Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 21, 2025
CASE NO(S).: OLT-24-000680
PROCEEDING COMMENCED UNDER subsection 53(27) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: City of Ottawa
Applicant: Trim & Door Inc.
Subject: Consent – Changes to Condition of Provisional Consent
Description: To modify condition number five for a land severance
Reference Number: D08-01-24/B-00186
Property Address: 7665 Bleeks Road
Municipality/UT: City of Ottawa
OLT Case No.: OLT-24-000680
OLT Lead Case No.: OLT-24-000680
OLT Case Name: Ottawa (City) v. Ottawa (City)
Heard: November 26-27, 2024 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Ottawa Door & Trim | Roberto D. Aburto Alice Mihailescu |
| City of Ottawa | Timothy Marc |
DECISION DELIVERED BY A. SNOWDON AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1The matter before the Tribunal concerns an appeal filed pursuant to s. 53(27) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), by the City of Ottawa (“City”), regarding the decision of the City’s Committee of Adjustment (“CoA”), which granted a request to change a condition related to the proposed consent to sever for 7665 Bleeks Road, Ottawa (“Site”).
2The Site is located on the north side of Bleeks Road between Munster Road and Conley Road. It is approximately 206,630 square metres (“sq.m”) in area with a 307.2 metres (“m”) lot width along Bleeks Road.
3The Site is undeveloped with the majority of the land being forested. There are wetlands in the northern and eastern portions of the Site.
4Ottawa Trim & Door (“Applicant”) applied for a consent to sever two parcels of land, which was refused originally by the CoA in 2022. The details of the severance application are as follows:
| File No. | Frontage | Depth | Lot Area | Municipal Address |
|---|---|---|---|---|
| Retained | 137.2 m | 677.2 m (irregular) | 186 565 sq.m | 7665 Bleeks Road |
| B-00186 | 90 m | 100 m | 9065 sq.m | 7645 Bleeks Road (to be assigned) |
| B-00187 | 80 m | 100 m | 8000 sq.m | 7651 Bleeks Road (to be assigned) |
5Following an appeal (Case No. OLT-21-001475) to the Tribunal under s. 53(19) of the Act, the Tribunal, on June 30, 2022, granted the consent to sever with the following conditions:
- That the Owner(s) enter into an Agreement with the City, at the expense of the Owner(s) and to the satisfaction of the Development Review Manager of the relevant branch within the Planning, Real Estate and Economic Development Department, or his/her designate, which is to be registered on the Title of the severed lots, to deal with nearby Sand and Gravel Resource area. The following covenant/notice shall run with the land and bind future owners on subsequent transfers:
"Please note that the lands are in proximity to lands zoned for the extraction of minerals and aggregates and these activities are required to be protected from conflicting uses. The owner agrees that they shall never oppose any mineral extraction activities, solely, nor collectively, directly, nor indirectly, and shall, at their cost, provide themselves noise, vibration and well water protections as they and/or a consultant, also at their cost, see fit"
The Committee requires a copy of the Agreement and written confirmation from City Legal Services that it has been registered on title.
That the Owner(s) enter into a Development Agreement with the City, at the expense of the Owner(s) and to the satisfaction of the Development Review Manager of the relevant branch within Planning, Real Estate and Economic Development Department, or his/her designate, which is to be registered on the title of the property, which includes those recommended mitigation measures or other requirements listed in the accepted Environmental Impact Statement submitted in support of the severances.
That the Owner(s) provide evidence (payment receipt) to the Committee and/or Tribunal that payment has been made to the City of Ottawa of cash-in-lieu of the conveyance of land for park or other public recreational purposes, plus applicable appraisal costs. The value of the land otherwise required to be conveyed shall be determined by the City of Ottawa in accordance with the provisions of By-Law No. 2009-95, as amended. Information regarding the appraisal process can be obtained by contacting the Planner.
That the Owner enter into an Agreement with the City, at the expense of the Owner(s) and to the satisfaction of Development Review Manager of the relevant branch within Planning, Real Estate and Economic Development Department, or his/her designate, which provides the following covenant/notice that runs with the land and binds future Owner(s) on subsequent transfers:
“The City of Ottawa does not guarantee the quality or quantity of the groundwater. If, at some future date, the quality or the quantity of the groundwater becomes deficient, the City of Ottawa bears no responsibility, financial or otherwise, to provide solutions to the deficiency, such solutions being the sole responsibility of the homeowner.”
The Committee requires a copy of the Agreement and written confirmation from City Legal Services that it has been registered on title.
- That the Owners provide a report, to the satisfaction of the City of Ottawa, demonstrating the adequacy of the aquifer with respect to quality and quantity to support the proposed development, failing which the Owners construct a new well on the severed lot and provide a report, to the satisfaction of the City of Ottawa, to demonstrate the adequacy of the aquifer with respect to quality and quantity to support the proposed development. The report must include a septic impact assessment to evaluate the water quality impact of the on-site septic system on the receiving aquifer.
The Owners’ report must demonstrate the following to the City of Ottawa:
a) That the construction of any new well on the severed parcel is in accordance with the Ministry of the Environment, Conservation and Parks;
b) That the quality of the water meets the Ministry of the Environment, Conservation and Parks Regulations, Standards, Guidelines and Objectives;
c) That the quantity of water meets all the Ministry of the Environment, Conservation and Parks requirements;
d) That the septic impact assessment meets the Ministry of the Environment, Conservation and Parks requirements.
e) A qualified Professional Engineer or Professional Geoscientist must prepare the report. It is the Owner’s responsibility to coordinate the person drilling a new well, if required, and the professional noted herein in order to properly satisfy this condition.
f) If the accepted report recommends specific mitigation measures or design requirements, the Owners shall enter into a Development Agreement with the City, at the expense of the Owners, which is to be registered on the title of the property, which includes those recommendations. In instances where the subject site has sensitive soils, the drilling of a well or the conveyance of a 30-centimetre reserve may be required. Both the report and any required Development Agreement shall be prepared to the satisfaction of Development Review Manager of the relevant Branch within Planning, Real Estate and Economic Development Department, or his/her designate.
g) The Report shall be prepared as per Procedure D-5-4 “Technical Guideline for Individual On-Site Sewage Systems: Water Quality Impact Risk Assessment” and Procedure D-5-5 “Technical Guideline for Private Wells: Water Supply Assessment”.
- That the Owner(s) convey, if required, at no charge to the City of Ottawa, sufficient frontage across the severed and retained lands to provide for a road right-of-way measuring 13 metres from the centreline of Bleeks Road. The Owner(s) must provide to the City Surveyor a copy of the Decision of the Ontario Land Tribunal and a draft Reference Plan that sets out the required widening. The Committee and/or the Tribunal shall require written confirmation from City Legal Services that the transfer of the widening to the City has been registered.
If the Owner’s Surveyor determines that the widening condition has already been satisfied, it must be indicated on the Draft Reference Plan and submitted to the City Surveyor for approval. The Committee and/or the Tribunal shall require written confirmation from the City Surveyor confirming that the widening is not required.
If the Owner(s) wish to temporarily retain the existing fence within the widening lands until the City develops the widening lands, the Owner(s) shall enter into (and register, if necessary) an encroachment agreement and/or letter of tolerance to the satisfaction of the General Manager, Planning, Infrastructure, and Economic Development. The Committee and/or Tribunal requires written confirmation from City Legal Services confirming either that a letter of tolerance/encroachment agreement has been executed (and registered if necessary) or will not be required.
6The Applicant applied to the CoA to change Condition No. 5 (“Cond5”) and the CoA granted the request on June 14, 2024. Cond5 mandates water quality and quantity assessments.
7The City has appealed the change of Cond5 claiming that the change in the condition directly contradicts the City’s Official Plan (“OP”) and is not consistent with the Provincial Policy Statement 2020. The Provincial Policy Statement 2020 has been updated since this matter was filed and is now the Provincial Planning Statement 2024 (“PPS”).
STATUS REQUESTS
8There were no Party or Participant status requests received prior to or during the Merit Hearing.
MOTION
9Prior to the commencement of this Hearing, the Applicant filed a Motion to include both severance files (B-00186 and B-00187) (“SFs”) in the Hearing.
10The Applicant submitted that their application to amend Cond5 applies to both SFs as was stated in the cover letter to the CoA in the Applicant’s Motion Record (marked as Exhibit 2). They argued that if both files are not included, then the application for B-00187 would be considered lapsed on June 30, 2024 (2-years from OLT-22-001475 decision) and the Applicant would be required to begin the process anew.
11The City has stated that the June 14, 2024 CoA decision only references file B-00186 and that is the only file referenced in the City’s appeal application as stated in the Appellant’s Notice of Response to Motion (marked as Exhibit 3), as shown in the Appeal Application in the Joint Book of Documents (marked as Exhibit 1), and as stated in the Affidavit of Adam Brown (marked as Exhibit 4).
12The Applicant contends that even though the header for the CoA decision only states one SF, the final paragraph of the decision comments on both, implying that both SFs are part of the decision. The Applicant has contacted the CoA to correct the missing reference to the second SF in their decision, but they were informed that it couldn’t be modified while the matter is under appeal with the Tribunal.
13The Tribunal finds that it is plausible that the omission of the second SF name in the CoA decision is a clerical error. The CoA decision references both SFs in its discussion and the Applicant’s cover letter clearly indicates both SFs. Even though the City’s appeal application only identifies one SF, this was based on the CoA decision header.
14It is within the scope of the Tribunals authority under ss.53(35) and 53(35.1) of the Act to make an amendment to the appeal if considered minor. The Tribunal finds that the inclusion of the second SF was intended and including it is a minor change, therefore the appeal is amended to include both SFs (B-00186 and B-00187).
ISSUES
15The primary issue under appeal is the proposal to amend Cond5. A June 2022 decision by the Tribunal approved two lot severances with conditions. Condition No. 5 is the final condition to be met.
16The Applicant has proposed that it is appropriate to amend Cond5 to reflect the water quality found at the Site. The only difference between the original condition and the proposed amendment is found in Cond5 b) as follows:
| Original Condition No. 5 b) | Proposed Amended Condition No. 5 b) |
|---|---|
| That the quality of the water meets the Ministry of the Environment, Conservation and Parks Regulations, Standards, Guidelines and Objectives; | That the quality of the water meets the Ministry of the Environment, Conservation and Parks Regulations, Standards, Guidelines and Objectives – with the exception of sodium aesthetic exceedance which will require separate water treatment systems. |
SUBMISSIONS
17The Applicant provided Expert Witness CVs, supporting planning documents, hydrogeological reports, excerpts from Official Plans, the CoA decision, and other appeal evidence in Exhibit 1.
18The Applicant brought two witnesses before the Tribunal. Colleen Vermeersch, an Environmental Engineer/Hydrogeologist at Kollaard Associates Inc., testified with respect to the evidence set out in Exhibit 1, specifically the evidence pertaining to the hydrogeological reports that Ms. Vermeersch produced. Ms. Vermeersch was qualified by the Tribunal to provide expert evidence in hydrogeology matters in relation to water quality. Ryan Poulton, a Professional Planner and Planner/ Project Manager at NOVATECH, testified with respect to the evidence set out in Exhibit 1, specifically the evidence pertaining to land use planning matters. Mr. Poulton was qualified by the Tribunal to provide expert evidence in land use planning matters.
19The Appellant brought two witnesses before the Tribunal. Michel F. Kearney, a Professional Geoscientist and Senior Hydrogeologist/ Project Manager at the City, testified with respect to the evidence set out in Exhibit 1, specifically the evidence pertaining to the hydrogeological reports that Ms. Vermeersch produced and the City’s policies. Mr. Kearney’s Acknowledgement of Expert’s Duty Form was marked as Exhibit 5. Mr. Kearney was qualified by the Tribunal to provide expert evidence in hydrogeological matters. Elizabeth King, a member of the Ontario Association of Committees of Adjustment & Consent Authorities and a Planner at the City, testified with respect to the evidence set out in Exhibit 1, specifically the evidence pertaining to land use planning matters. Ms. King was qualified by the Tribunal to provide expert evidence in land use planning matters.
CONSENT TO SEVER
20The previous OLT Hearing for Case No. OLT-21-001475 decided that the consent to sever application should be granted with conditions. Mr. Poulton and Ms. King testified with respect to the appropriateness of the severances.
[Section 2](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec2_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)
21Mr. Poulton testified that the severances have regard for s.2 of the Act with respect to matters of Provincial Interest. He pointed to s.2 subsections e), f), h), o), and p) stating that the severances:
e. provide sufficient and efficient use of energy and water, f. have adequate sewage and water services, h. promotes the orderly development of safe and healthy communities, o. protects public health and safety, and p. is an appropriate location for growth and development.
22Ms. King testified that the Applicants have failed to meet s.2 e) and o) by not satisfying Cond5. She opined that the Applicant needs to show that they can meet these subsections to satisfy Matters of Provincial Interest.
Provincial Planning Statement 2024
23Mr. Poulton stated that the severances are consistent with the PPS as required under s.3.5 of the Act. He opined that the severances provide rural housing with an efficient use of the lands and services using private water and sewage systems.
24Ms. King refuted this assertion by pointing out that s.3.6.4 of the PPS states that where private services are to be utilized, they must be “suitable for the long-term provision of such services with no negative impacts”.
25The PPS defines negative impacts (marked as Exhibit 6), in part, to be:
in regard to policy 3.6.4 and 3.6.5, potential risks to human health and safety and degradation to the quality and quantity of water, sensitive surface water features and sensitive ground water features, and their related hydrologic features, due to single or multiple development. Negative impacts should be assessed through environmental studies including hydrogeological or water quality impact assessments, in accordance with provincial standards;
26Ms. King’s opinion is that the severances are not consistent with the PPS by not meeting the D-5-5 guidelines. Guideline D-5-5 (“D55”), from the Ministry of Environment and Energy now the Ministry of Environment, Conservation, and Parks (“MECP”), is used as rules or advice to define the scope of work for consultants and review authorities.
27Mr. Poulton countered that the D55 guidelines are not regulations, so they are used to make decisions but are not binding.
City of Ottawa Official Plan
28Mr. Poulton testified that s.3 of the OP projects, that over the next 20 years, rural areas are expected to account for 7% of population growth. He stated that the infrastructure in this area is durable, adaptable, and resilient.
29Ms. King testified that s. 4.7.2 15) c) of the OP states that all lots using private services need to demonstrate to the City that the quality of the groundwater meets or exceeds the Ontario Drinking Water Standards, Objectives and Guidelines. She opined that this means that the severances do not conform to the OP.
Zoning By-law
30Mr. Poulton stated that the applicable Zoning By-law 2008-250 is for Rural Countryside. Under this, private water services are approved. He explained that the permitted uses of the zoning allows for severances for residential development.
31Ms. King stated that s.56 2) of the Zoning By-law states that private services are not permitted by right and need to be approved by the City.
Professional Opinion
32It is Mr. Poulton’s professional opinion that the creation of the two lots via severances has regard for s.2 of the Act, is consistent with the PPS, conforms to the OP, complies with the Zoning By-laws, is good planning, and is in the public interest.
33Ms. King stated that the severances do not meet the requirements of s.51(24) of the Act. Her opinion is that the severances fail to meet subsections a), c), and i). S. 51(24) states that regard must be had, in draft plan of subdivision, for:
(a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2;
(c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any;
(i) the adequacy of utilities and municipal services;
34It is Ms. King’s professional opinion that the severances have not met the threshold for matters of provincial interest, doesn’t conform to the OP, and isn’t able to show that the quality and safety of the services are adequate.
CONDITION AMENDMENT
35Mr. Poulton testified that a provisional consent condition, under s.53(23) of the Act, can be changed at any time prior to the issuing of the consent. He stated that there is no direct legislative test for a condition but suggested that an amendment can’t undermine the severance application. In this case, the condition needs to have regard for s.2 of the Act, be consistent with ss.2 and 3 of the PPS, and conform with the OP.
36The Applicant retained Kollard Associates to assess the quality and quantity of groundwater available at the proposed severed lots of the Site. Ms. Vermeersch testified that the original testing was for a single drilled well. Since the condition amendment request, a second well has been drilled and tested on the proposed second severed lot.
37The first well was drilled to a depth of 115.8 metres (“m”). Ms. Vermeersch stated that when the water quality from the first well was tested, it was found to have exceedances for sodium and chloride. Wells on nearby properties and for the City, drilled to similar depths, did not have sodium exceedances. The bottom of the well was cased off and sealed to a depth of 69.5 m.
38Ms. Vermeersch stated that water quality testing after sealing the bottom of the well (dated May 8, 2024) indicated a minor exceedance of sodium and no chloride exceedances. Tested sodium values were 216 mg/L and 219 mg/L.
39The second well, drilled to the depth of the sealed first well, when tested (dated November 4, 2024), had similar exceedances. The sodium value was 210 mg/L.
40Ms. Vermeersch testified that sodium is an aesthetic parameter in drinking water with a limit of 200 mg/L. Water above this limit may taste salty. She noted that the exceedances found at the Site are a marginal exceedance of less than 10%. Ms. Vermeersch also stated that drinking water has a health warning parameter of 20 mg/L for people who need a low sodium diet.
41Other tests, conducted on behalf of the Applicant, for the drinking water samples indicated mild corrosiveness because the hardness is low and that all health parameters were within acceptable limits.
42Ms. Vermeersch stated that the sodium criteria listed in D55 is not a regulation and is therefore not binding.
43Mr. Kearney stated that D55 was developed in 1996 and provides guidelines for different parameters based on health and aesthetic criteria. He explained that in Table 3 of D55, the entry for sodium indicates that the Ontario Drinking Water Objective is 200 mg/L, the maximum concentration considered reasonably treatable (“MCCRT”) is 200 mg/L, and the additional comments on treatment state “not considered reasonably treatable above the limit”.
44Mr. Kearney commented that while the MECP has indicated that D55 is intended to be updated, no timeline has been provided for this. Mr. Kearney testified that on three occasions (2010, 2014, and 2024), he has received confirmation from the MECP that the guidelines are directions to be followed and the development should be denied for exceeding the reasonably treatable limit.
45Mr. Kearney testified that guidelines are not flexible. He acknowledged that guidelines are less authoritative than regulations, but also stated that guidelines are used throughout the City for many projects.
46Mr. Kearney stated that s.11.8 3) (marked as Exhibit 7) of the OP stipulates that for:
“…the studies listed in the Development Application Study policy, the City will provide terms of reference and/or guidelines outlining study requirements. These are meant to set the minimum standards for the study submission expectations…”
47Mr. Kearney pointed to the 2021 Hydrogeological and Terrain Analysis Guidelines (“HTA”)), which were adopted by City Council. These guidelines incorporate much of D55 and directly reference D55. The HTA states that if a drinking water source exceeds aesthetic parameters, City Council will not grant approval for the use of a treatment system.
48Mr. Kearney explained that according to D55, if health objectives are met but aesthetic objectives are not, it may be possible to use an in-home treatment system, however even though all water is treatable, it is necessary to look at whether it is reasonably treatable, and in this case, the water is beyond what is considered reasonably treatable.
49Mr. Kearney further explained that D55 states that a municipality (or Approval Authority) should only consider a development on the basis of a communal water system which requires the municipality to assume ownership and responsibility for the water works.
50Ms. Vermeersch stated that the sodium exceedances can be treated with an in-home under-sink reverse osmosis (“RO”) system. This system would be installed only in the kitchen to provide clean and safe drinking water. This would not be a treatment system for the entire home water supply.
515-stage filter test results, provided by Ms. Vermeersch, for a raw water sample taken from the second well, showed a reduction in sodium concentration from 210 mg/L to <1 mg/L. Ms. Vermeersch stated that the 5-layer filter is similar to a RO system and the results are comparable.
52It is Ms. Vermeersch’s professional opinion that the sodium exceedance is minor and treatable with a RO system. She believes that the amendment of Cond5 should be granted.
53It is Mr. Kearney’s professional opinion that Cond5 should not be granted. He believes that it may be possible to find a new water source in different rock horizon (e.g., Nepean, March). His suggestion is that, based on previous drilled wells, it is unusual to find sodium at 69 m depth, and therefore the exceeding porewater came from depth. Isolating well depths using packers could determine where the exceeding water is originating from. He has no objection to drilling new wells to find a better source of water that may meet the health and aesthetic parameters. He acknowledged that even though the sodium exceedance is not high, it is beyond the reasonably treatable limit and it would set a bad precedence to raise the bar. The City has always applied the MCCRT to applications.
FINDINGS
Consent to Sever
54With respect to the severance application, the Tribunal accepts the evidence provided by Mr. Poulton as more compelling and clearer.
55The Tribunal finds that the severance application:
a) has regard for s. 2 of the Act with respect to matters of Provincial interests;
b) is consistent with the PPS;
c) conforms with the OP; and
d) is in the public interest and is good planning.
Condition Amendment
56The Tribunal finds that the threshold to allow a change in Cond5 is that the condition must conform to the OP, be consistent with ss. 2 and 3 of the PPS, and have regard for the guidelines used by the City when it made its decision as required in s. 2.1 of the Act.
Official Plan
57In both ss. 4.7.2 23) and 11.8 3), the OP states that the City will provide the terms of reference and/or guidelines outlining study requirements for a Development Application. It clearly states that these are the criteria to meet the Development Application Study policy and not the criteria to grant approval of an application.
58S. 4.7.2 15) c) of the OP states:
- As part of a complete application where development is proposed on the basis of private individual services, the City will require sufficient information with the application to assess the likelihood that:
a) Sufficient quantity of groundwater exists on site to service the development;
b) A water well can be constructed on the proposed lot(s) that will not be impacted by identified potential sources of groundwater contamination in the area;
c) The quality of the groundwater meets or exceeds the Ontario Drinking Water Standards, Objectives and Guidelines;
d) The operation of the on-site wastewater system on the new lot(s) will not adversely impact on a well to be constructed on the proposed lot(s) and on the wells of neighbouring properties; and
e) The development is within the reserve capacity of the municipal sewage system for hauled sewage.
59It clearly states that the City requires sufficient evidence that the quality of the groundwater will meet or exceed the Ontario Drinking Water Standards, Objectives, and Guidelines (“ODWS”). The ODWS outlines both health and aesthetic criteria with respect to drinking water quality.
60In Ricci v. Russo & Polito (2010 OMB PL100152), it was stated that “health-based standards are the most critical standards to be applied to water quality”. Both hydrogeological experts, Ms. Vermeersch and Mr. Kearney, agree that health-based standards are not being violated with this application.
61According to the ODWS, sodium is an aesthetic characteristic. S. 2.5 of the ODWS defines aesthetic characteristics to be ones that “do not directly affect the safety of the water supply but may cause objectionable effects or render water unsuitable for domestic use”. The ODWS does state that “an aesthetic objective should not be exceeded when more suitable supplies are or can be made available at a reasonable cost”.
62In the detailed explanation for sodium, the ODWS states that while the aesthetic objective is 200 mg/L, “consumption of sodium in excess of 10 grams/day by normal adults does not result in any apparent adverse health effects”. The ODWS goes on to state “a maximum acceptable concentration for sodium in drinking water has, therefore, not been specified”. It is also mentioned that the local Medical Officer of Health should be notified when the sodium concentration exceeds 20 mg/L as a precaution for patients on sodium restricted diets.
63The above would indicate that, for the water quality to meet or exceed the ODWS and therefore conform with s. 4.7.2 15) c) of the OP, the sodium level should be below 200 mg/L or a more suitable water supply should be found at a reasonable cost.
64The Tribunal finds that the cost of drilling a new well or wells to find a more suitable water source when there is no certainty of finding one is likely cost prohibitive compared to a RO system which, according to Ms. Vermeersch, is less than $2000.
Provincial Planning Statement 2024
65The proposed amendment of Cond5 is consistent with ss. 2 and 3 of the PPS.
[Section 2.1](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec2.1_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)
66S.2.1 of the Act is as follows:
2.1 (1) When an approval authority or the Tribunal makes a decision under this Act that relates to a planning matter, it shall have regard to,
(a) any decision that is made under this Act by a municipal council or by an approval authority and relates to the same planning matter; and
(b) any information and material that the municipal council or approval authority considered in making the decision described in clause (a). 2015, c. 26, s. 13; 2017, c. 23, Sched. 3, s. 2 (1); 2019, c. 9, Sched. 12, s. 1 (1).
67As stated in s.2.1 (1) b) of the Act, regard should be had for materials used by the Municipal Council or Approval Authority in their decision. The City uses the HTA and D55 as part of their decision process, however neither is explicitly referenced in the OP.
68The HTA and D55 state that approval for Development Applications will not be granted for exceedances of aesthetic parameters, even if health parameters are met.
69The HTA and D55 allow for in-home treatment systems when health parameters are met, but aesthetic parameters are not. However, this only applies if the aesthetic parameters of the raw water do not exceed the MCCRT.
70Bertone Montreal Road LP v. Ottawa (City), 2023 CanLII 64021 (ONLT) states that guidelines are non-statutory and “having regard to” them is a lower standard of review than “conformity” with the OP.
71The Tribunal finds that the guidelines (HTA and D55) are only interpretive tools for which regard may be had, and not a millstone that defeats the consent application by default.
72Finally, the 5-layer filter test results, provided by the Applicant, show that when the raw water from the Site is treated, it falls well below the maximum concentration limit for sodium indicating that it is possible to treat water beyond the MCCRT.
73The Tribunal finds that the application to amend Cond5:
a. conforms to the OP;
b. is consistent with ss. 2 and 3 of the PPS; and
c. has regard for s. 2.1 of the Act.
ORDER
74THE TRIBUNAL ORDERS THAT the appeal is dismissed and the amendment of Condition No. 5 b) imposed on the provisional consent by the Decision of the City’s Committee of Adjustment dated June 14, 2024 remains in effect.
"A. Snowdon"
A. SNOWDON 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.