Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 28, 2025

CASE NO(S).: OLT-24-001058

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

Appellant: Dengrow Inc.

Subject: Consent – Conditions of provisional consent

Description: To sever for the purpose of boundary adjustment

Reference Number: BNPL2024242

Property Address: 1569 Highway 3 (Part Lot 176, Concession 1 NTR)

Municipality/UT: Norfolk/Simcoe

OLT Case No: OLT-24-001058

OLT Case Name: Dengrow Inc. v. Norfolk (County)

Heard: January 24, 2025 by video hearing

APPEARANCES:

Parties Dengrow Inc. (“Applicant”/“Appellant”)

Counsel Paula Lombardi

MEMORANDUM OF ORAL DECISION DELIVERED BY N. ALLAM ON JANUARY 24, 2025 AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The Applicant seeks consent to sever 0.026 hectares (“ha”) from 1569 Highway 3 for a boundary lot line adjustment to address an existing garage encroachment located on the abutting lot. The retained portion will be 23.62 ha, while the benefitting lot will increase to 0.29 ha. The severed land, previously part of an agricultural parcel, will be used for residential purposes when merged with the abutting lot.

SITE CONTEXT

2The retained parcel (1569 Highway 3) has an area of approximately 23.65 ha (± 58.44 acres), with frontage of 179.36 m (588.45 feet) on Highway 3, and frontage of 1,120.57 m (3,676.4 ft) on Middleton Church Road. The retained property is used for agricultural purposes and contains a single detached dwelling, existing barns, and agricultural fields. It is designated ‘Agricultural’ on Schedule “A” of the Municipality’s Consolidated Official Plan, 2023 (“COP”) and zoned Agricultural (A) in the Comprehensive Zoning By-law No. 1-Z-2014 (“ZBL”).

PLANNING REPORT

3The planning report was presented on September 18, 2024 during the public meeting. Planning staff is of the opinion that the Committee of Adjustment (“CoA”) should provide provisional consent to the file, subject to conditions. Additionally, Highway 3 is a Controlled Access Highway classified as Arterial; therefore, all requirements, guidelines, and best practices in accordance with this classification and designation will apply.

Municipal Decision

4The CoA approved the application by granting provisional consent with conditions. The Applicant seeks an exemption from Conditions 4 and 5 of the CoA’s decision (CoA Decision file Number: BNPL2024242, pages 29-30 of the Applicant’s Book of Evidence).

5The Applicant is seeking an exemption from Conditions 4 and 5 of the CoA’s Decision:

a. Condition 4: receipt of a letter from the MTO confirming that the shed located in the front yard of 1551 Highway 3 has been removed and that the driveway from Highway 3 to 1569 Highway 3 Parcel “A” has been removed. All access to 1569 Highway 3 will be required from Middleton Church Road.

b. Condition 5: the entrance from Highway 3 to 1569 Highway 3 Parcel “A” will be required to be removed, and all access will be required from Middleton Church Road.

WITNESS TESTIMONY & PROPERTY HISTORY

6The Applicant’s witness was Andy Cattreyesse, a former police officer from London, Ontario, was born and raised on the subject property until his appointment in London.

7Mr. Cattreyesse was sworn in and presented old photographs dating back to 1930, when his grandfather purchased the property.

8Mr. Cattreyesse confirmed that the driveway at 1569 Highway 3 has remained in the same location for over 90 years, dating back to the 1930s. His testimony was uncontradicted.

9At the time of purchase, access to Highway 3 for the 1569 property was functional, although the primary access was via Middleton Church Road. Similarly, access to the 1551 Highway 3 property existed when its residence was later constructed.

10A series of historical photographs, submitted as evidence, confirm the longstanding existence of the driveway since the 1930s. Copies of these photographs are included at Tabs 1, 2, 3, and 4 of the Document Book.

11The Highway Corridor Management Manual (April 2022) states that all existing access connections to a highway or within the Ministry’s Permit Control Area, which legally existed prior to December 2013, are allowed to remain for their present land use (p. 68, paragraph 4.6.10) as follows:

All existing access connections to a highway or within the Ministry’s Permit Control Area, which legally existed (either in accordance with a valid Highway Corridor Management Entrance permit or as a recognized approved access connection) prior to December 2013, are allowed to remain for their present land use.

12Mr. Cattreyesse confirmed that the Ministry of Transportation of Ontario (“MTO”) has replaced the culverts for both driveways at least twice over the years.

13Mr. Cattreyesse testified that in 2011, when an additional barn was constructed on the retained property, a request was made for a second access off Highway 3. The MTO denied this request, stating that the existing access off Highway 3 was sufficient and that two accesses would not be permitted.

14MTO’s denial of the additional access demonstrates its acknowledgment of the existing driveway since at least 2011 and likely earlier.

15At no time in its 90-year history has the MTO indicated that the driveway at 1569 Highway 3 was not legally permitted.

16The Highway Corridor Management Manual (April 2022) states that all existing access connections to a highway or within the Ministry’s Permit Control Area that legally existed prior to December 2013 are allowed to remain for their present land use.

17The evidence confirms that the driveway at 1569 Highway 3 meets this criterion and has been continuously recognized as a lawful access point.

LEGISLATIVE FRAMEWORK

18The Applicant, pursuant to s. 53(19) of the Planning Act, has appealed to the Tribunal to amend Condition 4 and delete Condition 5 from the decision of consent application BNPL2024242.

19The Applicant/Appellant explained that these conditions are unreasonable because:

1. No new lots or entrances are being created.
2. The existing entrance has existed for over 50 years and is not affected by the boundary adjustment application.
3. No changes are proposed to existing entrances off Highway 3.
4. And there is no change in land use.

20In making a decision under the Act with respect to these appeals, the Tribunal must have regard to matters of provincial interest as set out in s. 2 of the Act, and must have regard to the decision of the approval authority and the information considered by the approval authority under s. 2.1(1) of the Act. The decision must be consistent with the Provincial Planning Statement, 2024 (“PPS”) under s. 3(5) of the Act.

21Applications for Consent shall have regard to the matters listed in s. 51(24) of the Act, including conforming with an applicable official plan. An applicant must also satisfy the Tribunal that a plan of subdivision is not necessary for the orderly development of the municipality under s. 53(1) of the Act.

HIGHWAY CORRIDOR MANAGEMENT MANUAL

22The Highway Corridor Management Manual – Chapter 4, dated April 2022, contains a “grandfathering” provision in section 4.6.10. The provision allows all existing access connections to a highway, such as Highway 3, or within the MTO’s Permit Control Area, that legally existed prior to December 2013 are permitted to remain for their present land use. (Document Book, Tab 11, p. 68).

SUMMARY

23As confirmed in Ms. Lombardi’s written closing statement, the consent application before the Tribunal is for a boundary adjustment to bring the abutting property into compliance regarding an existing garage, by merging the severed parcel with it the abutting lands to the west. This is a technical, legal adjustment to the parcel boundaries.

24Evidence confirms that the driveway off Highway 3 to 1569 Highway 3 has existed since the 1930s, for approximately 90 years.

25Section 4.3.3 of the PPS, 2024 permits lot creation in agricultural areas for legal or technical reasons, as in this case. No new lot is created by the severance.

26The purpose of the severance is to adjust the boundary, increasing the lot size of 1551 Highway 3 to bring its existing garage into compliance.

27Norfolk County planning staff confirmed in its report that:

1. The severance is consistent with the Provincial Policy Statement, 2020 (now replaced by the PPS 2024, which the Tribunal finds that it contains similar policies applicable to this case (e.g., policy 2.3.4.2).
2. The application aligns with the general intent and purpose of the Official Plan (Document Book, Tab 8, pages 38–39).
3. The application meets the intent of the zoning by-law. The retained lot (1569 Highway 3) requires a minimum lot area of 40 hectares for an agricultural lot, necessitating a minor variance to recognize its slightly reduced size (Document Book, Tab 8, p. 39).

28On November 13, 2024, the MTO confirmed it had no objections to the severance application, subject to outlined requirements (Document Book, Tab 5, page 12).

29The MTO’s November 13, 2024 letter does not require any alterations, modifications, or permits for the existing entrance at 1569 Highway 3.

30Despite this, extensive efforts were made to clarify the MTO’s position on removing Conditions 4 and 5 related to 1569 Highway 3.

31In correspondence with the MTO:

1. The MTO confused property addresses, as the shed is on 1551 Highway 3 (the severed parcel), not 1569 Highway 3.
2. The MTO was notified of the hearing but did not attend to clarify its requirements.
3. The Highway Corridor Management Manual (Section 4.6.10) states that access connections legally existing before December 2013 are grandfathered and allowed to remain. The driveway to 1569 Highway 3 has been in place for 90 years.

32Accordingly, the Tribunal finds that the existing entrance to the retained parcel is a legal access to Highway 3. The retained parcel (1569 Highway 3) will remain unchanged in land use.

FINDINGS AND ANALYSIS

33In rendering its Decision, the Tribunal must consider the evidence and submissions in light of its jurisdiction outlined earlier.

34The Tribunal determines that the application has regard for the Provincial interests under s. 2 of the Planning Act, has regard to the matters listed in s. 51(24) of the Act, and is consistent with the PPS. It aligns with the general intent and purpose of the COP and ZBL, represents an appropriate use of the subject lands, and constitutes good land use planning.

35The MTO’s November 13, 2024, letter does not require alterations, modifications, or permits for the existing entrance at 1569 Highway 3.

36Despite this, extensive efforts were made to confirm the MTO’s position on removing Conditions 4 and 5 related to 1569 Highway 3.

37In correspondence with the MTO:

1. The MTO confused property addresses, as the shed is located on 1551 Highway 3 (the severed parcel), not 1569 Highway 3.
2. The MTO was notified of the hearing but did not attend to clarify its requirements.

38The Highway Corridor Management Manual (Section 4.6.10) allows highway access connections that existed before December 2013 to remain in use. The driveway at 1569 Highway 3 has been in place for 90 years.

39Conditions 4 and 5 related to the severance are found to be unreasonable and unnecessary because:

1. The boundary adjustment corrects an encroachment issue and does not create new lots.
2. No new entrances off Highway 3 are being created.
3. The existing agricultural entrance at 1569 Highway 3 has existed for over 90 years and remains unaffected by the severance.
4. No modifications to existing Highway 3 entrances are proposed, and land use remains unchanged.

40The Tribunal’s Decision is as follows:

a. The appeal to the Conditions of the consent approval granted by the County is allowed, subject to:

1. Condition 4 is modified to read: Receipt of a letter from the MTO confirming that the shed located in the front yard of 1551 Highway 3 has been removed.
2. Condition 5 is deleted in its entirety.

b. The Tribunal confirms that the existing driveway access to and from 1569 Highway 3, being the retained parcel, may continue in its current form as a legal entrance onto Highway 3.

ORDER

41THE TRIBUNAL ORDERS that, pursuant to s. 53(34) of the Planning Act, the appeal is allowed and the Conditions imposed by the County of Norfolk are amended as set out in paragraph [43]a above.

“N. Allam”

N. ALLAM 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.