CORRECTION NOTICE

OLT CASE NO(S).: OLT-24-000061

DECISION ISSUE DATE(S): February 24, 2025

CORRECTION NOTICE ISSUE DATE: May 9, 2025

RE: Candice St. Pierre v. Tay Valley (Township)

Correction to: amend the dates in the Order pertaining to the upcoming Merit Hearing.

Originally:

Counsel Emma Blanchard

Corrected to:

Counsel Laura Robinson

"Euken Lui" EUKEN LUI REGISTRAR

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal ("Tribunal"). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

ISSUE DATE: February 24, 2025

CASE NO(S).: OLT-24-000061

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

Applicant/Appellant: Candice St. Pierre

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

Description: To permit a seasonal cottage be used as a year-round dwelling

Reference Number: ZA23-04

Property Address: 147 Horseshoe Bay

Municipality/UT: Tay Valley/Lanark C

OLT Case No.: OLT-24-000061

OLT Lead Case No.: OLT-24-000061

OLT Case Name: Candice St. Pierre v. Tay Valley (Township)

Heard: December 9-13, 2024, by Video Hearing

APPEARANCES:

Parties

Counsel

Candice St. Pierre ("Appellant" / "Applicant")

Philip Osterhout Tamara Belley (student-at-law)

Tay Valley Township ("Township")

Emma Blanchard Lydia Salgo (student-at-law)

DECISION DELIVERED BY K.R. ANDREWS AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Appellant is seeking a Zoning By-law Amendment ("ZBA") to provide various exceptions to the Township's Zoning By-law 2002-121 (the "Zoning By-law"). The purpose of the proposed ZBA is to permit specific development on the Appellant's property at 147 Horseshoe Bay (the "Subject Property") which fronts onto Big Rideau Lake and the Rideau Canal waterway. The Rideau Canal waterway is notably a National Historic Site, a Canadian Heritage River, and an UNESCO World Heritage Site. The proposed development can be generally described as two horizontal additions to an existing cottage, the addition of a second storey to an existing garage, other specific development in and around the property's waterfront (decks, docks and stairs), and change of use of the cottage from seasonal to a year-round residence.

2This case is complicated by the fact that the proposed development has already taken place without prior approvals, and the Appellant is now seeking the requested ZBA to retroactively legalize the development. The Tribunal notes that the process of legalizing the development merely begins with a ZBA, with retroactive building permits still being required, as well as a permit from Parks Canada for all shoreline and in-water works. The Tribunal notes that these next steps are dependant upon success with the present ZBA Appeal.

3At the outset of the hearing, counsel for the Appellant submitted that it is not the role of the Tribunal to punish the Appellant for having completed the development work prior to obtaining approvals. This comment was in response to a suggestion from the Township that it would create a dangerous precedent to condone the unauthorized development through a later-obtained ZBA. On this point, the Tribunal concurs with the Appellant; however, in the same way that the Appellant shall not suffer any disadvantage as a result of the present circumstances, the Appellant shall also not enjoy any advantage. Put another way, it shall be no easier for her to ask for forgiveness than it would be to ask for permission.

BACKGROUND AND EVIDENCE

Witnesses and participants

4The following experts testified on behalf of the Appellant:

• Tim Chadder (J.L. Richards & Associates Limited) provided factual and qualified expert opinion evidence in the area of Land Use Planning;
• Bruce Kilgour (Kilgour & Associates) provided qualified expert opinion evidence in the area of Ecology;
• John Stewart (Commonwealth Historic Resource Management) provided qualified expert opinion evidence in the area of Heritage Planning.

5The Township called the following witnesses:

• Noelle Reeve (Planning Department, Tay Valley Township) provided factual and qualified expert opinion evidence in the area of Land Use Planning;
• Shaun St. Pierre (BCH Environmental Consulting) provided qualified expert opinion evidence in the area of Biology and Environmental Assessments;
• Tom Green (Acting Planner, Ontario Waterways Unit, Parks Canada) provided qualified expert opinion evidence in the area of Land Use Planning in the context of the Rideau Canal National Historic Site.

6Additionally, the Tribunal is in receipt of Participant Statements in the names of Raymond Forse and Tom Houston. Their statements indicate an objection to the unauthorized development on the basis of environmental concerns and because the development was completed without prior approval.

7Except where indicated, the facts and positions of the Parties below are not in dispute.

The 1992 authorized development

8The Subject Property was originally legally developed in 1992, with permits to allow construction of the following:

• a seasonal cottage with a footprint of 120 square metres ("m2"), setback from the shoreline by 19.3 metres;
• a 19 m2 attached east-facing deck which projects approximately 3 metres from the dwelling toward the water, resulting in a setback between the deck and the shoreline of 16.3 metres;
• a 10 m2 attached north-facing deck (as found below, the original north-facing deck also features a 16.3 metre setback from the shoreline);
• a septic tank located 28 metres from the shoreline; and
• a single storey garage with a footprint of 58 m2, setback from the shoreline by 22.5 metres.

9The above description (the "1992 authorized development") is generally illustrated in green below at Figure 1.

Figure 1: Illustration of Authorized and Unauthorized Development

10The later-built unauthorized development (discussed in greater detail below) is indicated in Figure 1 by other colours, which are explained in the legend. Various setbacks to the shoreline are also shown for reference.

11Of importance, the Tribunal heard undisputed testimony that the prescribed minimum setback from the shoreline in 1992 was 7.5 meters. Now, the minimum setback is 30 metres, and the entire scope of 1992 authorized development is within this setback. As a result, the original cottage, associated decks and garage are now all considered legally non-conforming buildings and/or structures pursuant to s. 34(9) of the Planning Act. The status of the 1992 authorized development as being a legally non-conforming use is not in dispute.

12While the dimensions and setbacks illustrated in Figure 1 are generally uncontentious, there is some disagreement between the Parties regarding certain aspects of the original east- and north-facing decks. Additionally, some of the facts associated with these decks are now difficult to determine because both were demolished as part of the later unauthorized development.

13Regarding the east-facing deck, the Appellant relies on the dimensions illustrated in the 1992 permit drawings to show the original dimensions and corresponding shoreline setback. In Figure 1 above, the footprint of this deck is generally illustrated to the east of the original cottage, with split colouring to indicate that it represents both the original authorized deck and the present unauthorized solarium that was built within the same footprint. However, the Township questions whether the original deck was ever actually built, or if a pergola-type structure was instead built in its place.

14The Township takes the position that if a pergola was built instead of a deck, the property would not enjoy a further 3 metres (equal to the projection of the deck) legally non-confirming encroachment within the currently prescribed shoreline setback. The Tribunal was provided with photographic evidence in which the Township claims a pergola is shown rather than a deck.

15On this point, the Tribunal finds that the permit drawings are the most reliable evidence before it, with the photographs being fuzzy and otherwise inconclusive. The Tribunal therefore accepts that the deck was built as illustrated in Figure 1, with a 3-metre projection from the cottage and a corresponding 16.3-metre setback to the shoreline. Despite finding this fact in favour of the Appellant, however, the Tribunal finds that nothing turns on it, because the authorized 3-metre projection of the deck does not correspondingly reduce the legally non-conforming shoreline setback of the indoor living space, which is required to build the solarium, in place of the deck, as-of-right. In other words, the Appellant is no further ahead in the sense that she still requires a ZBA to permit construction of the solarium.

16Regarding the original north-facing deck, the 1992 permit allows for a modest-sized deck which appears (according to the permit drawings) to also project approximately 3 metres from the original cottage. The Tribunal finds that the eastern perimeter of the deck was originally located just past the peak of the cottage roof (again, according to the permit drawings). In Figure 1 above, the general location of this deck is indicated by a red asterisk, but there is no outline shown. According to the dimensions illustrated within the permit drawings, the Tribunal finds that it must have been much smaller than the outline shown to represent the north-side addition. Based on the evidence provided, the Tribunal concludes that the shoreline setback of the north-facing deck was originally approximately the same as the east-facing deck, being 16.3 metres from the shoreline.

The unauthorized development

17Since construction of the 1992 authorized development, the Subject Property has undergone a number of developments without authorization (the "unauthorized development"). This includes the construction of:

• the "solarium", being indoor living space built upon the same or similar footprint as the former east-facing deck, with a corresponding shoreline setback of 16.3 meters. The Tribunal notes that the solarium was built on pillars, similar to what previously supported the deck – meaning that this construction does not involve an extension of the cottage's subgrade footings;
• an expanded north-facing deck, which replaced the original authorized north-facing deck. This expanded deck was then later replaced by the currently existing north-side addition. The Tribunal accepts that the north-side addition occupies approximately the same footprint as the unauthorized expanded deck, but both the expanded deck and the later built addition occupy a larger footprint than what was authorized as part of the 1992 authorized development;

The Tribunal notes that it received conflicting evidence regarding the shoreline setback of the north-side addition. The Appellant's witness testified that the setback measures 11.4 metres, while the Township's witness claims that it measures 8.9 meters. Based on the evidence provided, including mapping that is the same or similar to Figure 1, the Tribunal accepts the Appellant's measurement, insofar as the corner of the north-side addition is more likely to be 11.4 metres from the shoreline than 8.9 metres.

The Tribunal further notes that the north-side addition was also built on pillars – meaning that this construction also does not involve an extension of the cottage's subgrade footings;

• a large deck at the northeast corner of the cottage (the "cedar deck"). The undisputed evidence shows that the closest corner of the cedar deck measures 8.6 metres from the shoreline;
• a second storey on the garage, maintaining the original 22.5-metre legally non-conforming shoreline setback;
• a deck adjoining the garage and the north-side addition;
• two small sheds to the northwest of the cottage; and
• various decks, docks and stairs along the shoreline to the north of the cottage, some of which the Appellant has agreed to remove to limit the shoreline occupancy of these structures to 16 metres.

18Regarding the north-side addition, the Tribunal notes that the Township became aware of this development at the early stages of its construction in 2019. The Tribunal received evidence showing that the Township issued stop-work orders at the framing stage of construction, under the authority of the Building Code Act. The evidence further shows that these orders were ignored by the Appellant and the construction was subsequently completed. While noting these facts, the Tribunal finds that nothing turns on it.

Scope of the relief being sought

19The Township took the Tribunal through a number of exceptions to the existing Zoning By-law that it submits are required to permit the unauthorized development. While the Township steadfastly opposes the requested ZBA, the Parties generally do not dispute the nature and scope of the relief being sought. Said exceptions are as follows:

1. Reduction of the minimum shoreline setback on the east side of the cottage from the prescribed 30 metres (under s. 3.29 of the Zoning By-law) to accommodate the solarium. There is no dispute that the solarium measures 16.3 metres to the shoreline;
2. Reduction of the minimum shoreline setback on the north side of the cottage from the prescribed 30 metres (under s. 3.29 of the Zoning By-law) to accommodate the north-side addition. As already found, the north-side addition measures 11.4 metres to the shoreline;
3. Reduction of the minimum shoreline setback from the prescribed 30 metres (under s. 3.29 of the Zoning By-law) to accommodate three sheds on the property. There is no dispute that the two upper sheds measure 15 metres and the shoreline shed measures 1 metre to the shoreline;
4. Reduction of the minimum shoreline setback to the garage from the prescribed 30 metres (under s. 3.29 of the Zoning By-law) to accommodate development of the garage's second storey. There is no dispute that the garage measures 22.5 metres to the shoreline;
5. Increase of the maximum surface area for permitted decks on the property from the prescribed 28 m2 (under sections 3.29 and/or 3.30 of the Zoning By-law) to 123.7 m2 to accommodate: (a) the attached cedar deck that is 58 m2; (b) the attached entry deck that is 3.4 m2; (c) the attached adjoining deck that is 15.8 m2; (d) the detached shoreline decks that are 42.8 m2; and (e) the shoreline shed that is 3.7 m2;
6. Increase of the maximum permitted deck projection from the cottage, being 1.25 metres (under s. 3.30 of the Zoning By-law), to accommodate the attached decks as follows: (a) 8.2 metres for the cedar deck; (b) 3.4 metres for the entry deck; (c) 3.9 metres for the adjoining deck; and
7. Increase of the maximum occupancy limitation along the shoreline from the prescribed 15 metres (under s. 3.23 of the Zoning By-law) to 16 metres to accommodate the various developments currently along the shoreline (noting that the Appellant has agreed to remove the decking surrounding the waterfront shed to scope this particular relief to 16 metres).

20Regarding exception no. 5, the Tribunal finds that, because the shoreline shed is not a deck, the total deck area calculation should be reduced by 3.7 m2 to 120 m2. The Tribunal also finds that, for Zoning By-law compliance purposes, the shoreline shed is already covered by exception no. 3 in any event.

21Regarding exception no. 4, the Tribunal finds that a ZBA is not required to legalize the second storey of the garage from a by-law standpoint. This is because, as already found, the garage maintains legally non-conforming status, and a vertical addition to a legally non-conforming building is permitted pursuant to s. 3.12.6 of the Zoning By-law. This section permits the enlargement of a legally non-conforming building or structure as follows:

1. a vertical enlargement that does not further reduce non-conformity with any yard, street and/or shoreline setback provisions, and is a minimum 15 metres setback from the shoreline; or,
2. a horizontal enlargement which complies with all prescribed yard, street and shoreline setback provisions.

22The Tribunal notes that, unfortunately for the Appellant, this section does not provide any assistance with respect to the enlargements of the cottage, because both the solarium and the north-side addition are horizontal enlargements, and both fall within the prohibitive 30-metre shoreline setback.

ANALYSIS

Conformity with the Township Official Plan

23To be approved, the requested ZBA must conform to the policies of the Official Plan of Tay Valley Township ("TVOP"), pursuant to s. 24(1) of the Planning Act.

24In applying this test, the Tribunal finds that the case principally turns on policies concerning setbacks from the shoreline, both in terms of environmental and heritage considerations. Having heard the evidence and submissions of the Parties, the Tribunal finds that two setbacks standout in policies 2.24.1 and 2.24.3 of the TVOP, a 30- and a 15-metre setback to the shoreline of Big Rideau Lake / the Rideau Canal waterway.

25Policy 2.24.1 of the TVOP governs waterfront development and, under the heading "Water Setback", the policy states:

Development [...] shall occur a minimum distance of 30 metres from the high water mark of any water body.

26Policy 2.24.1 further states:

The intent of the water setback is to prevent the disturbance of the shoreline area as a result of the placement of buildings and structures, including sewage systems, or the removal of the soil mantle and natural vegetation. In addition to preserving the natural aesthetic qualities of the shoreline as viewed from the water, an appropriate water setback can reduce phosphorus and other nutrient loads to the lake and, in combination with vegetation, prevent erosion and sedimentation.

27Mr. Kilgour, the Appellant's Ecology Expert, further confirmed that one of the primary purposes of such a setback, from an environmental standpoint, is to provide an adequate corridor along the shoreline for wildlife, with wildlife naturally inclined to travel along shorelines for a variety of habitat reasons. He termed such a corridor as "the ribbon of life".

28Despite the obvious environmental importance of the 30-metre setback, policy 2.24.1 also affords the following exception for existing lots of record:

Development may be permitted less than 30 metres from a water body in exceptional situations where existing Lots of Record or existing development preclude the reasonable possibility of achieving the setback.

29Upon examining this part of the section, the Tribunal finds that the Subject Property is an exceptional situation and, as a consequence, development within the prescribed 30-metre setback is not expressly precluded. The Tribunal comes to this conclusion upon recognizing that the entire original cottage is located within the 30-metre setback, and, as a result, "the existing development preclude[s] the reasonable possibility of achieving the setback". Notwithstanding the Tribunal's finding that the present circumstances constitute an exceptional situation, the Tribunal finds that policy 2.24.1 remains clear, when read in its entirety, insofar as it intends to limit further encroachment toward the shoreline within the prescribed 30-metre setback to the greatest extent possible.

30Looking next at policy 2.24.3 of the TVOP, it deals with heritage policies associated with preservation of the Rideau Canal waterway. On this subject, the Tribunal heard evidence that the Rideau Canal is North America's best preserved slackwater canal and the only such canal from the early 19th century that remains operational along its original line with most of its structures still intact. Furthermore, the Tribunal heard and accepts evidence, together with cautionary opinions, that the Rideau Canal's World Heritage Site status could be put in jeopardy if appropriate steps are not taken to adequately preserve its features, including the integrity of its natural shoreline.

31Regarding shoreline preservation, policy 2.24.3 refers back to the 30-metre setback prescribed in policy 2.24.1 and takes a similar approach insofar as it prescribes specific setbacks as a conservation strategy. The policy states:

No development or site alteration will be allowed in the [30 metre setback of policy 2.24.1] other than that prescribed in this Plan. The [purpose of the 30-metre setback] adjacent to the [Rideau Canal waterway] is to protect the integrity of the Canal shoreline;

and,

Existing lots of record will retain, as a minimum, all natural vegetation 15 metres from the shoreline in its natural state and allow only 25% of the shoreline or 15 metres, which ever is less, to be developed for access to and use the waterfront.

32Upon review of the above, the Tribunal finds it clear that policy 2.24.3 adds a restricting caveat to the exception provided in policy 2.24.1 for existing lots of record, insofar as the exception contained in policy 2.24.1 may otherwise conceivably allow development within 15-metres of a shoreline. The Tribunal finds that this added restriction, featured within policy 2.24.3 and which applies only to the shorelines of the Rideau Canal waterway, is meant to promote and protect a minimum 15-metre natural vegetative buffer along the shorelines of the Rideau Canal waterway for heritage reasons.

33The Tribunal notes that there was a dispute between the parties in terms of the operation of policy 2.24.3 of the TVOP, with regards to this 15-metre shoreline buffer. The Township takes the position that this provision institutes a hardline 15-metre setback, prohibiting any development within this area that could displace either existing or potential natural vegetation. To put it more simply, the Township claims that no new buildings or structures, or expansions of existing buildings or structures, may be located within the 15-metre buffer (the only exception being the stated "25% of the shoreline or 15 metres, which ever is less, to be developed for access to and use the waterfront").

34The Appellant's position was more nuanced, arguing that the operations of policy 2.24.3 applies only to protect existing natural vegetation, and development can potentially proceed within 15 metres of the shoreline if it is shown that there is no existing natural vegetation within this buffer; for example, if the buffer contains only manicured lawns and/or gardens.

35Determining how this section of the TVOP is intended to operate is important because the Tribunal finds that the Subject Property, more likely than not, featured no existing natural vegetation within the areas where the impugned additions and decks were built, and parts of that development falls within the 15-metre setback.

36When interpreting policies of an Official Plan, it is the Tribunal's practice to examine the text, context and purpose of such policies, not unlike the modern approach to statutory interpretation (see: COLLECDEV (8868 Yonge) GP Inc. et al. v City of Richmond Hill, 2024 CanLII 83215 (ON LT) at para. 15). Taking this approach, and upon examining the entire language of policy 2.24.3 (including the stated purpose of the 30-metre setback adjacent to the Rideau Canal waterway, which is to protect the integrity of the shoreline), together with policy 2.24.1, and within the context of the surrounding policy sections which further speak to environmental interests, the Tribunal accepts the Township's position.

37The Tribunal finds it clear that the operation of policy 2.24.3 is to absolutely prohibit new horizontal development within 15 metres of the shoreline, on all properties along the Rideau Canal waterway, including existing lots of record, and despite exceptional situations. The only exception to this absolute probation is to allow "25% of the shoreline or 15 metres, which ever is less, to be developed for access to and use the waterfront". The purpose of this prohibition, the Tribunal finds, is to avoid displacement of existing natural vegetation or interference with potentially reestablishing natural vegetation within the planned 15-metre buffer. To be clear, the Tribunal finds that, where natural vegetation within this setback is not currently present, policy 2.24.3 operates aspirationally, with a long-term goal to foster a minimum 15-metre natural vegetated buffer along the entire Rideau Canal waterway shoreline.

38Turning next to another argument raised by the Appellant, the Tribunal is tasked with determining whether the prescribed 30- and 15-metre setbacks set out in policies 2.24.1 and 2.24.3 must be strictly adhered to when considering the requested ZBA. This is an important question because some or all of the relief being sought clearly conflicts with the express setbacks prescribed through these policies.

39The Appellant submits that, even if the Tribunal accepts that policies 2.24.1 and 2.24.3 set prescribed setback limitations for development within 30 and/or 15 metres of the shoreline, a ZBA can nevertheless be approved that does not conform with these setbacks because it is well established that Official Plan policies are intended to be flexible and not include prescriptive requirements. The Appellant goes on to submit that there is a wealth of authorities which find that Official Plan policies should be general in nature, and that regulatory standards (such as prescribed setbacks) are for Zoning By-laws and not Official Plans. Further, the Appellant claims that s. 16(1) of the Planning Act limits the allowable scope of Official Plan polices to setting the vision, goals and objectives of a Municipality, and it is not a vehicle for regulation, as is provided by s. 34 of the Planning Act, the authority for enacting Zoning By-laws.

40The Township takes the position that most or all of the relief being sought through the requested ZBA cannot be achieved without a corresponding Official Plan Amendment, because the sought after relief clearly fails to conform with the specific setbacks prescribed in policies 2.24.1 and 2.24.3.

41Upon considering the parties' respective positions, the Tribunal finds the Appellant's position problematic because she is essentially arguing that the statutory test set out at s. 24(1) of the Planning Act does not need to be complied with. The Tribunal rejects this assertion, finding that the presently proposed ZBA, like any proposed ZBA, must conform with the applicable Official Plan(s).

42The Tribunal acknowledges the authorities provided by the Appellant, which speak to the expectation that Official Plan policies should be flexible in nature, but this is not the same thing as saying that the Tribunal should be flexible in applying the statutory requirements of s. 24(1) of the Planning Act. Furthermore, if an Applicant takes issue with the policies of an Official Plan, which the Appellant appears to be doing here, the avenue for relief is not a ZBA application; rather, it is through an Official Plan Amendment application. Put another way, the scope of the present ZBA Appeal does not extend to questioning the appropriateness or validity of the prescribed setbacks set out in the policies of the underlying TVOP; instead, the Appeal is limited to questioning conformity of the proposed ZBA with the expressly prescribed setbacks of the TVOP.

43To summarize the above, the Tribunal finds that the relevant TVOP policies function as follows:

• Pursuant to policy 2.24.1, the Subject Property is subject to a 30-metre shoreline setback, which limits development within this area.

The purpose of this policy is to protect ecological features of the shoreline within a 30-metre buffer.

Despite the express 30-metre setback, the policy provides an exception for existing lots of record in exceptional situations. The Tribunal finds that the present case involves such an exceptional situation, because the existing development (the 1992 authorized development) is entirely within the 30-metre setback, and it cannot otherwise be further developed while achieving the setback.

However, regardless of finding that the Subject Property qualifies as an exceptional situation, the intention of the policy remains clear insofar as there is an inherent expectation that any proposed encroachment toward the shoreline, within 30-metre setback, will be limited to the greatest extent possible.

• Pursuant to policy 2.24.3, the Subject Property is again subject to the 30-metre shoreline setback set out in policy 2.24.1, but this time for the purpose of protecting the heritage features of the Rideau Canal waterway, including preservation of the waterway's shoreline.

While the exception to the 30-metre setback under policy 2.24.1 is still available for exceptional situations on existing lots of record along the Rideau Canal waterway, the exception is expressly limited under policy 2.24.3 insofar as it cannot interfere with the policy goal of promoting and protecting a 15-metre natural vegetative buffer along the waterway's shoreline, even where natural vegetation is not currently present.

• Pursuant to policy 2.24.3, the Subject Property may also only develop 15 metres of the shoreline (measured lengthwise along the shoreline) for the purpose of access and use of the waterfront.

44Turning the analysis now to consider whether the relief being sought conforms to the above noted policies, the Tribunal considers each of the exemptions listed above at paragraph 19 (noting that the Tribunal found that exception no. 4 is unnecessary). The Tribunal finds the following:

• Exceptions nos. 1 and 2, which seek to reduce the shoreline setback of the cottage to 16.3 metres on the east side and 11.4 metres on the north side, respectively, and exception no. 3, which seeks to reduce the shoreline setback to accommodate the two upper and one shoreline sheds, do not conform with policies 2.24.1 and/or 2.24.3 of the TVOP because the requested exceptions propose to further encroach upon the shoreline setback contrary to the prescribed 30-metre setbacks.

While the Tribunal finds that the Subject Property constitutes an exceptional situation on an existing lot of record, it nevertheless finds that the above policies operate to limit development which further encroaches upon the 30-metre setback to the greatest extent possible. In this sense, the Tribunal finds that the proposed development still fails to conform with the above policies, despite the exceptional situation, because there are a number of options available to further develop the subject cottage without extending the building/structure closer to the shoreline.

Additionally, regarding those aspects of the requested exceptions which propose to encroach within the 15-metre vegetative buffer prescribed by policy 2.24.3, the Tribunal finds that those aspects further lack conformity with that setback prescribed by policy 2.24.3.

• Regarding exception no. 5, the Tribunal finds that it fails to conform with the TVOP for essentially the same reasons as exceptions nos. 1-3, because the requested increase to the maximum permitted total deck surface area is inextricably linked to further encroachment toward the shoreline within the prescribed setbacks.

To be clear, this finding is context-specific and does not consider conformity with the TVOP in a case where a proposed increase in deck surface area does not involve further encroachment toward the shoreline.

• Regarding exception no. 6, the Tribunal finds that it also fails to conform with the TVOP for essentially the same reasons as set out above, because the requested extensions to the decks' projections all involve further encroachment toward the shoreline within the prescribed setbacks.

To be clear again, this finding is context-specific and does not consider an increased deck extension which does not encroach further toward the shoreline.

• Regarding exception no. 7, the Tribunal finds that the limitation on shoreline development set out at policy 2.24.3 of the TVOP is explicitly set at 15 m, and so the requested extension to 16 metres lacks conformity with said policy.

45To summarize the above findings, the Tribunal finds that all of the requested exceptions to the Zoning By-law involve further encroachment toward the shoreline, thus lacking conformity with the prescribed setbacks prescribed by policies 2.24.1 and 2.24.3 of the TVOP, contrary to s. 24(1) of the Planning Act.

Other legislative tests

46Having come to the above findings, the analysis could end there, and the Appeal be dismissed for the above reasons alone. However, the Tribunal elects to further consider whether the Application conforms with the Lanark County Sustainable Communities Official Plan ("LCOP"), has sufficient regard for matters of provincial interest found at s. 2 of the Planning Act, and is consistent with the Provincial Planning Statement 2024 ("PPS"). Once again, in applying these legislative tests, environmental and heritage considerations are key to the Decision.

47Regarding environmental concerns, there is no dispute that the following environmental features are in the vicinity of the development and require consideration:

• fish habitat; and
• habitat of endangered or threatened species and significant wildlife habitat.

48As stated previously, Mr. Kilgour was tendered by the Appellant as an expert witness in Ecology. His involvement in the proceedings included preparation of a retroactive Environmental Impact Assessment Report concerning the subject development.

49Regarding fish habitat, Mr. Kilgour testified that the waters adjacent to the Appellant's property include a significant sensitive fishery and associated fish habitat that requires protection. However, he opined that the proposed development "has not had and will not have significant negative impacts on fish habitat, and more generally on the water quality of [the lake]". In support of this conclusion, he testified that, upon a site inspection, he did not observe any evidence of erosion, any indication of sediment deposits within the nearshore environment, nor any evidence of localized growths of algae or aquatic plants that might indicate a localized source of contaminants or nutrients from the Subject Property.

50He further opined that, if the Appellant implements certain mitigation measures, the overall project could have a net benefit to water quality. He opined that such measures include: (1) installation of a 2-metre vegetative buffer of native plans along the shoreline; (2) cessation of lawn maintenance (no cutting or fertilizing) toward the shoreline; and (3) removal of the decking associated with the shoreline shed.

51Regarding habitat of endangered or threatened species and significant wildlife habitat, he testified that the Subject Property supports habitat for at least three species that are currently listed by Ontario as Species at Risk ("SAR"): (1) the Eastern Whip-poor-will (Threatened); (2) the Eastern Wood-pewee (Special Concern); and (3) the Gray Ratsnake (Threatened).

52He further confirmed that the Eastern Whip-poor-will was at or near the Subject Property during a site visit and he "conservatively concluded that the property qualifies as "defended territory", or Category 2 habitat of the species". The Eastern Wood-pewee was also detected during two site visits, and "[it] was concluded to be using the property". Mr. Kilgour also testified that a Gray Ratsnake was not sighted during a site visit, but it was reported as being present by the property owner and the habitat requirements and geographic location of the Subject Property is consistent with such a finding.

53Despite identifying the above noted SARs habitat and presence of SARs at or near the Subject Property, Mr. Kilgour did not find any unacceptable conflict between the SARs and the Development. He believes (but could not independently verify) that construction of the north-side addition was not done during bird migration periods. He did not provide any information regarding the timing of any other construction. He noted that there are no specific habitat protections for Eastern Wood-pewee, given that it is merely listed as a Special Concern species. He further opined that the habitat of the Grey Ratsnake was not likely impacted by the development because the cottage additions were built on pillars similar to what existed previously.

54During cross-examination, Mr. Kilgour further opined on the environmental value and purpose of the prescribed 30-metre shoreline setback. He confirmed that it serves to distance certain types of human activities from the lake, which generally mitigates potentially harmful impacts on water quality. He confirmed that a larger buffer gives more "certainty" regarding mitigating water quality issues. However, he nevertheless reaffirmed that, in the present case, he did not witness any undue harmful impact on the lake because of the development.

55He added that, in his opinion, one of the key beneficial aspects of maintaining a wider buffer along the shoreline is to provide wildlife with an adequate corridor along the lake for various travel and sustenance needs. He further explained that such corridors are essential to maintaining a healthy ecological environment both along the shoreline and beyond. As mentioned previously, he termed such a corridor "the ribbon of life".

56On this point, however, he qualified his opinion, explaining that a reduction of the setback in the present case would not have a net-negative effect on the ribbon of life because it has already been negatively impacted by other developments along the shoreline in the near vicinity. Put another way, he testified that, because the ribbon of life has already been compromised, it makes no difference if the Appellant's development compromises it to the same extent. The Tribunal notes that Mr. Kilgour was asked by the Tribunal if he could defend expanding the cottage toward the shoreline if no neighbours had already infringed upon the 30-metre setback, and he answered unequivocally "no".

57In considering Mr. Kilgour's evidence, the Tribunal observes the following. First, the Tribunal notes that Mr. Kilgour's opinions, including his observations and conclusions set out in his Environmental Impact Assessment Report, were premised upon information obtained only after the unauthorized developments were already completed. The Tribunal finds this problematic because Mr. Kilgour cannot speak with certainty about environmental conditions that were present before construction took place. As a result, he lacks a solid baseline to begin his analysis, which makes it difficult for him to reliably assess the subsequent net impacts of the development on fish or wildlife habitat.

58Furthermore, as acknowledged by Mr. Kilgour, he was unable to recommend mitigation measures for the Appellant to follow during construction. Mr. Kilgour confirmed that, if the subject development had not yet been completed, at least some such mitigation measures would have been imposed to guard against negative impacts. This fact begs the question: if the Appellant is to enjoy no advantage from having already completed the development, should the requested ZBA be approved without imposing standard environmental safeguards during the construction phase?

59The Tribunal also finds that Mr. Kilgour's evidence was seriously compromised by a mistaken understanding that the north-side addition was built entirely upon the footprint of the 1992 authorized deck. It has been established that this is not true, because the original authorized deck was later replaced with a much larger unauthorized deck prior to the construction of the addition. Relatedly, Mr. Kilgour's opinion that the addition would have little impact on the environment because it sat on the same pillared foundation as the original authorized deck, is thrown into question. As a consequence of this misapprehension, the Tribunal finds that it received unreliable evidence from Mr. Kilgour regarding the likely extent of the environmental impacts of the north-side addition.

60Lastly, as it relates to Mr. Kilgour's opinion that there is no net impact on the ribbon of life along the shoreline because it has already been compromised elsewhere, the Tribunal finds that such a position is contrary to principles of land use planning from a long-term standpoint. While it may be true that neighbouring properties have negatively impacted the ribbon of life, the Tribunal finds that it would be short-sighted to conclude that such impacts are irreversible or will necessarily last forever. Consequently, the Tribunal is loath to allow repetition of such negative impacts, or there is little hope of long-term improvement. The Tribunal therefore rejects the rationale proposed by Mr. Kilgour, insofar as he suggests that environmental harm is not measurable when neighbouring properties have already caused similar harm.

61Countering Mr. Kilgour's evidence, Mr. St. Pierre testified on behalf of the Township. Mr. St. Pierre spoke about the cumulative impact of the unauthorized construction on the Subject Property. He explained that his main concern is about increased encroachment on the shoreline setback, and the resulting loss of associated land and vegetation capable of filtering sediment and limiting erosion. He opined that reduced setbacks and corresponding vegetated buffers will naturally result in added sedimentation and erosion, affecting the overall water quality and fish habitat of the lake. He emphasised that, while the effects of one property's deficiencies may not fatally jeopardize the health of the entire lake on its own, the cumulative effect of allowing repeated deficiencies on multiple properties can have a catastrophic impact on the lake.

62Mr. St. Pierre further opined that it is probable that the unauthorized development negatively impacted the subject SARs' and wildlife habitat in and around the Subject Property, specifically with regards to the Whippoor-will, Eastern Wood-pewee, and Gray Ratsnake. Mr. St. Pierre opined that it would have been pure luck if the development was completed without negatively impacting these SARs and other wildlife on the property, given that it was done without planning and implementing basic mitigating protection measures.

63Regarding the Environmental Impact Assessment Report prepared by Mr. Kilgour, Mr. St. Pierre emphasized that the purpose of such a report is to assess the impact of a development on the environment, and that this function is nearly impossible to accomplish when there is no reliable pre-construction baseline assessment from which to measure impacts.

64Having considered the above testimony and opinions, the Tribunal finds Mr. Kilgour's evidence to be too compromised by misapprehensions of facts, flawed principles, and generally unreliable to provide it much weight. Instead, the Tribunal accepts the evidence from Mr. St Pierre and shares his conclusions insofar as the development likely had and continues to have an unacceptable negative impact on the environment.

65Having come to these conclusions, the Tribunal finds that the requested ZBA to facilitate the proposed development fails the various legislative tests from an environmental standpoint, insofar as it does not conform with LCOP, does not have sufficient regard for matters of provincial interest found at s. 2 of the Planning Act, and it is inconsistent with the PPS.

66As an aside, the Tribunal finds it difficult to imagine a situation where it would approve any kind of development in an environmentally sensitive area without a prior environmental assessment being done to establish a reliable baseline for assessing potential impacts. The Tribunal finds that this is one of the many perils that a person puts themselves in when they decline to seek approvals before commencing construction.

67Turning now to heritage considerations, the Tribunal accepts the Appellant's position that the development does not unduly impact views from the main channel of the Rideau Canal waterway. However, the Tribunal also accepts the Township's position that environmental considerations form part of the heritage features of the waterway, and so a finding that the development offends environmental policies and interests associated with the shoreline means that the development similarly offends heritage interests regarding preservation of the Rideau Canal waterway. In this sense, from a heritage standpoint, the Tribunal again finds that the proposed development fails to conform with the LCOP, have sufficient regard for matters of provincial interest found at s. 2 of the Planning Act, and/or be consistent with the PPS.

Conversion of seasonal cottage to year-round residence

68The Appellant is also seeking a ZBA to permit the conversion of the cottage from seasonal ("secondary") to a year-round ("principle") residence, pursuant to policy 2.10 of the TVOP.

69While the Tribunal has the jurisdiction pursuant to s. 34(26) of the Planning Act to consider a truncated ZBA to allow just this part of the relief, such an exercise is discretionary. In the present case, the Tribunal declines to practice such discretion because it finds that the evidence and submissions of the parties provided at the hearing were principally focussed on questions concerning setbacks and associated environmental and heritage considerations. The case, in essence, was entirely about expansion of the original cottage and surrounding development, not about changing the use of the 1992 authorized development. In this sense, the Tribunal was not effectively provided with evidence and submissions to consider change of use, solely, apart from considering the proposed expansion of the cottage.

SUMMARY AND CONCLUSION

70Given the express 30- and 15-metre shoreline setbacks stated in policies 2.24.1 and 2.24.3 of the TVOP, none of the requested exceptions to the Zoning By-law conform with the TVOP because the proposed development encroaches further into these prescribed shoreline setbacks. Based on the above finding, the requested ZBA is refused for failing to satisfy the conformity test set out at s. 24(1) of the Planning Act.

71Additionally, the Tribunal finds that the development fails to adequately protect environmental and heritage considerations; thus failing to conform with related applicable policies of the LCOP in accordance with s. 24(1) of the Planning Act, failing to have regard for related applicable matters of provincial interest in accordance with s. 2 of the Planning Act, and failing to be consistent with related applicable policies of the PPS in accordance with s. 3(5) of the Planning Act.

72The Tribunal declines to practice its discretion to award alternative relief available under s. 34(26) of the Planning Act with regards to converting the cottage from a seasonal to a year-round residence, for the reasons stated above.

ORDER

73THE TRIBUNAL ORDERS that the Appeal is dismissed and the requested amendment to Zoning By-law 2002-121 is refused.

"K.R. Andrews"

K.R. ANDREWS

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