring natural gas in the area (then through its predecessor, Imperial Oil Limited, however referred to as Enbridge throughout the balance of this Decision). In order to do so, natural gas lease agreements were required with various landowners in the area to provide the rights to explore, then drill wells, construct pipelines and carry out other related work to perform their operations. Once the various lease agreements were in place, Enbridge began to drill wells into geological formations whereby Enbridge was able to withdraw elements, including oil and gas, from these wells or “pools”.
Once the pools were depleted of oils and gas, they were used as “storage containers” to re-inject the oil and gas during summer months (non-heating season) in order that it be stored and used through peak servicing periods during the winter months (heating season). This serves to significantly reduce natural gas commodity and transportation charges for Enbridge customers.
This gas exploration led to a number of gas storage lease agreements being entered into in respect of properties all throughout the County, including the GSLA that is registered on title to the Subject Lands.
Both the Natural Resources branch of the Ministry of Northern Development, Mines, Natural Resources and Forestry (“Natural Resources”) and the OEB have roles in the regulation of natural gas storage activities. While Natural Resources is responsible for the technical and safety aspects of storage pool development and operation, the OEB has jurisdiction over the rates charged for gas storage and designation of DSAs.
Once Enbridge acquired the majority of the rights on the lands, it applied to the OEB to designate certain lands (set out in Schedule B to the OEB Order dated December 2, 1963), as DSAs which was granted, and which protects those lands from third parties entering upon and/or drilling wells for exploration and related activities.
With respect to the present appeal, the 1963 OEB Order grants Enbridge the right to inject, store and remove gas from the Kimball-Colinville DSA and to “enter into and upon the land in such areas and use such land for such purposes” including the Subject Lands.
The 1963 OEB Order grants Enbridge the same rights on lands designated as DSAs, even where those properties are not subject to a formal GSLA.
15Pursuant to the provisions of the GSLA, Mr. Pincombe explained that Enbridge constructed the Enbridge Access Road in 1988, initially for the purpose of bringing in the equipment and vehicles necessary to drill the TKC-54 well. Presently, the Enbridge Access Road is used for the continued inspection and maintenance work necessary on the TKC-54 observation well. Mr. Pincombe testified that, to date, Enbridge has paid the Arnolds over $35,000 for the Enbridge Access Road which occupies their land pursuant to the GSLA (in updated rental amounts voluntarily increased by Enbridge). Mr. Pincombe stated this is in addition to the annual rental amounts paid to the Arnolds since 1973 when the Arnold’s took possession of the property.
16While there was some dispute in the line of questioning by Mr. Arnold of Mr. Pincombe respecting the amounts paid and allegedly or potentially still owed, those issues are not before the Tribunal on this hearing. Therefore, the Tribunal accepts that the Enbridge Access Road currently legally exists pursuant to the GSLA.
Restrictions on the Land
17Ms. Fraser argues, as was conceded by Mr. Melanson, appearing as Friend of the Tribunal on behalf of the County, that the GSLA is a restriction on the land. Ms. Fraser submits that, therefore, there is no dispute that it must be considered pursuant to s.51(24)(g) of the Act, to which it is contrary. In support of her argument, Ms. Fraser points to this Tribunal’s decision in Mac Rae v. Hamilton (City), 2019 CarswellOnt 11152 (then before the Local Planning Appeal Tribunal and hereinafter “Mac Rae”).
18The key paragraphs in Mac Rae on which Enbridge relies are at paragraphs 43, 58, 61, 66, 69 and 70, wherein the esteemed Member Blair S. Taylor (as he then was), acknowledges that a Union Gas easement posed a significant physical constraint on the lands in that case such that it put the development proposal into a different sphere of consideration. Ms. Fraser submits that this decision demonstrates that a gas utility company easement, to which she states the GSLA is akin, is a restriction affecting lands in the way that the language of s.51(24)(g) intended it to be considered and which was not done in the case at bar. Respectfully, the Tribunal disagrees.
19In Mac Rae, the issue before the Tribunal was whether a proposed severance to create a flag-shaped lot would be compatible with the character of the existing environment. It was not a case that considered the same issues that are live on the present appeal; that is, whether the shared use of an access road is contrary to the Act and good planning polices.
20In Mac Rae, the Tribunal found that the driving force behind the proposed irregular flag-shaped lot was the impediment caused by the large Union Gas easement, which ultimately resulted in undue adverse impacts on the abutting property. It was the adverse impacts, including the loss of privacy to the rear yard, the loss of mature trees buffering the properties and vehicular headlight pollution as vehicles travelled the length of the property to gain access to the proposed severed lot, which the Tribunal found to be contrary to s.51(24)(f) of the Act and for which it ultimately denied the application. Significantly, while the application before the Tribunal in Mac Rae also included a proposed driveway to be located on the Union Gas Easement, there was absolutely no discussion or notion that it was shared access of such an easement that would be contrary to the Act, good planning policy, or a restriction affecting lands as intended to be captured by the language of s.51(24)(g).
21In the case at bar, the GSLA, and resulting Enbridge Access Road, is indeed a restriction on the land, but not one which creates any contemplated irregularly shaped lot, adverse impact to abutting properties, or contravention of planning policies as was the case in Mac Rae. In fact, the creation of the proposed permanent Henderson Easement releases continued use by the Hendersons of the balance of the property, comprising its majority, which in turn mitigates potential conflict between competing use of the balance of the property over which Enbridge also has rights pursuant to its GSLA. So, while s.51(24)(g) sets out that restrictions on land are to be considered, such restrictions are not solely determinative of any one particular application and must be considered in the context of each case. Having considered the GSLA as a restriction on the Subject Lands, and there being no evidence presented to support that it would pose adverse planning impacts, I find that the proposed Henderson Easement does not create any adverse planning impacts to the surrounding lands or lots or contravention of other planning policies, as was the case in Mac Rae or as contemplated and intended to be captured by s.51(24)(g) of the Act.
The Public Interest
22Ms. Fraser submits that the proposed consent application fails to have regard for s.51(24)(b) of the Act in that it is not in the public interest. This argument is premised on the notion that Enbridge requires priority access to get to the TCK-54 observation well in order to deliver uninterrupted services to its customers efficiently and effectively. Ms. Fraser argues that approving the consent application would create potential disruption and delay arising from the shared use of the Access Road, because as it stands, there is no Priority Agreement in place between the relevant parties. Therefore, no clear delineation of the respective parties’ rights and obligations which is an undesired outcome that could result in future disputes regarding which rights take precedence and, or, unanticipated liability issues if other users could access the permanent easement.
23Ms. Fraser also contends that there are similar GSLAs with landowners across Ontario and there is a public interest in preserving the importance of such GSLAs, and of the protection of the rights under such GSLAs, so that a proper precedent is set regarding the status of those rights in relation to potentially competing interests.
24Presumably, Ms. Fraser is referring to paragraph 2 of the GSLA wherein it is stated that Enbridge shall peacefully possess and enjoy the demised lands and be granted the rights under the GSLA without any interruption or disturbance. While this provision does not expressly state that the rights of Enbridge under the GSLA are “in priority” to any other right; the question of the priority of rights and whether shared use of the Access Road poses an interruption or disturbance as contemplated by the agreement are not issues within the jurisdiction of this Tribunal for adjudication. Those are contractual disputes, the proper forum for which lies with the Superior Court. The only considerations before the Tribunal on this appeal must relate to planning matters under the Act; and on this particular issue, whether the shared use of the Access Road has adequate regard for the public interest pursuant to s.51(24)(b).
25Enbridge argues that shared use of the Access Road would, or could, interfere with its ability to deliver uninterrupted services to its customers efficiently and effectively because of disruption and delay which could arise, and which goes against the public interest. However, there was no evidence led to demonstrate exactly what disruption and delay was being referred to, or how or why it would arise and, therefore, I am unable to accept this proposition. The proposed Henderson Easement is for pedestrian and vehicular ingress and egress to access the Henderson Property. Approval of the consent application, and in turn permanently legalizing the Henderson Easement, would confer no additional right to the Hendersons beyond the ability to traverse for access to their property. In other words, the Henderson Easement would not allow a user to block the Access Road in any fashion. Further, there is no indication or evidence that the use of the Henderson Easement for access purposes would pose disruption or delay such as to interrupt Enbridge’s ability to service its customers effectively.
26It is prudent to add that it is not within the mandate of this Tribunal to set precedent, even of the kind that Ms. Fraser alludes might be in the public interest regarding the protection of rights under similar GSLAs against competing interests. Not only does this raise a question as to whether the protection of such contractual property rights is even within the jurisdiction of this Tribunal, it is also trite that each appeal before it must be decided on its own merits.
Matters of Provincial Interest
27Ms. Fraser submits that the consent application fails to have adequate regard for the matters of Provincial interest set out in s.2(c), (h), (n) and (o) of the Act, being the conservation of natural resources, the orderly development of safe and healthy communities, the resolution of planning conflicts involving public and private interests, and the protection of public health and safety, respectively.
28Respectfully, Ms. Frasers submissions are conclusory with no evidence led to support in what manner these matters of Provincial interest are contravened. It has not been demonstrated how the shared use of the Enbridge Access Road for ingress and egress to the Henderson Property would affect the conservation of natural resources, the orderly development of safe and healthy communities or the protection of public health and safety. Similarly, private contractual disputes over priority of use of a ROW between a utility company and a landowner do not comprise a municipal planning conflict involving public and private interests.
29The suggestion that the shared use of the Access Road will result in disruption, delay, or interruption in the ability of Enbridge to service its customers effectively is merely speculative and not based in evidence. For instance, Enbridge presented no evidence to indicate that it would require blocking off the Enbridge Access Road for any period of time or that shared use of the Access Road could not occur harmoniously. Similarly, the suggestion that granting the consent application, which would effectively allow shared access of the Enbridge Access Road, constitutes unorderly development of safe and healthy communities because it would trigger potential competing interests must also be rejected. Any competing conflicts or liability issues that could potentially arise would fall within private contractual matters outside of the Act, the jurisdiction of this Tribunal, and, which in any event, have not been demonstrated to fall within the enumerated matters of Provincial interest.
Hearing De Novo
30The Tribunal acknowledges that this appeal is a hearing de novo and the onus is on the Applicant to establish that the consent application meets the requisite planning tests for approval. Ms. Fraser argues that the Arnolds have failed to discharge that onus by failing to submit planning evidence in support of their initial consent application, and by failing to call such evidence on the present appeal. The Tribunal disagrees.
31The Arnolds were self-represented on this appeal, and, unsurprisingly, were less familiar with the formalities of the adjudicative process. Notwithstanding, Mr. Arnold explained that because the Hendersons did not have a permanent legal ROW to access their property, and having historically traversed Ontario Hydro property to access the Part 2 ROW, the two neighbours desired to legalize that access through the consent application as proposed. Mr. Arnold stated that they retained lawyers who pulled the requisite surveys and drafted the necessary paperwork, from which an application was ultimately prepared and submitted to the Town, supported by Staff Planners, and approved. While the Arnolds did not retain or call their own expert planner in support of their application, the Applicant, and Tribunal, may refer to the Municipal file and the professional opinions of the Staff Planners therein. Moreover, by operation of s.2.1(1) of the Act, the Tribunal is required to have regard to the decision of the COA and the information and materials before it in making its decision.
32Accordingly, the Tribunal has before it the professional planning opinions of only Ezio Nadalin, Town Staff Planner and author of the Town Staff Report dated August 17, 2023, and Mr. Melanson, current Manager of Planning & Development Services with the County who appeared as Friend of the Tribunal, both of whom are supportive of the application.
33Ms. Fraser argues that Mr. Nadalin’s report, and any information conveyed by Mr. Melanson during this hearing, only stipulates the requisite test to be considered, then leaps to a conclusion that the application meets the test without a proper analysis of the planning rationale or justification in support of the conclusion; reinforcing her position that there is in fact no planning evidence in support of the application. The Tribunal disagrees.
34The first step in the analysis acknowledges that consent applications are governed by s.53(1) of the Act, if a plan of subdivision is not necessary for the proper and orderly development of the Municipality. It is undisputed that a plan of subdivision is not necessary for a consent to sever for the purpose of creating a permanent ROW on existing privately owned property, and there need not be any express planning evidence for a Tribunal to make such a finding here.
35The second step requires that regard must be given to the criteria set out in ss. 53(12) and 51(24) of the Act. Presumably, Ms. Fraser’s argument about a lack of evidence is driving at the fact that Mr. Nadalin’s report did not review the application of subsections 51(24)(g) respecting existing restrictions on the land, s.51(24)(b) regarding the public interest in upholding Enbridge’s GSLA rights in priority to competing interests; and s.51(24)(a) regarding the proposition of Enbridge respecting matters of Provincial interest set out in ss.2(c),(h),(n), and (o). However, the Tribunal has considered the application of those provisions in the analysis above, determined that they are not applicable, and therefore finds it was not unreasonable for Mr. Nadalin to have omitted those provisions from his analysis. In any event, as this is a hearing de novo and not a judicial review, this Tribunal has considered those provisions in its analysis and made its determination that there is no evidentiary support for the propositions put forward by Enbridge as to how the consent application fails to have regard for those sub-provisions of s.51(24).
36What Mr. Nadalin’s report does review, is an analysis of the application’s conformity with the Town’s Official Plan (“OP”) and the Zoning By-laws (“ZBL”) which address ss.51(24)(c) and (d). He explains that the Town OP designates the Subject Lands as “Agriculture”, and that the designation’s policies thereunder, specifically 2.2.4, allow easements on agricultural land through consent applications to avoid the creation of landlocked parcels. He adds that the Subject Lands are zoned Agriculture-1 (A-1) in the Town ZBL, which zoning permits the severance. It is therefore land suitable for the purpose for which it is to be subdivided. Mr. Melanson advised the Tribunal that the proposed Henderson Easement addresses matters of public interest, Provincial interest, as well as the policies under the Provincial Policy Statement, 2020 (“PPS”), in that they are each aimed at providing access to landlocked parcels to which the application conforms, while also acknowledging, respecting, and balancing the interests of Enbridge pursuant to the GSLA and of its Access Road through the conditions to be registered with the new easement on the land.
37Ms. Fraser rebuts that the Henderson Property is landlocked, pointing to the existence of the Part 2 ROW on the property which the Henderson’s have been using to date. She argues that, irrespective of the fact that there is no bridge across a ditch located along the Part 2 ROW, that does not impede the ability or right to cross Part 2 for the purpose of access; essentially arguing that a lack of physical access does not negate a legal access.
38There was very little evidence tendered from either of the Parties with respect to the context of the Part 2 ROW, including the nature of the physical condition of the ROW as well as the extent of the alluded to Ontario Hydro property. What is evident from the record is that the Part 2 ROW exists and has been in use by the Hendersons, presumably pursuant to a civil agreement, to access their property. Accordingly, the Tribunal can appreciate Ms. Fraser’s argument and issue taken with describing the Henderson Property as technically “landlocked”. However, in the analysis required on this application which was accurately described as a “replacement ROW”, the Tribunal accepts the evidence before it and finds it has appropriate regard for the criteria set out in s. 51(24) and is consistent with the related policies under the PPS for two key reasons.
39The first reason relates to Ms. Fraser’s submissions where it was conceded that had the Arnolds proposed the Henderson Easement elsewhere on the property, Enbridge would not have taken issue with the application. This is notwithstanding that the same GSLA which applies to the entirety of the property also poses potential restrictions on the balance of the land. Accordingly, had the Henderson Easement been proposed elsewhere on the property, Enbridge essentially concedes that it could have been approved on the same planning grounds as was submitted for its currently proposed location.
40Second, the Tribunal accepts the planning evidence before it, including Mr. Nadalin’s Staff Report and the information provided by Mr. Melanson. Mr. Melanson referred to page three of Mr. Nadalin’s report and explained that what is occurring is a ROW replacement from the current site to a new proposed location in order to create a permanent registered ROW in perpetuity. Both Planners were satisfied that the proposed Henderson Easement, even as a replacement ROW, adequately conforms with the intent of the relevant policies of the Town OP and the PPS referenced above respecting landlocked lots. Ultimately, the opinions of Mr. Nadalin and Mr. Melanson are uncontroverted and unchallenged by way of any responding expert opinion retained on behalf of Enbridge.
41Accordingly, this Tribunal accepts that the application is in conformity with the Town’s OP, and in particular s. 2.2.4 of the OP, and with the Town ZBL, which adequately address ss.51(24)(c) and (d) of the Act. The Tribunal further accepts that the application is consistent with the general PPS goals aimed at accessibility of landlocked parcels and constitutes good planning.
Conditions of Approval – The Priority Lease Agreement
42Pursuant to s.53(12) and 51(25) of the Act, the Tribunal may consider and impose such conditions as are determined to be reasonable, having regard to the nature of the proposed consent.
43In approving the consent application, the COA included the following conditions (emphasis added):
That such additional severance fees, as required by the Township, are paid in full.
That in right of Enbridge Gas Ltd [sic], allowance for the established continued use of the right-of way shall be adhered to.
That should there be any alterations to existing roadway entrances, an Entrance Permit from the County of Lambton Public Works Department will be required.
That a copy of the deed is submitted to the Secretary-Treasurer in a form suitable for registration.
44Ms. Fraser submits that Condition No. 2 is vague, ambiguous, and inadequate in delineating how the restriction ought to be considered between the competing interests over the Access Road and fails to put Enbridge’s access rights in priority or to protect those rights. She contends that should this Tribunal be inclined to grant the application, that it impose a condition directing the Arnolds and the Henderson’s to enter into a Priority Agreement with Enbridge governing the priority of rights of use of the easement.
45It remains in question whether this Tribunal has the jurisdiction to: (a) impose a condition which would effectively require a third party to enter into a contractual agreement for the purposes of a planning application to which it is not a party; and, (b) enforce such a condition itself, or require a Municipality to enforce such a condition. Notwithstanding, and having regard to the nature of the proposed consent, I find the requested condition requiring a tri-party Priority Agreement with a third party to be unreasonable for the same reasons. This finding is also strengthened by the information received by both Mr. Pincombe and Mr. Melanson that neither have before seen such an agreement imposed by way of condition.
46The Tribunal is further satisfied that the conditions as drafted and included by the COA on approval of the application, with the correction of the misnomer of Enbridge’s corporate name, have sufficient regard for Enbridge’s contractual interest over its Access Road for the purposes of this planning application and are reasonable.
ORDER
47THE TRIBUNAL ORDERS that the appeal is dismissed and the provisional consent is to be given subject to the following conditions:
That such additional severance fees, as required by the Township, are paid in full.
That in right of Enbridge Gas Inc., allowance for the established continued use of the right-of way shall be adhered to.
That should there be any alterations to existing roadway entrances, an Entrance Permit from the County of Lambton Public Works Department will be required.
That a copy of the deed is submitted to the Secretary-Treasurer in a form suitable for registration.
N. Eisazadeh
N. eisazadeh
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.