Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 16, 2025 CASE NO(S).: OLT-22-003015

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 1415747 Ontario Inc. & Lyons Big Tub Resort Marina Ltd. Appellant: The Big Tub Harbour Citizens Committee Subject: Zoning By-law Description: Zoning By-Law Amendment 2002-54 to clearly define the Commercial Tour Boat Operation and appropriate zone designation Reference Number: BL 2022-05 Property Address: Municipality Wide Municipality/UT: Northern Bruce Peninsula OLT Case No.: OLT-22-003015 OLT Case Name: Lyons Big Tub Resort Marina Ltd, Big Tub Harbour Citizens Committee VS. Northern Bruce Peninsula

Heard: January 28, 2025, by video hearing

APPEARANCES:

Parties	Counsel
1415747 Ontario Inc. and Lyons Big Tub Resort Marina Ltd. ("Bruce Anchor")	Mark Flowers, Kyle Gossen
The Big Tub Harbour Citizens Committee ("BTHCC")	Eric Davis, Christopher Manning
Municipality of Northern Bruce Peninsula ("MNBP")	Nicholas Lovell

DECISION DELIVERED BY D. CHIPMAN AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This Decision and Order arises from the hearing of two appeals pursuant to s. 34(19) of the Planning Act ("Act") against the passing of Zoning By-law Amendment No. 2022-05 ("ZBA 2022-05") by the MNBP.

2The MNBP passed ZBA 2022-05 on Monday February 28, 2022, to amend the Comprehensive Zoning By-law No. 2002-54 ("CBL"), to add a definition of a "Commercial Tour Boat Operation" ("CTBO") to all Commercial Zone 1 ("C1") zoned lands within the MNBP, and to include CTBO as a permitted use in all C1 zones, along with adding parking provisions specific to the use.

3At the onset of the hearing, the Tribunal was advised that the MNBP and Bruce Anchor had reached a settlement on the revised parking provisions, and as such, this Decision will now focus on the remaining outstanding issues.

4The MNBP notified the Tribunal on November 24, 2024, that they would not be calling any witnesses, but maintained their intention to provide opening and closing remarks.

5On November 28, 2024, BTHCC advised the Tribunal the focus of the hearing will relate only to the properties known as the Symes Property, the Big Tub Resort, Scott Street (the unopened road allowance adjacent to the Symes Property), and 248 Big Tub Road (referred to as "Parks Canada" and "Coast Guard Lot") (together "Subject Properties").

6In 2021, a Superior Court application was launched by BTHCC based on their position that CTBOs are not a permitted use within the MNBP's C1 zones in the CBL. The Superior Court proceeding is stayed pending the resolution of this Tribunal proceeding.

7For the reasons that follow, the Tribunal Orders that the BTHCC's appeal is dismissed.

8With regard to the Bruce Anchor's appeal, the appeal against ZBA 2022-05 of the MNBP is allowed in part, and ZBA 2022-05 is amended as set out in Attachment 1 to this Order. In all other respects, the Tribunal Orders that the appeal is dismissed.

AREA CONTEXT

9The MNBP is located on the northern portion of the Bruce Peninsula and is surrounded to the north, east, and west by the water bodies of Lake Huron and Georgian Bay. The Northern Bruce Peninsula contains several small urban centres, the largest being Tobermory.

10Tobermory is generally accessed from the south by Provincial Highway 6, and from the north via a ferry service providing a link to Manitoulin Island and the Northern Ontario region from May through October.

11Tobermory's economy is largely reliant on tourism based around the Fathom Five National Marine Park ("Fathom Five") and the historic marine sites being:

i. Historic Shipwrecks; ii. Flowerpot Island; iii. Big Tub Lighthouse; and iv. The Grotto.

12The establishment of the Fathom Five predates the National Marine Conservation Areas ("NMCA") program and is managed in the spirit of a marine conservation area.

13Access to the Historic Shipwrecks within the Fathom Five is restricted by the Transport Canada Vessel Operating Restriction Regulations ("VORR"). Parks Canada administers the VORR areas to ensure the protection of historic marine sites. In 2015, Parks Canada implemented a moratorium on the number of tour boats permitted to enter the restricted areas to allow for appropriate planning.

14Further amendments were approved by Transport Canada on December 8, 2023, which included:

• An increase in the length of the VORR area in the harbour; and
• The introduction of a 10 kilometre per hour ("km/hr") speed limit in the entire area of Big Tub Harbour.

15Big Tub Harbour ("BTH") is the larger harbour which contains the Sweepstakes Ship Wreckage. BTH is flanked by a number of detached waterfront residential lots, the Big Tub Harbour Resort Property, the Symes Property, the Coast Guard Lot, all with individual docks, and the Big Tub Lighthouse. BTH is 0.4 miles ("mi") long and 300 feet ("ft") wide.

16Little Tub Harbour ("LTH") is a much smaller harbour compared to BTH and is situated within the Downtown core of Tobermory. LTH is approximately 0.2 mi long and 200 ft wide.

17LTH is flanked with the Tobermory ferry terminal (used by the ChiChimaun Ferry), the Tobermory marina, a variety of commercial retail and personal service uses, municipal and private docking facilities, and some detached waterfront residential lots on the south side of Bay Street. Several CTBOs have their docking/access facilities out of LTH, and in some cases, their related parking areas and ticket booths.

18Both BTH and LTH are used by commercial tour boat operators, dive boats, other motorized boats, as well as non-motorized boats (e.g. kayaks).

Big Tub Resort Property

19The Big Tub Resort Property includes a motel and marina. The docks at the Big Tub Resort Property are located in a water lot in front of the resort, which is owned by Parks Canada.

Symes Property

20Bruce Anchor became the owner of the Symes Property on November 21, 2018. The Symes Property is mostly vacant, and a well-treed property located on the north side of Big Tub Harbour.

21Bruce Anchor uses the Big Tub Resort Property and the Symes Property during very windy days, when the use of The Gap's dock is not safe, to load/unload passengers from boats as part of its tour boat business.

22A Staff Report was presented to the MNBP Council ("Council") on December 20, 2021. Notice of a public planning meeting was given on January 11, 2022.

23The MNBP hired Cuesta Planning Consultants ("Cuesta") to provide professional planning assistance relative to the proposed amendment to the CBL. A public planning meeting was held on February 14, 2022, with the Cuesta Preliminary Planning Report ("Cuesta Report") presented by Genevieve Scott.

24On February 28, 2022, Council approved the added definition, and the inclusion, of a CTBO as a permitted use within C1 zones after the public planning meeting and community comments were received. At that same public planning meeting, the MNBP adopted the ZBA. The Notice of Passing was issued on March 3, 2022.

25In March 2022, BTHCC and Bruce Anchor submitted individual appeals.

Witnesses

26The BTHCC called the following expert witnesses:

• Mark Dorfman, Land Use Planning; and
• Josée Dumont, Traffic Safety.

27The BTHCC also called Bob Blackburn, a member of BTHCC, as a lay witness to provide factual evidence.

28Bruce Anchor called the following expert witnesses:

• Gord Nielsen, Ecologist Aquatic Biologist, Boating Impact;
• Alex Fleming, Transportation Planning Engineer (Transportation Engineering and Planning, Roadway Design);
• Debra Walker, Land Use Planning; and
• Genevieve Scott, Land Use Planner, Cuesta (under summons).

29Bruce Anchor also called Brent Robins, the owner of Bruce Anchor Cruises and Lyons Big Tub Resort Marina Ltd., as a lay witness to provide factual evidence.

30The Tribunal qualified the above noted experts to provide opinion evidence in each of their respective fields. The Tribunal accepted the sworn/affirmed lay witnesses' contextual and factual testimony.

AGREED STATEMENT OF FACTS

Transportation Experts

31Ms. Dumont and Mr. Fleming agreed that:

• There are no operational issues regarding level of service, delay, or capacity on Big Tub Road, or at the intersection of Big Tub Road and Provincial Highway 6; and
• The reference to transportation-related impacts of loading/unloading patrons does not refer to operations within the property limits, nor passengers embarking or disembarking boats, only ingress and egress of the property from the roadway.

Land Use Planning Experts

32Ms. Scott, Ms. Walker, and Mr. Dorfman agreed that:

• Council, at its meeting of December 20, 2021, approved a recommendation to amend By-law No. 2002-54, as amended, to add the definition for, and permitted use of, a "Commercial Tour Boat Operation";
• On February 28, 2022, the MNBP approved By-law No. 2022-05, as amended, for this purpose noted in the paragraph above and which applies to the entire MNBP;
• The ZBA has appropriate regard for all relevant matters of provincial interest that are set out in s. 2 of the Act;
• By-law No. 2022-05 is consistent with the Provincial Planning Statement, 2024 ("PPS 2024") and was not an issue at the hearing;
• By-law No. 2022-05 conforms to the Bruce County ("County") Official Plan ("BC OP") and was not an issue at the hearing;
• All four properties relating to the appeals are situated within the "Downtown/Harbour Commercial" designation, as illustrated on Schedule A ("Schedule A") (Land Use) of the MNBP Official Plan ("MNBP OP"); and
• That a shuttle bus is a vehicle and not a land use and is not intended to be zoned as a primary land use.

LEGISLATIVE TESTS

33It is an uncontested fact that provincial interests and policies, as well as the County's interest, are without conflict. The issues before the Tribunal require the general determinations that the ZBA 2022-05 conforms with the MNBP OP, and that any revisions to the CBL represent good land use planning and are in the public interest.

BTHCC Appeal

34The BTHCC has, on numerous occasions, delivered written and oral submissions to the MNBP in support of its position that CTBOs are not a permitted use within lands zoned C1 in the CBL. BTHCC maintains that the addition of the definition of a CTBO does not meet the MNBP OP and is not good land use planning. BTHCC maintains that adding the CTBO as a permitted use to all properties in the C1 zones, and specifically in relation to the Subject Properties, is not compatible with the existing residential community along Big Tub Road and is not in the public interest.

35Mr. Dorfman provided the Tribunal with a review of the BTHCC proposed ZBA 2022-05 (Exhibit 9), which in his opinion strikes an appropriate balance between regularizing the use of CTBO in Tobermory and ensures that the Big Tub Road residential community is protected from compatibility issues or adverse effects. The content of the BTHCC's proposed ZBA 2022-05 contains specific restrictions to the use of the Subject Properties for the operations of a CTBO.

36Mr. Dorfman deems the community character of Big Tub Road as a Local Area consisting of residential and existing non-residential land uses. He elaborated that, within this Local Area, there are 16 existing dwellings, with 12 located on the north side of Big Tub Road and 4 on the south side of Big Tub Road.

37He opined that Section 1.7 of the MNBP OP sets out the vision of the MNBP as a balanced vision taking public interest into account:

The people of the Municipality of Northern Bruce Peninsula recognize that development must be planned in an effective, fair, efficient and flexible manner.

All reasonable efforts should be made to direct growth and provide public services within Tobermory, Lion's Head and Ferndale and, at the same time, all reasonable efforts should be made to protect and enhance the cultural, social and natural environments.

38Schedule A of the MNBP OP sets out the designation of the "Downtown Harbour Commercial" area. Mr. Dorfman noted that the area along most of Big Tub Road is designated "Residential", with the exception of 220 Big Tub Road to the Big Tub Lighthouse. These properties are designated "Downtown Commercial" with Special Policy Area 4. The Big Tub Lighthouse is designated "Recreation and Open Space".

39Section 3.2.3, of the MNBP OP sets out the goals and policies for the "Downtown/Harbour Commercial" area as developing a long-term improvement program for the downtown/harbour areas within Tobermory and Lion's Head, making these areas a pedestrian friendly tourism destination.

40He opined that ZBA 2022-05 will provide Bruce Anchor with the ability to bring shuttle buses from the downtown core to the Big Tub Road area, where loading/unloading would result in an activity that does not make a pedestrian friendly tourism destination.

41Subsection 3.2.3.2 of the MNBP OP sets out two actions to achieve the goal of the "Downtown/Harbour Commercial" areas, which in Mr. Dorfman's opinion will not be achieved by ZBA 2022-05:

a) Provide opportunities through the Comprehensive Zoning By-law and other regulations for a mixture of commercial and residential uses in the downtown/harbour areas.

b) Maintain through zoning, site plan control and other regulatory measures, the historic charm of the downtown/harbour areas.

42Turning to Subsection 3.2.3.3 of the OP, which sets out the permitted uses in the "Downtown/Harbour Commercial" area, he noted the phrase "Commercial Tour Boat Operation" is not mentioned: "wide variety of retail and service uses, serving year round, seasonal and transient tourism populations shall be permitted".

43Mr. Dorfman added that a CTBO on Big Tub Road is not one of the permitted or encouraged land uses, but rather, a CTBO in the "Downtown/Harbour Commercial" areas makes sense adjacent to LTH and away from the established residential community. He noted that the Subject Properties are all zoned as "C1-a - Commercial Zone 1 (Business District Commercial)" ("C1-a"), "Special Provision". He informed the Tribunal that the Special Provision allows for a detached dwelling on an existing lot of record.

44He drew attention to Section 3.5 of the MNBP OP that sets out the goals and policies for the "Recreation and Open Space" designation. One of the permitted uses in this designation is: "commercial tour or diving boat services and tour boats".

45This, he stated, is the only reference to a future CTBO in the MNBP OP and does not apply to ZBA 2022-05.

46From a land use perspective, Mr. Dorfman opined that approval of ZBA 2022-05, is premature and that substantive improvements to Big Tub Road should be implemented by the MNBP before ZBA 2022-05 is in place.

47Mr. Dorfman stated his concern that there is no restriction within the proposed ZBA 2022-05 to only permit the usage of the Big Tub Resort Property and Symes Property on windy days. He stated that the introduction of additional shuttle bus trips to and from the Subject Properties will have a negative impact on residents and will change the character of the local area.

48Mr. Dorfman proffered that the introduction of a CTBO on Big Tub Road would likely precipitate development pressure for the existing as-of-right land uses. In his opinion, if any of the permitted principal uses under the C1 zones were established on the Subject Properties as-of-right, it would abruptly change the character of the residential area, resulting in a transition to resemble the character of Downtown Tobermory.

49Mr. Blackburn acknowledged in cross-examination that, should a fast food chain, as an example, be introduced to the Symes Property, the residents would have to live with any of the permitted uses, even if it were more invasive to the area by increasing traffic, noise, and trash along Big Tub Road than a CTBO.

50Mr. Dorfman noted that adding a CTBO as a permitted use to the Subject Properties will continue to cause impacts and effects throughout the established residential area along Big Tub Road in terms of vehicular traffic, parking, noise, fumes, and municipal services, and it would create traffic and pedestrian safety concerns.

51Mr. Dorfman maintained that if ZBA 2022-05 is approved, it should apply only to sites and areas that are not zoned as C1-a, such as the Subject Properties.

52Mr. Blackburn raised the concern that it is already a challenge for emergency vehicles to access the area with the present traffic and parking situation due to the popularity of the Bug Tub Lighthouse as a destination. He was of the view that, should a CTBO be approved as a permitted use on the Subject Properties, the introduction shuttle buses on a regular basis would exacerbate the problem.

53Mr. Dorfman opined that shuttle buses are not an accessory use. In his opinion, they are ancillary to and supporting the principal use of the CTBO. He noted the CBL does not include a definition of "ancillary". He opined that the term "ancillary", as it relates to shuttle buses, should be added to ZBA 2022-05 to ensure further clarity.

54Ms. Dumont conducted a transportation safety analysis on Big Tub Road. In her opinion, Big Tub Road operates as an urban roadway, with the primary users being unfamiliar tourist and/or recreational users accessing the Big Tub Lighthouse. She stated that shuttle buses accessing and egressing the Subject Properties would need to encroach on the opposing lane to complete their turning movements, which would add to the safety risks of the already popular road.

55She stated she expects to see an increase in all modes of transportation on Big Tub Road and highlighted the impaired sightline distances and the lack of drivers' ability to perceive and react to pedestrians, cyclists, oncoming vehicles, or shuttle buses.

56Ms. Dumont confirmed on cross-examination that any permitted as-of-right use could generate the same types of shuttles that Bruce Anchor uses (e.g. assembly hall, place of entertainment), and others would generate larger vehicles, like delivery trucks (e.g. grocery store, restaurant).

57Ms. Dumont also confirmed on cross-examination that her recommendation of widening the current roadway and roadside to significantly improve sight distances at the horizontal curves fall within the jurisdiction of the MNBP. When prompted on cross-examination if she saw anyone obstructing private driveways, which could lead to the ingress and egress of residents from their properties, she replied she did not.

58Mr. Blackburn acknowledged in cross-examination that, should a fast food chain, as an example, be introduced to the Symes Property, the residents would have to live with any of the permitted uses, even if it were more invasive to the area by increasing traffic, noise, and trash along Big Tub Road than a CTBO.

Bruce Anchor Appeal

59Ms. Walker took the Tribunal to Section1.8 of the MNBP OP, which identifies the relevant "Major Community Goals" for lands within the MNBP communities: "a) To create a positive economic climate to create a wide range of employment opportunities."

60She noted that Bruce Anchor's existing CTBO promotes the major community goals of the MNBP OP by providing a variety of employment opportunities and services to residents of the MNBP and the surrounding areas. She noted that tourism is the major economic driver in the MNBP. She also noted that Bruce Anchor is one of the largest employers in Tobermory.

61Ms. Walker opined that Schedule A (Tobermory) of the MNBP OP maps the "Urban Boundary". Based on the lot fabric identified on Schedule A, approximately 39 properties, including the four properties subject to BTHCC's appeal, are situated within: "the Downtown/Harbour Commercial land use designation, which is one of the "Commercial and Industrial" designations in the MNBP OP".

62She opined that the C1 zones align with the "Downtown/Harbour Commercial" designation, which sets out where commercial uses are to be directed in both the downtown core, as well as harbour areas. Providing clarity that CTBOs are already permitted in C1 zones, she stated this conforms to the direction of the MNBP OP.

63In her opinion Special Policy Area 4, which applies as an overlay to certain areas of the "Downtown/Harbour Commercial" designation, allows primary residential uses and is not intended to discourage commercial uses from locating in the areas designated "Downtown/Harbour Commercial", but expressly allows for both residential and commercial uses to co-exist.

64When questioned about compatibility with the existing residential lots along Big Tub Road, Ms. Walker stated that the term "compatible" is referenced, but is not a defined term in the BC OP or the MNBP OP. She stated that to evaluate compatibility she relies on the principle that is referenced in Motisi v. Bernardi, 1987 CarswellOnt 3719 (OMB) decision of the Ontario Municipal Board:

Being compatible with is not the same thing as being the same as. Being compatible with is not even the same thing as being similar to. Being similar to implies having a resemblance to another thing; they are like one another, but not completely identical. Being compatible with implies nothing more than capable of existing together in harmony. The ability to co-exist in harmony is primarily a question of impact.

65Ms. Walker opined that a CTBO use can co-exist in harmony without undue adverse impact to the residential zoned properties on Big Tub Road. In her view, it is not unusual nor inappropriate to allow for a mix of both residential and commercial uses, where such uses are compatible.

66Ms. Walker was of the opinion that ZBA 2022-05 is not adding a use to an area that is an "established residential community", but rather is adding a definition of CTBO to the list of permitted uses within C1 zoned lands that already permits a range of other commercial uses, including a marina.

67In regard to having people come onto the Symes Property by shuttle bus, she proffered that there is minimal impact on nearby residential properties and that this is compatible with what has already been in existence on windy days. She noted that Bruce Anchor shuttle buses typically only use the road on 10 to 20 days, or part days in a six month season. This was confirmed by Mr. Robins, owner of Bruce Anchor.

68In her opinion, if the appeal of ZBA 2022-05 by the BTHCC was successful, and if tour boat operations were no longer permitted from the Subject Properties in the C1 zones, it would virtually eliminate half of the commercial property within the MNBP suitable for CTBO. She added that there are a finite number of properties available in the community to support the commercial marine sector and to adequately serve the many visitors to the Fathom Five.

69Ms. Walker noted that the MNBP has allowed CTBOs to operate within C1 zones for some time. This was also the position of the MNBP planning consultant Ms. Scott, as set out in the Cuesta Preliminary Planning Report. Ms. Walker pointed out that the activities and physical components associated with the proposed CTBO, as defined by ZBA 2022-05, are already permitted in C1 zones through the "Marina" use, in conjunction with other permitted uses.

70Ms. Walker clarified that neither the "C1-a" special provision nor the "C1-b" special provision zone differentiate the permitted uses as both only concern development standards. That is, "C1-a" stipulates that any existing dwelling (permitted use) is subject to R1 standards, and "C1-b" stipulates reduced setbacks, which is appropriate for the Downtown core.

71She opined that ZBA 2022-05 recognizes that Site Plan Approval will be required for all expansions to existing businesses and new CTBOs.

72Ms. Walker opined that ZBA 2022-05 provides appropriate clarity, reinforces existing permissions, and recognizes existing, legal activity, which conforms to the MNBP OP.

73With regard to shuttle bus use, Ms. Walker's opinion, even if the definition of a CTBO made no reference to a "vehicle" as either a principal or accessory use, it would be clear that transporting patrons to a property on a shuttle bus would be a permitted accessory use in relation to the permitted use.

74She used this logic and applied it to other land uses where shuttle buses would be routinely used. Some examples include nursing homes, schools, churches, hotels and motels, lodges, campgrounds, assembly halls, places of entertainment, an arena, or a museum, all of which would be on land where shuttle buses may regularly pick up and drop off patrons.

75The Tribunal heard through Mr. Robins that Bruce Anchor is restricted during peak season to 15 trips a day to the Historic Shipwrecks and/or Flowerpot Island. through a contract with Parks Canada. Any use of the Symes Property on windy days has seen all passengers generally depart the site on a shuttle bus within 10 minutes of returning from their tour. He held the view that a shuttle service to Symes Property has the effect of lowering traffic volumes on Big Tub Road.

76Mr. Fleming opined that the largest generator of pedestrian and vehicle trips along Big Tub Road is to the historic Big Tub Lighthouse. Mr. Fleming stated the capacity on Big Tub Road far exceeds traffic demand. The highest volume in his study concluded that only 20% of the road's capacity was used.

77Mr. Fleming provided a breakdown of parking requirements noting the proposed ZBA 2022-05 adds a requirement of one parking space for every five customer seats on a commercial tour boat, or one space per 20 square metres of the gross floor area of the commercial tour boat, whichever is greater. This requirement is only for a new CTBO or the expansion of an existing CTBO and can be provided on site or off site. In his opinion, ZBA 2022-05 (Exhibit 9) reflects a parking standard that will ensure an appropriate number of parking spaces has been considered.

78Based on the outcomes of his analysis, he opined that vehicular ingress and egress to both the existing residential properties and the Subject Properties will not negatively impact area residents or visiting tourists, should shuttle buses continue to be used by Bruce Anchor. He concluded that any delay is essentially the same as when shuttle buses are not present.

79Mr. Fleming noted that with the internal layout of the Symes Property, vehicles circulate within the Symes Property and exit in a forward facing motion, which will provide an additional safety element. With regard to the pedestrians and cyclists on Big Tub Road, the data results showed motorists reacting safely to pedestrians and cyclists.

80Mr. Fleming compared Big Tub Road, with no pedestrian facilities, as being similar to other tourist destinations in the region, such as Sauble Beach and Wasaga Beach.

BOATING ACCESS BY WATER

81Although the Tribunal's jurisdiction does not step into the "waters" of this matter, BTHCC cited concerns with the reasonable enjoyment of waterfront properties on BTH, and other boating impacts, should ZBA 2022-05 be approved.

82The Tribunal heard that there are three companies operating tour boat cruises from private commercial properties. Between them, they hold approximately 1300 ft of commercial waterfront that is suitable for these operations (i.e. deep water shoreline, sufficient space for safe maneuverability without interference with other maritime traffic).

83Mr. Blackburn held the view that use of docks on the Subject Properties would create conflicting safety conditions and environment impact to those individuals boating in and around the Bruce Anchor docks. Mr. Neilson was of the opinion that even when there are overcapacity situations in LTH it does not mean that conditions are dangerous for boating, but simply that extra diligence is warranted.

84Mr. Neilson informed the Tribunal that a considerable portion of the cumulative traffic counts in both basins was non-motorized boats, specifically kayaks. In this regard, there are kayak rental operations in both basins which cater to the traveling public. In recognition of the abundance of kayaks in this area, he stated that Parks Canada has produced a brochure for kayaks entitled "Paddling Guide for the Tobermory Harbours", which includes a route map through and between both LTH and BTH, instructions for staying within 30 metres of the shore, and guidance to avoid private and commercial boats.

85Mr. Blackburn, on cross-examination, acknowledged that Bruce Anchor's boats are currently operating safely in BTH and agreed that its captains are extremely well trained. BTHCC proffered no evidence on any incidents to substantiate any safety concern on the waters of BTH despite tour boats operating there for decades, as illustrated to the Tribunal, including any resulting from Bruce Anchor's operations, who has used the Subject Properties for refuge on windy days.

86The suggestion raised by BTHCC that Bruce Anchor should exclusively use LTH was refuted by Mr. Nielsen, who opined that operating from LTH would add to congestion and could contribute to boating safety concerns. In his opinion, there is simply no reason to do this when BTH is perfectly safe and far less congested.

ANALYSIS AND FINDINGS

87The Tribunal finds that ZBA 2022-05 has regard to matters of provincial interest in accordance with s. 2 of the Act, is consist with the PPS, 2020, the PPS 2024, and conforms to the BC OP.

88Through the evidence presented, the Tribunal is satisfied that ZBA 2022-05 conforms to the objectives of the MNBP OP. The Tribunal is satisfied that the planning process was followed, which included public consultation and discussion.

89As was fully addressed by the planning evidence, the inclusion of the definition of a CTBO, and the inclusion of a CTBO as a permitted use in all C1 zones, the Tribunal finds that ZBA 2022-05 as set out in Attachment 1 to this Order is appropriate and removes any ambiguity that has surrounded CTBOs on the Subject Properties to date.

90Noting that CTBOs have historically operated from the Subject Properties for many years and that CTBOs will continue to operate within C1 zones to satisfy the tourist market and provide employment opportunities, the Tribunal is satisfied that the definition of a CTBO and inclusion of a CTBO as a permitted use, as specified in Attachment 1 to this Order, is both good land use planning and in the public interest.

91The Tribunal is satisfied that parking requirements have been considered and that there is sufficient parking being provided for the proposed and permitted principal and accessory uses to the satisfaction of the MNBP and Bruce Anchor on consent.

92The Tribunal recognizes that there are a number of planning instruments that are at the MNBP's disposal to identify and resolve any compatibility issues that arise.

93Further, it was demonstrated to the Tribunal that all necessary municipal services related to any change in use or the expansion of a CTBO (e.g. final design for ingress and egress, waiting area locations, loading dock, and washroom facility) on the Subject Properties can be facilitated by the MNBP at the Site Plan Approval stage.

94Following consideration of the oral evidence, the documentary record, and the submissions of counsel and Participant records, the Tribunal finds the inclusion of the definition of "Commercial Tour Boat Operation", as proposed in ZBA 2022-05, along with the inclusion of a "Commercial Tour Boat Operation" as a permitted use within ZBA 2022-05, is appropriately placed and aligns with the existing context and planned function of C1 zoned properties in the MNBP.

ORDER

95THE TRIBUNAL ORDERS that the appeal of The Big Tub Harbour Citizens Committee dismissed.

96THE TRIBUNAL ORDERS the appeal against Zoning By-law Amendment No. 2022-05 of the Municipality of Northern Bruce Peninsula is allowed in part and that Zoning By-law Amendment No. 2022-05 is amended as set out in Attachment 1 to this Order (Tab 8, Joint Document Book).

97In all other respects, the Tribunal Orders that the appeal is dismissed.

"D. Chipman"

D. CHIPMAN 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