Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 25, 2025
CASE NO(S).: OLT-24-000682
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Whistle Bear Golf Club Inc.
Subject: Consent
Description: To permit the severance of 2 lots
Reference Number: B-06/23
Property Address: 1850 Whistle Bare Road
Municipality/UT: North Dumfries/Waterloo
OLT Case No.: OLT-24-000682
OLT Lead Case No.: OLT-24-000682
OLT Case Name: Whistle Bear Golf Club Inc. v. North Dumfries (Township)
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Whistle Bear Golf Club Inc.
Subject: Consent
Description: To permit the severance of 2 lots
Reference Number: B-07/23
Property Address: 1850 Whistle Bare Road
Municipality/UT: North Dumfries/Waterloo
OLT Case No.: OLT-24-000683
OLT Case Name: Whistle Bear Golf Club Inc. v. North Dumfries (Township)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Whistle Bear Golf Club Inc.
Subject: Minor Variance
Description: To permit lot area of 0.78 ha and frontage of 85.3m
Reference Number: A-15/23
Property Address: 1820 Whistle Bare Road
Municipality/UT: North Dumfries/Waterloo
OLT Case No.: OLT-24-000684
OLT Case Name: Whistle Bear Golf Club Inc. v. North Dumfries (Township)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Whistle Bear Golf Club Inc.
Subject: Minor Variance
Description: To permit lot area of 0.78 ha and frontage of 85.3m
Reference Number: A-16/23
Property Address: 1820 Whistle Bare Road
Municipality/UT: North Dumfries/Waterloo
OLT Case No.: OLT-24-000685
OLT Case Name: Whistle Bear Golf Club Inc. v. North Dumfries (Township)
Heard: October 7, 2024 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Whistle Bear Golf Club Inc. | L. Gurr S. Goncalves |
| Township of North Dumfries | M. van Bodegom |
DECISION DELIVERED BY a. sauve AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1This matter had been scheduled for a three-day Merit Hearing; however, the Parties have come to a resolution and asked the Tribunal to convert the Hearing dates to a Hearing to consider a settlement proposal ("Settlement Hearing"). The Tribunal agreed to do so. The Parties submitted Minutes of Settlement and the Affidavit of David Aston, a professional land use planner retained by Whistle Bear Golf Club Inc., in support of the settlement.
2The Subject Property is municipally addressed as 1316 Dickie Settlement Road, 1820 Whistle Bare Road, and 1850 Whistle Bare Road (“Subject Property”). The Subject Property is located in the Township of North Dumfries, located on the north side of Whistle Bare Road between Highway 401 and Dickie Settlement Road. The Subject Property has a total area of approximately 92.3 hectares with frontage of approximately 569 metres on Whistle Bare Road and approximately 950 metres on Dickie Settlement Road.
3The Subject Property is currently occupied by Whistle Bear Golf Club Inc. at 1316 Dickie Settlement Road, a regional sewer, water main, contractors’ yard and office located at 1850 Whistle Bare Road, and a single detached home with an accessory garage located at 1820 Whistle Bare Road.
4The original applications were for 2 separate Consents, for the lots located at 1820 Whistle Bare Road and 1850 Whistle Bear Road, and a Minor Variance application. As part of the settlement, the Appellant is withdrawing the Consent application for 1850 Whistle Bare Road.
5The Application that the Tribunal is being asked to approve at this Settlement Hearing include only the Consent application to sever the lot with an existing residential dwelling located at 1820 Whistle Bare Road, and the associated Minor Variances.
6The application for a Minor Variance seeks to recognize the lot area and frontage of the severed lots to be created through the Consent application. The Minor Variances being requested are:
Relief from Section 7 .2.1 of Zoning By-law 689-83 to permit a lot area of 0.4 hectares, whereas a lot area of 35 hectares is required.
Relief from Section 7 .2.2 of Zoning By-law 689-83 to permit a lot frontage of 85 metres, whereas a lot frontage of 230 metres is required.
7The Subject Property is designated "Rural Area" and "Protected Countryside" by the Waterloo Regional Official Plan (“ROP”) and is located within the designated Countryside and designated “Open Space” by the Township of North Dumfries Official Plan (“TOP”), and further designated “Rural Areas” and “Protected Countryside” by Map 7 of the TOP.
EVIDENCE
CONSENT
8To support the settlement between the Parties they have provided Minutes of Settlement, the Affidavit of Dave Aston, and the oral evidence of Mr. Aston. Mr. Aston was qualified by the Tribunal to provide expert opinion evidence in the field of Land Use Planning.
9Mr. Aston’s evidence to the Tribunal in support of the Consent application is summarized as follows:
a. The application efficiently uses existing infrastructure, provides for the orderly development of safe and healthy communities, and conditions of approval also address matters of Provincial interest.
b. The proposed application results in the creation of a lot for an existing and established residential use. The proposed development is not premature and is in the public interest.
c. The proposed application and residential use conform to the ROP and TOP. There are no adjacent plans of subdivision that require consideration.
d. The Subject Property contains the existing residential use and on-site private water and sewer infrastructure.
e. The residential use is existing, and no restrictions have been identified.
f. The proposed application reflects the established residential use, and no new development is proposed.
10Mr. Aston also took the Tribunal to the proposed Conditions of Consent Approval, Appendix A to this Decision, and opined that they are reasonable and appropriate for the nature of development and provide for the necessary detailed plans and agreements for the development of the subject lands.
11Mr. Aston opined that the Consent application has regard for matters of provincial interest as set out at Section 2, and Section 51 (24) of the Planning Act.
12The Tribunal concurs with Mr. Aston and finds that the proposed Consent application and conditions of approval are reasonable, as well as being appropriate for the nature of development pursuant to Section 51(25).
MINOR VARIANCE
13Section 45(1) of the Planning Act provides that the committee of adjustment may authorize a Minor Variance from the provisions of the By-law, in respect of the land, building or structure or the use thereof, as in its opinion is desirable for the appropriate development or use of the land, building or structure, if in the opinion of the committee, the general intent and purpose of the By-law and of the Official Plan, if any, are maintained.
14Mr. Aston provided evidence that the Subject Property is designated as Rural Areas, Protected Countryside, and Open Space by the TOP. Mr. Aston continued, the Open Space designation does not prevent the use of the lands for the existing residential use and permits the continuation of legally existing uses. As such, Mr. Aston opined that the proposed application maintains the general intent and purpose of the TOP.
15The Township of North Dumfries’s Zoning By-Law 689-83 (“ZBL”) was also addressed by Mr. Aston. Mr. Aston informed the Tribunal that the Subject Property is zoned Zone-1 (“Z-1”) permitting the existing residential uses on the lands. Minor Variances are requested for reduced lot area and reduced lot frontage and that the Z-1 zone recognizes lots with areas less than 4 hectares and frontage of 30 metres. The proposed lot is 0.4 hectares with a frontage of 85 metres. Mr. Aston opined that the proposed variances maintain the general intent and purpose of the ZBL.
16The witness testified that the requested variances are minor and will not result in any change to the use or function of the lands, and that the reduced lot area and lot frontage will recognize the current location of the existing residential use. Mr. Aston further opined that the creation of the lots will not alter the use of the lands, and no new buildings or structures are proposed, therefore, the requested Minor Variances are desirable to recognize the functional use of the lands and existing location of the permitted uses.
17Mr. Aston also addressed the Provincial Policy Statement 2020 (“PPS 2020”). It should be noted that after the Settlement Hearing the Provincial Policy Statement 2024 (“PPS 2024”) came into force. The Parties were contacted and they informed the Tribunal that the changes that were made in PPS 2024 are not relevant to this application, and the same analysis can be used for both documents. The Tribunal agrees and will refer to the documents as “PPS”.
18Mr. Aston testified that the Subject Property is located on Rural Lands, being outside of a designated Settlement Area, and not located within a Prime Agricultural Area as identified in the PPS. Further, Mr. Aston opined that on Rural Lands, the PPS permits residential development, including lot creation, that is locally appropriate and that the proposed Application will establish a new residential lot for an existing dwelling, that is consistent with the policy direction for permitted uses on Rural Lands.
19Overall, Mr. Aston opined that the proposal is consistent with the PPS.
20Concerning the ROP, Mr. Aston provided evidence that it permits the creation of a new residential lot within the Rural Areas designation, to create infill lots for residential purposes within an existing grouping of rural residential lots that has not been designated as a rural settlement area. Mr. Aston also testified that the location of the proposed lot for the existing residential use is surrounded by other non-agricultural uses, including the golf course, contractor yard, and campground. Mr. Aston opined that the proposed application will not result in new development and the residential use is serviced by existing private on-site water and sewer, therefore, conforms to the ROP.
21The Subject Property is designated as Rural Areas and Protected Countryside by Map 7 of the TOP and designated as Open Space by Map 2. Mr. Aston provided evidence that the Open Space designation of the TOP is intended to apply to uses including golf courses, recreational, and tourism usage, as well as that the Open Space designation does not prohibit the existing use of the subject lands including the existing residential use.
22Mr. Aston opined that the proposed application does not result in new development that will reflect a defined and existing residential use, and that the proposed application conforms to the TOP.
23Lastly, Mr. Aston provided evidence regarding the ZBL. Mr. Aston informed the Tribunal that the Subject Property is zoned Z1 with site specific policy section 20.1.218 in the ZBL. The Z1, 20.1.218 zone permits a residential building and accessory uses allowing for the existing residential use and accessory garage.
24Mr. Aston testified that the Minor Variances are requested in combination with the proposed Consent application to allow for a reduced lot area and reduced lot frontage. Mr. Aston continued, the Minor Variances will recognize the location of the existing residential use on the Subject Property and the lot area has been identified as a minimum for the ongoing function of the use, including the private septic system.
25Mr. Aston opined that the proposed Minor Variance application is appropriate for the proposed development and maintains the intent of the ZBL.
DECISION
26The Tribunal accepts the evidence of Mr. Aston and finds that the proposed Consent application has regard to Section 51(24) of the Planning Act and has regard to matters of provincial interest, which are consistent with the Provincial Policy Statement and conform to the ROP. The Tribunal also finds that the proposed Consent application and Conditions of Approval are reasonable and appropriate for the nature of development pursuant to Section 51(25).
27The Tribunal also finds that the proposed Minor Variance application maintains the general intent and purpose of the TOP, ROP and ZBL, is desirable for the appropriate development or use of the lands and is minor in nature.
ORDER
28THE TRIBUNAL ORDERS THAT THE appeal pursuant to s. 53(19) of the Planning Act is allowed in part and the provisional consent, regarding address 1820 Whistle Bare Road is to be given subject to the conditions set out in Appendix A to this Order.
29The Tribunal accepts the withdrawal of the appeal regarding address 1850 Whistle Bare Road.
30THE TRIBUNAL ORDERS THAT the appeal is allowed and the variances to By-Law 689-83 are authorized.
“A. Sauve”
A. SAUVE
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.
APPENDIX A
CONDITIONS OF CONSENT APPROVAL:
i) That a Reference Plan be prepared by an Ontario Land Surveyor illustrating the new proposed lot lines, to the satisfaction of the Township of North Dumfries;
ii) That the Owner pays the Township any outstanding taxes in full on the property;
iii) That the Owner/ Applicant pays to the Township the sum of $7,500 as cash-in-lieu payment for the provision of parkland as permitted under Section 53 of the Planning Act;
iv) That the Owner/ Applicant submit the Regional Consent Review Fee of $350.00 prior to final approval;
v) That a Minor Variance application be approved that seeks relief from the General Zoning By-law 689-83 to permit an accessory structure to exceed the maximum lot coverage of the new proposed residential lot and any other potential variances that may need to be included to recognize lot setbacks [Application No. A-15/23]; and,
vi) That the above conditions must be fulfilled, and the Document for Conveyance (''Certificate of Consent'') be completed by the Township Planning Department within two (2) years of the date of written decision pursuant to Section 53(41) of the Planning Act, otherwise the approvals shall lapse.