Sherwin-Sharpe v. Tarbutt (Township), 2025 CanLII 110380

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 23, 2025

CASE NO(S).: OLT-24-000832

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

Applicant and Appellant: Carrielynn Sherwin-Sharpe

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision.

Description: To permit an amendment to the Zoning By-Law to allow for an accessory building to be used for storage purposes.

Reference Number: ZA-2024 – 02

Property Address: 131 Lakeshore Drive

Municipality/UT: Township of Tarbutt

OLT Case No.: OLT-24-000832

OLT Lead Case No.: OLT-24-000832

OLT Case Name: Sherwin-Sharpe v. Tarbutt (Township)

Heard: June 23 and 24, 2025, by video hearing

APPEARANCES:

Parties	Counsel
Carrielynn Sherwin-Sharpe	Michael Nemanic
Township of Tarbutt	Carly Emmet

DECISION DELIVERED BY YASNA FAGHANI AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The Application before the Tribunal is related to an appeal filed by Carrielynn Sherwin-Sharpe (“Applicant”) pursuant to s.34 (19) of the Planning Act (“the Act”) that seeks permission to amend the Zoning By-law No. 10-85 (“ZBL”) for the property known municipally as 131 Lakeshore Drive (“Subject Property”), in the Township of Tarbutt (“Township”).

2The Applicant seeks to legalize the existing buildings and structures on the Subject Property, which were developed without prior approvals, and to implement site-specific exceptions to allow existing buildings and structures to be used for residential use.

3For the reasons set out below in this Decision, the Tribunal, finding in favour of the Applicant, allows the appeal, subject to conditions as stated below.

SUBJECT PROPERTY AND SURROUNDING NEIGHBOURHOOD

4The Subject Property is approximately 0.54 acres (23,522 square feet), is designated Shoreline in the Township of Tarbutt Official Plan (“Township OP”) and is zoned Shoreline Residential (“SR”) under the ZBL. It is located in a rural area on the south side of Lake Shore Drive which fronts onto St. Mary’s River.

5The Subject Property contains a single residential dwelling and accessory buildings and structures associated with the residential dwelling. The key buildings and structures include: a one storey 93.15 square metre (“m^2"”) primary dwelling, a 71.95 m² deck that wraps around the south and west sides of the primary dwelling, an inground pool west of the primary dwelling with a wooden deck surrounding the inground pool, a 104.90 m² boardwalk leading to a dock within St. Mary’s River. Accessory buildings including cabins, gazebo, utility shed and tent garage, collectively comprising 95.15 m² with a lot coverage of 3.77% for said accessory buildings.

6The surrounding neighbourhood includes low density seasonal and year-round residential use dwellings ranging from 1-2 storeys with accessory structures such as gazebos, sheds, and boat docks. The same zoning and access to St. Mary’s River applies to the abutting properties to the south and northwest of the Subject Property.

PROPOSAL

7The proposal requests to permit the location of the existing building and structures on the Subject Lands. As such, the following amendments to the ZBL are requested: minimum setback of 1.0 metres (“m”) from the lot line to the accessory buildings, removal of the requirement to enclose the swimming pool with a fence, maximum lot overage of 22.5%, minimum lot area of 2,522.40 m², minimum rear yard setback of 0.00 m, and minimum side yard setback of 1.43 m.

LEGISLATION, PLANS AND POLICIES

8The relevant legislative framework and planning policies applicable to the appeal include: the Act, the Provincial Planning Statement, 2024 (“2024 PPS”), the Township OP and the ZBL.

9The Tribunal also must have regard to the decision of the Township and the information considered in making the decision as required by the Act and be satisfied that the Proposal represents good land use planning and is in the public interest.

POSITION OF THE PARTIES

10The Applicant submits that for the Tribunal to determine that the proposal meets the statutory tests, it is necessary for it to assess whether the Townships issues, as identified on the issues list, have been appropriately addressed. For the Applicant, these issues can be grouped under 1) compatibility with the neighbourhood, 2) whether the Fish Habitat is protected and 3) whether the proposal endangers public safety. The Applicant relied on the evidence of its experts, Mathew Halo (land use planning), and Navraj Grewal (civil design and storm water management) who opined that the proposal meets the regulatory tests and represents compatible development with other shoreline properties as careful attention to flood line regulations and hazard land considerations have been made.

11The Township, on the other hand, submits that the hearing before the Tribunal is de novo. This means the onus is on the Applicant to provide evidence on each relief being sought and demonstrate that the each relief satisfies the legislative tests. The Township relied on David Welwood (land use planning expert) to support its position that there is not enough evidence and/or planning justification to support the Application. The Township argued, amongst other things, that the proposal did not have regard to certain matters of provincial interest under s.2 of the Act, was not consistent with certain aspects of the PPS 2024 and did not conform to the Township OP. Specifically, the Town argued that the proposal does not demonstrate the protection of natural heritage features or ecological functions because an Environmental Impact Study (EIS) was not conducted as required by s.B5.4.2, C.2.1 and C2.2 of the Township OP . Further, the Town submitted that there was a lack of implementation of mitigation measures related to a Drainage Plan. Of note, Mr. Welwood testified that a draft Drainage Plan was submitted but it had yet to be finalized, stamped and approved by the Township engineer.

12Additionally, the Tribunal had previously granted participant status to two neighbouring property owners who expressed concerns regarding building encroachment, site layout and lack of authorization/proper assessment prior to construction, amongst other issues.

EVIDENCE, ANALYSIS AND FINDINGS

13As a starting point, the Tribunal states it has a responsibility to ensure rigorous testing of evidence before it. This means that the Tribunal stands in the shoes of the Municipal Council and makes its decision based on the planning merits of the Appeal and the evidence before it. The Tribunal also has the benefit of additional professional land use planning evidence for and against any proposal. The Tribunal must take into account relevant legislation and policies before it and the requirements under said legislation, even if the Council failed to do.

14Section B5.4 of the Township OP relate to general policies which apply to environmental protection designations. Subsection 5.4.2 of the Township OP reads as follows:

Adjacent Lands

Adjacent lands are the lands adjacent to an environmental feature within which impacts must be considered and within which the compatibility of the development proposal must be addressed. For the purposes of this Official Plan, adjacent lands are defined as all lands within:

a) 120 metres of the boundary of a Provincially significant wetland or coastal wetland that has been confirmed by the Ministry of Natural Resources;

b) 120 metres from the boundary of a Provincially or Regionally Significant Life Science Area of Natural and Scientific Interest;

c) 120 metres from the boundary of significant wildlife habitat;

d) 120 metres of a habitat of any endangered or threatened species and where scientific data has determined a different setback the greater of the two will be required;

e) 50 metres from the boundary of any Provincially of Regionally Significant Earth Science Area of Natural and Scientific Interest; and,

f) 120 metre from the boundary of Fish Habitat.

No development or site alteration shall be permitted on these adjacent lands without Council approval of a zoning by-law amendment, site plan, development permit or other appropriate planning approval which is accompanied by an Environmental Impact Study which evaluates and assesses the ecological function of the adjacent lands and demonstrates that there will be no negative impacts on the natural features or on their ecological functions. The requirements for an Environmental Impact Study are contained in Section B5.8 (Requirements for an Environmental Impact Study) of this Plan.

The scale and the contents of the required studies shall be determined at the time the development is proposed. The width of the adjacent lands may be increased/decreased, depending on the feature and the nature of the proposed development. This determination shall be made in consultation with the appropriate agencies at the time the development is proposed.

[Tribunal emphasis added.]

15There is agreement that the Subject Property is 120 m from the boundary of the Fish Habitat. Mr. Halo opined that since the application was deemed complete without the need of an EIS, and the small-scale nature of the proposal (unlike a resort or a proposal for commercial use), then there would likely be no negative impacts. Counsel for the Applicant submitted that a planner may play a “gate keeping” role and determine what reports are required to meet the Statutory Tests.

16Ms. Trainor, clerk and deputy treasurer of the Township, was summoned by the Applicant with respect to the contents of the Staff Report. Her testimony made clear that the Township does not have a planning department in which planners may be able to assist with the review of applications and determine whether applications would meet all the requirements. In fact, under cross examination, Mr. Welwood stated that he would not agree with Ms. Trainor that the application was consistent with the PPS 2024, and he would not agree that the application was complete. It was Mr. Welwood’s opinion that the Township OP makes it clear that an EIS is required for development on the Subject Property.

17Counsel for the Applicant relied on Johnston v. Ontario (NEC), 2022 CanLII 121053 (ON LT) (“Johntson”) for its position that a planner can act as a gatekeeper and determine which test are necessary. In Johntson the Tribunal had to determine the issuance of a development permit in order to allow the approval of a 2-storey dwelling and attached garage which was in an Area of Natural and Scientific Interest (“ANSI”). Counsel for the Applicant highlighted the following from the case:

Regarding consistency with the PPS, the proposed development lies within an ANSI, but based on the evidence before the Hearing Office, there will be no negative impacts on natural features or their ecological functions. The evidence before the Hearing Office is that the Significant Woodland on the subject property is 100 m from the site of the proposed development and, based on Ms. Tansony’s uncontradicted [land-use planning] evidence, there are not expected to be any negative impacts on the woodland or species at risk from the proposed development. The Hearing Office finds that the development permit is consistent with the PPS.

[Counsel emphasis added.]

18Counsel for the Township argued that Johnson is distinguishable because, as stated in the case, the expert testified that:

the site of the proposed development is not on “adjacent lands”, which is defined in the PPS for the purposes of policy 2.1.8 as land contiguous to a specific natural heritage feature or area where it is likely that development or site alteration would have a negative impact on the feature or area.[Counsel emphasis added]

19Furthermore, the Tribunal finds that unlike Johnson, the case before it is not based on uncontradicted testimony. In this case, Mr. Welwood testified the need for an EIS comes from the requirement under the Township OP when dealing with “adjacent lands”.

20The Tribunal accepts the Township’s position that an EIS is required under the Township OP in order to determine the negative impacts, if any. There is no language in the relevant section which allows exceptions or exemptions from the requirement. For example, language such as “if feasible” or “if reasonable” would provide a level of flexibility which may allow a “gate keeping” function to take place. If this language was used, then there would be room for justification as to why an EIS would not be required. However, there is no such language in the Township OP.

21Additionally, the Tribunal was not directed to sections in the Township OP which suggest that that “type of development” or “type of use” impacts the requirement of an EIS. Therefore, as it stands, the Township OP makes it clear that an EIS is necessary for developments on the Subject Property since the development is on “adjacent lands”. As will be discussed further below, the Applicant proposed “Fish Habitat” Condition of approval, rather than an outright refusal of the Zoning By-law Amendment (“ZBA”).

22With respect to a Drainage Plan and adverse impacts, Mr. Welwood opined that a Lot Grading and Drainage Plan is necessary to determine how stormwater management planning should be minimized, or where possible, prevented or reduce increases in storm water volumes and contaminants as required by policy 3.6.8 (d) of the PPS 2024. Further, he opined that without the appropriate Lot Grading and Drainage Plan it is not possible to determine ow public health and safety has been considered as required by s.2 (o) of the Act. He further stated that the proposal would not conform to the strategic objectives of the Township OP relating to the environment, absent the Lot Grading and Drainage Plan. He found the development to be over-developed and not compatible with the general character of the existing shoreline community.

23With that said, under cross-examination, Mr. Welwood was asked, that if a EIS was completed and Lot Grading and Drainage Plan submitted which determined that there was no negative environmental impact and no negative storm water run-off, would he agree that there was no overdevelopment on the Subject Lands. His response suggested that Applicant was “on the right track”.

24Mr. Grewal testified that he was retained to prepare detailed grading and drainage drawings to indicate the proposed elevations and direction of surface drainage and overland flows on the Subject Property. He noted that the drawings are intended to meet the more detailed requirement of the site plan approval process. Nevertheless, he followed standard practice in the preparation of the drawings.

25The purpose of his assessment was to determine the existence of unacceptable adverse impacts upon the neighbouring sites and St. Mary’s River. Through the preparation of the drawings, he determined that the existing cottage and accessory buildings will not impose unacceptable adverse stormwater impacts, since the quantity of storm water run-off is minor in nature and acceptable for rural properties where drainage is directed along lot lines and sheet flows. He concluded that the Subject Property’s existing grading is acceptable “as is”. With that said, he concluded that the Drainage Plan recommended marginal improvement over the existing conditions which would reduce surface run-off to the adjacent lands. Mr. Grewal’s evidence was uncontested.

26Counsel for the Applicant submitted that his client was prepared to impose a Servicing Condition to address the Drainage Plan issue versus the Tribunal refusing the ZBA.

27The Tribunal finds, based on Mr. Grewal’s uncontested evidence, that the development on the Subject Property has no unacceptable adverse impacts on the abutting properties and St. Mary’s River. With that said, mitigative measures have been suggested which should provide marginal improvements and the Applicant is prepared to provide a Servicing Condition to address this issue. As such, the Tribunal accepts the imposition of the Servicing condition.

CONDITIONS OF APPROVAL

28Overall, the crux of this matter is that certain buildings and structures have been built on the Subject Property without the required assessments to determine adverse impacts and to determine mitigative measures in order to address the impacts.

29The Tribunal finds in favour of the Applicant’s position of imposing Conditions, rather than an outright refusal of the ZBA. It is an effective route to address adverse impacts which is the intent of the relevant legislative policies.

30The Applicant’s Counsel requested that the imposition of the following condition regarding the ESI: “The Owner has provided a scoped ecological impact assessment to evaluate the impact, if any, that the proposal would have upon Fish Habitat, to the reasonable satisfaction of the Township and the Owner.”

31The Township’s Counsel submitted that, while it maintained its opposition, if the Tribunal deemed conditions appropriate, then the Township proposed the following condition regarding the ESI: “The Owner has provided a scoped ecological impact assessment to evaluate the impact, if any, that the proposal would have upon natural heritage features, to the reasonable satisfaction of the Township and the Owner.” [Tribunal emphasis added].

32The Applicant’s Counsel argues that focusing on “fish habitat” is in line with what has been identified on the issues list, rather than the broader language of “natural features” which would mean the Applicant may be required to assess impacts upon other natural heritage features and areas which, according to the Applicant, do not exist and were not referenced on the issues list.

33As discussed earlier, the case before the Tribunal is de nova and the Tribunal’s role is required to assess the Application before it according to the applicable legislation and policies with the benefit of additional experts. In this case, the requirement under the Township OP is for an EIS to determine impacts on “natural features” rather than simply “fish habitat”. The Tribunal finds that taking the language directly from the Township OP, which specifies “natural features”, best meets the intent of the policy regarding assessing adverse impacts.

34With respect to the Drainage Plan and corresponding servicing condition, there was no disagreement between the parties on the said condition.

ORDER

35THE TRIBUNAL ORDERS that the Final Order will be withheld until such time as the Tribunal has been advised by the Township and the Owner of the following:

1. The final form and content of the Zoning By-law Amendment are reasonably satisfactory to the Township and the Owner.
2. The Owner has provided a scoped ecological impact assessment to evaluate the impact, if any, that the proposal would have upon natural features, to the reasonable satisfaction of the Township and the Owner.
3. The Owner has provided grading plans that evaluate the impact, if any, that the proposal would have upon adjacent lands and the St. Mary’s River, as it relates to stormwater run-off and surface water drainage, to the reasonable satisfaction of the Township and the Owner; and
4. The Applicant agrees to implement any mitigation measures identified and/or recommended in the scoped environmental impact assessment and drainage report, as identified in conditions 2 and 3, within a reasonable timeframe.

36The Member remains available to assist with any issues that may arise but is not seized on this matter.

“Yasna Faghani”

YASNA FAGHANI 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.