Jacob Bicz v. Brant (County), 2025 CanLII 29954

April 04, 2025

OLT-24-000285

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

Applicant and Appellant:

Jacob Bicz

Subject:

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

Description:

To permit the use of a lot for a bulk water sales business

Reference Number:

ZBA 16-23-ES

Property Address:

1760 Colborne St E

Municipality/UT:

Brant/Brant

OLT Case No.:

OLT-24-000285

OLT Lead Case No.:

OLT-24-000285

OLT Case Name:

Bicz v. Brant (County)

Heard:

March 4-5, 2025, by Video Hearing

Parties

Counsel

Jacob Bicz (“Applicant/Appellant”)

Courtney Boyd

County of Brant (“County”)

Rochelle Welchman

memorandum of oral decision DELIVERED BY K.R. Andrews on March 5, 2025 AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION and background

1This case is about the Appellant’s plans to develop part of an agriculturally zoned property for the purpose of operating a bulk water delivery business. The proposed development includes a parking area for tanker trucks and employee vehicles, plus a building to house a shop and an office to serve the business. To carry out these plans, the Appellant is seeking a Zoning By-law Amendment (“ZBA”). The County opposes the Appellant’s plans and associated ZBA, arguing that the applicable planning policies do not support locating such a business in an agriculturally zoned area.

2As detailed further below, the issues of this case shifted as the hearing progressed. Eventually, the ZBA being sought was scoped substantially, seeking only to amend the permitted setback from the roadway. Of particular note, the issue concerning the nature of the Appellant’s business, and the appropriateness of locating it in an agriculturally zoned area, was dropped; not because the parties agreed on the point, but because the issue, as it was presented to the Tribunal as a stand-alone question of fact, is not within the Tribunal’s jurisdiction. Given these developments, the County declined to challenge the Appellant’s evidence concerning approval of the scoped ZBA, and the Tribunal approved it for the reasons that follow.

The Appellant’s bulk water delivery business

3The Appellant’s bulk water delivery business involves trucking water that is obtained from the Ancaster Water Treatment Plant and delivering it to both agricultural and non-agricultural customers in the area. For agricultural clients, the water is typically used to hydrate livestock, for horticultural irrigation, and in-field sprayer refills. For non-agricultural clients, water is often delivered to fill swimming pools and residential cisterns.

The Subject Lands

4The Appellant owns the “Subject Lands”, municipally known as 1760 Colborne Street East. The Subject Lands are actively farmed and are approximately 25.6 hectares (“ha”) in size with 450 metres (“m”) of frontage on Colborne Street East (the former Highway 2), plus 580 m of frontage along White Swan Road. The Appellant proposes to occupy approximately 1.79 ha of the Subject Property, fronting onto Colborne Street East, to locate his business operations. According to the Appellant, his property is an ideal location because it is centrally located among his customer-base and it is also close to the business’ water supply.

5The Appellant’s plans originally involved two municipal applications: one for the presently at-issue ZBA, and the other for Consent to create a separate lot. These applications were submitted in July of 2023.

6The applications were refused by the County in February of 2024. Following this, in March of 2024, the Appellant appealed only the ZBA application to the Tribunal. Queried on why he did not appeal the Consent application, the Appellant explained that he had initially sought Consent to sever the lands because he thought that it was necessary to seek a separate lot for a localized ZBA. Now that he knows that a separate lot is not necessary, he is no longer motivated to obtain a severance.

7Regarding the ZBA relief being sought, the Appellant provided a draft ZBA that initially proposed the following site-specific provisions:

For the area where the business facility is being proposed:

permitted uses shall include Agriculture-Related Uses, and no dwelling unit shall be permitted;
minimum lot area shall be 1.7 ha;
minimum front yard setback shall be 21 m;

For the remaining agricultural lands:

an undersized parcel with a lot area of 23 ha shall be permitted.

Analysis

Application of the Clergy Principle

8At the outset of the hearing, the parties proposed that the Tribunal hear submissions on the application of the Clergy Principle, with the intent to scope the issues of the hearing. The potential application of the Clergy Principle arises because the County’s 2012 Official Plan (“2012 OP”), which was in effect during the municipal application process and at the beginning of the Appeal, was replaced by the County’s 2023 Official Plan (“2023 OP”) in October 2024.

9There was no debate between the parties regarding whether the policies of the 2023 OP could be considered as part of the Tribunal’s analysis, given that this OP is now in effect. There was also no debate about whether the policies of the former 2012 OP could potentially be considered instead as a matter or procedural fairness pursuant to the Clergy Principle. The parties also agreed that it would be preferrable to deal with only one version of the Official Plan (“OP”) because they would otherwise have to present parallel evidence and submissions to cover both versions of the OP. Of note, however, the Appellant took the position that the Tribunal should employ only the 2012 OP as part of its analysis, while the County submitted that the more recent 2023 OP should apply.

10In response to the parties’ suggestion that the Clergy Principle could and should be dealt with at the outset of the hearing, the Tribunal accepted that such an approach is preferrable because it would enable a more efficient and targeted merit hearing. Having found this, the Tribunal allowed the parties to make their respective submissions regarding which version of the County’s OP should be relied upon.

11The Appellant submitted that the Clergy principle should apply and only the policies of the 2012 OP should be considered as a matter of procedural fairness. The Appellant argued that it would be unduly unfair to now insist that the application be assessed in accordance with the 2023 OP, enacted only a few months ago, when it has only ever been assessed up to this point in accordance with the 2012 OP.

12In support of his submissions, the Appellant cited Pearce v Uxbridge (Township), 2023 CanLII 19221 (ON LT), where the Tribunal summarized the following aspects of the Clergy Principle at paragraphs 22 and 41:

[T]he Clergy principle is an oft-followed discretionary principle employed by the Tribunal to address the inherent unfairness of Applicants having to deal with a ‘moving target’ while their development proposals work through a generally vigorous and often lengthy approval process. It is commonly understood that development applications are frequently defended while underling municipal planning instruments may be subject to change. As a result, the Clergy principle arose as a matter of procedural fairness to secure development rights that existed at the time when an application was initially submitted to a municipality. It is well understood that the Clergy principle is not law, but rather a discretionary tool available to the Tribunal to deal with procedural fairness issues.

[T]he Clergy principle stands as a procedural fairness tool to the exclusive benefit of an Applicant. It is available, at the discretion of the Tribunal, to ensure that a municipality cannot retroactively pass planning instruments (intentionally or by happenstance) which have the effect of defeating an otherwise meritorious planning/development application.

13In response, the County argued that the default OP to be considered in any case is always the most recent version of the OP, as recognized at paragraph 28 of Maynard v Mississippi Mills (Town), 2021 CanLII 109379 (ON LT). Here, the Tribunal recognized that “it is a generally accepted principle that updated polices […] are to be preferred over policies of older OPs, in the event of a conflict, because they reflect new, better informed planning ideas”.

14It is noteworthy that the parties submitted that, in their view, there is little material difference between the relevant policies of the two OPs, and there appears to be no obvious prejudice to be suffered by the Appellant regardless of which version(s) of the OP the Tribunal elects to employ. On this point, the Tribunal queried them about the precise differences between the two OPs. They explained that the notable changes involve the insertion of text within policy 2.5 of the 2023 OP, which speaks to “Agriculture-Related Uses”, and which appears to be adopted directly from the Provincial Planning Statement (“PPS”) and Guidelines on Permitted Uses in Ontario's Prime Agricultural Areas (“Guidelines”). They further submitted that, given that the same or similar text is found in the PPS and/or Guidelines, and it would be considered regardless to assess the merits of the proposed ZBA; such text added to the 2023 OP has little or no material effect on the outcome of a planning analysis.

15Considering the above points, the Tribunal finds that procedural fairness principles tip the issue in favour of employing the policies of the 2012 OP. The Tribunal comes to this conclusion because of the extreme recency of the 2023 OP coming into effect, being enacted after the first Case Management Conference of this appeal, and it would be unfair to require the Appellant to revise his evidence and submissions at such a late stage of the proceedings to address the 2023 OP.

16Additionally, the Tribunal considered the materiality of the changes to the OP. Despite their joint contention that the changes have little or no material effect on the outcome of the Tribunal’s analysis, the Tribunal finds that the changes certainly affect the process of its analysis and possibly its outcome.

17The Tribunal comes to this finding because the Planning Act sets out two different adherence tests applicable to policy language incorporated within a municipal OP approved/adopted under Part III of the Planning Act, versus that of a provincial “policy statement” issued under s. 3 of the Planning Act. Pursuant to s. 3(5) of the Planning Act, the Tribunal’s decision must “be consistent with” a planning statement; meanwhile, under s. 24(1), a ZBA must “conform with” an OP. The material difference between the terms “be consistent with” and “conform with” has been identified by the Tribunal, with “conform with” being recognized as the most rigid standard of adherence prescribed by the Act (see 1455136 Ontario Ltd. v Waterloo (Region), 2023 CanLII 50968 (ON LT) at paragraphs 21-26).

18This means that the relevant policies of the 2023 OP are slightly more restrictive than those of the former 2012 OP. Consequently, the Tribunal finds that the Clergy Principle should additionally apply because it would be unfair to apply the more restrictive policies of the 2023 OP.

19As indicated earlier in this decision, the Appellant originally sought approval of both a ZBA and Consent to sever an area of the Subject Lands to locate his business operations. Following the rejection of these two applications at the municipal level, the Appellant has only appealed the ZBA application and has abandoned the Consent application with no plans to pursue it later.

20Despite the abandonment of the Consent application, the hearing began with the parties misunderstanding their respective positions concerning the former Consent application. The County was under the impression that the Appellant still planned to eventually seek a severance. This apparently led the County to insist upon including certain provisions within the presently proposed ZBA to address a later Consent application. At the same time, the Appellant did not realize that these insisted-upon provisions were a result of the County’s mistaken belief about a later Consent application and agreed to include such provisions merely to satisfy the demands of the County.

21Once this confusion was cleared up, discussions ensued to identify and delete the provisions that were related to the abandoned Consent application. Through these discussions, it was confirmed that there is no need to require a ZBA to establish a minimum lot area of 1.7 ha where the business operations are proposed to be located, nor is there a need to recognize an undersized parcel of 23 ha representing the balance of the property. The County confirmed that neither of these provisions are necessary because no new lots or lot sizes are being proposed or planned for. Upon this confirmation, the Appellant amended his relief being sought.

22As the above discussions took place, it was pointed out that there is a provision in the Appellant’s proposed ZBA which purports to allow an “Agriculture-Related Use” as a permitted use, despite such a use being already permitted. Queried on this point, the parties confirmed that they do not dispute the permissibility of an Agriculture-Related Use on the property; rather, they disagree about whether the Appellant’s business satisfies the applicable definition for an Agriculture-Related Use, as well as the related criteria for an Agriculture-Related Use contained in the presently enacted Zoning By-law (“ZBL”).

23Regarding this point, the Tribunal requested submissions on: (1) whether it is appropriate to approve a ZBA provision to allow a particular use when it is already permitted; and (2) whether the Tribunal has jurisdiction to determine a stand-alone question of fact.

24As a preface to answering the first question, the Tribunal asked the parties to set aside their dispute about the nature of the Appellant’s business and confirm whether it would be redundant to approve a ZBA to permit an Agriculture-Related Use. They both confirmed that it would be redundant since it is already a permitted use. Given this response, the Tribunal finds that it should not approve the requested provision out of a concern for redundancy within the County’s ZBL (as revised by the ZBA). Such redundancy, the Tribunal finds, would likely cause confusion for anyone attempting to discern the purpose of this particular ZBA provision. The Tribunal notes that there exists in law a recognized presumption that a ZBL does not include superfluous or meaningless language, and every provision serves a genuine purpose.

25Turning to the second point, the parties both maintained a preference for the Tribunal to make a finding on the nature of the Appellant’s business, regarding whether it constitutes an Agriculture-Related Use. However, neither party provided a precedent to demonstrate that the Tribunal has the jurisdiction to provide such relief as a stand-alone question of fact.

26The Tribunal was left to consider this question on the basis of its prescribed statutory powers. The Tribunal is, of course, a creature of statute, and its jurisdiction and powers are both provided and limited to those which are specifically prescribed by legislation. The Tribunal enjoys no residual powers.

27The Ontario Land Tribunal Act (“OLT Act”) outlines the Tribunal’s exclusive jurisdiction under ss. 8(1) and 8(2):

Exclusive jurisdiction

8 (1) The Tribunal has exclusive jurisdiction in respect of all matters in which jurisdiction is conferred on it by this or any other Act;

(2) The Tribunal has authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction, unless limited by this or any other Act;

28The OLT Act further prescribes jurisdiction and power to the Tribunal to make Orders under ss. 9(1):

Orders

9 (1) The Tribunal has authority to make orders or give directions as may be necessary or incidental to the exercise of the powers conferred on the Tribunal under this or any other Act.

29Examining ss. 8(1), 8(2) and 9(1) of the OLT Act together, the Tribunal finds that the terms “with respect to” found in ss. 8(2) and “necessary or incidental to” found in ss. 9(1) are interchangeable. The key takeaway, the Tribunal finds, is that the Tribunal’s jurisdiction and powers are limited to that which are:

expressly conferred by statute; and
necessary and/or incidental to exercising its expressly conferred jurisdictional powers.

30To illustrate the scope and limitations of such powers, the Tribunal provides the following example in the context of a minor variance application Appeal.

31In such a proceeding, the Tribunal has no jurisdiction to answer a stand-alone question of fact concerning whether a minor variance is necessary to permit a specific development. Such a question, by itself, may be properly brought to the Superior Court in Ontario, but not to the Tribunal (despite it being a planning-related question) because the Tribunal has not been granted any such statutory powers. That being said, if the Tribunal is tasked with determining whether a specific minor variance should be authorized pursuant to its statutorily prescribed powers under ss. 45(1) and 45(18) of the Planning Act, and if the Tribunal finds that the application should be refused on the basis that the proposed minor variance is unnecessary because the in-effect ZBL already permits the proposed development, the Tribunal has jurisdiction pursuant to ss. 8(2) of the OLT Act to make such a finding of fact as part of its reasons for refusing the minor variance application. Such a finding would, in essence, provide a similar form of relief as an answer to a stand-alone question of fact; however, the Tribunal would not be acting outside its jurisdiction because providing the answer would be necessary and/or incidental to the Tribunal’s exercise of its statutorily prescribed powers.

32In the present case, the Tribunal is dealing a ZBA application, and its related statutorily prescribed powers are set out at s. 34(26) of Planning Act:

Powers of Tribunal

34(26) The Tribunal may,

(a) on an appeal under subsection (11) or (19), dismiss the appeal;

(b) on an appeal under subsection (11) or (19), amend the by-law in such manner as the Tribunal may determine or direct the council of the municipality to amend the by-law in accordance with the Tribunal’s order; or

(c) on an appeal under subsection (19), repeal the by-law in whole or in part or direct the council of the municipality to repeal the by-law in whole or in part in accordance with the Tribunal’s order.

33Upon reading this section, the question to ask is: is a finding of fact concerning the nature of the Appellant’s business either necessary or incidental to the Tribunal’s exercise of its powers prescribed by s. 34(26) of the Planning Act?

34The Tribunal finds that the answer is “no” because the Tribunal is not being tasked with exercising any of its statutorily prescribed powers in relation to the question. This means that the question is neither necessary nor incidental to the Tribunal’s exercise of its expressly prescribed statutory powers, it stands alone, and the Tribunal has no jurisdiction to answer it.

The roadway setback

35Having concluded that the initially proposed ZBA provisions concerning the former Consent application and Agriculture-Related Uses are unnecessary, the only remaining proposed ZBA provision to consider is an exception from the presently prescribed 25 m minimum setback from the roadway. The Appellant’s plans require a reduction to 21 m.

36On this narrow issue, the Tribunal heard uncontested evidence from the Appellant’s duly qualified expert in Land Use Planning, Ruchika Angrish. She opined that a truncated ZBA to allow a 21 m setback from the roadway has adequate regard for the matters of provincial interest found at s. 2 of the Planning Act, is consistent with the PPS in accordance with s. 3(5) of the Planning Act, and it conforms with the policies of the 2012 OP in accordance with s. 24(1) of the Planning Act. With no evidence or submissions to the contrary, the Tribunal accepts this evidence and finds the same.

ORDER

37THE TRIBUNAL ORDERS THAT the appeal is allowed, in part, and by-law No. 61-16 of the County of Brant is hereby amended as set out in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk of the County of Brant to assign a number to this by-law for record keeping purposes.

“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.

ATTACHMENT 1

BY-LAW NUMBER _____

-of-

THE CORPORATION OF THE COUNTY OF BRANT

To amend By-law No. 61-16, the Zoning By-law for the County of Brant, as amended, to regulate the use of lands and the location and use of buildings and structures in the County of Brant.

WHEREAS an application was received from The Angrish Group, Agent on behalf of Bicz Farms Inc., Owner with respect to lands described as Part Lot 4, Range 1, S/S Hamilton Road, Formerly Ancaster Road, less Part 1 on 2R6005 and located at 1760 Colborne Street East in the former Geographic Township of Brantford, County of Brant to amend By-law Number 61-16, to change the current Agricultural (A) Zone to Special Exception Agricultural (A-xx) Zone on a portion of the lands to permit reduced front yard setback;

AND WHEREAS the Planning Act empowers a municipality to pass by-laws prohibiting the use of land and the erection, location and use of buildings or structures, except as set out in the by-law;

AND WHEREAS this by-law is in conformity with the Official Plan for the County of Brant;

AND WHEREAS the Ontario Land Tribunal deems it to be desirable for this By-law to be passed;

NOW THEREFORE THE ONTARIO LAND TRIBUNAL UNDER THE PROVISIONS OF SECTION 34 OF THE PLANNING ACT R.S.O. 1990 HEREBY ENACTS AS FOLLOWS:

THAT Schedule ‘A’, of By-Law 61-16 is hereby amended by changing the zoning on a portion of the subject lands from Agricultural (A) Zone to Special Exception Agricultural (A-xx) Zone as shown on Schedule ‘A’ of this by-law.

THAT Section 6.5 Special Exceptions A Zone is hereby amended by adding the following.

A-XX

Notwithstanding any provision of this by-law to the contrary, within any area zoned A-xx on Schedule “A” hereto,

The following regulations shall apply:

Front Yard Setback (Minimum): 21 meters

All other requirements of the By-Law shall apply.

THAT this By-Law shall come into force on the day it is passed by the Ontario Land Tribunal.

INTRODUCTION and background

The Appellant’s bulk water delivery business

The Subject Lands

Analysis

Application of the Clergy Principle

ZBA provisions sought under the pretense of seeking Consent to create a new lot

ZBA provision sought to permit Agriculture-Related Uses

The roadway setback

ORDER

ATTACHMENT 1