Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 04, 2025

CASE NO(S).: OLT-24-001166

PROCEEDING COMMENCED UNDER subsection 53(27) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: District Municipality of Muskoka

Subject: Consent

Description: To permit a lot severance

Reference Number: B 34-24 LOB

Property Address: 1170 South Portage Road

Municipality/UT: Muskoka/Muskoka

OLT Case No.: OLT-24-001166

OLT Lead Case No.: OLT-24-001166

OLT Case Name: District of Muskoka v. Lake of Bays (Township)

Heard: March 19, 2025 by Video Hearing

APPEARANCES:

Parties

Counsel

District Municipality of Muskoka

Danielle Bertin

Township of Lake of Bays

John Ewart

Norman Moffat

Meaghan McDermid

MEMORANDUM OF ORAL DECISION DELIVERED BY S. BOBKA ON MARCH 19, 2025 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The District Municipality of Muskoka (“District”) appealed the approval by the Township of Lake of Bays (“Township”) of an application filed by Norman Moffat (“Applicant’) for a consent to permit a lot severance with respect to the property municipally known as 1170 South Portage Road (“Subject Property”).

2The Parties reached a settlement which was brought forward for the Tribunal’s consideration at this Hearing event.

3The Tribunal received and marked the following exhibits:

Exhibit 1

Revised Consent Conditions

Exhibit 2

Draft Order (submitted on Consent)

Exhibit 3

Affidavit of John Gallagher, MCIP, RPP (Applicant)

Exhibit 4

Affidavit of Lisa Marden, MCIP, RPP (District)

4The Committee of Adjustment held a public hearing for the application on October 29, 2024 and granted the provisional consent with conditions, but opted to delete two conditions (Nos. 8 and 9) and alter one condition (No. 7) which had been initially proposed in the Township Staff Report. These conditions were intended to address:

a. issues raised by the District related to access onto the District Road, the location of wells, the requirement for a surveyed 26 metre (“m”) right of way to be dedicated to the District, and a road widening to be dedicated to the District; and,

b. a requirement of the Township regarding the natural severance of the retained lands on the east and west sides of South Portage Road that would result from the District’s requested land dedications.

5The District subsequently appealed the Provisional Decision to the Tribunal.

SUBJECT PROPERTY AND EFFECT OF PROPOSAL

6The Subject Property has a lot area of 154 hectares (“ha”) with approximately 1000 m of frontage on Peninsula Lake and approximately 1,211 m of frontage on South Portage Road (District Road #9).

7The severance will create one lot with an area of 10 ha and approximately 564 m of frontage on South Portage Road. The retained lot will have an area of 144 ha and approximately 624 m of frontage on South Portage Road.

8A single dwelling with private water and sewer services is eventually proposed for the severed lot. The retained lot will maintain the existing dwelling, barn, garage and cottage, but proposes no further development.

EVIDENCE

9Upon review of their respective Curricula Vitae and Acknowledgement of Expert’s Duty forms, the Tribunal qualified both John Gallagher and Lisa Marden to provide opinion evidence in land use planning. Both are Registered Professional Planners and full members of the Canadian Institute of Planners and Ontario Professional Planners Institute.

10Both Planners were aligned in their support for the settlement. It was their combined evidence that the proposed consent and revised conditions:

a. have regard for the criteria in section 51(24) of the Planning Act (“Act”);

b. are consistent with the Provincial Planning Statement 2024 (“PPS 2024”);

c. conform to the District of Muskoka Official Plan and the Lake of Bays Official Plan;

d. comply with the requirements of the Rural (RU) zoning in the Community Planning Permit Bylaw No. 2021-111; and,

e. represent good planning.

11The settlement would:

replace Condition 7 with a new Condition 7 with minor revisions to the wording. New Conditions 8 and 9 are proposed to be added. New Condition 8 will require Mr. Moffat to convey the travelled portion of South Portage Road (consisting of the pavement and shoulder) along the full extent of the retained lands to the District as a condition of the consent. New Condition 9 will require Mr. Moffat to enter into a deferred road widening agreement with the District which will delay the dedication of any road widenings up to the District’s standard of 26m on the severed and retained lots until such time as the District is ready to proceed with the work. [Exhibit 3, page 4 paragraph 20]

12It was Mr. Gallagher’s opinion evidence that the proposed severance is consistent with the PPS 2024 as it:

a. creates a new lot for housing in the Rural Area;

b. allows for the proper use of the existing infrastructure;

c. meets the servicing policies of the PPS 2024; and,

d. proposes a lot that is of a sufficient size to allow a dwelling, well and septic system.

13Regarding s. 51(24) of the Act, Mr. Gallagher stated that the proposal has regard for the applicable criteria. Specifically, the proposal has regard to matters of provincial interest, is not premature, and efficiently uses existing infrastructure (including Hydro, Telephone/Internet, emergency services and the year-round maintenance of the District road). In addition, the created lot is a suitable shape and size and will accommodate private servicing of the well and septic system.

14Mr. Gallagher opined that the proposed consent conforms with both the District and Township Official Plans. He stated the proposal is a permitted use and would meet the policies in both Official Plans as well as the applicable rural zoning requirements. It would optimize the use of existing infrastructure, and feature appropriately-sized lots with access onto a year-round publicly owned and maintained road.

15Mr. Gallagher also highlighted that both the proposed lots would meet or exceed the requirements of the applicable Community Permit Bylaw No. 2021-111.

16Ms. Marden spoke to the proposed revised conditions, stating that they:

a. are reasonable, have regard for the nature of the development and will ensure sufficient width is dedicated to provide future widening of South Portage Road, and thereby meet the requirements of the Act;

b. conform to the District Official Plan by maintaining the transportation network, ensuring that District roads are effective for the movement of people and goods, ensuring that appropriate right of way widths are provided for existing and proposed District roads, and promoting active transportation;

c. meet the criteria of the District’s Engineering Design Criteria and Standards manual, ensuring minimum rights of way and design speeds; and,

d. will accommodate a future road widening by the District, though there are no immediate plans to do so.

FINDINGS

17The Tribunal accepts the uncontroverted opinion evidence of Mr. Gallagher and Ms. Marden and finds that the proposed consent and revised conditions meet the criteria in the Act, are consistent with the PPS 2024, conform to both the District and the Township Official Plans, and reflect principles of good land use planning in the public interest.

18The proposal will provide an additional opportunity for housing, efficiently use existing infrastructure, result in lots that are of appropriate size and shape with appropriate access, and accommodate any future road widening.

19The Tribunal has had regard to the matters of provincial interest in s. 2 of the Act and to the decisions of the Township and the information it had before it when the matter was decided as required under s. 2.1(1) of the Act.

ORDER

20The Tribunal Orders THAT the Appeal is allowed, in part, and provisional consent is to be given subject to the revised conditions set out in Attachment 1 to this Order.

“S. Bobka”

S. BOBKA 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

OLT-24-001166 District of Muskoka v. Lake of Bays (Township)

Conditions

(1) A draft reference plan of survey is to be submitted to the Secretary-Treasurer for approval prior to registration. The reference plan must identify the dimensions and lot area of the severed and retained lands shown in Schedule “A”, together with any applicable easements, the locations of any buildings, structures, septic systems, driveways and roadways, as well as any watercourse locations. An electronic version (i.e. "pdf” format) is also to be provided.

(2) Following the above condition, submit two copies of a deposited reference plan of survey that confirms the dimensions and lot areas of the proposed lands, to which this consent approval has been granted. An electronic version (i.e. "pdf” format) is also to be provided.

(3) Ensure that any zoning non-compliances, identified through Condition 1 above, be brought into compliance.

(4) That a "Transfer in Preparation" and a "Long Form Certificate" for the severed lands be provided to the Secretary-Treasurer.

(5) That the applicant obtain a conditional permit from the District Municipality of Muskoka for the proposed severed and retained lots for access onto the District Road.

(6) That the lands be subject to an agreement with the District Municipality of Muskoka pursuant to Section 51(26) of the Planning Act, R.S.O. 1990, as amended, respecting the location of wells in relation to the District Road.

(7) That Part 1 on Plan 35R-10051 be dedicated and transferred to the District Municipality of Muskoka.

(8) That the Applicant dedicate and transfer a right of way, to be surveyed, across the balance of the retained lands comprising the current traveled portion (ie. pavement and shoulder) of District Road 9 to the District Municipality of Muskoka;

(9) That the Applicant enter into a consent agreement pursuant to Section 51(26) of the Planning Act R.S.O. 199, as amended, with the District Municipality of Muskoka for a deferred road widening across the entire frontage of the severed and retained lands on District Road 9.

(10) That cash-in-lieu of parkland dedication be paid to the Township of Lake of Bays in accordance with By-law No. 00-04.

(11) That any outstanding balances related to the subject application be paid to the Township of Lake of Bays in accordance with the Cost Acknowledgement Agreement.