Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 19, 2024

CASE NO(S).: OLT-22-003082 Formerly PL200497

PROCEEDING COMMENCED UNDER subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: Roger Buurma

Subject: Site Plan

Property Address/Description: 25700 Kerwood Road

Municipality: Township of Adelaide Metcalfe

OLT Case No.: OLT-22-003082

Legacy Case No.: PL200497

OLT Lead Case No.: OLT-22-003082

Legacy Lead Case No.: PL200497

OLT Case Name: Buurma v. Adelaide Metcalfe (Township)

PROCEEDING COMMENCED UNDER subsection 36(3) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Roger Buurma

Subject: Removal of Holding Symbol: Zoning By-law No. 34-2007 – Failure of the Township of Adelaide Metcalfe to announce a decision on the application

Property Address/Description: 25700 Kerwood Road

Municipality: Township of Adelaide Metcalfe

OLT Case No.: OLT-22-003083

Legacy Case No.: PL200554

OLT Lead Case No.: OLT-22-003082

Legacy Lead Case No.: PL200497

Heard: April 15 – 24, 2024 by Video Hearing May 31, 2024 In Writing

APPEARANCES:

Parties	Counsel
Roger Burma	Eric Davis, Trent Johnson
Township of Adelaide Metcalfe	Analee J.M. Baroudi

DECISION DELIVERED BY G.A. CROSER AND INTERIM ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This Merit Hearing was convened for appeals brought pursuant to s. 41(12) and 36(3) of the Planning Act (“Act”) on an application for Site Plan Approval (“SPA”) and an application to Remove a Holding Provision (“HPA”) respectively. The SPA and HPA (collectively, the “Applications”) are required to facilitate the construction of a proposed Storage Facility to be built at the property known municipally as 25700 Kerwood Road (“Subject Lands”). The Township of Adelaide Metcalfe (“Township”) failed to make decisions within the statutory timeframes on these applications which were filed by Roger Burma (the “Appellant”).

2The Appellant is seeking to develop a Storage Facility on the Subject Lands which will have the capacity to store a maximum of 110,000 metres cubed of “slow-release fertilizer biosolid pellet[s]”. This product is a permitted and regulated type of fertilizer in Ontario; the product itself is not ‘on trial’. The use of this fertilizer product in agricultural operations was not denied by the Township, nor was the right to store the product on appropriately zoned lands. It was acknowledged by the Parties at the Hearing that the proposed Storage Facility would be the first of its kind in Ontario and would be on a scale previously unseen by any of the 11 expert witnesses present at the Hearing, including those who resided and worked in the United States of America (“U.S.A.”) where this particular type of fertilizer is produced.

POSITION OF THE PARTIES

3The Parties agreed that, in the Township, outdoor storage is a generally permitted use in areas zoned ‘Industrial’. As the Subject Lands are currently used for agricultural field crop production and are zoned for Industrial uses, no Zoning by-law Amendment (“ZBA”) or Official Plan Amendment (“OPA”) would be required to develop a portion of the site for storage. The Township’s revised Issues List raised no concerns with respect to the size and scale of the proposed facility; however, the Township was opposed to the Appellant’s proposed method of storing the fertilizer on site.

4Counsel for the Township noted in their opening remarks that the Township’s position was that the Holding Provision could be lifted if the Tribunal approved the SPA. The Township’s focus at the Hearing was the SPA and no evidence was tendered with respect to the HPA. It was the position of the Township that site plan approvals under the Act cannot occur if there are public health and safety concerns. Consequently, granting the SPA in this matter would be premature and not in the public interest given the Township’s outstanding concerns in relation to odour, fire, dust, and stormwater run-off. The Township acknowledged that this fertilizer is a legal product; however, it had concerns with respect to the unproven method of storage proposed by the SPA and asserted that it was not the Township’s role to engineer an appropriate structure for the volume of product to be stored on the Subject Lands.

5The Appellant’s view was that the storage of the fertilizer in significant quantities (and in close proximity to locations of its use) is important to meet market demand in the seasonal timeframes when the nutrients must be applied. This benefits local agricultural operations and utilizes a renewable source (the fertilizer). The Appellant stated that the relevant ‘legislative tests’ had been met, and that the Ministry of the Environment, Conservation and Parks (“MECP”) and Ontario Ministry of Agriculture, Food and Rural Affairs (“OMAFRA”), had the authority to regulate the proposed Storage Facility with respect to odours, other potential contaminants, and ensuring that the public would not be adversely affected by the Storage Facility.

TRIBUNAL’S FINDING

6In the Tribunal’s view, the Township’s concerns related to odour, dust, fire, and proper stormwater management of the runoff have been thoroughly considered in the Appellant’s engineered design of the facility and associated studies and reports. The Tribunal is satisfied that the Township’s concerns with respect to protection of groundwater, public health and safety have been adequately allayed by the Appellant. The Appeals are allowed in part. The site plans are approved, subject to the conditions set out in paragraph [120A]. The HPA on the Subject Lands will be lifted once the Final Order has been issued.

DESCRIPTION OF SUBJECT LANDS

7The Subject Lands are triangular, bordering on three roads and have a total area of approximately 38.3 hectares (“ha”). At present, there is access to the site via a driveway along Kerwood Drive and an informal entrance from Winter Drive. There are no Municipal services to the Subject Lands, and none are required for the proposed Storage Facility. Storm drainage for the surrounding roads is provided via roadside ditches and culverts which ultimately outlet to the East Sydenham River northwest of the Subject Lands. There are no natural features or Municipal drains on site.

BACKGROUND OF THE APPLICATIONS

8In 2018, Jay McGuffin (“McGuffin”) the Appellant’s land use planner, requested a Pre-Consultation Meeting with the staff of the Township and commenting agencies regarding a proposed site plan application and HPA to lift the Holding Provision on the Subject Lands to permit an outdoor storage facility for fertilizer. In April 2019, the Applications were submitted to the Township and confirmed complete by the Township the following month.

9The Township Council then held a public meeting wherein the Applications were the focus and came with significant public resistance to the Applications. At that same meeting, Council voted to pass Interim Control By-law No.41 of 2019, which had the effect of freezing the development of the Subject Lands for a period of one year. This was extended a year later before being repealed in October 2020.

10Shortly thereafter, on October 23, 2020, appeals of the Applications were filed with the Local Planning Appeal Tribunal, the precursor to the Ontario Land Tribunal, based on the Township’s failure to make a decision on the SPA under s. 41(12) of the Act and failure to make a decision on the HPA to remove a “Holding” Symbol under s. 36(3) of the Act.

11Subsequently, the Parties engaged in numerous without prejudice meetings to explore opportunities to resolve the issues. In December 2023, a revised Site/Landscape Plan, Servicing Plan, Grading Plan and Functional Stormwater Management Plan and Servicing Report were provided to the Township. The original site plan application contained a proposal that was 3.7 ha in size with a single storage bunker and a single stormwater management pond. The revised site plan, which is the subject of this Merit Hearing, contains a proposal with significant changes from the original application, with a land coverage area of almost triple the size of the original proposal, storage in two bunkers and a new stormwater management proposal with two ponds.

BIOSOLID FERTILIZER

12It is the proposed method of the fertilizer’s storage and the concerns to public health and safety that potentially flow from that methodology that are at issue in this Hearing. There was no evidence presented that the storage of pellets in such large quantities was a concern for public health and safety. Based on the evidence presented at the Hearing, the Tribunal has provided a summarized description of the product to provide context for the Township’s concerns with regards to ecology, public health and safety.

13In this matter, biosolids are the nutrient rich organic material resulting from the treatment of domestic waste, which includes human sewage, at a water resource recovery facility. Facilities process these biosolid nutrients through heat drying systems that produces a dry product which can meet Canadian Food Inspection agency (“CFIA”) standards for distribution as a fertilizer. The fertilizer that is proposed to be stored on the Subject Lands is produced by this method. It was described at the Hearing as a “slow-release fertilizer biosolid pellet”. For the sake of brevity, this Decision will refer to this fertilizer as “Pellets”.

14During the Hearing, the Tribunal was made aware that there are ongoing lawsuits in the U.S.A. regarding biosolid fertilizer and concerns around perfluoroalkyl and polyfluoroalkyl substances (“PFAS”), which are known colloquially as “forever” chemicals that do not degrade in the environment. Robert Pepperman, a witness for the Appellant who was qualified to provide expert opinion evidence in the areas of agronomy as well as the distribution and marketing of fertilizers, advised that the CFIA has issued an interim proposal that will set a standard for several of the PFAS compounds in fertilizers. Pepperman confirmed that the concentration of these compounds in the Pellets proposed to be stored on the Subject Lands were below what the CFIA is proposing as an acceptable concentration.

15Don Hoekstra was qualified by the Tribunal to provide expert opinion evidence in the areas of resource recovery and residuals management. Hoekstra was involved in the consultation process wherein the Fertilizers Act was being reviewed and updated by the CFIA. In Hoekstra’s opinion, the Pellets are regulated and must meet the requirements of the Fertilizers Act and regulations that relate to both the efficacy and the safety of the fertilizer.

16Pepperman’s evidence on the negative impacts to long term soil health by the repeated application of synthetic chemical fertilizers was not countered by any of the Township’s experts. Pepperman also pointed out that the Pellets are held within the soil root zone for an extended period, which limits the fertilizer’s impact on the aquatic environment. On the other hand, water soluble fertilizer nutrients can be carried past the soil root zone and potentially into groundwater resources. These facts were not challenged on cross-examination.

17It was understood by the Tribunal that these heat dried Pellets are to be kept at a moisture level of below 10%. Hoekstra’s evidence was that moisture control, and an oxygen deprived environment were key to the storage management of the Pellets. Although Hoesktra admitted during cross examination that the source material can “be quite odourous”, he went on to state that the heat drying process conducted at the Waste Resource Recovery Facility reduces the product’s odour and that the Pellets have “little to no odour”. If the Pellets are re-wetted, there is the potential that it might re-activate some of that odour profile.

18The second important component to maintaining a moisture level of below 10% is that if the Pellets become too wet, it can support microbial activity which could begin to decompose the organic matter, a byproduct of that process is heat. The heat generated by that decomposition could lead to smouldering combustion, which may result in a fire if the heat spot is not dispersed. Maintaining an oxygen starved environment by keeping the product covered with tarps serves the dual purpose of keeping the Pellets dry and reducing the likelihood of hot spots.

EVIDENCE OF JAY SURTI

19Jay Surti was an expert witness appearing on behalf of the Township at the Hearing. Counsel for the Township requested that Surti be qualified by the Tribunal to provide expert opinion evidence in environmental engineering with a focus on biosolids. Surti is based in New Jersey and is an engineer with extensive experience with biosolids. The Appellant objected to Surti providing evidence with such a qualification as Surti is not a professional engineer in Canada nor a holder of a Certificate of Authorization in Ontario. The Tribunal qualified Surti to provide evidence in environmental engineering with a focus on biosolids with the caveat that the Tribunal recognized that he was not licensed to practice engineering in Canada.

20In the Appellant’s written closing submissions, the Appellant asserted that “very little, if any, weight should be given to the evidence” of Surti. This was based on the fact that the Professional Engineering Act prohibits any act of evaluating or advising that “requires the application of engineering principles and concerns the safeguarding of life, health, property, economic interests, the public welfare or the environment, or the managing of any such act” without being properly licensed. Counsel for the Appellant submitted that the only weight that should be given to Surti’s evidence is for any evidence provided in relation to the processing, storage, and end use of biosolids in New Jersey.

21The Tribunal understands that there may not be many Ontario based experts in biosolid products. The fact that the Appellant’s two expert witnesses on the product (Hoeskstra and Pepperman) are, like Surti, based in the United States of America, is telling. While the Tribunal notes the Appellant’s concerns, Rule 1.4 and 1.6 of the Tribunal’s Rules of Practice and Procedure (“Rules”) afford the Tribunal considerable latitude in what evidence it will consider. Rule 1.4 of the Rules states that the Tribunal may do “whatever is necessary to adjudicate effectively and completely to resolve the merits of any dispute on any matter”. The Tribunal considered the entirety of Surti’s evidence, with an understanding of its professional limitations and the use or reliance on this evidence by the Township’s other experts. It is worth noting that the Appellant did make some changes to its SPA based on Surti’s insights and suggestions.

SITE PLAN APPLICATION

22The proposed development is for an outdoor Storage Facility to be built in the northwest corner of the Subject Lands; the remainder of the lands would continue to be used for agricultural field crops. A berm would be constructed around the Subject Lands to reduce visibility from the road, provide a windbreak and mitigate noise and activity on the Subject Lands.

23The Pellets would be stored in two piles within two concrete bunkers. Each bunker will be approximately 247 metres (“m”) in length, 45.7 m in width, with the Pellets being stored to a maximum height of approximately 7 m in each bunker. There would be a concrete knee wall of two feet to keep the product contained within each bunker and a dispersion area of 50 m by 50 m at the front of each bunker where product loading and unloading will occur. The Pellets would be covered with overlapping poly plastic tarps which will be secured over the knee wall, sandbags will be manually placed along the top edge of the knee wall, and tires will be placed on top of the piles. There will be a fire access roadway with a width of approximately nine m around each bunker.

24Two underground tanks, each holding 45,000 litres (“L”) of water would be constructed at each end of the site. These fire protection reservoirs would be linked together to provide 80,000 L of water for fire suppression. Dry hydrants, with a maximum spacing of 150 m would be constructed around the perimeter of the site. An encapsulation agent is to be added to the water stored in the tanks which makes it “wetter” and increases its fire suppression capability.

Stormwater Management

25Jason Fleury was qualified by the Tribunal to provide expert opinion evidence in site engineering. Fleury explained to the Tribunal that the detailed site servicing plan, site grading plan, and a stormwater management (“SWM”) design for the proposed Storage Facility have been completed based on the site plan prepared. Fleury, who has been involved with the project since 2021, indicated that the plans have evolved over time and have been updated as part of the expert meetings and operations discussions. It was Fleury’s role to engineer the SWM for the bunkers and the overall site.

26Fleury detailed the design process for the site’s SWM for the benefit of the Tribunal. The SWM plan for the Storage Facility contains two ponds, one for contact water and one for non-contact water. Contact Water was defined for the Tribunal as stormwater runoff that has been in contact with the Pellets either directly or indirectly from vehicle tracking throughout the travelled portions of the Subject Lands between the entrance and the dispersion areas located at the front of the bunkers. Whereas Non-Contact Water was defined as stormwater runoff that has not been in contact with the Pellets.

27The duality of the SWM system was called “a little bit unique” by Fleury, as there would be separate drainage patterns for the Contact Water and Non-Contact Water with each being accommodated in two separate ponds on site: the Contact Pond and the Non-Contact Pond. The Non-Contact Pond has a gravity outlet which restricts it to a very low flow for slow draining. The Contact Pond is not a free-flowing pond, and the proposed clay liner would change the pond’s imperviousness to zero. Fleury mentioned that the depth of the Contact Pond had been increased and that this amendment was not yet reflected in the SPA. Fleury also noted that the Contact Pond, if required, can be made deeper to handle a greater volume of water. He noted that the grade label on the site plan needs to be modified to reflect the updated depth of the pond. This was provided to the Tribunal with the Appellant’s closing submissions on May 31, 2024.

28Fleury indicated that all SWM requires an Environmental Compliance Approval (“ECA”) through the MECP. Fleury confirmed that should the Tribunal approve the SPA, that such an approval does not dispense with the requirement for the ECA applications for the two ponds. The Tribunal was informed that a Non-Agricultural Source Material (“NASM”) Plan had been applied for and obtained from the Ontario Ministry of Agriculture, Food and Rural Affairs (“OMAFRA”). This will permit the Appellant to use the water that is collected in the contact water pond to irrigate the agricultural crops on the site. In short, the ECAs regulate the storage of water in the ponds on site and the NASM regulates the use of the contact water for irrigation purposes.

29Fleury estimated that each irrigation event would utilize a full month of stormwater runoff from the contact pond and noted that the NASM does not limit the number of irrigation events. The Tribunal learned that the water that is irrigated through the NASM would not reach a Municipal drain, as it would be taken up by the crops and soil meaning that the infiltration of the NASM water would not reach the field tiles below the fields that then connect to the Municipal drain.

30The Tribunal was also informed that in the event of an emergency, the gate valve on the SWM system serving the non-contact runoff can be shut, which further limits the potential risk of contamination. Fleury explained other features of the system including that the SWM was not relying on a sediment bed as a quality control, and that there would be an oil grid separator which would treat water to an enhanced quality.

31Fleury estimated that 40 to 60% of the water in the Contact Pond would be clean water. He had no concern about the Contact Pond water ending up in the Municipal drain. It was Fleury’s opinion that the design mitigated the risk of contaminated water escaping from the site, and further that the managing the runoff water and utilizing it for the advantageous purpose of irrigating crops through the NASM. In his opinion, the proposed method of storage was the best solution as it was a practical, safe and efficient means of storing the fertilizer.

32Considerable time was spent at the Hearing on the discussion of the SWM ponds, and the Tribunal recognizes that the Township had a relatively short timeframe to review the updated site plans in its preparation of expert reports and the Hearing itself. The Town did not produce an independent expert analysis of the SWM planning for the site despite the fact that stormwater run-off leaving the site and its potential for pollution was a key concern for the Tribunal at the Hearing.

33During cross examination, Fleury disagreed that it would be unknown if the design for the site’s SWM system worked until it was in operation. Fleury explained that modelling scenarios had been completed and that the design was built for the “worst-case scenario” of having both bunker piles exposed to the elements for 12 months. He also noted that the Contact Pond could accommodate the volume of water that would be expected in a ‘250-year storm event’.

LEGISLATIVE REQUIREMENTS

Site Plan Control

34The Tribunal is charged, under s. 41(12.1) of the Act to conduct the following in the event of an appeal with respect to the approval of site plans or drawings for development:

The Tribunal shall hear and determine the matter in issue and determine the details of the plans or drawings and determine the requirements, including the provisions of any agreement required.

35Any site plan conditions or requirements must be permitted under subsections 41(7)(a) through (d) of the Act:

Conditions to approval of plans

As a condition to the approval of the plans and drawings referred to in subsection (4), a municipality may require the owner of the land to,

(a) provide to the satisfaction of and at no expense to the municipality any or all of the following:

1. Subject to the provisions of subsections (8) and (9), widenings of highways that abut on the land.

2. Subject to the Public Transportation and Highway Improvement Act, facilities to provide access to and from the land such as access ramps and curbings and traffic direction signs.

3. Off-street vehicular loading and parking facilities, either covered or uncovered, access driveways, including driveways for emergency vehicles, and the surfacing of such areas and driveways.

4. Walkways and walkway ramps, including the surfacing thereof, and all other means of pedestrian access.

4.1. Facilities designed to have regard for accessibility for persons with disabilities.

5. Facilities for the lighting, including floodlighting, of the land or of any buildings or structures thereon.

6. Walls, fences, hedges, trees, shrubs or other groundcover or facilities for the landscaping of the lands or the protection of adjoining lands.

7. Vaults, central storage and collection areas and other facilities and enclosures for the storage of garbage and other waste material.

8. Easements conveyed to the municipality for the construction, maintenance or improvement of watercourses, ditches, land drainage works, sanitary sewage facilities and other public utilities of the municipality or local board thereof on the land.

9. Grading or alteration in elevation or contour of the land and provision for the disposal of storm, surface and waste water from the land and from any buildings or structures thereon;

(b) maintain to the satisfaction of the municipality and at the sole risk and expense of the owner any or all of the facilities or works mentioned in paragraphs 2, 3, 4, 5, 6, 7, 8 and 9 of clause (a), including the removal of snow from access ramps and driveways, parking and loading areas and walkways;

(c) enter into one or more agreements with the municipality dealing with and ensuring the provision of any or all of the facilities, works or matters mentioned in clause (a) or (d) and the maintenance thereof as mentioned in clause (b) or with the provision and approval of the plans and drawings referred to in subsection (4);

(c.1) enter into one or more agreements with the municipality ensuring that development proceeds in accordance with the plans and drawings approved under subsection (4);

(d) subject to subsection (9.1), convey part of the land to the municipality to the satisfaction of and at no expense to the municipality for a public transit right of way.

36It is noteworthy that there is nothing in s.41(4) or s. (41(7)(a) to (d) of the Act that requires information with respect to the proposed operation of the development that is the subject of the site plan. The manner of construction and standards for construction are specifically excluded from site plan control as per s.41(4.1) (3) of the Act. While the Township’s questioning of the Appellant’s experts often veered into operational matters, the Decision of the Tribunal in this matter was based solely on matters that are within its statutory parameters.

Removal of a Holding Provision

37Subsection 36(1) of the Act states that “a municipality may, in a by-law passed under section 34 of the Act, by the use of a holding symbol “H” in conjunction with any use designation, specify the use to which lands, buildings or structures may be put at such time in the future as the holding symbol is removed by amendment to the by-law.” The Appellant’s HPA seeks to remove the ‘H’ symbol from the portion of the site that it plans to develop with the Storage Facility. Subsection 36(3) of the Act provides for an appeal to the Tribunal when a Municipality has failed to make a decision on a holding provision application within the statutory timeframe.

38Section 5.5 of the Township of Adelaide Metcalfe Official Plan (“Township OP”), sets out the Township’s policy with respect to holding provisions. It states that,

… the Township may apply a Holding “H” provision to any zone in the Zoning By-law in accordance with the Planning Act. Holding provisions allow the Township to identify the uses ultimately intended for specific properties but delay their actual development until certain conditions have been met to the satisfaction of the Township.

39The position of the Township is that the Tribunal must be satisfied that the Township’s conditions are met. However, in an appeal, it is for the Tribunal to decide as to whether the HPA is removed. While the Township’s conditions may influence the Tribunal’s Decision, they are not determinative of the matter.

ISSUES

40Over the course of the Hearing, the Township scoped its issues based on the new information that had been provided through the witness statements and oral evidence at the Hearing. The position taken by the Township’s Planner, Mr. Tim Williams, was that the concerns raised by the Township’s experts on adverse impacts may not be minimized and mitigated under the current SPA. On the other hand, McGuffin pointed out that everything done creates an impact, and that the test is the creation of an unacceptable adverse impact to property owners.

41The Township’s outstanding issues with respect to the SPA dealt with four main areas of concern, which are as follows:

A. Stormwater Run-Off

B. Fire Hazards

C. Odour Impacts

D. Dust Impacts

42These outstanding issues above are interconnected with the Township’s concerns with respect to public health and safety and ecological impacts. The relevant planning documentation underpinning these issues are as follows:

• Matters of Provincial Interest under s. 2 of the Act, with particular reference to subsections 2(a), the protection of ecological systems, including natural areas, features and functions; (b) the protection of the agricultural resources of the Province; and (o) the protection of public health and safety;

• Inconsistency with certain policies of the Provincial Policy Statement, 2020 (“PPS”), related to public health and safety concerns, and stormwater run-off;

• Lack of conformity with policies of the County of Middlesex Official Plan (“MOP”) due to concerns related to stormwater run-off;

• The application of the Clergy Principle and lack of conformity with section 3.3.9 of the MOP;

• Lack of conformity with the Township of Adelaide Metcalfe Official Plan due to concerns regarding stormwater run-off; and

• That the Applications do not represent sound land use planning.

Issue 1: Stormwater Run-off

43There was disagreement between the Parties as to whether water that had been in contact with the plastic tarps on top of the piles of Pellets would be ‘clean’ or ‘contaminated’ water. As detailed in paragraphs [26 - 30], the site’s SWM would include two ponds: one for water that had not been in contact with the Pellets (the Non-Contact Pond) and one for water that had or may have been in contact with the Pellets – the Contact Pond. The Township’s concern was that water that had been in contact with the tarped piles of Pellets in the bunkers may have been contaminated by the Pellets. As such, the Township claimed that this created the potential for contamination as the Non-Contact Pond would ultimately flow through a Municipal ditch and eventually flow out to the East Sydenham River northwest of the Subject Lands.

44The Appellant’s expert, Ian Hutcheson, a professional engineer, provided the Tribunal with expert opinion evidence in the area of environmental engineering. Hutcheson has experience in providing expert advice in relation to management of stormwater runoff and obtaining environmental permits for facilities that transfer, store and process a variety of wastes.

45Hutcheson provided evidence on two pilot storage facilities that had been designed in consultation with the MECP, then built to mimic the proposed Storage Facility and the proposed dispersion area. This was done to obtain samples to indicate the type of run-off that would be proposed by the proposed Storage Facility. Hutcheson explained that using the runoff samples obtained, attenuation modelling was completed to predict the quality of water leaving the Subject Lands through the Attenuation Modelling Report.

46Hutcheson’s opinion was that the water runoff on site would not be contaminated, and that the “site design met all environmental regulations from a SWM perspective.” The engineer pointed out to the Tribunal that the ECAs would review any potential adverse impacts on surface water, that an operations manual was a condition of an ECA, and that the ECA mandates that a site has a procedure in place to deal with complaints.

47It was Hutcheson’s expert opinion that the SWM system would provide an enhanced level of protection for the Non-Contact Water, and that the Contact Water will provide a beneficial use under the approved NASM plan. Hutcheson also noted that while the Subject Lands were located within a significant ground water recharge area, the site had no score in the system – meaning no proximity to wells. In Hutcheson’s professional opinion, the NASM and the use of the Contact Water did not pose a threat to drinking water. During cross examination, Hutcheson was questioned on the possibility that the NASM water used on the crops on site could be absorbed down through the soil to the field tiles and from there reach the Municipal ditch. Hutcheson responded that this would be very unlikely.

48Hutcheson had no qualms about the planned size or scale of the facility. In his view, these matters were “irrelevant” as it simply meant a larger stormwater management system. Hutcheson’s evidence was that there was “very limited risk” of potential contamination to stormwater. The engineer pointed out that any development of an industrial or farming nature caused some sort of release or adverse effect on the environment such as noise, dust, odour, etc., and that there would never be a situation where such an operation had no impact. Rather, it was incumbent on the operator to minimize impacts, and in Hutcheson’s opinion, the proposed Storage Facility and SWM met all the criteria in this Province to limit the risk of potential contamination.

49With respect to the potential contamination of water run-off, the Township did not call its own expert with respect to the SWM design or management of stormwater run-off. Surti identified concerns he had with the tarp system to be utilized as the proposed Storage Facility and the run-off from the tarped piles. In his opinion, water that came in contact with the poly-plastic tarps may be contaminated from either contact with the Pellets or contact with dust created by the Pellets. This water would flow into the Non-Contact Pond and eventually drain off-site.

50Despite the SWM and run-off issues being at the forefront of the Township’s concerns, they provided no expert witnesses in these areas. Although the concerns of Surti with respect to the tarping system were noted, the Tribunal preferred the evidence of Fleury and Hutcheson as the Township’s concerns were speculative rather than based on any actual evidence or fact. The Tribunal finds that the SPA adequately mitigates the risk of contaminated water escaping the Subject Lands and that the SWM system will provide an enhanced level of protection for the Non-Contact Water. Extensive modelling has been undertaken by Fleury and Hutcheson with respect to the design of the SWM, as there are multiple measures in place to ensure that the contact water does not negatively impact the surrounding environment. The Tribunal is also mindful of Pepperman’s remarks at paragraph [16] of this Decision, and his commentary with respect to the NASM water remaining at the root zone of the soil. This position was not challenged on cross examination.

51The Tribunal finds that, with respect to potential contamination of stormwater run-off, the Applications do have regard for matters of Provincial interest as set out in s.2 of the Act, and, in particular, matters of public health and safety and ecological features.

Issue 2: Fire Hazard

52The Township raised a concern that the proposed method of storage could result in a fire, which would be a public health and safety matter. The Appellant’s expert, Paul Wagner, a professional engineer, was qualified by the Tribunal to provide expert opinion evidence in fire protection engineering including the Ontario Fire Code (“OFC”) and Building Code compliance. The Township’s expert Kyle Kieraszewicz was qualified by the Tribunal to provide expert opinion evidence in the area of fire prevention and investigation. Neither the Township’s expert on fire safety nor the Appellant’s expert had experience with designing storage facilities for fertilizer.

53Wagner conducted testing of the Pellets in accordance with CAN/ULC-S135. His Fire Code Report demonstrated that the combustibility of the Pellets is essentially the same as that of wood chips. It was Wagner’s opinion that the fire protection measures that OFC 3.2.3 (entitled “Outdoor Storage of Wood Chips”) mandates for wood chips were adequate for the protection of the Pellets. Further, Wagner affirmed that the design and construction of the proposed Storage Facility and the fire protection measures to be provided therein met those mandated by OFC 3.2.3 for the outdoor storage of woodchips.

54Wagner’s position was that the 10% maximum moisture limit for the Pellets was arbitrary, and that it was the exposure to oxygen rather than the exposure to water that was more important in storing the product. Wagner explained that the Pellets do not contain oxygen and as they are carbon based, and the only source of oxygen that can support microbial oxidation is the oxygen in the air. To Wagner, the large overlap between the adjacent pieces of poly-plastic tarp would minimize the Pellets exposure to oxygen in the air. He also opined that the nine m roadway around each bunker would allow easy access for heavy equipment, such as an excavator, to reach into the pile and dig out and disperse a hot spot. He noted that this type of maneuver could not be undertaken if the Pellets were stored in a large storage shed/barn structure. In summary, The Appellant’s fire expert was of the view that the proposed method of storage of the Pellets outlined in the site plan adequately addressed: (i) the risk of fire; (ii) access for emergency vehicles; and (iii) risk to safety of employees.

55The Tribunal was informed that Wagner had not been retained by the Appellant to design the Storage Facility. When questioned regarding the alternative means of storing the Pellets, Wagner opined that storing the Pellets in storage buildings would create the risk of dust explosions and that storage under tarps did not create those risks. His evidence on silo storage was that the silos would be cost prohibitive and require explosive venting which would interfere with the storage of the fertilizer.

56Kieraszewicz acknowledged during oral testimony that he was not an expert on biosolid fertilizers and did not conduct any independent testing of the Pellets prior to the Hearing. In preparing his Witness Statement, Kieraszewicz communicated with the Township’s environmental engineer expert, Jay Surti, and conducted his own online research which included the ‘Water Environmental Federation: Biosolids Thermal Dryer Safety Fact Sheet’ (“Fact Sheet”). Hoekstra noted during his examination in chief that the Fact Sheet quotes utilized by Kieraszewicz in his Witness Statement were not applicable to hauling or storage, as they were only applicable to circumstances at the thermal dryer facility. To Hoekstra, the conditions and risks to be mitigated at the dryer facility were dramatically different to conditions relating to the storage of the Pellets. Kieraszewicz’s response to Hoekstra’s comments was that there was content in the Fact Sheet that spoke to the end product and matters relating to storage, not just the heat drying process undergone by the biosolid product.

57Kieraszewicz acknowledged during his testimony that the Building Code does not regulate the storage of fertilizer, and that the Fire Code does not require a Fire Safety Plan for the Subject Lands or require a second fire department access point. Kieraszewicz also confirmed that if the proposed Storage Facility were constructed and issues were to arise afterwards, from a fire safety perspective, that the Township could have a fire prevention inspector attend the Subject Lands, inspect, and make orders.

58Kieraszewicz’s view was that while Wagner’s single test of the Pellets was “a start” it was insufficient for drawing conclusions. Kieraszewicz explained to the Tribunal that the combustion of the Pellets is created by the “fire triangle”. The Pellets are the fuel, the microbial activity of the Pellets is the ignition source, and the ambient air is the oxygen source. If all three come together, there can be smouldering combustion. Kieraszewicz’s concern was that a smouldering fire could turn into a flaming fire if the conditions were right, and that the tires on top of the tarp could increase the fuel load in the event of a fire. The Township’s expert also raised a concern that the proposed tarp method was unproven and stated during oral testimony that while the proposed concrete bunkers mitigated stormwater issues, it did not mitigate fire safety issues. In short, Kieraszewicz opined that there were too many variables and not enough data with respect to the proposed method of storage of the Pellets.

59Surti also provided input on the smouldering combustion factor of the fertilizer. He explained that biological activities in the Pellets are dormant after the drying process. If moisture is applied to the Pellets, the biological activity may be reactivated and may cause a risk of fire. In his opinion, the use of the overlapping poly-plastic tarps to cover the piles to protect against moisture depended on “zero human error”. Furthermore, he commented that the use of tires on top of the plastic was “novel” and there was no evidence as to how it would work under different weather conditions.

60The Tribunal was made aware through the hearsay evidence of Kieraszewicz and Williams that the Township’s fire department had been called to the Subject Lands on two separate occasions due to smouldering combustion in field stored Pellets, meaning Pellets that were piled directly on the ground. On each occasion, the fire department attended, the pile of Pellets was dispersed, and no water was used.

61With respect to the hearsay evidence concerning the Township’s Fire Department previous attendance at the Subject Lands, the Tribunal has considered this evidence but has given it little weight. No evidence was provided to the Tribunal as to how long the Pellets had been on site, the size of the pile, whether the Pellets were tarped or open to the elements, or any evidence with respect to impacts on surrounding properties or ecological impacts. There was no indication that the Township lacked the capacity or ability to address these two incidents. The Tribunal notes that despite the assertion made by Counsel for the Township that the Township was “a small one” and would be unable to “handle” problems that could arise if the moisture level of the Pellets was not maintained, there was no indication that, on these two occasions, the Township was unable to manage the incidents. The Tribunal was provided with no affidavit evidence from any firefighter involved with the two incidents. Lastly, it was acknowledged that the fertilizer at the time of the fires was not being stored in an engineered facility. If anything, this evidence confirms that the safest form of storage of the Pellets is within an engineered facility – a point that all experts agreed upon.

62The risk of smouldering combustion at the proposed Storage Facility and corresponding public health and safety concerns was a focal point for the Township. After considering the evidence, the Tribunal finds that it would be improbable or even impossible to design a Storage Facility for the Pellets that completely eliminated the possibility of hot spots in the piles. The Tribunal finds that, in this case, the bunker method of storage provides easier access to potential hot spots among the Pellets than the alternatives of silos or closed storage sheds that were suggested by the Township’s experts as theoretical alternative means of storage. In addition, the underground storage tanks on site, dry hydrants, and emulsification agents to be added to the water tanks, provide additional layers of protection in the event of smouldering combustion among the Pellets.

63The Appellant and the Township’s fire experts both agreed that the OFC does not require a second fire department access point. As such, this issue is resolved. With respect to the safety of employees, this veers into the operations of the facility. The Township led no evidence that the Pellets were dangerous or hazardous to human health. Rather, its position was that the proposed method of storage could be a fire risk and thus a public health and safety concern, which would encapsulate the health of those working on site once the facility was constructed. Operational concerns are beyond the Tribunal’s jurisdiction in this matter. It is not the Tribunal’s role to review and approve operational plans when considering a site plan approval, this is not contemplated by s.41 of the Act. The Tribunal’s focus was on the issues relating to the SPA and the removal of the HPA.

64The Tribunal finds that, with respect to the issue of a fire hazard, the Applications do have regard for matters of Provincial Interest, and in particular, s.2(1) of the Act.

Issue 3: Odour Impacts

65The Township’s only outstanding issues with odour at the Hearing were with respect to the odours from the Contact Water Pond and odours relating to the size of the Pellet piles in the bunkers.

66Sarah Pellatt was qualified by the Tribunal to provide expert opinion evidence in air quality with a particular emphasis on odour and dust. Pellatt has been involved, on behalf of the Appellant, in analysing air quality assessments for the proposed Storage Facility since May 2021. Pellatt was involved in the preparation of multiple reports on behalf of the Appellant including the Emission Summary and Dispersion Modelling (“ESDM”) Report of April 2022, which included Best Management Practice Plans (“BMPPs”) for dust and odour, dispersion modelling using a maximum operating scenario and Odour Assessment Report in October 2023 and an Odour Assessment of the (test) Contact Water Pond in February 2024.

67It was explained to the Tribunal that a ‘test’ pond and test tarped pile had been created on one of the Appellant’s other properties, and that samples from this test pond were collected and utilized in Pellatt’s modelling assessment of the potential for odour impacts. The tested material was “consistent” with what will be kept in the proposed Storage Facility and no sampling was undertaken in July and August. Although the piles of Pellets used in the testing were “shorter piles,” to Pellatt, this factor was irrelevant as it is only the surface area that matters for odour assessment and that surface area was “much more significant” than the depth of the test pile.

68Pellatt testified that the moisture level was not known for the test pile of Pellets that were used to collect odour samples, and that it was unknown how long the sample pile (i.e. the source of the sampled runoff contact water) had been sitting prior to testing the contact water. Pellatt also explained that the test contact pond water was not tested at temperatures typically seen during the warmest summer months. Pellatt pointed out that while water was not collected in the warmer months, the purpose of the modelling is to provide a reasonable proximation to help guide mitigation. It was explained that the modelling was done in a conservative manner and overestimated conditions, for instance, the modelling assumes that the pond is completely full and never freezes over during the winter months.

69It was Pellatt’s opinion that the results of this testing and modelling demonstrated alignment with typically accepted odour levels and as such, the proposed method of storage of fertilizer contemplated by the SPA had adequate regard for odour on surrounding properties. Pellatt’s evidence was that the proposed Storage Facility had been appropriately designed and located to mitigate odour impacts. Further, that it minimized the potential for adverse effects resulting from any operations and mitigated any potential adverse effects that may occur in relation to odour– provided that the odour BMPPs was followed. Pellatt informed the Tribunal that the predicted odour cumulative impacts of the proposed Storage Facility were below the relevant benchmarks at all receptor locations and that the proposed Storage Facility could operate within acceptable levels.

70When questioned during cross examination as to whether it was possible that a larger pile would result in more odour due to the greater volume of Pellets, Pellatt disagreed; in her opinion, the rate at which odours were omitted would not change. When questioned if odours from the Contact Pond would be higher during the warmest months – which were omitted from the test sampling, Pellatt explained if the odours were higher than anticipated, that there were ways to address pond odours. She noted that the pond could be irrigated, chemical or biological agents could be added or fixed or floating pond covers could help prevent the evaporation and release of pond odours.

71The Township’s witness in this area, Stephanie Seebach, was qualified by the Tribunal to provide expert opinion evidence in the area of environmental engineering with a focus on air quality. Seebach’s main concerns were with respect to perceived defaults with Pellatt’s modelling and testing. In particular, concerns were raised with respect to the temperature of the water sample taken from the test pond and with the depth of the ‘test’ fertilizer pile for the purpose of assessing odour. To Seebach, the sampling from the pond may not be representative of the actual pile and pond source to be built on the Subject Lands, as there had been no testing from the test pond in the summer months.

72Seebach testified that there are too many assumptions and uncertainties in the odour dispersion models. She explained that at a higher water temperature, which would be expected during the summer months, the odour generated from warmer water can be expected to be higher. In her view, this added uncertainty to Pellatt’s modelling as odour samples from a warmer pond were not included in the test data and subsequent modelling results. Seebach testified that if the odour flux rate range was actually greater than the range used by Pellatt, then there may be higher odour predicted impacts than what was identified in the odour model.

73Seebach acknowledged on cross examination that she had not completed any independent analysis on this matter to determine the overall impact on the conclusions reached by Pellatt, nor did she have any sources or literature to support her concerns with respect to the water temperature or the depth of the source pile of material. Seebach agreed that Pellatt’s modelling included built-in conservatisms as listed in paragraphs [67-68] and acknowledged that for the odour flux rate of an actual pile of fertilizer, the model can only include the surface area of the pile, and that she had no evidence or scientific analysis to support her position that the depth of the pile impacts the amounts of odours produced. With respect to the water temperature of the pond, Seebach also acknowledged that during the summer months, the Contact Pond water would be used to irrigate the crops.

74Overall, the Tribunal preferred the evidence of Pellatt on matters relating to odour. Seebach’s evidence was based on speculation, and she was unable to point to any definitive evidence or scientific literature to support her position on potential odour impacts, whereas Pellatt’s testing and modelling was able to demonstrate that the proposed method of storage of the Pellets aligned with typically acceptable odour levels.

75The Tribunal finds that, with respect to odour impacts, the Applications have regard for matters of provincial interest as set out in s.2 of the Act, and that any adverse impacts to the surrounding area would be appropriately mitigated.

Issue 4: Dust Impacts

76During Hoekstra’s examination in chief, the expert explained that the Pellets would not be subjected to any sort of activity that would create dust conditions once the product was brought onto the Subject Lands. He explained that the Fact Sheet referenced in Kiersacitwitcz evidence at para [56] were the safety requirements for the drying facility, and he acknowledged that different stages of that process can create dust. However, he explained that all those dust resources are removed before the product is sent for distribution.

77The Tribunal was apprised of the fact that the proposed Storage Facility was required by the MECP to register under Environmental Activity and Sector Registry (“EASR”) prior to the start of construction. Pellatt’s evidence was that the Appellant would require an EASR regardless of the design of the Storage Facility. She explained that a Dust Mitigation Report (“DMR”) forms part of the requirements of the

EASR process and must be completed to the satisfaction of the MECP. Pellatt had no concerns with respect to any dust that may be created by the proposed Storage Facility.

78It was the evidence of Surti that the process of rolling the tarps on and off the piles would create dust impacts, as dust would attach to the tarps. He also raised a concern that dust could be created by loose Pellets that became stuck in the tread of the heavy machinery to be used on site. The BMPPs for Dust was attached to the Appellant’s ESDM Report and it was the evidence of Surti that if the BMPP is to be used as the basis for an operations plan, then the BMPP should be more robust. Surti raised concerns with respect to the creation of dust by heavy equipment and opined that the BMPP should be more specific on how dust generation would be controlled during loading and unloading operations. Surti considered the BMPP for dust to be inadequate and recommended that it be revised to be more thorough and provide clear guidance and directions for onsite dust mitigation.

79The Tribunal notes that the BMPP is not a component or requirement of the SPA and that matters relating to the operation of the Subject Lands are beyond the Tribunal’s jurisdiction in this matter. Surti may have been unaware that BMPP’s are meant to be “living documents” that can be reviewed and changed as needed, which is a key component of the MECP requirements. It is noteworthy that Seebach, the Township’s air quality expert, stated during cross-examination that she had no issue with the BMPP for dust.

80Surti’s concerns regarding dust created during the movement of the Pellets on site were not supported by Seebach’s testimony. Seebach did not opine on the potential adverse impacts caused by the movement of the product on site, although she did state that Surti’s recommendations with respect to dust “would be helpful” given the size of the Storage Facility. While the Tribunal acknowledges Surti’s experience with biosolid products in New Jersey, he had no actual evidence to support his concerns with respect to the BMPP for the control of odour and dust on site. The Tribunal preferred the testimony of Pellatt with respect to odours and dust control.

81The Township’s concerns with respect to dust were not borne out by the evidence. The Tribunal was not presented with compelling evidence to substantiate the concerns raised by the Township with respect to dust. In the Tribunal’s view, the SPA has sufficient regard for matters of Provincial Interest as they relate to dust impacts that may be created by the Storage Facility.

PLANNING ANALYSIS

Provincial Policy Statement, 2020

82In Williams’ opinion, the SPA was not consistent with 1.1.1(c) of the PPS which requires that healthy, liveable, and safe communities are sustained by avoiding development which may cause environmental or public health and safety concerns. For the reasons listed above, the Tribunal finds that the SPA has adequately addressed the Township’s concerns, and that public health concerns regarding stormwater run-off, fire, odour, and dust have been considered and addressed in the Subject Lands design.

83The Township’s Planner also drew the Tribunal’s attention to s. 1.1.4 of the PPS which sets out policies with respect to rural areas in Municipalities. The specific policy of concern in this section for the Township is s. 1.1.4.1(h) which states,

Healthy, integrated and viable rural areas should be supported by:

conserving biodiversity and considering the ecological benefits provided by nature

84The Tribunal was not provided with anything other than unsubstantiated, vague concerns with respect to the potential of the Storage Facility to negatively impact the area’s ecology. If anything, the use of a sustainable, renewable fertilizer rather than chemical fertilizer in local agricultural operations support a healthy rural area.

85Williams also pointed to Policy 1.2.6 which frames PPS policies with respect to land use compatibility. In particular, s. 1.2.6.1 was referenced which states,

Major facilities and sensitive land uses shall be planned and developed to avoid, or if avoidance is not possible, minimize and mitigate any potential adverse effects from odour, noise and other contaminants, minimize risk to public health and safety, and to ensure the long-term operational and economic viability of major facilities in accordance with provincial guidelines, standards and procedures.

86The Tribunal finds that the SPA has been planned to minimize and mitigate potential adverse effects from odour, stormwater run-off, dust, and that the site plan does minimize risk to public health and safety.

87Policy 2.1.1 of the PPS concerns natural heritage features and requires that they be protected. Williams acknowledged during cross examination that there were no natural features on the Subject Lands, and his concerns with respect to stormwater run-off were based on the concerns raised by Surti, who is not an expert in site management and design or SWM and design. The remaining PPS policies of concern to Williams were policies 2.2.1 and 2.2.2, which address the protection of the quality of water and development restrictions in or near sensitive ground water features. Williams’ concerns with respect to these features relate to stormwater run-off. As previously noted, the Tribunal prefers the evidence of Fleury and Hutcheson with respect to these features of the SPA and is satisfied that the SPA has appropriate regard for SWM practices, and that the proposed Storage Facility has sufficient mitigation and protection measures in place with respect to stormwater run-off.

88In summary, the Tribunal finds that the Applications are consistent with the policies of the PPS, including those raised by Williams in his evidence.

County of Middlesex Official Plan

89It was the evidence of Williams that the SPA did not conform with sections 2.2.1.2, 2.2.1.3 and 2.4.7 of the MOP due to concerns relating to stormwater run-off. The Tribunal finds that the SPA has considered and has taken the necessary design measures to protect the natural heritage system and groundwater. As the development of the proposed site plan is required to comply with ECA’s issued by the MECP and through the already approved NASM plan, the Tribunal finds that the SPA conforms to the Natural Heritage Policies of the MOP, including those related to Significant Woodlands and Groundwater Management and Protection.

Policy 3.3.9 of the MOP

90The Tribunal was informed that s.3.3.9 of the MOP was drafted by Williams after the Appellant’s initial application to the Township for the proposed Storage Facility on the Subject Lands. The policy, titled ‘Manure, Biosolids and Septage’ was approved by the Minister in July 2023, and includes the following statements;

Land application of manure, biosolids and septage is regulated by the Province in accordance with the Nutrient Management Act, the Clean Water Act, the Source Water Protection Act, and the Environmental Protection Act. Land application of manure, biosolids and septage shall follow the requirements of the above noted legislation, and the regulations made under those Acts.

The storage of biosolids, similar to traditional fertilizer, shall be stored in a manner that ensures the protection of surrounding properties, watercourses and the environment while mitigating conflicts with adjacent land uses. The processing and/or storage of predominantly non-agricultural source materials such as biosolids for the purpose of distribution are considered industrial uses and therefore subject to site plan control to mitigate land use conflicts and address matters such as stormwater management, setbacks, screening, buffering, etc.

91Williams’ evidence at the Hearing was that the policy was drafted to correct the perceived gap in the County’s policies with respect to biosolid facilities, and that this direction could then be followed by lower tier Municipalities such as the Township. In his view, this new policy addressed what was already required through the PPS and s. 2 of the Act regarding protecting public health and safety and the environment.

92Counsel for the Township acknowledged that s.3.3.9, may not be determinative of the outcome of the Applications. However, counsel submitted that they may be insightful in terms of context, and in this instance were an indication of County Council’s more recent intent and direction with respect to biosolids.

93The position of the Appellant in closing submissions was that “the Clergy Principle will apply to the legislation and policy documents in place at the date of the Tribunal application,” and as such, the Tribunal should pay no heed to s.3.3.9.t. The Tribunal disagrees, as the Clergy Principle refers to the Tribunal’s discretion to consider the MOP or other Municipal planning documents in effect at the time of application. For example, in Masters v. Claremont Development Corporation, 2021 ONSC 3311, a Decision referenced by the Appellant, the Divisional Court affirmed that the application of the Clergy principle is not a legal principle, and is not subject to appeal as it is not a question of law. The Clergy Principle is a policy choice made, and applied by the Tribunal, and ultimately, it is the Tribunal’s discretion as to whether it will be applied.

94The Appellant provided an alternative submission in the event that the Tribunal found that the MOP s.3.3.9 was applicable to the Appeal. The Appellant noted in closing submissions that McGuffin had testified that the Applications did conform to all the requirements listed in s. 3.3.9, and that MOP s. 3.3.9 did not supersede the approvals required by the MECP and OMAFRA.

95The Tribunal prefers the evidence of McGuffin on this point and finds the issue of the Clergy Principle to be moot in this case, given the fact that the Applications do conform with the new policy directive.

Township of Adelaide Metcalfe OP

96It was the evidence of McGuffin that the Applications conformed to all applicable policies of the Township OP. This opinion was based on the regime of testing and analysis that had been undertaken by the Appellant’s experts in regard to the collection, storage, outlet and Application of both contact water and non-contact water in accordance with MECP and OMAFRA regulations and guidelines.

97The Township’s Planner acknowledged Hutcheson’s evidence with respect to the Subject Lands listing within a significant groundwater recharge area. However, for Williams, this fact required caution. The point made by the Planner was that if contaminated water did leave the Subject Lands, it would discharge into a Municipal ditch leading to a piped Municipal drain and eventually flow into a tributary of the Sydenham River. During his examination in chief, Williams noted that Surti had raised concerns that the water leaving the Subject Lands may contain contaminants, and as such Williams considered this a ‘live’ issue. This would, in the Planner’s opinion, impact the environment beyond the Subject Lands which would also be a public health and safety matter.

98William’s opinion evidence was made in reliance on the evidence of Surti, who as acknowledged by Williams during cross examination, was not qualified to provide any expert opinion evidence in the areas of natural environment, SWM design or water quality. Although Williams was present for the entire hearing, his concern with respect to the potential for water contamination did not alter. Williams acknowledged during his evidence that “significant changes” had been made to the Applications resulting in “significant improvements.” However, in his opinion, this was not sufficient to allay the concerns that the Township has raised during the application process.

99Williams took the Tribunal through several policies in the Township OP that, in his opinion, demonstrated the Applications lack of conformity. This included policy 2.2.1, and it was Williams’ evidence that the SPA did not conform to subsections (b)(d) or (m) of this policy. These subsections require the consideration of watershed areas in a comprehensive manner including limiting the impact of development on features and functions and considering stormwater best management practices. The Township’s Planner also directed the Tribunal to policy 3.1.1 of the Township OP on the protection of the agricultural land base. In his opinion, given the potential for water runoff which may be contaminated, this could impact agricultural prosperity and so “the Town had concerns with that”. Williams also mentioned policy 1.3(c) and 2.2 of the Township OP which relates to minimizing undesirable impacts on and protecting the natural environment. Williams testified that due to the Township’s concerns regarding stormwater run-off, the Applications did not conform to these policies.

100The Tribunal has considered the evidence of McGuffin and Williams, and finds that the Applications do conform with the Township OP. Furthermore, the Township’s concerns with respect to potential contamination of stormwater run-off have been comprehensively addressed by the design of the SWM system and the modelling undertaken by Fleury and Hutcheson. There was no evidence proffered to bolster Williams concerns with respect to potential impacts on surrounding natural features and agricultural resources.

AUTHORITIES CONSIDERED

David Buurma and 1838107 Ontario Ltd. vs The Municipality of Brooke-Alvinston

101Some time was spent by the Parties at the Hearing on a 2021 Decision of the Normal Farm Practices Board (“Farm Board”), [2021 ONNFPPB 9]. In this matter, an application was made to the Farm Board under s. 6 of the Farming and Food Production Protection Act for a determination as to whether the by-laws of the Municipality of Brooke-Alvinston were restricting a normal farm practice. The farm was storing pelletized biofertilizer in a concrete bunker formerly used for the storage of livestock feed.

102Photographs of the bunker in the above noted case were shared with the Tribunal, and there was no argument that the bunker was “in rough shape”. The Farm Board found that centralized storage of the fertilizer was a normal farm practice but held that the storage bunker on the farm in question required modification to a vertical silo or a bunker with permanent roof, walls, and floor.

103It was not suggested at the Hearing that this was a matter of stare decisis. However, for the Township, this Decision anchored its claim that the bunker storage was inadequate, and that the Tribunal should not ignore the Farm Board’s ruling, whereas the Appellant focused on distinguishing this Farm Board Decision from the matter at hand.

104The Tribunal finds that the Farm Board Decision is site specific in nature and one that cannot extrapolate precedents with respect to fertilizer storage based on a single Decision. The Tribunal finds that these are two very different sets of circumstances. In the case at hand, the Appellant has retained experts who have designed a custom-made facility for the long-term storage of Pellets on the Subject Lands which will be delivered periodically to nearby farms, whereas the Farm Board Decision considered the storage of fertilizer for onsite use at a farm repurposing an existing structure for fertilizer storage.

105The Tribunal has read the Farm Board’s Decision and finds no reference of SWM, stormwater run-off, contamination of surface or groundwater -- concerns that feature so prominently in the Township’s Issues list. It is also noteworthy that no MECP requirements are required for the storage of fertilizer on agricultural lands. In this case, the Pellets are to be stored on Industrially zoned lands in accordance with MECP requirements, including the need for ECA’s, EASR, etc.

106While the Farm Board Decision proposed two alternative storage methods, these were presented in a vacuum, completely independent of any SWM or design solution. As explained by Pepperman, a ‘scaled up’ version of the ‘silo solution’ would require 550 silos – which is not a feasible solution for the Subject lands. Wagner’s view on fire protection and safety was that for the amount of product to be stored on the Subject Lands, closed structures would create, rather than eliminate, public health and safety concerns.

107The Township did not present any evidence to contradict the Appellant’s argument that centralized storage of fertilizer close to farming operations would negatively impact agricultural operations. The Pellets are a legal, renewable product and the Township had no evidence to support its concern that fertilizer applied to the agricultural crops, or for the irrigation of crops on the Subject Lands through the NASM, would have an undesirable impact on those resources. The Tribunal finds that the Applications have sufficient regard for the protection of agricultural resources, that the Applications are consistent with the PPS and conform to the MOP and Township OP.

bcIMC Realty Corporation v Brampton (City)

108The Township’s closing submissions cited a 2023 Tribunal Decision for the requirement of the Tribunal to consider an Official Plan or Zoning By-law conformity as one of the “standard legislative tests” of a s.41(12) Appeal. At paragraph [7] of bcIMC Realty Corporation v Brampton (City), 2023 CanLII 87691, a Decision written for a Settlement Hearing, the Tribunal Panel termed conformity with an Official Plan as mandatory for an Appeal commenced under s.41(12) of the Act, referenced by its use of ‘shall’ in the opening sentence of that paragraph. This Tribunal Member respectfully disagrees with the Township. There is nothing in s. 41 of the Act that requires a site control application to conform with the applicable Official Plan(s). The requirement to consider policy documents in a Tribunal Decision on a planning matter is rooted in s.3(5) of the Act, which refers to policy documents issued by the Minister of Municipal Affairs and Housing or together with any other Minister of the Crown. There was no OPA or ZBA that preceded the Applications, as the Appellant relied on the fact that outdoor storage is a general permitted use in the industrial zone applicable to this property. A point that both Parties agreed upon.

TRIBUNAL CONCLUSION

109Site planning is a means of organizing a site in a functional manner that balances the needs of the user with the needs of neighbouring properties and the public. The sufficiency of the site plan drawings was not challenged by the Township at the Hearing rather, it was the proposed method of storage that was the focus of the Township’s concerns. In its view, public safety concerns and environmental factors related to stormwater run-off were not adequately addressed in the Appellant’s SPA.

110The Township’s position was that any risk to public health and safety must result in the refusal to grant the Appeal. A dichotomous approach with which the Tribunal disagrees. If this were the literal requirement or legislative test, then there would be little development or innovation. The Township’s concerns were speculative in nature. This is not to say that they were frivolous; however, they lacked a solid evidentiary basis. There was no independent testing or analysis conducted by the Township. The Tribunal accepts that the Township may be a smaller Municipality but given the fact that the SWM design and concerns with respect to stormwater run-off were present in almost every issue raised by the Township, it is unfortunate that the Township was unable to provide an independent expert assessment, analysis, and opinion in this regard.

111The uniqueness of the proposed Storage Facility was repeatedly raised during the Hearing event; however, this fact does not form a basis for rejection. All expert witnesses at the Hearing agreed that an engineered solution was the correct approach for the storage of the product, and that the proposed Storage Facility is an engineered solution. The Tribunal acknowledges the Township’s point that it is not its role to re-engineer and design the Storage Facility, on the other hand, the alternative storage methods suggested by the Township were simply not feasible, given the proposed amount of product to be stored on site. The Farm Board Decision determined that a silo was a proper approach for storage of fertilizer for a single farm. However, if silos were utilized for the volume of product to be stored on the Subject Lands it would require, as Pepperman described it, a “forest of silos”, as 550 silos would need to be built on site. Hoekstra termed storage in buildings as “disastrous”, as it would limit accessibility to hot spot areas in the piles, and other concerns were raised with respect to ventilation and exposure to moisture.

112With respect to the proposed method of storage having the potential to cause unacceptable adverse impacts to property owners in the surrounding area, the Tribunal prefers the evidence of the Appellant’s experts. In the Tribunal’s view, the risks related to odour, dust, fire, drainage, the structural integrity of the bunker for storage of the product, and proper SWM of the runoff, have all been thoroughly considered in the engineered design and associated design studies and reports. The Tribunal notes the depth and breadth of the Appellant’s studies in relation to the Proposed Storage Facility which has built-in conservatisms and is designed and planned for worst-case scenarios.

113The Tribunal considered the failure of the Township to make a decision within the statutory timeframes on the Applications, in making its final determination on this Appeal. These Applications underwent significant revisions in the period leading up to the Hearing. While the Township’s position remained steadfast despite the revised SPA and testimony presented at the Hearing, the Tribunal finds that the concerns with respect to adverse impacts on neighbours, natural heritage, public health and safety, and protection of groundwater have all been addressed by the Appellant.

114The Tribunal finds that the Applications have regard for the matters of Provincial interest as set out in s.2 of the Act, are consistent with the PPS, conform with both the MOP and Township OP, and represent good land using planning.

SITE PLAN CONDITIONS

115The conditions listed at s.41(7) of the Act, found at paragraph [35] of this Decision are “a finite list of the types of conditions” that can be imposed on a site plan and “this section does not include wording that provides flexibility for Municipalities to impose other types of conditions.” (Reynolds, Re, 2012 CarswellOnt 15612 at paragraph 55). However, conditions may be imposed that are not specifically referenced in s.41(7) where there is agreement between the Parties. The Ontario Superior Court has held that while such site plan agreements may not be specifically permitted, they are not ultra vires (London (City) v Wonderland Power Centre Inc. (2007). In this case, the Parties did not agree on the necessity of site plan conditions or on the site conditions proposed by the Township.

116Both experts from the Appellant and Township opined on the content and need for site plan conditions – should the Tribunal allow the appeal. The Appellants’ witnesses were unanimous in their view that no conditions were necessary. McGuffin’s opinion was that there should only be one condition which aligned with s.41(7) of the Act. This is the requirement that a site plan agreement be entered into the Parties to ensure construction in accordance with the established plans and drawings. McGuffin pointed out that many of the Township’s proposed conditions sought to regulate the future operations of the facility and noted that a Municipality has no right to regulate the operations of a business through site plan control.

117Williams opined that the Township’s list of conditions was both necessary and appropriate. The Tribunal was not persuaded by Williams’ testimony and finds that the Township’s proposed conditions are almost all ultra vires or inapplicable. Even Williams acknowledged during cross-examination that some of the Township’s conditions were beyond the scope of subsection 41(7) of the Act. The Township also requested that the HPA remain in place until conditional site plan approval is granted, and a Site Plan Agreement has been executed.

118The Appellant disagreed. Its position was that if the Tribunal did grant approval subject to the Township’s conditions, then the Appellant would object to language that made them subject to the satisfaction of the Township. In its view, the history of this Application would make it unlikely that the Township would ever be satisfied and thus site plan approval would never come to fruition.

119The Tribunal is satisfied that the proposed site plan, as designed and depicted in Attachment 2 in combination with the tested evidence before it and the execution of a site plan agreement as ordered below, adequately address the concerns raised by the Township, thereby authorizing the lifting of the hold.

120The Tribunal will withhold its Final Order until a Site Plan Agreement is entered into by the Parties to ensure construction in accordance with the established plans and drawings. The Holding Provision is to be lifted contingent upon the Tribunal issuing its Final Order in accordance with the below.

INTERIM ORDER

121THE TRIBUNAL ORDERS THAT the Appeal is allowed, in part, and:

A. the site plan prepared by Development Engineering dated May 30, 2024 is approved subject to the following:

i.That the Parties shall enter into a Site Plan Agreement to ensure construction in accordance with the plans and drawings, as set out in Attachment 2 to this Order;

ii.That the Site Plan Agreement includes the provision of, any or all the facilities, works or matters mentioned in subsection 41(7)(a) of the Planning Act, if applicable; and

iii.The Site Plan Agreement shall be registered on title.

B. The Tribunal will withhold its Final Order contingent upon confirmation from the Parties that the pre-requisite matters referred to above in paragraph [121] (A) have been satisfied.

122THE TRIBUNAL FURTHER ORDERS THAT Zoning By-law No. 34 - 2007 of the Township of Adelaide Metcalfe is amended as set out in Attachment 1 to this Order, contingent upon the Tribunal issuing its Final Order in accordance with paragraph [121] (B).

123The Member will remain seized for the purpose of issuing the Final Order and may be spoken to should issues arise in the implementation of this Order.

“G.A. Croser”

G.A. CROSER

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.

ATTACHMENT 1

ATTACHMENT 2