Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 16, 2024
CASE NO(S).: OLT-23-000625
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 2564669 Ontario Inc. and 520039 Ontario Limited
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To facilitate the development of a residential subdivision
Reference Number: Z12-21
Property Address: Concession 6, Part Lots 13 and 14, Otonabee Ward, Registered Plan 45R-335 Parts 2 and 3, and part 1 of 1
Municipality/UT: Otonabee-South Monaghan/Peterborough
OLT Case No.: OLT-23-000625
OLT Lead Case No.: OLT-23-000625
OLT Case Name: 2564669 Ontario Inc. and 520039 Ontario Limited v. Otonabee (Township)
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: 2564669 Ontario Inc. and 520039 Ontario Limited
Subject: Proposed Plan of Subdivision – Failure of Approval Authority to make a decision
Description: To facilitate the development of a residential subdivision
Reference Number: 15CD-21001
Property Address: Concession 6, Part Lots 13 and 14, Otonabee Ward, Registered Plan 45R-335 Parts 2 and 3, and part 1 of 1
Municipality/UT: Otonabee-South Monaghan/Peterborough
OLT Case No.: OLT-23-000626
OLT Lead Case No.: OLT-23-000625
OLT Case Name: 2564669 Ontario Inc. and 520039 Ontario Limited v. Otonabee (Township)
Heard: July 10–12, 2024 (3 days) by Video Hearing
APPEARANCES:
Parties
Counsel
2564669 Ontario Inc. and 520039 Ontario Limited
Kathleen Kinch Jenna Khoury-Hanna
Township of Otonabee-South Monaghan
Edward Veldboom
County of Peterborough
Edward Veldboom
Dave Earl
Richard Taylor
DECISION DELIVERED BY C. HARDY AND INTERIM ORDER OF THE TRIBUNAL
INTRODUCTION
12564669 Ontario Inc. and 520039 Ontario Limited (“Appellant”) made applications for approval of a Zoning By-law Amendment (“ZBA”) and a Draft Plan of Subdivision/Condominium (“Draft Plan”) (“Applications”) relating to property legally described as Part Lots 13 and 14, Concession 6, Otonabee Ward, Registered Plan 45R-335 Parts 2 and 3, and part of part 1, Keene, Ontario (“subject property”). The subject property is located in the lower tier municipality of Otonabee-South Monaghan (“Township”) and the upper tier municipality of the County of Peterborough (“County”). The Township and County failed to make decisions on the ZBA and Draft Plan applications within statutory timelines, resulting in the Appellant filing appeals pursuant to s. 34(11) and s. 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), respectively.
2A Case Management Conference (“CMC”) was held by a panel differently constituted on March 13, 2024, and these matters were set down for a three-day hearing. At the CMC, David Earl was granted Party status and Scott Milne was granted Participant status.
3The following reasons address two matters: denial of relief requested by Mr. Earl in the context of a motion considered at the outset of the hearing and the Tribunal’s decision on the merits, allowing the appeals in part and issuing an Interim Order.
SITE CONTEXT
4The subject property is approximately 5.64 hectares and is currently an undeveloped vacant lot. It is located on the east side of Heritage Line within the designated limits of the Keene Rural Settlement Area.
5The subject property is currently zoned FD-4-Future Development Zone with Exception No. 4 pursuant to the Township of Otonabee-South Monaghan Zoning By-law 2010-65 (“ZBL”). The subject property is located within a rural settlement area pursuant to the County Official Plan (“County OP”) and is designated “Hamlet”, more particularly the Keene Hamlet (rural settlement area) pursuant to the Township Official Plan (“Township OP”). The policies of the Hamlet designation in the Township OP permit the form and scale of development contemplated by the Applications, as such, no Official Plan amendments are required to facilitate the proposed development.
6Abutting the subject property to the north is a private gravel road, and located to the south of the subject property are residential lots and farmland lots. To the east, the subject property abuts a provincially significant wetland, namely Indian River Mouth. Located to the west of the subject property are Heritage Line and residential lots. Of note, there is a significant wetland located northwest of the subject property.
7The property owned by Mr. Earl is located on Heritage Line two lots south of the private gravel road to the north and abuts the subject property on Mr. Earl’s eastern property line. The subject property is generally represented in the below image.
PROCEDURAL HISTORY AND PROPOSAL
8On September 29, 2021, the Appellant submitted the Applications to facilitate the development of a 20-lot residential plan of condominium, which was deemed complete on October 14, 2021. Subsequently, there were numerous open houses and meetings held, which resulted in several revisions to the Applications.
9On April 17, 2023, the Appellant submitted a fourth updated and revised application package in response to comments and new information regarding the municipal water supply system facilities. Each submission, including the most recent, were supported by various updated reports and studies. The development proposal now before the Tribunal proposes a 16-lot residential plan of condominium serviced by municipal water and private septic systems (“proposed development”).
10During the commenting process, new information arose, which raised concerns regarding the adequacy of the municipal water supply to service the proposed development. Consequently, the fourth submission proposed a Holding Symbol as part of the implementing by-law to phase the proposed development, permitting the development of four dwellings as a first phase with the remainder of the proposed development not occurring until the Township water supply upgrades had been completed. The settlement between the Appellant, Township, and County, as further described below, addressed the water supply upgrades that allowed the Holding Symbol to be removed from the ZBA.
11In order to permit the proposed development, a ZBA is required to permit the proposed residential land use, being Hamlet Residential type with limited modifications. The ZBA amends the zone category of the subject property on Map No. 12 and further rezones the subject property from FD-4-Future Development Zone with Exception 4 to a HR – Hamlet Residential Exception-36 (HR-36) Zone and Environmental Protection (EP) Zone, with modifications, all of which are set out in Attachment 1.
12The Draft Plan is also required to permit the nature/form of residential land use. Throughout the hearing, the Parties referred to a plan set out in Tab 6kk, Exhibit 5, labelled “Preliminary Servicing and Grading Plan”, dated April 6, 2023 which depicts, among other things, a 16-lot residential Plan of Condominium development to the west of Heritage Line, a private common element road allowance, and two drainage easements.
13The Draft Plan Conditions (“Conditions”) set out in Attachment 2 have been agreed to by the Appellant, County, and Township.
DAVID EARL’S MOTION
14At the outset of the hearing, the Tribunal considered a motion brought by Mr. Earl seeking an Order extending the time for service and filing of his Engineer’s Witness Statement (“Engineer WS”) (“Motion”) and a further Order abridging time for service of the Motion. Mr. Earl served a Notice of Motion on June 26, 2024 with an amended Notice of Motion being served on June 27, 2024, which amendment was limited to scoping the relief being sought.
Abridgement of Time for Service of Notice of Motion
15The Appellant, County, and Township provided written submissions regarding the Notice of Motion being served outside of the timeframe required by the OLT Rules of Practice and Procedure (“Rules”). The Tribunal notes that service of the original Notice of Motion would require an abridgment of one day and the amended Notice of Motion would require an abridgment of two days. The Tribunal finds that the Parties were aware of the Motion when served with the original Notice of Motion 14 days in advance of the hearing, which would require an abridgment of one day. Neither the Appellant, County, nor Township made compelling written or oral arguments to establish any prejudice suffered as a result of the delay of service of the Notice of Motion. The Tribunal accordingly abridged the filing deadline and heard the Motion.
Motion to Extend Time for Service of Witness Statement
16For context, pursuant to the Procedural Order (“PO”), the deadline for the exchange of witness statements was May 31, 2024. The Appellant exchanged its expert witness statements on May 31, 2024, and Mr. Earl exchanged his lay witness statement on May 31, 2024 and his Engineer WS on June 12, 2024.
Moving Party Submissions
17Counsel for Mr. Earl submitted that the stormwater management (“SWM”) related to the proposed development is confusing and lacks clarity. It was further submitted that the SWM proposal is “unusual”, thereby requiring a more comprehensive review, including a peer review by the County and/or Township, which was not undertaken. Counsel for Mr. Earl noted that “red flags” were raised when the County failed to update its website with current information regarding the proposed development, including the most recent iteration of the SWM Plan, and again when neither the Township nor County filed any witness statements during the Appeal process.
18During oral submissions, Counsel for Mr. Earl reviewed a chronology highlighting that it was not until the meeting of experts on May 28, 2024, that Mr. Earl’s Engineer received the final SWM report thereby making it impossible for him to conduct a thorough review and subsequently prepare a witness statement by the deadline of May 31, 2024. It was argued that there was no prejudice suffered by the Appellant, County, or Township resulting from the late filing of the Engineer WS, and the only potential prejudice to the Tribunal denying the Motion would be suffered by Mr. Earl.
Responding Parties’ Submissions
19The Appellant, County, and Township were aligned in their response to the Motion. The Appellant submitted that Mr. Earl’s participation in the appeal has consistently lacked procedural compliance, including:
filing a Party Status request three days prior to the CMC as opposed to ten days prior to the CMC as required pursuant to the Notice of CMC;
failure to file the Engineer’s curriculum vitae and Acknowledgment of Expert’s Duty with the witness list as required pursuant to the PO;
failure of Mr. Earl’s Engineer to participate in the experts’ meeting by the deadline set out in the PO; and
failure of Mr. Earl to request an extension for the filing of the Engineer WS from the Parties or the Tribunal.
20The Appellant argued that Mr. Earl continuously breached deadlines and directives imposed in the PO and submitted that not only did his Engineer fail to attend the experts’ meeting held prior to the PO imposed deadline, he did not respond to any correspondence between the experts to set up the meeting until the deadline had passed. The late filed Engineer WS resulted in Mr. Earl’s Engineer having the advantage of being able to review and respond to the witness statements of the Appellant’s experts, which were delivered on time, resulting in a procedural advantage to Mr. Earl and prejudice to the Appellant.
21The County and Township adopted the submissions of the Appellant and further submitted that neither Approval Authorities identified SWM as an issue or a concern at any point in time during the Application or Appeal process, and the onus was on Mr. Earl to produce evidence in support of his case, rather than relying on the Approval Authorities to file witness statements. Further, it was submitted that once the Appeal was filed, the Approval Authority became the Tribunal, and the County was no longer obliged to ensure that documents on its website relating to the proposed development were current, rather, Mr. Earl had access to all relevant documents pursuant to the disclosure process, which is inherent throughout the Appeal process.
Ruling on the Motion
22Upon reading the submissions and hearing the detailed oral arguments of the Parties, the Tribunal denied the Motion. The Tribunal has well-recognized powers to control the conduct of its hearings and adopt practices in order to offer the best opportunity for a fair, just, and expeditious resolution of the merits of a hearing pursuant to ss. 12(2) and 13 of the OLTA and Rule 1.3 of the Rules. The Tribunal finds that all Parties had ample opportunity to adhere to the Rules and the directives set out in the PO. The Tribunal stresses, as it has done so in past decisions, that directives and deadlines set out in a PO are orders, not suggestions, and they require compliance.
23In order to ensure that the Tribunal’s processes are fair, just, and expeditious to allow Parties, and the Tribunal, to properly prepare and avoid any delay adequate notice and compliance with deadlines set out in a PO are the default. Deviation from directives and deadlines should only be permitted where it is clear to the Tribunal that adherence is not possible and the relief requested is required to ensure an appropriate and just outcome. The Tribunal finds that the present Motion is not a case that warrants deviation from the deadlines in the PO.
24The Tribunal finds that, based on the evidence before it, allowing the requested relief would not result in an appropriate and just outcome. Central to the argument presented by Mr. Earl was that all Parties became aware of an error in the SWM report during the meeting his Engineer had with the Appellant’s experts on May 28, 2024 and this led to the late filing of the Engineer WS. The Tribunal notes that this is one of the reasons for spacing out deadlines in a PO and the necessity for all Parties to comply with same. The experts’ meeting was to take place at least one week prior to the deadline for exchange of witness statements to allow time to review items arising out of the experts’ meeting, such as errors in reports. There was no explanation provided to the Tribunal as to why the Engineer did not make himself available for the experts’ meeting prior to the deadline imposed in the PO. Further, there was no explanation provided to the Tribunal explaining why Mr. Earl’s Engineer did not file any witness statement by the deadline. The Tribunal heard that the Engineer was out of the country for a period of time during May 2024, however, he did not advise the Appellant’s experts of his limited availability, he did not respond to correspondence from the Appellant’s experts attempting to set up the experts’ meeting, nor did he make any effort whatsoever to arrange the experts’ meeting prior to his absence or the deadline passing. It was incumbent upon Mr. Earl’s Engineer to be aware of the deadlines and adhere to them, and if unexpected circumstances arose, Mr. Earl or his representatives should have communicated this with the other Parties and the Tribunal.
25The Tribunal agrees with the Appellant’s argument regarding procedural advantage, and the Tribunal finds it is fundamentally unfair for Mr. Earl’s Engineer to have the Appellant’s witness statements in hand when preparing his own witness statement - it is effectively allowing a response to the Appellant’s witness statements, which a third Party is not permitted to do. The Tribunal cannot allow one Party to benefit from non-compliance to the detriment of others. The Parties have been preparing for the hearing, and the exchange of expert witness statements is an important part of this process as it will potentially highlight the crux of the dispute and possibly scope disputed issues, all of which assists in achieving an efficient hearing process.
26Given the Tribunal’s ruling to dispose of the Motion for non-compliance with deadlines, the Tribunal will not consider the Appellant’s submissions regarding authorship of the Engineer WS and the independence of Mr. Earl’s Engineer. The Tribunal further did not consider, nor award, costs and reminded the Parties that Rule 23 of the Rules governs motions for costs and directs that any such motions be brought following the conclusion of a hearing event.
MERIT HEARING
27The Tribunal had the benefit of testimony and opinion evidence from the following experts called by the Appellant, who were duly affirmed and qualified by the Tribunal in their respective fields:
Chris Proctor – land development engineering
Kevin Duguay – land use planning
28The Tribunal also had the benefit of lay testimony proffered by Mr. Earl on his own behalf. As a result of the settlement, there were no experts called by the County or the Township, however, Counsel was present throughout the hearing and did question witnesses and make submissions.
Partial Settlement
29At the commencement of the hearing, the Tribunal was advised that the Appellant, County, and Township had reached a settlement for the consideration of the Tribunal.
30The Tribunal received a Supplemental Joint Document Book, entered as Exhibit 6, which contained at Tab 1 the executed Minutes of Settlement between the Appellant, County, and Township. The County and Township had limited its issue on the Issues List (“IL”) appended to the PO to Issue 1, being whether the ZBA and Draft Plan meet the legislative tests under the Act. During opening submissions, Counsel for the County and Township submitted that the crux of the concern had always been the adequacy of the supply of drinking water to the proposed development, and through continued discussions, a resolution was reached with the Appellant. The Tribunal was advised that the Appellant’s experts would present the settlement to the Tribunal on behalf of all Parties to the settlement.
31Mr. Duguay provided the Tribunal with uncontroverted land use planning evidence in support of the proposed settlement. Mr. Duguay explained that a ZBA is required as the standard regulations of the Hamlet residential zone require a minimum lot area and lot frontage, which differ from those that are proposed. He explained that the Holding Symbol is no longer required as it was determined that a modest update to the water system would result in Township water supply being available to the proposed development, and through discussions, the Appellant agreed to incur the cost of the water system update. Mr. Duguay also reviewed Map 12 of the ZBL set out in Tab 1, Exhibit 5 noting that the adjacent residential properties to the west are all zoned HR, which is the common zoning applied to low density in the Hamlet of Keene. Mr. Duguay opined that the site-specific amendments are suitable and appropriate, including the small portion in the northwest of the subject property that is proposed to be zoned EP.
32Mr. Duguay spent considerable time during his direct examination reviewing the proposed Conditions demonstrating that they had been drafted with the concerns of Mr. Milne and Mr. Earl in mind. Mr. Duguay explained that condition 7 addressed a concern of Mr. Milne as it would ensure the availability of a sufficient supply of drinking water to service the proposed development prior to final approval and registration of the Plan of Condominium. As part of the settlement, the Appellant and Township will enter into the Keene Water System Review and Servicing Agreement (“KWSRS Agreement”), which has further Township Council approvals built into it. The Appellant submitted that the upgrades to the water servicing were financially achievable, and pursuant to the KWSRS Agreement, the cost of the upgrades would be borne by the Appellant, not the taxpayers.
33In conclusion, Mr. Duguay testified that Mr. Milne’s main concerns were addressed as follows:
safety - the Township would ensure that the provision of water met provincial standards;
increased cost – no increase to existing users as the Appellant is incurring the cost of the system upgrade and the condominium units will pay based on their use;
increased water demand – the condominium will not be approved if it will be a detriment to other users, which is addressed through further Township Council approvals; and
degradation of service – additional service will not impact service provision, and a review process has been mandated through the KWSRS Agreement.
34Mr. Duguay reviewed a number of conditions included to address the concerns raised by Mr. Earl, including but not limited to a condominium agreement being entered into between the Appellant and the Township and the registration of that agreement on title. Further, conditions 16, 17, and 18 require further approval of both the Otonabee Region Conservation Authority (“ORCA”) and Township with respect to items such as grading, SWM, and erosion and sediment control. Finally, condition 25 requires that the condominium agreement between the Appellant and the Township contain wording acceptable to ORCA to ensure that items such as final plans will become part of the condominium agreement.
35Mr. Duguay and Mr. Proctor both opined that the Conditions are appropriate and reasonable. The Appellant submitted that through the settlement, the Conditions were thoughtfully drafted and agreed to by the County and Township and included conditions to address concerns raised in Mr. Milne’s participant statement and concerns raised by Mr. Earl.
36Mr. Duguay opined that overall, the ZBA, Draft Plan, and Conditions are consistent with the directives of the Provincial Policy Statement, 2020 (“PPS”) and conform with the policy directives of the A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“Growth Plan”). He noted that when the Applications were filed, the County had not yet approved the 2022 County OP, and in his opinion, the Applications conform with both the former and current County OPs and the Township OP. Mr. Duguay further opined that the Applications were in keeping with the general purpose and intent of the regulatory provisions of the ZBL and will facilitate an appropriate form of residential development within a designated Hamlet having a built form and scale of development compatible with the area land uses and are representative of good planning.
37Mr. Earl was not part of the settlement discussions and did not consent to the proposed settlement. For clarity, Mr. Earl’s concerns were limited to Issue 2 on the IL relating to SWM. During closing submissions, Counsel for Mr. Earl submitted that they agreed with the proposed ZBA and were pleased with the addition of the EP zone at the northwest of the subject property.
38Given the agreement of the Parties on the proposed ZBA, the Tribunal will focus on the sole remaining contested issue of SWM.
Stormwater Management Issue
39Despite the settlement agreement amongst the Appellant, County, and Township, Mr. Earl’s issue remains in dispute. At the commencement of the hearing, Counsel for Mr. Earl advised the Tribunal that he had withdrawn Issue 2(b) from the IL, however, Issue 2(a) remained in dispute and reads as follows:
With respect to Party David Earl, a party to the matter on a scoped basis pursuant to the Case Management Conference direction, and subject to response from the other parties, the following issues:
a. Whether the stormwater management for the proposed development meets the above legal tests on this appeal.
The legal tests referred to in Issue 2(a) were noted in Issue 1 and refer to the legislative tests under the Act.
40Through affidavit evidence and brief oral testimony, Mr. Earl provided a thorough explanation of the potential impacts that the proposed development would have on his property. Mr. Earl maintained that he is not opposed to development on the subject property, and his main concern relates to his family’s safety and the safety of his property with the additional water that he asserts will be directed to his property from the proposed development. Mr. Earl’s property contains a watercourse that reaches the top of bank during the spring freshet1, and his concern is that additional water may cause the top of bank to be breached, especially during the spring freshet, thereby potentially flooding his property and putting his family, residence, and accessory building at risk. During oral testimony, he noted that an engineer should complete a study during a time when there is water in the watercourse on his property to determine any impacts. He confirmed that despite the reports and studies completed by the Appellant to the satisfaction of the County and Township, he continues to have concerns that the amount of water flowing at certain times of the year will cause negative impacts.
41Counsel for Mr. Earl primarily relied upon s. 1.1.1 of the PPS and policies contained in the Township OP, particularly s. 3.3, to support the position that principles of development must take into account circumstances that may cause a safety concern. It was argued that the use of the word “may” in s. 1.1.1 of the PPS meant that the proposed development must be assessed as to whether it may cause safety concerns. Counsel for Mr. Earl argued that the evidence demonstrated that Mr. Earl’s property may be adversely impacted by post-development water flows arising from the proposed development, and s. 1.1.1 is thereby not satisfied. During cross-examination, Mr. Duguay agreed with this interpretation of the meaning of s. 1.1.1 of the PPS. However, Mr. Duguay disagreed that Mr. Earl’s property would be adversely impacted by post-development water flows, as he was satisfied that the work completed by Mr. Proctor and D.M. Wills demonstrated that less water would be directed to Mr. Earl’s property post-development.
42Counsel for Mr. Earl argued that the Conditions do not adequately protect Mr. Earl and pointed out that the perimeter swales form an important part of the proposed SWM plan, and as such, the Conditions should require the perimeter swales to be easements under the control of the Condominium Corporation to avoid private property owners being in a position to modify or change these components. Further, he argued that the Conditions lack enforceability and legal mechanisms are required to prevent future homeowners from altering the grading of their individual lots. During cross examination, Mr. Duguay opined that the perimeter swales did not require formal easements but rather could be addressed by way of a formal condominium agreement. He responded to Mr. Earl’s concern noting that there will likely be restrictions on title preventing homeowners from altering the perimeter swales, and he further noted that the Township is the Approval Authority and responsible for SWM through the settlement agreement.
43Counsel for Mr. Earl reviewed the Preliminary Stormwater Management Report dated April 2023 (“SWM Report”) prepared by Mr. Proctor. He argued that the assumptions, such as infiltration rate and post-development water quantity, require validation, however, neither the Township nor County had the SWM Report peer reviewed.
44Counsel for Mr. Earl argued that an evaluation of the SWM Report and the SWM scheme could not be conducted until mid-June 2024 due to errors contained in the SWM Report as detailed in paragraph 48 below. Counsel for Mr. Earl submitted that the basic assumptions made by Mr. Proctor require evaluation as he estimates less water will flow to the north as reflected in Outlet 1 and it is Mr. Earl’s position that the 8.5 percent impervious area noted in Mr. Proctor’s computer modelling is not feasible nor realistic and does not account for additional development taking place on individual lots, which they further note is not precluded by the proposed ZBA.
45During cross-examination of Mr. Proctor, Counsel for Mr. Earl raised questions about the increase in impervious areas in the proposed development, and Mr. Proctor opined that even if the projections are incorrect, there is a significant factor of safety of 5 percent built into the assumptions. He did not agree with Counsel for Mr. Earl’s suggestion to include additional conditions to provide further protection for Mr. Earl, as it was Mr. Proctor’s opinion that the proposed Conditions were drafted to ensure that there would not be post development changes to abutting properties.
46The Appellant argued that, regarding SWM, the Tribunal only has before it the uncontested expert evidence of the Appellant’s witnesses and Mr. Earl never intended to bring land use planning evidence in support of his position. Mr. Earl provided the Tribunal with a design critique as opposed to a planning review. Further, there was no evidence put to the Tribunal that the proposed development facilitated by the ZBA and Draft Plan would result in additional water, or any adverse impacts, on Mr. Earl’s property, this was merely apprehension.
47The Appellant explained that the SWM for the proposed development was provided for in a variety of ways, including roadside ditches, which include a clear stone infiltration layer, surface drainage, and flow spreaders. Drainage from the proposed development would be divided between three primary outlet locations, which were described as Outlet 1, Outlet 2, and Outlet 3. Overall, the Appellant argued that the SWM plan is preliminary and demonstrates that the stormwater features can be accommodated on the subject property, they include safety factors, and refinement is ongoing with further input from relevant agencies and Approval Authorities.
48During his direct examination, Mr. Proctor advised the Tribunal that the error that Counsel for Mr. Earl referred to in his Motion submissions and in paragraph 44 above was a clerical error wherein the incorrect hydrology sheets were attached to his SWM Report, however, it did not change the SWM design nor his findings in the SWM Report. Mr. Proctor went through a detailed review of his proposed SWM design and described the three outlets that will receive water from the proposed development, highlighting that Outlet 1 discharges directly to a water feature in close proximity to Mr. Earl’s property. He explained that post development, the catchment areas for Outlets 1 and 2 were considerably reduced thereby reducing the drainage area. He further explained that the proposed SWM plan incorporated mechanisms to control the flow, such as ditch drains and flow spreaders, which further reduce risks to adjacent landowners and, in his opinion, is an improvement from existing conditions.
49Mr. Proctor confirmed that the mechanisms to control the quality and quantity of water from the proposed development would become part of the condominium corporation, which would collect fees from condominium owners to maintain those common elements. He confirmed that pursuant to the Condominium Act, 1998, S.O. 1998, c. 19, as amended, the condominium corporation is required to retain Engineers to assess the condition of the common elements and advise when maintenance or upgrades are necessary. In addition, a detailed operation and maintenance plan would be completed by the Appellant and provided to the condominium corporation regarding the maintenance of the SWM facilities. The Appellant disagreed with Counsel for Mr. Earl’s concerns regarding the risks associated with the SWM components located on private property. It was argued that the Township’s continued involvement will ensure future owners comply with requirements, and further, the Condominium Agreement will be registered on title and run with the land, which is one of the highest protections as it is enforceable and provides public notice.
50The Appellant disagreed with Counsel for Mr. Earl’s submissions regarding the infiltration rate and lot coverage. Mr. Proctor explained that the impervious factor was based on modelling created using average houses/lot development in a nearby area, factors of safety were built into the assumptions, and that the location and sizes of the houses will likely change during the refinement process. Mr. Duguay noted that the maximum permitted 40 percent built area on a lot pursuant to the ZBL is not achievable given setbacks, septic systems, and other constraints. It was put forward that the septic systems alone will constrain the upper limit of the houses that can be built on each lot.
51Mr. Duguay reviewed s. 1.1.1 of the PPS and testified that the Applications represent an efficient residential land use that avoids environmental concerns on lands that are in a designated settlement area. Further, pursuant to s. 1.6.6.4 of the PPS, Mr. Duguay confirmed that he participated in meetings with civil engineers and local health units regarding the water and sewage services and was satisfied that the adequacy of these services has been addressed through the completion of various technical/background reports. He agreed with Mr. Proctor that the level of scrutiny and detail at this point in the planning process is exceptional and was necessary to respond to the requirements of the ORCA.
52Mr. Duguay took the Tribunal to s. 3.2.7 of the Growth Plan and opined that the proposed Draft Plan will not rely on stormwater ponds as it incorporates appropriate SWM controls, including low-impact development measures, and this approach included the active involvement of ORCA due to the wetland to the north of the subject property. The Appellant noted that ORCA involvement was partly to ensure that enough water would continue to flow to the wetland to the north, as a wetland needs to remain “wet enough” to ensure its ongoing health. Mr. Proctor explained that this will be achieved while at the same time ensuring that Mr. Earl’s property receives improved conditions and less flood risk than it currently experiences.
53The position of the County and Township regarding SWM is that the principle of the overall development has been addressed and the legislative tests, including the satisfaction of the criteria set out in s. 51(24) of the Act, have been met, as attested to by the uncontroverted evidence of Mr. Duguay and Mr. Proctor. The SWM design is an ongoing process, and plans will become formalized after Draft Plan approval has been issued. The County and Township stressed that neither Approval Authority identified SWM as an issue at any point during the Application process, nor did the ORCA attend the CMC or the hearing to provide evidence that SWM had not been sufficiently addressed.
ANALYSIS AND FINDINGS
54Following a careful and thorough review of the evidence against the relevant legislation and policy, the Tribunal will allow the appeal and approve the ZBA and Draft Plan with Conditions in principle. As provided below, the Tribunal acknowledges Mr. Earl’s concerns, however, found that the evidence demonstrated that the concerns amounted to apprehensions and, as opposed to adversely affecting Mr. Earl’s property, the proposed development will likely result in an improvement for Mr. Earl.
55At the conclusion of the hearing, the ZBA was no longer being contested by any Party, however, the Tribunal still must be satisfied that it meets the legislative tests. In considering the ZBA Appeal, the Tribunal must have regard to those matters of Provincial interest set out in s. 2 of the Act and be satisfied, pursuant to s. 3(5) of the Act, that the ZBA, as it will permit the proposed development, is consistent with the PPS. The ZBA must also conform to or not conflict with the Growth Plan, County OP and Township OP and represent good planning in the public interest.
56Based upon the Experts’ evidence, the Tribunal concludes that the ZBA is consistent with the policies of the PPS that apply to the proposed development and conforms with the Growth Plan, County OP, and Township OP. The ZBA, as it will enable the proposed development, generally represents good planning in the public interest.
57In considering the Draft Plan, the Tribunal must determine whether the Draft Plan, with such Conditions that may be required to effectively implement the Draft Plan, have due regard for the criteria set out in s. 51(24) of the Act. Subject to any site-specific issues that may arise within the criteria, in considering the Draft Plan the Tribunal must ensure the tests set out in paragraph 55 above are met, in addition to confirming that: the Draft Plan conforms to adjacent plans of subdivision, if any; the Draft Plan is not premature and is in the public interest; the subject property is suitable for the proposed Draft Plan; and that the Draft Plan with the Conditions represents good planning. The Tribunal must also have regard to the materials and information that Council had before it.
58With regard to the proposed Conditions, pursuant to s. 51(25) of the Act, the Tribunal must be satisfied that the Conditions are appropriate and reasonable, having regard to the nature of the proposed Draft Plan.
59The impacts arising from the development of the currently vacant subject property will be mitigated in various ways, including the mechanisms built into the SWM plan. The plans and SWM Report demonstrate that any impacts from the proposed development will be mitigated to a trivial level, or will improve the existing conditions, for occupants of abutting properties. Further, there will be additional reviews and approvals required from the Township, County, and ORCA as the proposed development progresses through the planning stages. The Tribunal finds that the feasibility of the proposed development, which will be implemented through the ZBA, Draft Plan, and Conditions, has been demonstrated by the Appellant.
60The Tribunal notes that the lack of decision on the Applications by the County and Township was largely based on concerns over supply of drinking water to the proposed development. The position of the County and Township evolved through continued discussions leading to settlement of the one issue raised by the Approval Authorities. The Appellant’s Experts recommended that the Tribunal approve the ZBA, Draft Plan, and Conditions based on their conclusions that they satisfy all applicable requirements, and based on the evidence, the Tribunal agrees. Of note, condition 7 requires the Township to confirm to the Approval Authority that there is sufficient water supply available to service the proposed development prior to final approval of the Plan of Condominium. This is one of many examples demonstrating that the Conditions are reasonable and appropriate in this circumstance.
61The Tribunal is unable to make a finding in favour of Mr. Earl based on apprehensions in the absence of supporting reports, studies, or opinion. The Tribunal heard uncontroverted opinion evidence in support of the Applications, which demonstrated that the proposed development, including the SWM, can be reasonably achieved and further, that the ZBA, Draft Plan, and Conditions meet the legislative tests. The Tribunal cannot agree with Mr. Earl that s. 1.1.1 of the PPS has not been satisfied as there was no evidence demonstrating that the proposed development may cause safety concerns. The Joint Document Book entered as Exhibit 5 contained a large number of reports and studies showing that the proposed development is achievable and, in fact, will direct less water to Mr. Earl’s property post-development.
62Mr. Earl’s submissions to include further conditions was not persuasive. The Tribunal preferred the opinions of the Appellant’s Experts that any reasonable conditions have been included and additional conditions were not relevant nor necessary. Mr. Duguay provided the Tribunal with a detailed review of the Conditions describing how they would address the concerns raised by Mr. Milne and Mr. Earl. The Conditions, including the provision for the KWSRS, are reasonable, well thought out, and appropriate, and the Tribunal does not find that any further conditions are necessary.
63The Tribunal finds that the alleged errors raised by Mr. Earl regarding the SWM Report do not warrant dismissal of the appeal. The Tribunal was not convinced that the errors were in fact anything more than clerical errors, as Mr. Proctor acknowledged that the incorrect pdf attachment did not impact his analysis nor the results. The Tribunal did note Counsel for Mr. Earl’s closing comment that they were “trying to pre-emp problems” so that Mr. Earl would not need to deal with issues at a later date. This comment supports the Appellant’s submission that Mr. Earl’s concerns amount to apprehensions, and the Tribunal will not make rulings based on apprehensions in the absence of evidence.
64The Tribunal finds that the ZBA and Draft Plan have regard to matters of Provincial interest. One example the Tribunal would point out is the protection of ecological systems which Mr. Proctor demonstrated is achieved through the requirement that ORCA be satisfied that the surrounding wetlands remain protected, including, that they would continue to receive sufficient water to remain healthy. Further, the proposed development promotes a built form that is well designed in its achievement of a balance between providing much needed residential housing with low impact development methods in its SWM design.
65The Tribunal accepts the uncontradicted Experts’ evidence and finds that the proposed Draft Plan with the recommended Conditions are consistent with the PPS, conform to the Growth Plan, County OP, and Township OP and address the criteria set out in s. 51(24) of the Act. The Tribunal was persuaded by Mr. Duguay’s evidence that the proposed development is not premature and that based on the opinions of the experts and the large volume of technical studies and reports, it meets the criteria set out in s. 51(24). The Tribunal further finds that pursuant to s. 51(25) of the Act, the proposed Conditions are appropriate and reasonable, having regard to the nature of the proposed Draft Plan, represent good planning, and will implement and permit the proposed Draft Plan.
66The Tribunal awaits the submission by the Appellant of final drafts of the ZBA (with all references to the Holding Symbol removed) and Draft Plan generally as set out in Tab 6ll, Exhibit 5, and the Tribunal will issue a Final Order once the Tribunal has received, reviewed, and approved same.
INTERIM ORDER
67THE TRIBUNAL ORDERS THAT the appeal pursuant to s. 34(11) of the Planning Act is allowed in part, on an interim basis, and that the Zoning By-law Amendment set out in Attachment 1 to this Interim Order is hereby approved in principle. The Final Order amending the Township of Otonabee-South Monaghan By-law No. 2010-65, as amended, is withheld pending receipt by the Tribunal of the final form of Zoning By-law Amendment, confirmed to be satisfactory to the Township of Otonabee-South Monaghan, for the review and approval of the Tribunal.
68THE TRIBUNAL FURTHER ORDERS THAT the appeal pursuant to s. 51(34) of the Planning Act is allowed in part, on an interim basis, and that the Draft Plan of Condominium shown on the plan prepared by D.M. Wills Associates Limited dated April 6, 2023 is approved in principle generally in accordance with the draft plan filed in evidence as Tab 6ll Exhibit 5, subject to the Conditions set out in Attachment 2 to this Order. The Final Order is withheld pending receipt by the Tribunal of the final form of Draft Plan of Condominium, confirmed to be satisfactory to the County of Peterborough, for the review and approval of the Tribunal.
69The Parties shall submit the final form of Zoning By-law Amendment and Draft Plan of Condominium as set out in paragraphs 67 and 68 and request a Final Order from the Tribunal by September 6, 2024. If the Parties do not submit the final drafts and request the Final Order by September 6, 2024, the Appellant, County, and Township shall provide a written status update to the Tribunal by that date.
70The Member will remain seized for the purposes of reviewing and approving the final draft of the Zoning By-law Amendment and the Draft Plan of Condominium and the issuance of the Final Order.
71This Member may be spoken to should issues arise in the implementation of this Order.
“C. Hardy”
c. hardy
vice-chair
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.
ATTACHMENT 1
THE CORPORATION OF THE
TOWNSHIP OF OTONABEE-SOUTH MONAGHAN
BY-LAW NO. 2024-XX
Being a By-law under the provisions of Sections 34 of the Planning Act, R.S.O. 1990, c. P.13, as amended, to amend By-law No. 2010-65, as amended, the Township of Otonabee-South Monaghan Comprehensive Zoning By-law, with respect to certain lands located in Part of Lots 13 and 14, Concession 6, Otonabee Ward, Township of Otonabee-South Monaghan.
WHEREAS By-law No. 2010-65 was passed under the authority of Section 34 of the Planning Act, R.S.O. 1990, c. P.13, as amended, and regulates the use of land and the use and erection of buildings and structures within the Township of Otonabee-South Monaghan;
AND WHEREAS the Council of the Township of Otonabee-South Monaghan conducted a public meeting in regard of the subject application as required by Section 34(12) of the Planning Act, R.S.O. 1990, as amended;
AND WHEREAS Section 34 of the Planning Act, R.S.O. 1990, as amended, permits Council to pass an amending Zoning By-law, and the Council of the Township of Otonabee-South Monaghan deems it advisable to amend By-law No. 2010-65 with respect to the lands described in this By-law;
AND WHEREAS the matters herein are in conformity with the provisions of the Official Plan of the Township of Otonabee-South Monaghan;
NOW THEREFORE the Council of the Township of Otonabee-South Monaghan hereby enacts as follows:
- THAT By-law No. 2010-65, as amended, is hereby amended as follows:
(a) Map No. 12 of Schedule “A” of By-law No. 2010-65 is hereby amended by changing the zone category of certain lands located in Part of Lots 13 and 14, Concession 6, in the geographic Township of Otonabee from the Future Development-4 (FD-4) Zone to a site-specific Hamlet Residential Exception-36~~-H~~ (HR-36) Zone and the Environmental Protection (EP) Zone as shown on Schedule “A” attached hereto and forming part of this By-law.
(b) Section 8.4 of By-law No. 2010-65, as amended, entitled “Special Hamlet Residential (HR) Zones,” is hereby amended by the addition of a new subsection numbered 8.4.36, which shall read as follows:
“8.4.36 Hamlet Residential-36~~-H~~ (HR-36) Zone
Notwithstanding any other provisions of this By-law to the contrary, within the Hamlet Residential-36 (HR-36) Zone the following provisions shall apply:
a) Special Provisions
i) A building or structure may be erected on a property with frontage only on a private condominium road. For the purposes of measuring lot frontage, the front lot line may be considered the lot line abutting a private condominium road.
b) Lot Regulations
Lot regulations of Section 8.2 apply with the exception of the following:
i) Minimum Lot Area 1,615.0 sq. m
ii) Minimum Lot Frontage
on a private condominium road 22.0 m
All other provisions of the Hamlet Residential (HR) Zone shall apply.”
All other provisions of By-law No. 2010-65, as amended, shall apply.
This By-law shall become effective on the date that it is passed by the Council of the Township of Otonabee-South Monaghan, subject to the provisions of Section 34 of the Planning Act, R.S.O. 1990, as amended.
The Clerk is hereby authorized and directed to proceed with the giving of notice under Section 34(18) of the Planning Act, R.S.O. 1990, as amended.
READ a first and second time this XXth day of July, 2024.
READ a third time and finally passed this XXth day of July, 2024.
MAYOR JOE TAYLOR CLERK HEATHER SCOTT