Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 12, 2025

CASE NO(S).: OLT-24-000598

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

Applicant and Appellant: Simarjit Pangli

Subject: Application to amend the Zoning By-law – Refusal

Description: To permit a storage use within an existing building

Reference Number: Z23-05

Property Address: 5397 Wellington Road 125

Municipality/UT: Erin/Wellington

OLT Case No.: OLT-24-000598

OLT Lead Case No.: OLT-24-000598

OLT Case Name: Pangli v. Erin (Town)

Heard: January 23 and 24, 2025 by Video Hearing

APPEARANCES:

Parties

Counsel

Simarjit Pangli

Scott Galajda

Town of Erin

David Neligan

DECISION DELIVERED ON BY S. DEBOER AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal was the Appeal by Samarjit Pangli (“Appellant”) pursuant to s. 34 (11) of the Planning Act due to the Town of Erin’s (“Town”) refusal of the Appellant’s Zoning By-law Amendment Application (“ZBA”) for the property municipally known as 5397 Wellington Road and legally known as Part of Lot 3, Concession 3, in the Town of Erin (“Subject Lands”).

2The purpose of the application would permit the conversion of an equestrian arena to allow for indoor storage of items such as trailers, boats, automobiles, recreational vehicles, and farm equipment. The equestrian arena was constructed approximately 15 years ago and has a total floor area of approximately 780 square metres. The application is also asking to permit an area behind the equestrian arena to become an outdoor storage area for the same items as the requested indoor storage area.

Site and Surrounding Area

3The Subject Lands are directly adjacent to the southern border of the Hamlet of Ospringe boundary. The Subject Lands have an approximate area of 3.5 hectares with a road frontage of approximately 91.05 metres(“m”) on Wellington Road 125. The Subject Lands have an approximate depth of 497m, and the Subject Lands are designated as a Secondary Agricultural Area within Schedule B2 of the County of Wellington Official Plan (“COP”) and as a Secondary Agricultural Area within Schedule A-1 of the Town’s Official Plan (“TOP”).

4Existing on the Subject Lands is a residential dwelling, an equestrian arena, a garage which is currently being used as personal office space and two small horse shelters. The rest of the property is vacant, including the proposed storage area behind the arena, with the exception of a small pond at the rear of the property.

5Surrounding the Subject Lands are two commercial properties to the north, one of which is a farm equipment dealership. To the east is a parcel of treed lands that are owner by the Grand River Conservation Authority (“GRCA”), and further east are other rural residential parcels. To the south are rural residential properties and farm properties. To the west, across Wellington Road 125, are two residential subdivisions are currently in development, but not completed.

6The Tribunal notes that the two commercial properties to the north and the two subdivisions to the west are located within the Hamlet Area Boundary.

Application History

7The Appellant initiated a pre-consultation meeting with the Town’s Planning Staff and with the County’s Planning and Roads departments. At that time, no significant issues were raised by either the Town or the County. As a result, the Appellant received an Application Submission Checklist, which was to be completed prior to submitting the application. The application was submitted and deemed complete on October 31, 2023.

8A public information meeting concerning the application was held on December 14, 2023. The application was presented before the Council at the Council Meeting on April 25, 2024. The final report presented to Council from the Town’s Planning Staff recommended that the Council refuse the application as it did not conform to Provincial polices nor did it conform to the County and Town Official Plan. Council refused the application based on the recommendations of the Town’s Planning Staff.

9As a result of the refusal of the application, a notice of appeal was submitted to the OLT on May 27, 2024.

HEARING

10A hearing was conducted on January 23 and 24, 2025, to hear the arguments of the Appellant and the Town concerning the application.

11Each Party presented one land planning witness. Both witnesses were qualified to give expert opinion evidence in the area of land use planning concerning the application before the Tribunal.

12The following were marked as exhibits to the Merits Hearing:

Exhibit 1 – Joint Document Book

Exhibit 2 – Visual Evidence Book

Exhibit 3 – Curriculum Vitae of John L. Cox

Exhibit 4 – Acknowledgement of Expert’s Duty of John L. Cox

Exhibit 5 – Witness Statement of John L. Cox

Exhibit 6 – Elaine Leung Witness Statement Including Curriculum Vitae and Acknowledgement of Expert’s Duty

Exhibit 7 – Cross-examination document by the Town of Erin

Witness Testimony

Appellant’s Witness – John L. Cox

Provincial Policy Statement 2020 (“PPS 2020”)

13Mr. Cox took the Tribunal through a description of the Subject Lands and the background of the application.

14Mr. Cox took the Tribunal through the PPS 2020 and gave the opinion that the application is consistent with the PPS 2020, specifically, section 1.1.4.1 which states that:

promoting diversification of the economic base and employment opportunities through goods and services, including value-added products and the sustainable management or use of resources;

15Mr. Cox continued to give an opinion that the application meets s. 1.1.5 concerning Rural Lands in Municipalities. Rural Lands are defined in the PPS as being “lands that are located outside settlement areas and which are outside prime agricultural areas”. Continuing with his opinion, Mr. Cox stated that s. 1.1.5.3 allows for recreation, tourism, and other economic opportunities on Rural Lands. Section 1.1.5.4 allows for development to occur that is compatible with the rural landscape and that can be sustained with current rural service levels. Section 1.1.5.7 allows Rural Lands to have opportunities to support a diversified rural economy by protecting agriculture and other resource-related uses and directing non-related development to areas where it will minimize constraints on these uses. Overall, Mr. Cox opined that the application meets all the relevant sections of the PPS 2020.

Growth Plan for the Greater Golden Horseshoe, 2019 (“GGH 2019”)

16In Mr. Cox’s opinion, the application conforms to the GGH 2019 specifically Policy 2.2.9 concerning Rural Areas. Policy 2.2.9.3 states:

3. Subject to the policies in Section 4, development outside of settlement areas may be permitted on rural lands for:

a) the management or use of resources;

b) resource-based recreational uses; and

c) other rural land uses that are not appropriate in settlement areas provided they:

i. are compatible with the rural landscape and surrounding local land uses;

ii. will be sustained by rural service levels; and

iii. will not adversely affect the protection of agricultural uses and other resource-based uses such as mineral aggregate operations.

17Based on this Policy above, it was Mr. Cox’s opinion that the application conforms with the GGH 2019.

Provincial Planning Statement, 2024 (“PPS 2024”)

18In Mr. Cox’s opinion, the application is consistent with the PPS 2024. Section 2.5.1 of the PPS 2024 is similar to the above noted 1.1.4.1 of the PPS 2020. Section 2.5.1 states:

2.5 Rural Areas in Municipalities

1. Healthy, integrated and viable rural areas should be supported by:

a) building upon rural character, and leveraging rural amenities and assets;

b) promoting regeneration, including the redevelopment of brownfield sites;

19Mr. Cox continued with his opinion that s. 2.6 of the PPS 2024 is similar to s. 1.1.5 of the PPS 2020. The relevant policies in s. 2.6 of the PPS 2024 that pertain to this application are:

2.6 Rural Lands in Municipalities

1. On rural lands located in municipalities, permitted uses are:

d) agricultural uses, agriculture-related uses, on-farm diversified uses and normal farm practices, in accordance with provincial standards;

e) home occupations and home industries;

g) other rural land uses.

2. Development that can be sustained by rural service levels should be promoted.

3. Development shall be appropriate to the infrastructure, which is planned or available, and avoid the need for the uneconomical expansion of this infrastructure.

4. Planning authorities should support a diversified rural economy by protecting agricultural and other resource-related uses and directing non-related development to areas where it will minimize constraints on these uses.

20It was Mr. Cox’s opinion that the application meets these relevant criteria and the application was consistent with the PPS 2024.

COP

21Mr. Cox opined that the property is designated as a Secondary Agricultural Area as per s. 6.5.3 of the COP. This designation allows for the following uses:

(a) all uses allowed in the Prime Agricultural Area;

(b) small scale commercial, industrial and institutional areas;

(c) public service facilities.

22These activities are extra uses other than the permitted uses in a Prime Agricultural Area which are:

(a) agricultural uses;

(b) secondary uses including home businesses and farm businesses;

(c) single detached homes.

23Section 6.5.5 of the COP refers to policies for Commercial, Industrial, and Institutional uses. This Policy allows for these uses as long as the property has adequate sewage and water systems in use and that the proposed use is compatible with the surrounding uses.

24It was Mr. Cox’s opinion that the application meets these criteria as the property already has an existing water supply and sewage disposal. The requested use will not need any further water or sewage capacity as it is only for the storage of the said items. As for compatibility, Mr. Cox gave the opinion that the use is compatible as there is not any change to the property itself that is needed in order for the proposed storage to occur. The location of the storage itself is similar to the storage that is occurring on adjacent properties. The indoor storage would make use of an existing agricultural building that has not been used for any of the permitted agricultural uses in many years. It was Mr. Cox’s opinion that the application’s request for the proposed use does conform to the COP.

TOP

25The Town designates the Subject Lands as Secondary Agricultural, similar to the COP. Section 4.2.3 of the TOP states:

26“The use of lands in the Secondary Agricultural Area shall be guided by the polices of Section 6.5 of the COP.” It was Mr. Cox’s opinion that the application does conform to the TOP as these criteria have been met as per the COP.

Town Zoning By-law 07-67 (“ZBL”)

27It was Mr. Cox’s opinion that the ZBL allows for outdoor storage as per s. 4.30 of the ZBL. The zones that are allowed to have outdoor storage are the C2, C3, M1 and M2 zones. Mr. Cox continued to opine that the application is not within these permitted zones, however, the proposed use on the Subject Property is similar to the allowed C3 zone. The application will comply to the rest of the conditions for the permitted outdoor storage use as listed in s. 4.30 of the ZBL.

28The application relies on the provisions of the COP, specifically the previously mentioned s. 6.5.3 and s. 6.5.5, which permits small scale commercial uses that conform to the COP. It was Mr. Cox’s opinion that the application, if approved, would conform to the COP.

Other Planning Considerations

29It was Mr. Cox’s opinion that the amount of driveway traffic that will be created would be similar in quantity as compared to if the approved agricultural uses. The majority of the traffic would be in the May and June months for storage vehicles leaving the Subject Lands and these vehicles would normally be returning in the October and November months of the year. The County’s Roads Department did not have any issues or concerns with the application. The Subject Lands would have similar storage as to the adjacent properties to the north. The proposed storage is a minimum of 170m away from the residential subdivision. The storage area is well separated from other rural uses to the south of the Subject Lands. The proposed use is compatible with the surrounding area and should be approved.

Overall Opinion

30It was Mr. Cox’s overall opinion that the Application before the Tribunal is consistent with the PPS 2020 and the PPS 2024. It was his opinion that the application conforms to the policies of the COP and TOP. The application is compatible with the surrounding properties and is considered to be good land use planning. The Application before the Tribunal should be approved as presented.

Town’s Witness – Elaine Leung

31It was Ms. Leung’s opinion that the application is for a property that is located outside of the hamlet boundary. The Subject Lands are within Agricultural and Rural lands. Storage is not a permitted use within the current zoning provisions. Storage is typically limited to Industrial and Commercial zoning. Storage zoning is only permitted within the hamlet boundary.

Planning Act

32Concerning the Planning Act, section 2 of the Act requires Council have regard to matters of provincial interest when reviewing applications. For the application before the Tribunal, it was Ms. Leung’s opinion that provincial interests pertaining to this application are concerns for the protection of agricultural services, the orderly development of safe and healthy communities, and the appropriate location of growth and development.

33Concerning the protection of agricultural services, Ms. Leung opined that the application represents a change in use and removes an existing agricultural use to a commercial use. This proposed change of use would hinder the future growth of the allowed agricultural uses.

34As for the orderly development of safe and healthy communities, Ms. Leung opined that the Subject Lands are located outside of the settlement area boundary. The proposed storage use should be limited to an area within the settlement boundary where the proposed use is already permitted.

35Concerning the location of growth and development, Ms. Leung gave the opinion that the proposal is seeking an approval of a use on lands that are located outside the settlement area. The proposed use should be directed to an area within the settlement boundary where the proposed use is already permitted.

36It was Ms. Leung’s opinion that the proposal before the Tribunal does not have regard to matters of provincial interest as it does not support agricultural uses, nor does it support existing agricultural uses.

Provincial Planning Statement, 2024 (“PPS 2024”)

37Pertaining to the PPS 2024, it was Ms. Leung’s opinion that the proposal before the Tribunal is not consistent with the PPS 2024, as the proposed use is located outside the settlement boundary and the proposal should be directed towards an area where the proposed use is already permitted. The application does not maintain the rural agricultural character of the area, nor does the application’s proposed use compliment or positively impact the permitted agricultural uses on the Subject Lands.

38Ms. Leung opined that the loss of an agricultural building will hinder the ability to return the building to its present approved agricultural use in the future, therefore the non-agricultural use should not be supported as the application is not consistent with the PPS 2024.

39Ms. Leung continued with her opinion that the proposed change in use could lead to adverse effects due to the possibility of odour, noise and other potential contaminants which could leach into the groundwater supply. This is especially concerning with the outdoor storage, as there are not any measures in place for these potential contaminants. The proposed use does not promote the currently approved agricultural activities and will hinder that use from continuing. Ms. Leung continued with her opinion that the PPS promotes all types, sizes and intensities of agricultural uses, and with this proposed use, the use of the equestrian arena for agricultural purposes will not continue.

COP

40In Ms. Leung’s opinion, the Subject Lands are designated as a Secondary Agricultural Area within the COP. Agricultural uses are to be the dominant use for this designation, and the proposed use does not represent an agricultural use in any form. This change of use permission will not let the agricultural use be the dominant use for the Subject Lands.

41Ms. Leung opined that the proposed as presented use would pose potential land use conflicts with the residential area to the west and the north. Additionally, if the owner wished to return the Subject Lands to the previously approved agricultural use, this new use may hinder that ability in the future. The proposal would represent a new land use in a rural area outside the urban boundary. The proposed use does not meet the intent of the rural lands and would be considered to be a “creeping” of the urban boundary due to this proposed use.

42As per Policy 6.5.3, it was Ms. Leung’s opinion that this new use is not compatible with the currently permitted uses. The intent of Policy 6.5.3 is to allow complementary secondary uses to occur on Agriculturally designated lands. This proposed use is not secondary or complementary to the current permitted use and would actually remove the current agricultural use altogether.

43It was Ms. Leung’s opinion that the proposal before the Tribunal does not represent a use that is complementary or compatible with the current land use designation and does not conform to the COP.

TOP

44It was Ms. Leung’s opinion that the same issues arise pertaining to the TOP. The proposed use does not conform with the permitted uses in the TOP. The proposed use is meant for properties that are located within the urban boundary, which the Subject Lands are not apart of. The conversion of the equestrian arena to storage represents an incompatible use to the residential subdivision to the west and will eliminate the existing permitted agricultural use.

45Ms. Leung continued to opine that the proposal did not include any documentation to demonstrate that the proposed use would not have detrimental effect on the surrounding area, especially pertaining to ground water seepage from potential leaks in the stored vehicles or stored items. The proposal did not include a hydrogeological report to confirm the current ground water conditions. It was Ms. Leung’s opinion that the proposal does not conform to the TOP.

Overall Opinion

46It was Ms. Leung’s opinion that the proposal before the Tribunal is inconsistent with the PPS 2024, and it does not conform with the COP or the TOP. The proposal will remove an existing agricultural use and provide a use that is not permitted in a rural or agricultural area. The conversion of the existing equestrian arena to that of a commercial storage use is not compatible with the surrounding area as there are potential noise, odour and ground contamination issues that may cause a future environmental issue.

47Ms. Leung opined that if the use is approved, the ability for the equestrian arena to be returned to the previous agricultural use could be compromised, as such, the application does not represent good land use planning and should not be approved.

ANALYSIS AND FINDINGS

48In reaching a decision on this matter, the Tribunal must analyze the evidence presented before it and the oral testimony of the witnesses and must have regard to the decision and materials presented before Council when their decision was made on the Application.

49The Tribunal will focus its analysis on these areas of concern:

a. Will the proposed use affect the current permitted agricultural uses?

b. Will the proposed use potentially affect any environmental factors such as groundwater contamination?

c. Will the proposed use be compatible with the surrounding area?

d. Does the proposed use have regard to matters of Provincial Interest as per s. 2 of the Planning Act?

e. Is the proposal consistent with the PPS 2020 and the PPS 2024?

f. Does the proposal conform to the COP and TOP?

g. Does the application represent good land use planning?

50It must be reiterated that the proposal before the Tribunal would include both indoor storage in the equestrian arena and outdoor storage behind the equestrian arena.

Will the proposed use affect the current permitted agricultural uses?

51In reviewing the evidence, the Tribunal finds that the proposed added use will affect the current permitted use. However, that permitted use has not been utilized for many years. The Appellant is requesting this as an additional use, whether the Appellant uses the equestrian arena for storage completely or is planning to combine these uses is not an issue that is to be determined by the Tribunal concerning this application.

52The proposed zoning By-law would permit the following:

53Section 2 of the proposed ZBA is a key focus of the Tribunal when making its determinations on this matter. Section 2 of the ZBA states:

542. That Section 14, "Special Provisions, be amended by adding the following new section:

“Notwithstanding the provisions of the Agricultural zone, the lands zoned A-XXX may also be used for a storage warehouse and outdoor storage for trailers, boats, RV's, automobiles, trucks and tractors and subject to the following regulations:

i) the size of the storage warehouse be limited to its current size of 780m²

ii) the number of vehicles stored indoors shall not exceed 55

iii) The outdoor storage area is limited to a maximum of XXXm²”

55The Tribunal interprets the proposed ZBA to mean that indoor and outdoor storage is to be an added permitted use. The Tribunal agrees that the current agricultural use as an equestrian arena would be affected by allowing storage to occur in the arena itself. However, as it was stated by the Appellant’s witness – and not refuted in any way by the Town – the equestrian arena had not been used for this approved purpose for many years.

56On this issue, the Tribunal prefers the evidence of the Appellant and finds that since the permitted use of an equestrian arena has not been utilized in that capacity for several years, then the additional storage use should be allowed. There was no reasoning brought forth by either Party that this new proposed use was an “all or nothing” scenario, meaning that only the proposed storage or the current permitted use could only be used. The Appellant was requesting this storage as an added use (emphasis added) to what is currently permitted.

57Concerning the outdoor storage use, the Tribunal notes that the area proposed to be used for the outdoor storage has not been finalized in the ZBA and that it was the intent of the Appellant to finalize the size of the location of the outdoor storage at the site plan level, once the ZBA has been approved. The Tribunal finds that the scoping of the outdoor storage area at the site plan application stage is not the correct methodology that should have been used for this Application. The Appellant should have been able to verify the area and the size of the area that was being requested for this permission during the ZBA stage, and that due to this vague scoping, the outdoor storage should not be approved.

Will the proposed use potentially affect any environmental factors such as groundwater contamination?

58The Tribunal heard evidence during the hearing that the floor of the equestrian arena is cement and that the potential for contamination is very minimal. The outdoor storage area is an area that is not cement and is a combination of gravel and soil. The Town had serious concerns that there was potential for groundwater contamination and that the Appellant has not demonstrated how these concerns can be met.

59The Tribunal agrees with the Town concerning the outdoor stage area and the potential for soil or groundwater contamination. The Tribunal finds that the Appellant has not demonstrated strong enough mitigation measures to ensure that soil or groundwater contamination will not occur. The Tribunal finds that the outdoor storage should not be approved as presented.

Does the proposed use have regard to matters of Provincial Interest as per s. 2 of the Planning Act?

60The Tribunal notes that the Appellant’s witness did not give any oral testimony pertaining to s. 2 of the Planning Act, nor did he have said section listed in his witness statement. The Tribunal allowed the witness to reply to the Town’s witness statement pertaining to section 2.

61Through its analysis, the Tribunal finds that the ZBA proposal does have regard to matters of Provincial Interest as the application is not hindering the currently approved agricultural use. The additional use could work in conjunction with the current agricultural use, or the Appellant could return the arena to be used as an equestrian arena in the future. Pertaining to this Application, an additional use does not mean taking away a current use.

Is the proposal consistent with the PPS 2020 and the PPS 2024?

62The Tribunal prefers the evidence of Mr. Cox pertaining to both the PPS 2020 and PPS 2024. The proposal before the Tribunal will enable an economic opportunity to the Appellant which is currently not available with the current permitted uses. The proposed use does not require any infrastructure and will help develop rural lands in a form that is compatible with the surrounding area.

Does the proposal conform to the COP and TOP?

63The Tribunal prefers the evidence of Mr. Cox regarding both the COP and TOP. The Appellant has demonstrated that the additional use is compatible with the surrounding area. The proposed use does not require any further sewage or water services. The proposed use can be sustained by the current rural service levels, and no further infrastructure is needed to facilitate the proposed use. The amount of traffic created is projected to be only during certain months of the year and the County’s Roads Department has no concerns with the application.

Does the application represent good land use planning?

64The Tribunal finds that the application in principle represents good land use planning. However, this finding is limited to the indoor storage only. The outdoor storage area, as presented, did how have adequate details as to the size of the area being requested. Nor has the Appellant satisfactorily demonstrated mitigation measures to the potential environmental impacts, especially concerning possible groundwater contamination pertaining to the outdoor storage area.

65The Tribunal finds that the application should be approved in part, and that the permitted use of storage should be limited to the indoor storage portion only.

ORDER

66THE TRIBUNAL ORDERS THAT the appeal is allowed, in part, and By-law 07-67 is amended as follows, and as set out in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk of the Town of Erin to assign a number to this by-law for record keeping purposes.

“S. deBoer”

S. DEBOER

MEMBER

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.

ATTACHMENT 1

THE CORPORATION OF THE TOWN OF ERIN

By-Law #XX - XX

Being a By-law to amend By-law 07/67, as amended, being the Zoning By-law for the Corporation of the Town of Erin

Whereas the Council of the Corporation of the Town of Erin deems it desirable to amend By-law 07-67 as amended, pursuant to Section 34 of the Planning Act, R.S.O. 1990 as amended;

Therefore be it resolved that the Council of the Corporation of the Town of Erin hereby enacts as follows:

1. That Schedule ‘A’ of By-law 07-67, the Comprehensive Zoning By-law, is amended by rezoning 5397 Wellington Road 125, legally described as Part of Lot 13, Concession 3, Town of Erin, from Agricultural ‘A’ to Special Provision A-XXX as shown on Schedule "A" of this By-law.

2. That Section 14 "Special Provisions, be amended by adding following the new section:

A- XXX Notwithstanding the provisions of the Agricultural zone, the lands zoned A-XXX By-law XX-XX may also be used for a storage warehouse and indoor storage for trailers, boats, Storage Facility, RV's, automobiles, trucks and tractors and subject to the following regulations: Part Lot 13 Con 3

5397 WCR 125 i) the size of the storage warehouse be limited to its current size of 780m²

ii) the number of vehicles stored indoors shall not exceed 55

3. That the subject land as shown on Schedule “A” to this By-Law shall be subject to all other applicable regulations of Zoning By-Law 07-67, as amended.

4. This By-law shall become effective from the date of passage by the Council of the Corporation of Erin and come into force in accordance with the requirements of the Planning Act, R.S.O. 1990, as amended.

Passed in open Council on the XXth day of , 20XX

Mayor

Clerk

By-law #XX - XX

S C H E D U L E " A "

This is Schedule "A" to By-law #XX - XX

Passed this XX day of XXXX, 20XX.

Mayor

Clerk

EXPLANATION OF BY-LAW #XX - XX

By-law Number XX - XX amends the Town of Erin Zoning By-law 07-67 by rezoning 5397 Wellington Road 125, Town of Erin from Agricultural ‘A’ to Agricultural Special Provision 'A-XXX' as shown on Schedule "A" of this By-law to permit an existing building to be used for indoor storage of boats, travel trailers, RV's, trucks, automobiles, and tractors.