Ontario Land Tribunal
Tribunal ontarien de l’aménagement
du territoire
ISSUE DATE:
February 20, 2025
CASE NO(S).:
OLT-24-000926
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant:
Lou Laventure
Subject:
Consent
Description:
To permit a consent for conveyance of a residential lot
Reference Number:
B34/24
Property Address:
42 Milton Stewart Ave, Pt Lot 18, Con 8
Municipality/UT:
Township of McNab/Braeside/County of Renfrew
OLT Case No.:
OLT-24-000926
OLT Lead Case No.:
OLT-24-000926
OLT Case Name:
Laventure v. Renfrew (County)
Heard:
November 28, 2024 by Video Hearing
Closing Submissions December 13, 2024
Parties
Counsel/Representative*
Lou Laventure
Self-Represented*
County of Renfrew
Emma Blanchard
DECISION DELIVERED BY YASNA FAGHANI AND ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION AND BACKGROUND
1The matter before the Tribunal is an Appeal pursuant to s.53(19) of the Planning Act, R.S.O. 1990, c.P.13 (“Act”) by Lou Laventure, (“Applicant”) against the decision by the County of Renfrew (“County”) refusing the application for provisional consent (“Application”).
2The property, municipally known as 42 Milton Stewart Avenue, Lot 18 Concession 8, Township of McNabb/ Braeside (“Subject Property”), is an 8.055 hectares (“ha”) parcel of land on a rural property. The Applicant seeks to sever and convey a vacant residential building lot from the large rural property.
3The proposal includes the severance of 0.3355 ha for the residential lot, and the remainder would result in an area of 7.75 ha containing a shed. The proposed residential lot is zoned Residential One – Exception 48 [R1-E48]. There is no issue regarding minimum area and frontage requirements under the Zoning By-law.
4The Application was filed with the County, and according to the Consent Planning Report dated July 29, 2024 (“Consent Planning Report”), the Application was denied because the proposal was not consistent with the Provincial Policy Statement (“PPS”) and did not conform to the County’s Official Plan (“OP”) since satisfactory noise impact and hydrogeological assessments had not been submitted. The County denied the Application.
5On August 28, 2024, the Applicant filed an Appeal to this Tribunal. No issues were raised regarding the Administrative Notice of this Hearing dated October 15, 2024, and marked as Exhibit 1.
6The Tribunal did not receive any Party or Participant status requests in advance of the hearing, and no one appeared at the hearing requesting Party or Participant status.
7For the reasons that follow, the Tribunal finds that the Appeal should be dismissed, and the Application refused.
HEARING
8The Document Book of the County was marked as Exhibit 2.
9The Supplementary Book of Documents provided by the County was marked as Exhibit 3. Of note, this Supplementary Book of Documents consolidated all of the single documents that the Applicant had previously filed. The Applicant agreed to mark the Supplementary Book of Documents as an exhibit and referenced the tabs within when presenting his case.
10The Witness Statement of Bruce Howarth, dated November 22, 2024, was marked as Exhibit 4.
11The Tribunal heard uncontroverted viva voce evidence from Mr. Howarth, who was qualified as an expert in the area of land use planning. His Curriculum Vitae and Acknowledgement of Expert Duty are part of Exhibit 4.
LEGISLATIVE TEST
12The Tribunal is a creature of statute. This means it is bound to follow the rules under its specific Legislation, which in this case is the Planning Act. The Tribunal observes two purposes of the Act under s. 1.1, which are to provide for a land use planning system led by provincial policy (b) and to recognize the decision-making authority and accountability of municipal councils and planning (f).
13Next, the Tribunal must have regard to the matters of provincial interests as set out in s. 2 of the Act and to the decision, if any, of the County and the information considered in making the decision, as required by s. 2.1(1) of the Act.
14In addition, the Tribunal is mandated by s. 3(5) of the Act to render decisions that are consistent with the PPS and conform or not conflict with the provincial plans that are in effect on the date of the decision.
15As of October 20, 2024, the PPS, 2020 (“PPS 2020”) and the Growth Plan for the Greater Golden Horseshoe are no longer in effect, and the PPS, 2024 (“PPS 2024”) is in effect. In this respect, the Tribunal must be satisfied that the Application is consistent with the PPS 2024.
16Of significance for this hearing is the provision of the Act relating to consent applications. Where a Plan of Subdivision is not required, s. 53(12) of the Act directs the reader to s. 51(24), which sets out a number of criteria to be considered but not limited to the following:
a. The effect of development on the matters of provincial interest;
b. Whether the proposed plan is premature or in the public interest;
c. Whether the plan conforms to the Official Plan and adjacent plans of subdivision;
d. The suitability of the land for the purposes for which it is to be subdivided;
e. The number, width, location and proposed grades and elevations of highways;
f. The dimensions and shapes of the proposed lots;
i. The adequacy of utilities and municipal services; and
j. The adequacy of school sites;
ANALYSIS AND FINDINGS
Matters of Provincial Interest under s. 2 of the Act
17Mr. Howarth opined that the matters of provincial interest which are most relevant to this case are s. 2(f) the adequate provisions and efficient use of communication, transportation, sewage and water services and waste management systems; s. 2(h) the orderly development of safe and healthy communities; and s. 2(o) the protection of public health and safety. Mr. Howarth testified that in rural communities, a big component of the orderly development of safe and healthy communities is to ensure safe drinking water where municipal sewage is not available and the use of wells and septic systems are required. Further, the protection of public health and safety means there needs to be consideration for the need for housing while providing it in a way that has regard for proper sewage, water, and noise.
18According to Mr. Howarth, the County requires a hydrogeological study and noise impact study, which will be discussed in detail further below. He stated that the absence of these studies will result in an inability to assess whether the proposed residential development will permit the provision of adequate sewage and water systems on the proposed residential lot and whether potential risks to public health will be created. Mr. Howarth found that the Applicant’s refusal to provide said studies does not support the orderly development of healthy and safe communities.
19The Applicant provided no evidence to demonstrate how the refusal to submit a hydrogeological assessment and noise impact study will have regard to matters of provincial interest. In fact, in his Reply Submissions, the Applicant cites s. 1.1 of the Act and its purpose, which has been paraphrased as:
The promotion of economic development within the policy, to provide land use planning led by provincial policy and to integrate matters of provincial interest in the provincial and municipal planning decisions.
20The Applicant then proceeds to define “economic development services” under the Municipal Act. The Tribunal did not find the reference to the Municipal Act helpful nor is satisfied that the Applicant has demonstrated his refusal to provide the hydrogeological and noise impact study with regard to matters of provincial interest as required by s. 2 of the Act.
Provincial Policy Statement, 2024
21Mr. Howarth testified that s. 3.6.4 of the PPS 2024 requires those who intend to develop land, including “creation of new lot,” which rely on wells and septic systems, to undertake a study to identify relevant site conditions and to demonstrate that these systems can be installed and operated over the long term with no “negative impacts”. Negative impacts are explicitly defined as:
Risks to human health and safety and degradation to the quality and quantity of water, sensitive surface water features and sensitive ground water features, and their related hydrologic functions, due to single, multiple or successive development.
22Furthermore, the definition clearly states that:
Negative impacts should be assessed through environmental studies, including hydrogeological or water quality impact assessments, in accordance with provincial standards” [emphasis added].
23Mr. Howarth explained that each successive development requires a new assessment to determine how adding new development will impact the quality and quantity of water, both for the new development itself as well as for existing development in the area. Of note, Mr. Howarth explained that the PPS 2020 underwent significant updates, which included updates to the criteria to review when considering new development when it relates to the source of potable water, the long-term impacts, and ensuring no “negative impacts”. According to Mr. Howarth, new residential development is supported and encouraged so long as it is done in a manner that is safe for current residents and future residents. Mr. Howarth testified that these significant updates in the PPS 2020 have been carried forward in the PPS 2024, as discussed above.
24Regarding the noise impact study, s. 3.5 of the PPS 2024 requires land used for residential purposes be planned to avoid, minimize, or mitigate “adverse impacts” from noise while ensuring long-term operation and economic viability of “major facilities,” including transportation corridors, such as Highway 417. According to Mr. Howarth, given the proximity of the proposed development to Highway 417 (within 250 metres (“m”), the PPS 2024 requires a noise study in accordance with the Ministry of Environment, Conservation and Parks’ Environmental Noise Guidelines (“Environmental Noise Guideline”) in order to identify, minimize, and/or mitigate potential adverse impacts arising out of noise.
25The Applicant argued that he has a long-standing history of development in the area without the requirement of a hydrogeological assessment or a noise impact study. He referenced two development projects he was involved with, one in 2002 and one in 2010, where there was no need for hydrogeological assessment or noise impact study. He directed the Tribunal’s attention to letters of approval granted by the County for said development projects. Additionally, he submitted that the County has failed, despite his repeated requests, to: “provide [him] with legal legislation compelling a private landowner to provide third-party studies” while contending that municipalities lack the legal authority to “regulate property that does not belong to them or property that has not been dedicated to them.”
26The Tribunal is satisfied that the requirement for a hydrogeological assessment and noise impact study is consistent with the PPS 2024. The Act is the legislation that compels owners to provide third-party studies to produce said reports because the Act requires consistency with the PPS 2024. The PPS 2024 is clear and unambiguous in its requirement for the hydrogeological assessment and noise impact study.
27The Applicant confirmed that he is not a qualified hydrogeologist or acoustic engineer. The Tribunal agrees with counsel for the County that personal experience alone cannot confirm that the proposed severance will have no “negative impacts” as defined in the PPS 2024. This includes impacts from successive development, quantifying noise impacts, or recommending noise mitigation measures. The Tribunal is satisfied that these are matters that the Province and the County now require qualified professionals to review and address for the protection of public health and safety in order to provide for orderly development.
28With respect to municipalities lacking authority to regulate lands that don’t belong to it, the Applicant referenced several sections in the Act and the Municipal Act that are not helpful nor useful for the Tribunal. It is well understood through legislation and case law that municipalities have the ability to regulate lands within their jurisdiction through the application of their OPs.
29Furthermore, the legislation governing the 2002 and 2010 developments are not before this Tribunal, nor do they apply to this Application. However, the Tribunal notes that legislation, as well as provincial policies, are not etched in stone and are updated from time to time to address the needs of communities as they evolve. Understanding this makes it imperative for Parties to ensure they are applying the most up-to-date legislation and policies to their Applications in order for their proposals to meet the consistency criteria.
Official Plan
30Section 51(24) of the Act mandates that an approval authority have regard for whether a proposed consent conforms to the applicable OP. Mr. Howarth testified that in 2021, the County adopted significant amendments to the OP in order to achieve consistency with the PPS 2020, including the introduction of express requirements for hydrogeological assessments and noise studies.
31According to Mr. Howarth, while the OP permits the severance of rural lands and the creation of new lots served by wells and septic systems, this is only permitted in accordance with s. 2.2(12) of the OP. Section 2.2(12)(f)(i) states that a hydrogeological evaluation “should be undertaken when the proposed severed lot size is less than 1 ha (2.5 acres).” Mr. Howarth opined that since the proposed residential lot is 3355 square metres (0.3355 ha), a hydrogeological assessment prepared by a qualified professional is required to demonstrate a potable source of water and the suitability of the site to accommodate an additional septic system.
32In addition, s. 2.2(15) of the OP states, “a noise impact study is required if sensitive development located within 250 m of Highway 17” to ensure the impact of noise levels is acceptable as prescribed by the Environmental Noise Guideline. Mr. Howarth found that since the proposed Residential Lot is approximately 60 m from Highway 17, a noise study prepared in accordance with the Environmental Noise Guideline is required. In sum, Mr. Howarth opined that conformity with the OP requires the Applicant to submit the required studies.
33The Applicant argued that “OPs are not statutes and should not be construed as such.” He disagreed that the OP, including the requirement for the development of new residential lots in rural areas, applies to the proposed severance. He stated that the OP is “inconsistent and does not compel [him] to do the studies.” Moreover, he argued that:
“These studies come at significant cost and do not demonstrate any better suitability of subject property for proposal than the historical facts and experience I relied upon when I put forth this proposal. This interferes with progress in building more homes faster at a time when there is a housing crisis in this Province.”
34The Tribunal finds that ss.53(12) and 51(24) of the Act explicitly mandates that the County “shall have regard” to whether the proposed application “conforms to the Official Plan.” This means that the application of the OP to lands within a municipality’s jurisdiction, whether the lands are owned by it or not, is essential. In this case, there is no dispute that the Subject Property is within the County, is less than 1 ha or is within 250 metres from Highway 17. As such, the OP is clear in its requirement for a hydrogeological assessment and noise impact study under these conditions.
35In addition, the Tribunal finds that the Applicant’s history of developing in the area (64 Milton Stewart Avenue in 2002), where consent was granted under a different OP coupled with the well records for the said property, are not helpful in advancing his position. Similar to legislation, OPs are not etched in stone and evolve with time. As Mr. Howarth testified, the current OP underwent significant updates so that consistency with the PPS 2020 would be achieved, including the addition of s. 2.2(12)(f), which was not in the previous OP. Undoubtedly, in 2002 and 2010, the County considered relevant policies under the OP at that time when rendering its decision. With that said, the 2002 and 2010 OPs are not before this Tribunal and are not relevant to this Application.
36Of note, debates with respect to proposed amendments and/or requirements under an OP, for example, the cost of studies and interfering with the progress of building more homes faster, do have a specific route. Those arguments can be advanced at an OP Amendment (“OPA”) Appeal. An OPA application is not before this Tribunal. The current OP before the Tribunal mandates the need for the studies mentioned above. The Applicant has failed to prove that refusing to provide a hydrogeological assessment and noise impact study conforms to the OP.
New Argument Advanced in Closing Submissions
37In the Applicant’s closing submissions, for the first time and at no point during the Hearing, he stated, “Even if severance proposal does somehow contravene current official plan in force, would then be fair to grandfather this proposal as legal non-conforming.” The County responded that there is no evidence to this effect, and it is simply inaccurate.
38The Tribunal states that closing submissions are intended to summarize each Party’s position once the evidence is complete. It is not a place to advance new arguments, especially those that require elaboration or evidence. As such, absent evidence in support of this position, the Tribunal will not consider this question.
FINDINGS
27The Tribunal finds that based on the filed materials and submission of the Parties, the Application does not represent good land use planning and does not meet the legislative tests. The Application is not consistent with policy directives of the PPS 2024 and does not conform to the policy intent of the County OP. The Tribunal is not satisfied that the criteria listed in s. 51(24) are met, and the proposed development has regard for matters of provincial interest as listed in s. 2 of the Act. As such, the Application is denied.
COSTS
28Both Parties sought costs in their closing submissions. Adequate materials were not provided to consider whether costs should be granted or how the requested cost amount was derived. The Tribunal acknowledges that there is a high threshold to meet in order for costs to be awarded. However, based upon a review of Rule 23 of the Tribunal’s Rules of Practice and Procedure and the conduct observed at the hearing, the Tribunal is not immediately persuaded that the conduct rises to the exceptionally high threshold. Nevertheless, the Parties remain free to seek relief in the form of costs by way of a formal motion in accordance with the Rules as directed at the hearing.
ORDER
29THE TRIBUNAL ORDERS THAT the Appeal is dismissed, and the provisional consent is not to be given.
“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.