Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 08, 2024 CASE NO(S).: OLT-24-000431
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: City of St. Catharines Applicant: Boris Plut Subject: Consent - Approval Description: To construct a new detached dwelling and septic system Reference Number: B-20/23SC Property Address: 2398 Third Street Louth Municipality/UT: St. Catharines/Niagara R OLT Case No.: OLT-24-000431 OLT Case Name: City of St. Catharines v. City of St. Catharines (Town)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: City of St. Catharines Applicant: Lorne Fletcher Subject: Minor Variance - Approval Description: To construct a new detached dwelling and septic system Reference Number: A-67/23 Property Address: 2386 Third Street Louth Municipality/UT: St. Catharines/Niagara R OLT Case No.: OLT-24-000432 OLT Lead Case No.: OLT-24-000431 OLT Case Name: City of St. Catharines v. City of St. Catharines (Town)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: City of St. Catharines Applicant: Boris Plut Subject: Minor Variance - Approval Description: To construct a new detached dwelling and septic system Reference Number: A-17/24 Property Address: 2398 Third Street Louth Municipality/UT: St. Catharines/Niagara R OLT Case No.: OLT-24-000433 OLT Lead Case No.: OLT-24-000431 OLT Case Name: City of St. Catharines v. City of St. Catharines (Town)
Heard: June 27, 2024, by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Boris Plut and Lorne Fletcher (Applicant) | Patrick Maloney |
| City of St. Catharines | Robert Di Lallo |
DECISION DELIVERED BY J. INNIS AND N. ALLAM AND ORDER OF THE TRIBUNAL
BACKGROUND
1Notwithstanding the City of St. Catharines (“City”) staff recommendations to refuse the Application, the City’s Committee of Adjustment (“CoA”) approved an Application that contained a consent (Consent B-20/23SC), a Minor Variance (“MV”) (A-17/24) from Boris Plut, and another MV (A-67/23) from Lorne Fletcher (jointly known as the “Applicant”). The City commenced this appeal, as it is their opinion that the Application lacks the necessary protection of agricultural resources and thus, does not have sufficient regard for provincial interest.
2The subject Application seeks a lot boundary adjustment between lands known municipally as 2386 Third Street Louth and 2398 Third Street Louth, to facilitate the proposed development of a single detached dwelling, with an attached garage and new septic system. As a result, the property at 2386 Third Street Louth is proposed to be enlarged from 1010 metres squared (“m2”) to approximately 2930m2 and the existing single detached dwelling, detached garage and septic system are to be demolished. The remaining 4.02 hectares (“ha”) at 2398 Third Street Louth is to be retained for agricultural use.
3Both Parties acknowledged that as the subject lands are designated Agricultural within the Garden City Official Plan (“GCP”), a consent may be permitted, if it’s for a “minor boundary adjustment”. It was agreed upon that the Niagara official Plan (“NOP”) permits consents in Speciality Crop Areas for “legal or technical reasons” and similarly under Policy 2.3.4.2 of the Provincial Policy Statement, 2020 (“PPS”), lot adjustments are permitted in Prime Agricultural Areas for “legal or technical reasons”, which defined in the PPS includes “minor boundary adjustments”. And further, s. 4.6.1 (e) of the Greenbelt Plan permits lot creation in the Protected Countryside for “minor lot adjustments or boundary additions”. As the Parties are in agreement that the requested severance will create a boundary adjustment and will not result in the creation of a new lot, the issue before the Tribunal is whether the boundary adjustment being sought is minor in nature and for a “legal or technical reason”. For the reasons outlined below, the Tribunal allows the appeal, and the provisional Consent and Variances are refused.
SITE CONTEXT AND PROPOSAL
4The surrounding land uses are predominantly agriculture and rural residential. To the north and south there are rural residential and agricultural uses; to the east there are agricultural and commercial uses and to the west there are agricultural uses.
5A diagram of the development proposal is illustrated below for reference:
62386 Third Street Louth, shown as Parcel 1, has a lot area of 1010m2 with 49.53 metres (“m”) of frontage on Third Street Louth. Parcel 1, containing the existing dwelling, detached garage and septic system would be considered significantly deficient in its lot size and setback requirements within the current Zoning By-Law. Further, the age of the existing septic system indicates that a replacement may be imminently required.
72398 Third Street Louth, which is comprised of Parcels 2 and 3, is currently vacant. These lands are designated as Protected Countryside and Speciality Crop Areas in the Provincial Greenbelt Plan; recognized as Prime Agricultural Area under the PPS and in the A Place to Grow: The Growth Plan for the Greater Golden Horseshoe (“Growth Plan”). The Niagara Region Official Plan (“NOP”) designates these lands as Speciality Crop Areas.
8Both 2386 and 2389 Third Street Louth are designated Agriculture on Schedule D1 and Schedule E11 of the GCP permitting a variety of agricultural uses and small-scale farm related commercial uses. The existing dwelling is a permitted use and a new detached dwelling on an existing vacant lot of record is permitted subject to applicable policies within the GCP.
9Parcel 2 shown on the diagram represents the proposed severance of 0.192 ha from Parcel 3 to be merged with Parcel 1. The proposed boundary adjustment would facilitate the development of a new single detached dwelling with an attached garage, approximately 80% larger than the existing dwelling, and a newly associated septic system that requires 392m2 of space. The entirety of the development proposal would exist on Parcel 2. The proposed development would allow the Applicant to reside in the existing dwelling, while the new dwelling is constructed.
10In conjunction with the Consent Application, a MV is required for each property to address their deficiency in size. Parcels 1 and 2 combined, propose a lot area of 2930m2 and are required to have a minimum lot area for a detached dwelling of 4050m2; while the proposal would see Parcel 3 have a lot area of 4.02ha, with the required lot area for an agricultural farm being that of 16.2ha.
APPLICABLE TESTS
11When considering a proposed consent, the Tribunal must be satisfied that the Application has regard to the criteria set out in s.51 (24) of the Planning Act (“Act”); including whether the proposed consent is premature or in the public interest; whether there is conformity with the region and city official plans and applicable Zoning By-laws; and the suitability of the land for the purpose for which it is to be subdivided.
12The Tribunal must consider each of the four elements set out in section 45 (1) of the Act, and all four elements must be satisfied in determining the requested Variances:
- Maintains the general intent and purpose of the official plan;
- Maintains the general intent and purpose of the Zoning By-law;
- Is desirable for the appropriate development or use of the land; and
- Is minor in nature.
13Lastly, the Tribunal must consider whether the proposed Consent and Minor Variances, along with any required conditions, are representative of good planning and are in the public interest.
PARTIES AND EVIDENCE
14Given that there is an agreement for a purchase of sale between Mr. Plut and Mr. Fletcher for Parcel 2 and that Mr. Fletcher participated in the planning process, Party status was granted to Mr. Fletcher (with respect to both Mr. Plut’s appeals) on consent. There were no additional Party or Participant status requests.
15A Joint Book of Documents was received by the Tribunal and marked as Exhibit 1; which included the initial, second and third proposal, the Consent and MV Applications, Consent Sketch , the Planning Justification Report prepared by LandPro Planning Solutions, the Wastewater Treatment System Performance Evaluation and Capacity Assessment, the septic design, City staff report, Niagara Region’s (“Region”) comment letter, the minutes of the CoA Hearing, the notice of Decision for the Applications, and the Notice of Appeal by the City.
16The Applicant provided the expert opinion evidence of Mr. Moote, a Registered Professional Planner and Member of the Ontario Professional Planners Institute, who has been previously qualified by the Tribunal. Mr. Moote has prior experience in agricultural nutrient management planning and has an Agricultural Operations Planning certificate from the province. Mr. Moote’s curriculum vitae and Acknowledgement of Experts Duty can be found on Tab 26 of Exhibit 1. The Panel deemed Mr. Moote qualified to provide exert opinion evidence in the area of land use planning, pertaining to this matter.
17Tyler VanderStam, a professional in wastewater treatment who is a Registered Building Practitioner Onsite Sewage System Installer and Designer, and Member of the Ontario Onsite Wastewater Association (curriculum vitae and Acknowledgement of Experts Duty may be found on Tab 28 in Exhibit 1) provided expert opinion evidence on behalf of the Applicant. The Tribunal deemed Mr. VanderStam qualified to provide expert opinion evidence in the design and function of septic services.
18The Tribunal also heard evidence from Claire Semple, a Planner with the City in support of the appeal. Ms. Semple is a pre-candidate member of the Ontario Professional Planners Institute, has been in her current role with the City for approximately 16 months and holds a Masters of Planning Degree. Counsel for the Applicant sought to challenge Ms. Semple’s testimony as an Expert Witness, in the area of land use planning, given that she has not yet received full accreditation as a registered professional planner, is a recent graduate and has not previously been deemed qualified by the Tribunal. At the very least, Counsel for the Applicant sought that the evidence submitted by Mr. Moote should be preferred over Ms. Semple’s. Ms. Semple’s curriculum vitae and Acknowledgement of Experts Duty (Tab 25 of Exhibit 1), as well as her carriage of the Application through the municipal planning process, were reviewed by the Panel. While Ms. Semple is not yet a Registered Professional Planner, the Tribunal was satisfied that she had the appropriate knowledge and involvement with the Application and qualified her to provide land use planning opinion evidence on the matter at hand.
Applicant’s Position
19Mr. Moote opined that the term “minor boundary adjustment” is not defined in any way and that the City is suggesting a limited numerical approach when considering the term “minor” thus being too restrictive of an approach to the applicable policies. Evidence was provided by Mr. Moote that the City’s numeric approach as to the determination of what was ‘minor’ was not appropriate in providing the case of Dhoot v. Mississauga (City) issued on April 19th, 2022, which states at paragraph 58:
In other words, a seemingly “small” deviation may not qualify as “minor”. On the other hand, a seemingly “large” deviation or an obliteration of the numeric requirement may be quite appropriate. In short, the number themselves are devoid of meaning unless the context is known and rationale for those numbers are known.
20Testimony was provided by Mr. Moote that the proposed severance has proper regard for section 2 (b) of the Act, in terms of the protection of agricultural resources, as it was his opinion that there would be no impact on the protection of these agricultural resources. Presently, Parcels 2 and 3 are vacant with no active agricultural operation and aerial photos dating back to 1965 (Tab 7 in Exhibit 1) show that the lands in Parcel 2 were not used for agricultural operations. Thus, Mr. Moote opined that Parcel 3 could be farmed without Parcel 2, and further considering that the Parcel 2 and 3 combined are already undersized, the viability of the land for any agricultural use is already limited to uses that require less land such as an apiary, livestock or greenhouse.
21Evidence was provided by Mr. Moote that the purpose of the Application was for a “legal and technical reason”, as the lands requested are the minimal requirement to accommodate a new dwelling and accompanying septic system that comply with City zoning provisions. It is the opinion of Mr. Moote, that the City is suggesting that for the severance to be acceptable, the Applicant must use the least amount of land required for the boundary adjustment and that the Applicant has made considerable efforts in attempting to meet this requirement by the City. The Applicant provided that the following should be considered as part of the greater context:
a. Existing dwelling and septic system on Parcel 1 are in need of replacement and the existing lot is significantly undersized;
b. The proposed severance provides an opportunity for a new dwelling to be situated on a lot with consistent setbacks of the adjacent properties, allows for a septic system that would meet current health standards, and would allow the Applicant to reside in the existing dwelling during construction of the new dwelling;
c. The lands being requested for consent are comparatively minor at 1920m2;
d. The proposed severance does not remove any agricultural lands from active production and the proposed remaining lands on Parcel 3 could still be used for agriculture;
e. The proposed severance will avoid the lands becoming stagnant and become more functional.
22Mr. Moote opined that the Application supports a new and improved sewage and water service and provides a full range of housing that includes affordable housing, as the proposal includes an apartment for the purpose of generational family living. Thus, having regard for matters of provincial interest outlined in section 2 of the Act.
23It was the opinion of Mr. Moote that the proposal seeks to remove negligible, inactive agricultural lands out of production; intends to maintain a minimal 2930 m2 residential lot, that meets the agricultural policies; and is therefore consistent with the PPS.
24Mr. Moote testified that the proposed Consent conforms with the Growth Plan as development outside of settlement areas may be permitted on rural lands for rural land uses if they are compatible with the rural landscape and surrounding local land uses. This Application will be sustained by rural service levels and will not adversely affect the protection of agricultural uses. Further, Policy 4.2.6.3 contends with how land use compatibility will be achieved between agricultural uses and non-agricultural uses. When avoidance is not possible, an Agricultural Impact Assessment (“AIA”) should determine the mitigation measures required but the City never requested for an AIA to be completed.
25It was the opinion of Mr. Moote that the Consent conforms with the Greenbelt Plan as the proposed Consent takes the least amount of land required to construct a new dwelling and septic system. The existing dwelling also pre-dates the Greenbelt Plan and the Consent mitigates the interfacing between agricultural and non-agricultural lands.
26The policies of the NOP aim to protect the region’s agricultural land base and ensure that agriculture is the predominant land use in Specialty Crop Areas and Prime Agricultural Areas. Evidence was provided by Mr. Moote that Policy 4.1.5.1.f. provides for flexibility when considering “legal and technical reasons” as determined by the Local Area Municipalities:
4.1.5.1.f. the consent is for legal or technical reasons as determined by Local Area Municipalities, there is no increased fragmentation of key natural heritage feature or key hydrologic feature, and complies with other policies in this plan;
Mr. Moote stated that the comments from the Region clearly defer to the opinion of the City but also included a recommendation that the size of the residential parcel be increased to 0.4ha to conform with Regional policy and that “the reason for this Application is to enlarge Parcel 1 through a minor boundary adjustment to facilitate the new dwelling and the private sanitary system, reflecting current zoning and Ontario Building Code Standards. The City has instructed the applicant to minimize the lot size that needed to facilitate this, and this has been done as per that requirement…This Application conforms with the NOP”.
27Policy 14.2.10 of the GCP permits the (emphasis underlined):
Enlargement of Existing Non-Agricultural Uses, other than those specifically permitted in Section 14.1 v) and vi), may be permitted on an existing lot of record legally established prior to the date of adoption of the Garden City Plan, where the enlargement occurs on lands which are currently zoned to permit the enlargement, is not in conflict with an active agricultural operation, and that the expanded use can meet the criteria set out in Section 14.2.4 c) to g).
Through his Planning Justification Report (Tab 8, Exhibit 1), Mr. Moote provided evidence that the Application conforms with the GCP, as the plan permits enlargements of existing non-agricultural lots, including for existing single detached dwellings. He added that the Application meets the criteria set out in Policy 14.2.10 c) thru g) for the following reasons:
a. the proposed severance has access to a publicly maintained road;
b. it would be served by sustainable private services;
c. it does not require any new municipal services;
d. negative impacts on surrounding uses and agricultural operations are minimized;
e. it is compatible with existing and future uses on adjacent properties; and
f. the lot size and location are appropriate for the intended use.
28The boundary adjustment with the proposed new dwelling will bring the property into further compliance with the City’s Zoning By-law, as the dwelling will move from 0.39m from the front yard lot line to 24.43m. While only 9m are required, Mr. Moote suggested that it was unreasonable to displace the owner due to this reason and that the proposed setback is consistent with the community character. The Application meets the requirements for maximum lot coverage, minimum rear yard setbacks, and minimum lot frontage requirement. The minimum lot area for a detached dwelling is 4050m2 and the proposal would provide for 2930m2 lot area, which Mr. Moote states was to accommodate the City’s request of a smaller lot size than the minimum requirement.
29The panel heard the evidence of Mr. VanderStamp that the existing Parcel 1 lands would not be suitable to host a new septic system and further that the designs proposed to accompany the new proposed dwelling would require 392m2 for the leaching field, with additional lands required for the septic tanks. However, with the location of the proposed dwelling, the setbacks from the house could be used to reduce the area required. It was the uncontested opinion of Mr. VanderStamp that for the purpose of private servicing of the new dwelling, the proposed septic system used the least amount of land possible for a septic system.
30Evidence was provided by Mr. Moote that the MVs requested met the intention of the Zoning By-law and the criteria set out in s. 45 (1) of the Act.
31It was stated by Mr. Moote that the combination of Parcel 1 and 2 required a MV: to permit a decrease of lot size from the required 4050m2 to 2930m2; that this Variance was less than the requirement, as requested by the City to use the least land possible for the Consent, which brings the undersized lot closer into conformity with zoning requirements; the Variance is desirable for the appropriate use of the land as the Applications seek the minimum amount of land required; the GCP permits enlargements of existing non-agricultural lots for single detached dwellings, where there is no active farm operations and thus the proposal maintains the intent and purpose of theGCP; and although the proposal does not achieve the minimal lot size provisions, the new proposed dwelling brings the property further into compliance with the Zoning By-law and therefore the intent and purpose of the Zoning By-law in maintained.
32The minimum lot area required for an Agricultural Farm Use is 16.2Ha. A Variance was sought seeking relief as Parcel 3 would be reduced to 4.02Ha. There is an existing deficiency of over 12Ha, and it was the opinion of Mr. Moote that the Variance was indeed minor when taking into consideration that the lot is currently not used for agricultural production; that the remaining Parcel 3 lands could still be used for agricultural production, and that the Variance requested is for a mere 1920m2. Testimony was provided by Mr. Moote that the Variance sought maintains the intent and purpose of the official plan as the GCP permits enlarging a lot of this nature, and while Parcel 3 is undersized, it is still sufficient in size to accommodate some form of agricultural use. Further, Mr. Moote opined that the Variance for Parcel 3 maintained the intent and purpose of the Zoning By-law considering that the lot has historically been used for a residential purpose rather than agricultural and lastly the use of Parcel 2 to facilitate the proposed dwelling and septic is negligible on an agricultural scale.
33As the minimal amount of lands required to facilitate the proposed development of a new dwelling, with an attached garage and accompanying septic system, of which brings the property closer to conformity with the City Zoning By-law and removes no land from agricultural production, it is the opinion of Mr. Moote that the Application represents good planning.
Appellant’s Position
34The City submitted the case of Collinson Farms Ltd. V. Middlesex Centre (Municipality) as it addressed the question of whether a boundary adjustment was minor and it shared similarities to the present appeal, in that the subject lands were located in a Prime Agricultural Area as set out in the PPS and a similar amount of land was proposed to be conveyed from a larger agricultural parcel to a smaller adjacent parcel. At paragraph 10 it states:
Mr. McGuffin suggested that the word minor should be interpreted in the planning sense of the word, namely, whether the Severance created an adverse impact and whether it was too large a parcel. In his view, there was no adverse impact and, from an order of magnitude perspective, the severed parcel represents only 3% of the land owned by CFL. Accordingly, he concluded that the Severance was indeed minor and therefore a minor boundary adjustment. I concur with the approach adopted by Mr. McGuffin, but I am unable to accept his conclusion.
And after considering the traditional interpretation of the word “minor”, the Board states at paragraph 12:
When I apply the language of Justice Matlow to the phrase "minor boundary adjustment" and to the parcels resulting from the proposed Severance, it is true that only 3% of the CFL land is being conveyed. However, the parcel being acquired represents a 100% increase to the Viramontes' land holding. I do not consider this to be comparatively small in size. The doubling of one's acreage is, in my view, an acquisition of significance.
As such, the City provided the evidence from Ms. Semple that the Application does not create a “minor boundary adjustment” when considering both the size and impact of the proposed boundary adjustment. Ms. Semple provided testimony that the technical requirement for the sustainable private servicing of Parcel 1 was not a significant factor in determination of what is ‘minor’. Rather, Ms. Semple put more of an emphasis on the amount of land requested to accommodate the entire proposal, the size and location of the new dwelling, along with the fact that none of Parcel 1 would be utilized for the proposal.
35The City suggested that the technical need for a replacement septic system is a red herring and on cross-examination of Mr. VanderStam, he stated that he in fact did not determine a minimum lot size for a lot addition and did not suggest that Parcel 2 is the minimum amount of land required. Further, the City submitted that the proposed severance seeks to add 1920m2 (Parcel 2), which is almost five times more than the 392m2 provided by Mr. VanderStam for a leaching bed to accommodate a new septic system, and almost triple the size of the existing lot (Parcel 1). In regard to the testimony of Mr. VanderStam, the City concluded that the evidence provided was not relevant to the planning issue at hand, namely whether the consent is for a “minor boundary adjustment”.
36The City stated that on cross-examination, Mr. Moote acknowledged that the setback for the proposed dwelling is 15m greater than what is required and that the amount of land required cannot be kept to a minimum if the proposal was to maintain consistency with the adjacent properties, which would also allow the owner to reside and maintain full use of the existing dwelling and property during construction.
37It was the opinion of the City that while it may be inconvenient to displace the homeowner during construction, this consideration is not based on any planning principles and is therefore not a planning reason for the proposed setback. Further, a smaller dwelling could be built, or the proposed dwelling could be brought forward onto Parcel 1, in either case, less land would be required for the boundary expansion. It was the opinion of Ms. Semple that the boundary adjustment was not “minor”.
38Provided the designations of the subject lands being that of the highest classification of agricultural lands to be protected under the land use planning policies, the City’s position has held that the boundary adjustment must be limited to the amount of land absolutely required for a technical lot adjustment, specifically to install a new septic system.
39Ms. Semple testified that the proposal will result in the removal of Specialty Crop Area lands from a Prime Agricultural Area that will adversely impact the surrounding land uses as the severance prioritizes the residential use over the protected agricultural use; further diminishes an already undersized agricultural use; and threatens the long-term viability of future agricultural production on Parcel 3, and this is not consistent with the PPS in demonstrating the protection and promotion of agricultural resources.
40It was the opinion of Ms. Semple, that the Application fails to confirm with the Greenbelt Plan, as the Consent is not for a ‘minor boundary adjustment’. In particular section 4.6.2 provides that a lot creation is discouraged and may only be permitted for minor lot adjustments or boundary additions.
41Ms. Semple provided evidence that the Consent fails to conform to section 14.2.10 of the GCP, which permits boundary adjustments in accordance with specific criteria, as this applies to expanded non-agricultural uses, such as a single detached dwelling, and non lot adjustments or lot additions. She also provided testimony that as the Consent is not for “legal or technical reasons”, as determined by the City, the Application does not conform to section 4.1.5.1 of the NOP.
42While the Variance requested for a reduction in the minimum required lot area for a detached dwelling (combination of Parcel 1 and 2) will bring the property into greater compliance with the Zoning By-law, Ms. Semple stated that the overall intent of the GCP and its protection of designated agricultural lands is not met by this Variance. Further, the City is not satisfied that the minimum size needed to accommodate sustainable private serving only is sought through this Variance and thus, it is not in keeping with the intent of the Zoning By-law and GCP.
43Testimony was provided by Ms. Semple that the Variance seeking relief for the minimum lot area required for an agricultural farm lot? (Parcel 3) would only permit the further reduction of an already undersized agricultural farm lot by approximately 5% and would impact its long-term viability and would not maintain the intent of the GCP or Zoning By-law.
44Lastly, Ms. Semple opined that neither Variances in conjunction with the Consent are desirable for the appropriate use of the lands and are not minor in nature.
45Ms. Semple stated that the Consent is not “minor” nor is it for a “legal or technical reason” and that the Application failed to meet the required legislative tests. As such, the Application does not represent good land use planning.
FINDINGS
46There is no dispute by the Parties on the designation of the lands within the Application and that for the Consent to be permitted, it must be deemed a “minor boundary adjustment” and for “legal or technical reasons” to satisfy the applicable land use policies. For the reasons outlined below, the Tribunal finds that the Application is neither a “minor boundary adjustment” nor for “legal or technical reason”, and further, that it is not in the public interest, does not meet all of the tests identified in 45 (1) of the Act, or represent good planning.
47The Tribunal concurs with the City, that the need for a replacement septic system does constitute a technical reason for a minor boundary expansion. However, the need for a new dwelling to be constructed entirely on Parcel 2, does not. Mr. Moote suggests that the Consent facilitates the proposed development of a new dwelling that allows for greater conformity with the Zoning By-law, better consistency with the adjacent residential lots, and would provide the opportunity for the Applicant to reside in the existing dwelling, while the new dwelling is constructed. The City provided testimony that these reasonings to support the Consent do not meet the criteria of what is a “legal or technical reason” and that the setbacks being proposed for the new dwelling are significantly more than what is required. As the Consent has requested significantly more lands than what is required for a new septic system, the Tribunal prefers the evidence of the City in determining that the Consent goes well beyond a “legal or technical reason”. While the Tribunal has sympathy for any persons who may be temporarily displaced, it must make this determination while having regard for the public interest. In this matter, the protection of agricultural resources supersedes that of a potential temporary displacement of the Applicant.
48Contrary to the belief of the Applicant, evidence was provided that the City did consider both impact and numerical value when proffering that the Consent was not “minor” in nature. The lands in questions are the highest classification of agricultural lands to be protected under land use policies. Whether these lands were previously in agricultural production or not, is irrelevant in their designation. The Tribunal prefers the evidence of Ms. Semple, that the Consent takes more land than necessary to satisfy a technical reason (replacement of septic system), and further depletes an already undersized agricultural farm lot. While there are adjacent residential lots, there are still significant existing agricultural uses surrounding the property, and thus the greater context supports the need to protect agricultural uses. The Applicant stated that there would be no impact on surrounding land uses and that the proposal would not impact the ability for Parcel 3 to be used for agricultural purposes. The Tribunal prefers the testimony of Ms. Semple and similarly finds that this does not account for the greater context of surrounding agricultural uses; nor does the Consent address its effect of removing specialty crop lands from a Prime Agricultural Area; or that Parcel 3 is a vacant lot of record that may in the future require lands for development.
49This Application sees a property more than doubling in size to accommodate a significantly larger dwelling (approximately 80% larger than the existing dwelling, with an attached garage and new septic system), with no intention to utilize the existing lands within Parcel 1. Accordingly, the Tribunal comes to the same conclusion as Ms. Semple, that a boundary expansion of this scale, for such a purpose, at the expense of reducing lands designated as Specialty Crop Area is not “minor”.
50Mr. Moote provided evidence that the Consent is permitted through Policy 14.2.10 in the GCP. However, Ms. Semple stated that this Policy permits the “enlargement of non-agricultural uses,” not the enlargement of non-agricultural lots. The Tribunal concurs with the City and finds that this Application does not conform to this Policy.
51While the Variances sought to bring the combined Parcel 1 and 2 into greater conformity with the Zoning By-law, this only resulted in further diminishing Parcel 3 as an undersized agricultural lot. The Tribunal accepts the evidence of Ms. Semple that the Variances required are not minor, do not maintain the general intent and purpose of the GCP, and are not desirable for the appropriate development or use of the land as outlined earlier.
52In conclusion, the Tribunal finds that the proposed Consent does not conform with the applicable municipal Plans and, correspondingly, does not satisfy all the criteria of s. 51(24) of the Act, including subsection (c); it does not represent good planning and it is not in the public interest. Furthermore, the MVs do not meet the criteria set out in s. 45 (1) for the above noted reasons. As such, the Tribunal allows the appeal, and the provisional Consent and Variances are not to be given.
ORDER
53THE TRIBUNAL ORDERS that the appeal is allowed and:
a. the provisional consent is not to be given; and
b. the Variances to By-law 2010-242 are not authorized.
“j. innis”
J. INNIS MEMBER
“N. allam”
N. allam MEMBER
Ontario Land Tribunal Website: 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.