County of Middlesex v. Strathroy-Caradoc (Municipality), 2025 CanLII 113874

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 29, 2025

CASE NO(S).: OLT-25-000250

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: County of Middlesex

Applicant: Peter Gubbels

Subject: Consent to Sever

Description: To facilitate severance for dwelling

Reference Number: B22-2024

Property Address: 8040 Irish Drive

Municipality/UT: Strathroy-Caradoc/Middlesex

OLT Case No: OLT-25-000250

OLT Lead Case No: OLT-25-000250

OLT Case Name: County of Middlesex v Strathroy-Caradoc (Municipality)

Heard: October 1, 2025 by video hearing

APPEARANCES:

Parties

Counsel

County of Middlesex

Alex Ciccone David Samuels

Peter Grubbels

Shereen Goncalves

Municipality of Strathroy-Caradoc

(not in attendance)

DECISION DELIVERED BY A. Mason AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION

1This is the decision arising from a one-day Merit Hearing of an appeal pursuant to s. 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), by the County of Middlesex (“County”) of the decision rendered by the Committee of Adjustment (“Committee”) of the Municipality of Strathroy-Caradoc (“Municipality”) granting provisional approval B22-2024 for an application for consent to sever a surplus farm dwelling from a larger farm parcel as a result of farm consolidation (“Consent Application”).

2The Consent Application is with respect to a 19.8 hectare rural agricultural property municipally known as 8040 Irish Drive, located on the north side of Irish Drive and east of Christina Road (“Property”). The Property is legally owned by Roger and Nancy Lefebvre; however, Peter Grubbels is the beneficial owner and the applicant under the Consent Application and Merit Hearing (“Applicant”).

3The Applicant submitted the Consent Application seeking to sever a 0.4 hectare parcel (“Severed Parcel”) from the larger retained farm parcel of 19.4 hectares (“Retained Parcel”). The proposed Severed Parcel is not in agricultural production, does have any building or structures on it, and has approximately 61 meters of frontage along Irish Drive. The proposed Retained Parcel contains agricultural land in crop production and a woodlot area.

4Through the planning review process, the Applicant advised the Municipality that the Property previously had a farm dwelling in the area of the proposed Severed Parcel (“Historic Dwelling”). The Historic Dwelling was demolished in 2005, but the Applicant believes that the foundation and septic bed are still present under backfill and vegetation. If granted the proposed severance contemplated in the Consent Application, the Applicant intends to construct a new dwelling in the same location as the Historic Dwelling and re-use the buried foundation and septic, while the Retained Parcel will continue in agricultural use.

5The Consent Application was considered by the Committee in February 2025, accompanied by a staff report that recommended the proposal be denied (“Staff Report”). The Staff Report set out that, since the Property does not contain an existing dwelling on either the proposed Severed Parcel or Retained Parcel, the Consent Application is not consistent with the relevant policies in the Provincial Planning Statement 2024 (“PPS”), and does not conform to the County of Middlesex Official Plan (“County OP”) or the Strathroy-Caradoc Official Plan (“Municipal OP”) policies governing surplus farm dwelling severances due to farm consolidation which each require the presence of an existing dwelling.

6A decision by the Committee on the Consent Application was initially deferred, and staff were directed to bring back conditions of approval for the proposed severance. Subsequently, in March 2025, the Committee approved the Consent Application along with conditions of approval with respect to details such as rezoning of the Retained Parcel to prohibit future residential uses on it.

7The County appealed the Committee’s approval on the basis that the Consent Application is not consistent with the PPS and does not conform to the County OP or the Municipal OP, since those policy documents require that a habitable dwelling exist on the Property when considering an application for a surplus farm dwelling severance. As a result, the County asserted that the Consent Application is actually a proposal to sever a residential lot in a prime agricultural area.

8At the Merit Hearing, the Applicant set out their position that the Consent Application addresses a unique situation allowing for the restoration of a previously existing rural residence without fragmenting the agricultural base, supported by a set of detailed conditions of approval, and that the proposal satisfies the intention of all applicable policies.

9The Municipality advised the Tribunal in advance of the Merit Hearing that it took no position on the Appeal and would not be making submissions or attending the event.

10Having considered the submissions of the Parties and their respective expert witnesses viva voce and written evidence, the Tribunal finds that the Consent Application is not consistent with the relevant policies for consideration of a surplus farm dwelling severance due to farm consolidation set out in the PPS, and does not conform to the corresponding policies in the County OP and Municipal OP because there is no existing habitable dwelling on the Property. Having not met the key criteria under those policy documents for the proposed severance, the Tribunal finds the Consent Application does not have regard for matters of Provincial interest in s. 2 of the Act and does meet the criteria in s. 51(24) of the Act. The Tribunal allows the Appeal and orders that the provisional consent is not granted.

SITE CONTEXT

11Additional uncontested background information that is relevant to the Tribunal’s deliberation is as follows:

a. The Property is located within a “Prime Agricultural Area” as defined by the PPS.

b. The Property is designated “Agricultural” in both the County OP and the Municipal OP.

c. The Property is zoned “General Agricultural (A1) Zone” with a “Natural Environment” overlay in the Municipal Zoning By-law No. 43-08.

d. The surrounding land is generally agricultural and used primarily for cash crops, with two non-farm residential dwelling lots abutting the Property to the east.

e. The proposed Severed Parcel is 0.4 hectares which is the minimum size to accommodate private sanitary and water services.

f. The Applicant owns other farms and is eligible for consideration of a farm consolidation on that basis.

g. It was unknown by either Party if the Historic Dwelling was habitable when it was demolished in 2005.

h. A residential dwelling can be constructed on the Property ‘as of right’ without granting the proposed Severed Parcel contemplated in the Consent Application.

APPLICABLE LEGISLATION

12Where there is an appeal of an application for consent to create a new lot under s. 53(19) of the Act, the Tribunal must consider and decide the following issues:

a. Section 53(1) of the Act requires the Tribunal to be satisfied that a plan of subdivision is not necessary for the proper and orderly development of the municipality and that the proposed creation of a new lot can proceed by way of application for consent;

b. Section 53(12) of the Act requires the Tribunal to have regard for the criteria set out in s. 51(24) of the Act, which includes:

i. Having regard to the effect that the proposed severance will have on matters of Provincial interest set out in s. 2 of the Act, such as the protection of agricultural resources and the appropriate location of growth and development.

ii. Considering whether the severance is premature or in the public interest; and,

iii. Whether the proposed severance conforms to the municipal official plan.

c. Section 2.1 of the Act requires the Tribunal to have regard to the decision of the approval authority relating to the proposed severance that is before it and the information and material that was before the approval authority in making the decision; and

d. Section 3(5) of the Act requires the Tribunal to be satisfied that the approval of the proposed severance is consistent with the PPS, and conforms to such Provincial plans that may be applicable;

13In answering the above tests, the Tribunal considers whether the granting of the proposed Severance represents “good planning” and is in the public interest.

DOES THE CONSENT APPLICATION SATISFY THE POLICIES FOR SEVERANCE OF A SURPLUS FARM RESIDENCE?

14At the Merit Hearing, the County presented Dan FitzGerald, a full Member of the Canadian Institute of Planners, a Registered Planner (Ontario), and current Manager of Planning for the County, to provide opinion evidence. The Applicant presented Lucila Sandoval, also a full Member of the Canadian Institute of Planners and a Registered Planner (Ontario), to provide opinion evidence. The Tribunal qualified both witnesses to provide opinion evidence in the area of land use planning.

15The key difference between the position of the County and the Applicant is their approach to the Historic Dwelling that was located in the proposed Severed Parcel but demolished in 2005. The County takes the position that the Historic Dwelling does not exist today; therefore, the requirement that an existing habitable dwelling be on the Property that is found in all levels of the applicable surplus farm dwelling severance policies means that the Consent Application must fail on this fact. In contrast, the Applicant advances a broader interpretation of the policies relying on the fact that the Historic Dwelling did exist on the Property and that the proposed severance will enable the reinstatement of a dwelling, thereby making use of land that was once used for that purpose. From this proposition, the Applicant advocates that the Consent Application should be granted based on the assertion that a house will be constructed in the historic location and thereby fulfills the intent of the applicable policies and tests under the Act for the proposed severance.

16The witness for the County testified to the policies under the PPS, County OP and Municipal OP that the Tribunal must consider with respect to the Consent Application and opined that the proposed severance does not meet the criteria set out therein, as follows:

a. The creation of new residential lots in prime agricultural areas is prohibited under the PPS, except in accordance with s. 4.3.3.1(c), which permits one new residential lot per farm consolidation for a residence surplus to an agricultural operation, subject to criteria stipulating that the land is limited in size and no new dwelling is permitted on the retained lands.

b. The definition of a “residence surplus to an agricultural operation” is defined in the PPS at s. 8 as an “existing habitable detached dwelling, including any associated additional residential units, that are rendered surplus as a result of farm consolidation (the acquisition of additional farm parcels to be operated by one farm operator)” (emphasis added).

c. A severance of a residence surplus to a farming operation as a result of farm consolidation is only permitted by the County OP under s. 4.5.3.4, which specifies that the dwelling was built at least 10 years prior, the new lot is limited to a maximum size for the use and services and no new dwelling is allowed on the retained lands.

d. The Municipal OP, under s. 5.3.1.8, requires that dwellings considered surplus to a farm operation may be severed from the balance of the farm as a result of farm consolidation, provided the residential dwelling was built before January 1, 1999, where a “surplus farm dwelling” is defined as an existing farm residence.

17Mr. FitzGerald opined that PPS policies scaffold together with the corresponding local policies in the County OP and the Municipal OP to reinforce the core requirement that there must be an existing habitable dwelling on the farm to consider the Consent Application as a surplus farm dwelling severance, otherwise it is merely an application for creation of a lot. Mr. FitzGerald opined that the intention of these policies is to limit the fragmentation of prime agricultural land and stop the intrusion of sensitive land uses into prime agricultural areas which can limit farm operations, while also balancing the reality of farm consolidation such that farmers do not also need to be landlords of surplus dwellings.

18The Act at s. 53(12) requires the Tribunal to consider the criteria in s. 51(24) when determining whether a consent to sever may be granted. Mr. FitzGerald testified that the Consent Application does not have sufficient regard matters of provincial interest as required by s. 51(24)(a) since the Property is designated prime agricultural and the proposed severance would not be in the Provincial interest of protecting agricultural resources. Similarly, Mr. FitzGerald testified that regard for the appropriate location of growth and development is not given sufficient regard as required by s. 51(24)(p). Further, Mr. FitzGerald testified that the Consent Application critically does not conform to the official plans as required by s. 51(24)(c) for the reasons set out in paragraph 16 above.

19The witness opined that the Consent Application would have the effect of potentially limiting current and future farm practices based on the introduction of a more sensitive residential land use into a prime agricultural area. Mr. FitzGerald explained to the Tribunal that although a farm residence is permitted to be constructed on the Property “as of right”, such residential use is considered differently under guidelines for the agricultural minimum distance separation formula ("MDS") governing separation between residential and agricultural operations. As a result, the proposed Severed Parcel could result in greater limitations on future farm operations compared to a farm residence constructed without a severance on the Property.

20Counsel for the County concluded that, based on the testimony of Mr. FitzGerald, the proposed severance in the Consent Application is not consistent with the policies in the PPS and does not conform to the more specific land use policy guidance in the County OP and Municipal OP that a farm dwelling severance must apply to a dwelling that is both existing and habitable, and as such, fails to meet the criteria in s. 51(24) of the Act.

21The witness for the Applicant testified that the Consent Application aligns with applicable policies, protects prime agricultural lands and facilitates a reasonable, context-sensitive residential use consistent with rural Ontario planning principles.

22With respect to the PPS, Ms. Sandoval testified that although s. 4.3.3.3. restricts new residential lot creation in prime agricultural areas, the unique circumstances of the Consent Application means that the intention of the policies to allow the severance of a surplus residential farm dwellings in limited circumstances would be met without undermining agricultural protection. The fact that the Historic Dwelling existed on the Property and the foundation purportedly remains, along with the proposed zoning condition of approval restricting future residential uses on the Retained Parcel, were cited as key factors in support. Ms. Sandoval testified that the foundation and services from the Historic Dwelling on the proposed Severed Parcel render that portion of the Property impractical for future farming, thereby reinforcing the appropriateness of its reinstatement as a residential use.

23Ms. Sandoval testified that the PPS policies demonstrate that limited residential uses are permitted in prime agricultural areas, such as under s. 4.3.2.4, which confirms that a principal dwelling associated with agricultural uses may exist in a prime agricultural area, and s. 4.3.2.4 that enables additional residential dwellings on agricultural land. Ms. Sandoval opined that the proposed severance fulfills the intent of the PPS policies that balance protecting farmland while also enabling limited, reasonable rural residential opportunities.

24With respect to the County OP, Ms. Sandoval testified that its policies prioritize the protection of farmland in concert with the PPS while allowing some lot creation. Ms. Sandoval opined that the Consent Application meets the “intent and effect” of the key policy in s 4.5.3.4 that permits consent to sever a residence surplus to a farming operation where the residence was built at least 10 years prior, the new lot is limited to a minimum size for services, and no new residential dwellings are permitted on the retained farmland. Ms. Sandoval opined that the fact that the Historic Dwelling existed in the past meets the temporal criteria in the policy, while the other elements are met by the relatively small size of the proposed Severed Parcel and the restrictive zoning condition of approval proposed for the Retained Parcel.

25With respect to the Municipal OP, Ms. Sandoval opined that the Consent Application met the “intent and objectives” of the suite of policies that limit surplus farm dwelling severances, restrict residential uses in prime agricultural areas, while also maintaining the distinct character of the rural area by the “reconstruction” of a previous rural residential use. Ms. Sandoval similarly opined that the proposal meets the “spirit” of the County OP and Municipal OP policies by restoring the historic use without expanding the residential footprint and by the Retained Parcel remaining agricultural and protected by proposed zoning conditions.

26Counsel for the Applicant advocated that, based on the evidence provided by their witness, the Tribunal should approve the Consent Application because the proposal would permit the re-establishment of a former residence in a location already altered by a residential use that is impractical for productive agricultural use, and would not further fragment prime agricultural land. If the Tribunal refused the Consent Application, Counsel stated that the future use of the proposed Severed Parcel would be rendered uncertain and likely underutilized, which would not represent good planning or be in the public interest.

27On cross-examination by Counsel for the County, Ms. Sandoval acknowledged various typographical errors in her witness statement and errors to purported policy references in the PPS that were found to not exist. Further, Ms. Sandoval acknowledged that the correct test the Tribunal must consider with respect to the PPS is “consistency” with its policies and “conformity” with the County OP and Municipal OP policies, not that the proposal meets the “intent and principles” of the relevant policies as she opined in her witness statement and viva voce testimony. Counsel for the County asked the Tribunal to give zero weight to Ms. Sandoval’s evidence because of what they characterized as errors, misleading policy references, and misdirection as to the applicable tests.

ANALYSIS AND FINDINGS

28In considering the submissions of the Parties, the Tribunal favours the evidence of Mr. FitzGerald over that of the witness for the Applicant, not due to the acknowledged text errors in Ms. Sandoval’s witness statement, but more critically because of her mischaracterization of the applicable tests set out in the Act and the PPS for evaluation of the Consent Application.

29In essence, the Applicant’s position requires the Tribunal to evaluate the Consent Application against the intention of the applicable policies and tests in the Act, with the idea in mind that the Historic Dwelling once existed, and a residential dwelling would be reinstituted in a similar location. However, the Tribunal does not agree that the “intention” of the policies is the test that must be met. The Act, at s. 51(24)(c), requires the Tribunal to consider the Consent Application and its conformity with the County OP and the Municipal OP. The plain language of both of those policies requires that a consent to sever a surplus farm dwelling because of farm consolidation have an existing habitable dwelling on the land. Similarly, the Consent Application must be consistent with the PPS policies, which also dictate that an existing farm dwelling be on the Property to consider severance of a surplus farm dwelling due to farm consolidation. Mr. FitzGerald testified as to the rationale behind these policies as prohibiting the fragmentation of farmland in order to provide the greatest flexibility for future for farming operations and to avoid the introduction of more sensitive residential uses into agricultural areas that may limit farming practices.

30Counsel and the witness for the Applicant set out the position that because it is permissible to construct a house on the Property “as of right”, the same result is arrived at by the proposed severance. The Tribunal acknowledges that construction of a dwelling on the Property is allowed today; however, Mr. FitzGerald testified that creating a new lot through the proposed Severed Parcel imports more arduous MDS setbacks from agricultural uses compared to a dwelling on a farm property, thereby potentially constraining future agricultural uses on the Property. The Tribunal also notes that the “as of right” dwelling means that the opportunity to live on the Property already exists today, lending weight to the Appellant’s assertion that the Consent Application is really a severance to create a new lot, not a severance of a dwelling surplus to a farm operation due to farm consolidation.

31The Tribunal does not agree with Counsel for the Applicant that by refusing the Consent Application, the future use of the proposed Severed Parcel is left uncertain and underutilized. In fact, its future use is quite certain because it is designated as prime agricultural land in multiple policy documents, and therefore, it will continue to be used for that purpose. Whether the current owner or some future owner chooses to actively cultivate that area of the proposed Severed Lot without seeking to sever a separate lot and construct a farm dwelling, or leave it fallow, is subject to the same changes in ownership, economy, and farming practices that determine the evolving use of the balance of the Property.

32The Tribunal finds that the policies in the PPS, County OP and Municipal OP are clear and logically scaffold together to require that an existing habitable farm dwelling must exist on the property for an application for surplus farm residence severance due to a farm consolidation to be considered as the reason to create a new lot on prime agricultural land. As a result, the Tribunal finds the Consent Application does not meet the criteria in s. 51(24) of the Act to conform to the County OP and Municipal OP, or to protect agricultural resources, does not constitute good planning in the public interest and may not be granted.

ORDER

33THE TRIBUNAL ORDERS THAT the Appeal is allowed and provisional consent B22-2024 is not to be given.

A. Mason

A. MASON

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.