Mike and Cathy Armster v. Municipality of Trent Lakes, 2025 CanLII 59841

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 12, 2025

CASE NO(S).: OLT-24-001199

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

Applicant/Appellant: Mike and Cathy Armster

Subject: Application to amend the Zoning By-law – Refusal of application

Description: To legalize residential use of upper floor of garage

Reference Number: 24-20

Property Address: 2001 Crystal Lake Road

Municipality/UT: Trent Lakes/Peterborough

OLT Case No.: OLT-24-001199

OLT Lead Case No.: OLT-24-001199

OLT Case Name: Armster v Trent Lakes (Municipality)

Heard: April 8-11, 2025 by Video Hearing

APPEARANCES:

Parties

Counsel

Michael and Catherine Armster

Jenna Khoury-Hanna Kathleen Kinch

Municipality of Trent Lakes

Laura Dean

DECISION DELIVERED BY G. ROSS AND P. TOMILIN AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The matter before the Tribunal is an appeal filed by Catherine and Michael Armster (“Appellant”), owners of 2001 Crystal Lake Road (“Subject Property”), in the Municipality of Trent Lake (Municipality”), under s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), to legalize the loft portion of the existing accessory building (garage) for limited residential use (“Appeal”). The Appeal follows the Municipality’s refusal of the Zoning By-law Amendment (“ZBA”) application for this waterfront property.

BACKGROUND

2The previous Minor Variance application (A21-02) in 2021 (“MVA”), to permit an increase in the maximum height of the detached accessory structure, was permitted under Zoning By-law No. B2014-070 (“ZBL B2014-070”). The approval granted a minor variance for increased garage height, allowing for second-floor storage. The application before the Tribunal seeks relief for a site-specific exception to legalize limited residential uses for multi-purpose space and sanitary facilities in the second-storey loft space of the existing garage on the lot at the Subject Property. The interior changes to the second floor loft space in the garage were implemented pre-emptively without a permit.

3The Subject Property’s lot area has a shoreline frontage of approximately 25 metres (“m”) and a lot area of approximately 2,138 square metres (“m²”) (23,013 square feet (“ft²”). The Subject Property is occupied by an existing dwelling with a ground floor area of 88 m² (947 ft²) and a detached two-storey garage with a ground floor area of 68 m² (732 ft²). The loft of this accessory building is divided into four rooms and includes a three-piece bathroom and separate wash sink. It is the use of the loft space and its potential impacts that is at the core of the issues before the Tribunal.

4The Planning Justification Report (“PJR”) considered by the Municipality’s Council recommended denial of the relief sought, indicating that the changes are not in keeping with the general intent of the Trent Lakes Official Plan (“TL OP”) and ZBL B2014-070.

5Crystal Lake (“Lake”) has been identified as an at-capacity lake and the Provincial Planning Statement, 2024 (“PPS 2024”) identifies at-capacity lakes as needing to be protected from development that could have negative impacts.

6The TL OP identifies the Lake as a highly sensitive Lake Trout Lake.

7Prior to the Hearing the Tribunal was in receipt of the Parties’ Document Books and Witness Statements, the PJR, and the Planning Memorandum, which are referenced in the Decision and were marked as Exhibits.

8The Tribunal is in receipt of two letters from immediate neighbours supporting the Zoning By-law Amendment and no objections have been received from area or immediate neighbouring residents, in response to the public notice and the ZBA application.

HEARING

9The following witnesses/expert witnesses were affirmed/sworn in by the Tribunal and were appropriately qualified to give opinion evidence, under oath, in their respective disciplines (see Exhibits 3, 4, 5, and 8, 9, 10 for Curriculum Vitae details) (or in the case of the Applicant, to provide testimony):

For the Appellant:

• Brad Clark (“Clark”) – Expert opinion evidence in the areas of Septic Design – Inspections, Permits, and in Public Health Inspection;

• Cassandra Fligg (“Fligg”) – Expert opinion evidence in the area of Natural Heritage at Risk Habitat – Environment Policy and Regulations Assessment;

• Mike Armster (“Armster”) – Long standing Subject Property owner (non-expert);

• Kevin Duguay (“Duguay”) – Expert opinion evidence in the area of Land Use Planning; and

For the Municipality:

• Matthew Wesley (“Wesley”) – Expert opinion evidence in the area of Building Code and Inspections – On-site Sewage and Housing;

• Brent Parsons (“Parsons”) – Expert opinion evidence in Scientific Studies Ecologies – Aquatic Environmental Ecosystem Processes; and

• Chris Jones (“Jones”) – Expert opinion evidence in the area of Land Use Planning.

10In addition, the following documents were received and entered as Exhibits:

• Exhibit 1 – Document Book of the Appellant;

• Exhibit 2 – Document Book of the Municipality;

• Exhibit 3 – Witness Statement of Brent Parsons;

• Exhibit 4 – Witness Statement of Chris Jones;

• Exhibit 5 – Witness Statement of Matthew Wesley;

• Exhibit 6 – Planning Justification Report;

• Exhibit 7 – Planning Memorandum;

• Exhibit 8 – Witness Statement of Brad Clark;

• Exhibit 9 – Witness Statement of Cassandra Fligg; and

• Exhibit 10 – Witness Statement of Kevin Duguay.

Opening Statements

11The opening statement by the Appellant’s counsel, Kathleen Kinch (“Kinch”), provided an overview of the Subject Property, including the new uses of the second-floor of the existing garage. Kinch described the 1960s family cottage near the shoreline, currently being used by the Appellant’s large growing family. The existing two-storey garage was previously granted a minor variance of the garage height, allowing for second-floor storage. Kinch submitted that, while it was the initial intention for the detached garage, second-storey loft to be used as storage space, the use has evolved to reflect the true needs of the multi-generational use of the Subject Property. They noted changes in the planning policy since the initial MVA.

12The Appellant seeks approval of the ZBA, in order to be in compliance, for multi-purpose limited upgrades to the second-floor existing accessory building (garage). This is to accommodate their growing family, which provides office space for their son, who sometimes requires a quiet area to work, and a second washroom and wash sink to better accommodate the family. The Appellant does not intend for the rooms to be used as bedrooms, but rather for the helpful convenience of an office space and gym/craft room.

13Kinch submitted that the Appeal to approve the limited residential use of the upper floor of the garage should be approved and emphasized that the only thing being considered at the Tribunal is a ZBA, noting that it is the legal test under the Act that is being addressed.

14The opening statement by the Municipality’s counsel, Laura Dean (“Dean”), submitted that the Appellant revised the upper floor for use as “living space” without authorization. The key contention is how to characterize the loft of the garage, concluding that if it looks like and operates like a dwelling then it is a dwelling. Dean noted that the revisions included the installation of a three-piece bathroom connected to the existing septic system, a clean-up sink, and two rooms identified on the revised plans as office and multi-purpose space, not in keeping with the Municipal OP or the PPS.

15Dean asked the Tribunal to refuse to permit the revisions as constructed and noted a number of specific policies within the PPS 2024 and the Act, which are to align with planning goals, land use designations, and the potential impacts on community development: Section 2(a) of the Act addressing ecological natural areas, features, at capacity Lake Trout Lakes; that there must be consistency with the PPS 2024 regarding section 4.2.1(g) “directing planning authorities to protect, improve or restore quality of water by ensuring environmental lake capacity” and section 4.2.2 which “restricts development near sensitive water features”; and regarding s. 24 of the Act, the ZBA must conform to the County of Peterborough (“County”) Official Plan (“COP”) and the TL OP.

16Further, Dean submitted that allowing a second dwelling is not minor and does not uphold larger planning policies to protect and improve the quality of lake water.

17Dean noted that, following the final inspection, it was noticed that the existing septic system was hooked up to the garage. The Appellant was then notified that the building was put into non-compliance, and at that time the Appellant filed an application to approve the alterations, which were then refused by the Municipality’s Council.

18Dean further submitted that Lake Trout Lakes are rare and vulnerable and that there is a need to protect water quality, and therefore, to restrict lot creation for an additional dwelling.

19Dean submitted that the Tribunal is not being asked to make a decision on water quality, but rather if the requirements of the statutes are met. She emphasized that there is a slippery slope given the highly sensitive Lake.

20Dean concluded that that the Appeal before the Tribunal is not consistent with TL OP and the COP and should be dismissed.

EVIDENCE

Summaries of Examination-in-Chiefs, Cross, and Redirects of Witnesses

Brad Clark

21Clark’s focus primarily addressed sewage flow and adequacy, in particular as it related to an existing Class 4 sewage disposal system represented in the plans presented by the Appellant.

22He visited the Subject Property on or about March 15,2025 and reviewed aerial photographs as well as the concept plans forming part of the PJR. He stated that there is an existing area sewer system on the concept plans, sheds to the rear of the cottage, the existing main cottage with a sewer system, and two department tanks. He added the affluent liquid goes to the filter bed – Class 4 sewage system.

23Clark opined that location and function of the filter bed and existing tank are located as described in the Certificate of Approval and subsequent Use Permit, and that they exceed the minimum requirements of the Ontario Building Code (“OBC”) for the proposed living space. He added that they are more than adequate to support the applicable structures and the resulting sewage flow.

24There was no evidence of sewage disposal system failure and in review of the Appellant’s Document book (Exhibit 1, pages 21, 55, and 56) and the loft plan, there are no bedrooms. Therefore, the capacity of the sewage disposal system is adequate. The visual evidence on page 55 of the Document Book the garage accessory unit and cottage dwelling.

25Clark reviewed for bedrooms, plumbing square footage and daily fluid flow, as detailed in his Witness Statement. He also considered the supporting Use Permit and its ability to meet the Ontario Building Code requirements.

26He agreed with the prior inspections by Peterborough Public Health (“PPH”), which was the principal authority until May of 2024, and was the principal authority at the time of Clark’s on-site reinspection, performed in response to an existing use approval application in 2024. Clark opined that there were no indications of any function failure previously or during reinspection in response to the existing use approval application noted in the Document Book of the Appellant (Exhibit 1, page 83).

27Clark opined that the septic tank system was more than adequate for the additional living space proposed and therefore met the OBC.

28In paragraphs 6. and 7. of Clark’s Witness Statement, and in oral submissions, Clark describes how to determine sewage flows in square metres (i.e. bedroom dwellings, floor area, including the two units in question). Clark submitted that even if there was a laundry sink, tub, or dishwasher, the tank would not be impacted.

29He also noted in his Witness Statement, at paragraph 8., that the filter bed and existing tank capacity beneficially exceeds the requirements of the OBC. Clark opined that without bedrooms the tank system is more than adequate. Bedrooms are the determinant, and a craft room and office are not a problem, as noted in paragraphs 10. and 11. Clark opined that PPH, the principal authority at the time, would come to the same conclusion and that the OBC compels the application of the law in the Building Code Act, 1992, S.O. 1992, c. 23.

30The rooms are addressed as labeled, and from a planning lens they are not considered bedrooms.

31Clark concurred that the plans that show the loft storage included:

• That bedrooms are important as first determinant regarding capacity;

• That the number of bedrooms creates a baseline when looking at daily sewage flow;

• Reliance on plans from the owner; and

• That the cottage dwelling floor plan included four bedrooms in the existing dwelling and that floor plans of the loft of the garage show stairs, a closet, and three-piece washroom, gym, and wash sink.

He confirmed that he could see the enclosed rooms with walls and doors and he did not go inside to verify use. He opined that he is not in the position to disagree with the certified plans presented, and regardless, that the process does not require going inside. The proposed purposes to be calculated were done so using those identified on the plans where the office and craft rooms were listed, not the bedrooms.

32Clark opined that that he does not question the use of the labels of various rooms as they are certified documents considered true and correct. He agreed that it is standard practice to “take their word for it”.

33Clark noted that if there were more bedrooms than on the plans that it could adversely affect performance as bedrooms are a determinant, however, he clarified again that there are no bedrooms according to the plan on page 34.

34During the site visit, Clark walked the system, and opined there were no visible signs of failure and that the bed itself would show evidence of failure.

35The Certificate of Approval was issued for the system in 1986 and the unit was 39 years old, and he opined that Class 4 sewage disposal systems could last from five to 60 years and that the system is neither near the beginning nor end of its life, and rather, could be in the middle.

36The adequacy of the tank system, if six bedrooms on the Subject Property would not be adequate, but emphasized that only four bedrooms were located in the main cottage, and no bedrooms were included in the proposed uses and that the tank system was more than adequate to service those.

37Clark asserted that he goes according to the labels on plans and would not advise clients to mislabel, and that he understood that the zoning approval is not for a hypothetical six bedrooms and added that the tank system can be modified or changed if necessary.

Cassandra Fligg

38Fligg opined that a 2025 Natural Heritage Impact Assessment (“NHIA”), including the Lake and other sensitive features, including wildlife and fish habitats, was performed and found no concerns related to impact (Exhibit 1, pages 86-105).

39Fligg confirmed that the proposed uses are 44 m (145 feet (“ft”)) from the shoreline and the septic system is approximately 40 m (131 ft) from the shoreline. Fligg further opined that even for projects that are considered new developments, which is not the case with this proposed ZBA, the requirements for the septic systems are that they must be set back 30 m from the high-water mark of all waterbodies, if feasible, and that in this proposal without bedrooms, and given the significant distances of both the septic system and garage from the shoreline, that there would not be an impact to the Lake.

40Fligg confirmed that she was retained to assess the presence of all potential natural heritage feature forms and functions near the Subject Property, including the Lake and the sensitive habitats of wildlife and fish (Exhibit 1 page 86), and added that one of her team members visited the Subject Property to conduct an assessment. The assessment characterized consistent conditions, vegetation, habitat and wildlife. Fligg clarified that, in consideration of the planning context and impacts, it was assumed in her assessment that significant habitats of endangered and threatened species exist, of which are cited in the Conservation Authorities Act, R.S.O. 1990, c. C.27 and protected under the Fisheries Act, R.S.C. 1985, c. F-14, including the fish habitat of the Lake, Lake Trout Lakes, and the shoreline small mouth base spawning area.

41The NHIA looks at potential impact to threatened species and is, in this case, not applicable in terms of significant current or future impact as a result of the modification. Ensuring the septic tank is emptied because of potential phosphorus can assist in the minimization of impact.

42Federal consultation can be required when considering future impacts to at- capacity lakes and the planning context related to sections 4.1.4. (Ecoregion 5e) and 4.1.5. of the PPS 2024, and as referenced in the NHIA related to Ecoregions where there is significant wildlife, and where endangered and threatened species are involved. Fligg opined that in this case Federal consultation is not required, noting that the recent modification would not have been anticipated as likely to have future impacts. The County’s natural heritage property restricts where development and site alterations occur, and where they would not be permitted, unless an ecological assessment says there is no impact, which is the case with the Subject Property.

43The portion of Subject Property should be enhanced where possible with tree cover and plants, and in addition there is a requirement for a 30 m setback for any development occurring within that restrictive area. In the case of the Subject Property’s garage and uses, they are located well beyond the requirement and there are no concerns given the considerable setback.

44Fligg considered land use, sensitive areas, the Lake (being a Lake Trout Lake), sensitive levels of oxygen, and sensitive species concerns, concluding that the Appellant’s proposal did not have any impact concerns.

45Fligg agreed that 30 m is needed to prevent leakage of accidental input, adding that generally, phosphorus, as they leach out, can be an issue, but that in this case there is a very low chance of impact as the Subject Property is almost 40 m (140 ft) from the shore. She responded in reference to the review of impacts noted in the NHIA data analysis: Fish habitat (sections 7.2 and 5.3) of the NHIA; section 3.2 and 3.3 in reference to Parsons’ Witness Statement and testimony referencing the Highly sensitive Lake Trout Lakes, cold thermo for the Lake, and lake Trout’s very specific need to maintain nutrient enrichment.

46The NHIA cites the need to be sensitive to human activity and that changes to phosphorus can have a negative impact on fish habitat. Fligg opined that there is no increase to the amount of shoreline activity with the number of people or frequency of people, and therefore, the nutrient load of phosphorus, which can impact oxygen levels, does not apply in this case. As there are no bedrooms identified in the plans, she does not believe there would be an impact on the Lake.

47Though the Municipality considered the accessory structure as a secondary dwelling, Fligg confirmed that, given there are no bedrooms, there are no concerns of phosphorus loading. The septic system being significantly set back from Subject Property, further supports that that the garage modifications do not have impact.

48Fligg further stated that Parsons’ Witness Statement models on water quality, but it assumes bedrooms and considers the garage an accessory dwelling, which is not in the plans, and in both direct examination, cross-examination, and redirect Fligg opined that there would be no impacts to the Lake.

49It was opined that while routine maintenance does not restore the Lake, encouraging landowners to inspect their septic systems every three to five years, and pumping out the septic, improves the use and could be beneficial.

Mike Armster

50Armster submitted that the permitted uses are for amenity spaces and washrooms, which are for practical uses and enjoyment. Given their four grandchildren, adult children, and that he and his wife are retired, it is much needed, limited but helpful, space.

51He testified that he genuinely regretted making the improvements without the approvals and misjudged how doing so was a “big deal”. At that time, he failed to understand the full scope of what planners’ roles encompass. Further, he submitted that he now more fully understands, and if the Appeal is granted, that they would certainly comply and obtain the building approvals, and further engage Clark on the septic tank system, emphasizing that the planning process was educational and that working with experts and investments in compliance are good outcomes for something that began with a by-law infraction.

52The Municipality failed to correctly characterize the nature of the accessory structure on the Subject Property and made a decision on grounds that were not specified in the planning documents. The Municipality’s inclusion of the “development prohibition” was not applicable as the Subject Property already exists.

53The COP is with the Province for final approvals which would prevent the upstairs of the garage from becoming a dwelling unit because kitchen or eating facilities and bedrooms are not prohibited. The requested, limited, permitted residential uses are for office, multi-purpose space, sanitary facilities, and clean-up sinks.

54Armster agreed that the garage required the original permit because the as-of-right height limitation. Municipality allows for 4.9 m and a minor variance was required for a height of 6 m. Ultimately, he understood that Committee of Adjustment’s approval did not include cooking, eating, living, sleeping, and sanitary facilities, but had lost sight of the details as his focus was on height, and as they had picked an established design and plans were submitted for review for height.

55At the time of the inspection, Armster confirmed that he had still intended to leave the loft of the garage as storage and had not installed the bathroom. He confirmed that dormers and third window corresponded to what became the bathroom, as they were part of the design, that the bathroom is currently functioning, and that he did not seek permission and is now applying for zoning amendments. He added that he would not be tempted to use the craft room and office as bedrooms as his cottage sleeps 10. Further, bedrooms are not allowed, and they now have a clearer understanding and are trying to respect the by-laws.

Kevin Duguay

56Duguay testified that he: conducted a site visit; reviewed digital photographs of site-aerials; attended a mandatory pre-consultation meeting; and reviewed all available planning documents of the Municipality, County, and Province. He noted that the Subject Property is currently zoned Shoreline Residential (“SR”) and that in the TL OP the Subject Property is designated as Recreation Dwelling Area and that this zoning is applied to many properties along the Lake. He opined that the proposed ZBA introduces a “notwithstanding” clause (section 8.5) that permits accessory buildings to have washrooms, offices, and accessory rooms that are not bedrooms, that this accessory structure would fall within the multi-purpose recreation room.

57Duguay opined that the proposed uses do not meet the definition of a dwelling unit in ZBL B2014-070 (Exhibit 1, page 855), which indicates the elements that usually define a dwelling unit to include sleeping, cooking, eating, and sanitary facilities.

58Duguay further concluded that the Appellant’s proposal is not a lot creation which prohibits development on at-capacity lakes, such as Crystal Lake. He cited numerous applications, with one being specifically approved on the Lake by the Municipality’s Council where an as-of-right 50% expansion of a legal-non-conforming cottage, in the 30 m setback area, was increased to 217%, without a lake study. This approval was on the same day as the denial of the Appellant’s application.

59Duguay noted that permitted uses in the Waterfront Residential designation shall include single detached dwellings, as well as low intensity recreational uses, and even home occupations which may also be permitted in accordance with ZBL B2014-070. Duguay further opined that the ZBA application serves to permit the use of the second-floor portion of the existing accessory structure and that the application does not create a new residential land use.

60He identified that the Subject Property contains a 4,500-litre septic tank system, which can accommodate the existing dwelling and the proposed additional limited residential use within the garage.

61Duguay conducted an extensive review of key policies of the PPS 2024 (Exhibit 1, pages132-135). His planning opinions from his Witness Statement are as follows below:

1. Section 2.1.6.b) and c) of the PPS 2024:

The use of the accessory building for limited residential use will facilitate the enjoyment of the property and its buildings by the property owners and their family members.

2. Section 2.6 of the PPS 2024:

The use of the property is resource-based (Crystal Lake), including both the recreational dwelling and the associated accessory building. The property and the adjacent area is developed and supported by rural services.

3. Section 3.6.1.b)3. of the PPS 2024:

The Septic (waste-water) Report completed by Mr. Brad Clark, confirms that the existing on-site private septic (waste-water) facility is adequate to accommodate the overall use of the property. This includes the intended use of the second floor of the existing accessory building (Garage) for limited residential (non-bedroom) use, including the existing washroom facility and clean-up sink within said accessory building.

The Sumac NHE Assessment Report included a recommendation regarding septic facility maintenance. This recommendation reinforces the adequacy and ability of the existing septic facility to accommodate the intended residential use of the property. This is a current practice of the property owners.

It is thus, my professional planning opinion that the existing septic facility is appropriate and adequate for the intended residential use of the property.

4. Section 4.2.1.f), g), and section 4.2.2.:

Relative to Sections 4.2.1 (f) and (g), as well as Section 4.2.2, the NHE Assessment carried out by Sumac Environmental Consultants confirms that the approval of the ZBLA Application will not create a negative impact upon Crystal Lake.

As previously noted, there is no physical alterations of the property and/or buildings (other than a building permit required for the washroom and associated plumbing facilities – accessory building).

The existing septic facility does not require expansion nor modification.

The Municipal Committee of Adjustment approved the location/massing of the accessory building (File A-21-02). Thus, there is no dispute/concern with the location of said building, nor its proximity to the Crystal Lake shoreline.

My interpretation of this Section of the 2024 PPS indicates that development can be considered/approved providing it not have negative impact upon the natural features. There will be no site alteration. The Development of the property is in place, and same will not change as a consequence of the Approval of the ZBLA Application.

62Duguay opined that, having reviewed the Pre-July 2022 version of the COP in its entirety (Exhibit 1, page 135-141) “its attendant policies/and use designations” were considered. Duguay also acknowledge that the County planning is updating the COP, and yet to culminate in a final approval by the Ministry of Municipal Affairs and Housing. Duguay’s planning opinions from his Witness Statement on conformity with certain sections of the COP and TL OP are as follows below:

1. Section 4.4 of the COP:

The property forms part of a shoreland area.

2. Section 4.4.1 of the COP:

The property is developed, and as noted, no physical alterations of the property nor its buildings will occur because of the Approval of the ZBLA Application.

3. Section 4.4.2 of the COP:

It is acknowledged that Crystal Lake is designated as an “At Capacity” Lake. The objectives of this Section of the Official Plan speak to how shoreland areas of said lakes (and their waterfront) can and should be developed.

The property is developed, as noted, no physical alterations of the property nor its buildings will occur because of the Approval of the ZBLA Application.

The existing waste-water (septic) facility has been evaluated, and it has been confirmed that said facility is adequate to accommodate the intended use of the property.

When considering the property itself and is not “overdeveloped” and is similar in its built form to many Crystal Lake Road waterfront properties.

Crystal Like is a designated “At Capacity” Lake. The implied protection referenced in this section, is not particularly relevant. There will be no increase in boat use nor is there any evidence that there will be an increase in the assimilative capacity (phosphorus capacity).

The existing waste-water (septic) facility has been subject of previous review/permitting. The recent evaluation carried-out by Mr. Clark confirms that same does not require expansion to accommodate the intended residential use of the property.

Finally, the objective of preserving fish habitat is being met, pursuant to the findings of the Sumac Environmental NHE Assessment.

4. Section 5.4.2 of the TL OP:

No “development” (physical) will occur as a result of the approval of the ZBLA Application. The existing physical development of the property is in conformity with the SR – Shoreline Residential zoning with the exception of the pending use of the second-floor of the existing southerly accessory structure.

5. Section 5.4.3 of the TL OP:

The property is supported by a 4500 L septic facility/service, of which same has been evaluated and deemed suitable/appropriate for the intended residential use of the property.

63In giving testimony Duguay opined that the proposed ZBA introduces a “notwithstanding” clause (section 8.5), providing an exception to section 4.26 of ZBL B2014-070, which does not permit an accessory building to have residential uses, such as bedrooms, kitchens, and/or eating facilities, The Subject Property’s uses fall within a multi-purpose recreation room.

64Duguay opined that the requested ZBA is a modest expansion to an existing seasonal structure and is in keeping with the general purpose and intent of the land use designations and related policies, in line with the policies mentioned by Dean at paragraph [15] above.

65Duguay further opined that the ZBA is:

1. Consistent with the policy directive of the 2024 provincial policy and the PPS 2024;

2. Meets with and conforms to the general intent of the land use designation and related policies, and the Pre-July 2022 COP (Exhibit 10, page 10);

3. Conforms with the general purpose and intent of ZBL B2014-070 of the current TL OP; and

4. The Subject Property conforms with the SR zoning requirements, with the exception of the pending use of the loft of the existing accessory structure, which is before the Tribunal.

66Duguay stated that the ZBA application does not propose to permit a new seasonal dwelling. The application serves only to permit the use of the loft portion of the existing accessory structure for limited residential purposes.

67Duguay noted that no physical development of the Subject Property or to existing buildings will occur with the approval of the ZBA and that development of the Subject Property is in conformity with the SR zoning requirements, with the exception of the required internal modifications of the existing accessory structure (garage).

68He opined that the Municipality’s planner did not analyse if limited residential use on the loft of the garage was consistent with the PPS 2024, that the limited use does not have bedrooms or kitchen/eating facilities, and therefore, his conclusion suggested non-compliance to a septic tank system that was actually compliant.

69The Municipality continued to treat the office and craft room as though they were bedrooms, which is a very uncommon approach in the industry and surrounding areas. Duguay reiterated that, from a planner’s lens, these rooms/spaces are not considered bedrooms.

70Duguay clarified that test is not applied in the Document Book of the Appellant and responded that all references are in the summary where he ensures conformity to the PPS 2024 and conformity to the TL OP and where a by-law amendment was offered. He added that his Witness Statement is being added as an exhibit, where the balance of everything is considered.

71The Witness statement does not include policies related to Lake Trout Lakes as they were not referenced at the time and that he relied on the direction from the municipal pre-consultation, as attended by senior staff of the Municipality.

72Duguay reconfirmed that the use was not for a dwelling, opining that it is for limited residential use and that the proposed by-law exception on page 18 of the PJR is an initial attempt to provide language as a by-law exception. He confirmed that it is not the same as the current ZBL B2014-070 but maintains the intent and agreed that this is for a site-specific exception.

73Section 4.2.1 of ZBL B2014-070 (Exhibit 10, page 25) deals with permitted uses for accessory buildings as part of the planning justification, and it is the site-specific exception to allow for limited residential use of the loft, excluding bedrooms and kitchens/eating facilities.

74Duguay noted that the intention of the “notwithstanding clause” (page 66 of the Appellant Document Book proposed By-Law Exception) was to establish what is, and what is not, allowed and does not seek permission for a dwelling unit.

75Duguay confirmed that his on-site review did not include the inside of the accessory structure. As per his normal practice he reviewed photos, which included the interior and floor plans for the conditions that existed at time of filing. These captured the washroom and two rooms, which were not bedrooms, one of which had a desk and laptop, and that the by-laws and commitment by the Appellant that they do not intend use of the craft and office rooms to be bedrooms, regardless of dimensions.

76Both Duguay and Clark disagreed with suggestions that the upgrades would introduce more boat traffic on the Lake, burden the septic tank system, or create land disturbance with the limited permitted application, as no additional people are using the Subject Property.

77It is Duguay’s professional planning opinion that the recommended drafted ZBA is consistent with the PPS 2024, the TL OP and COP, and the intent and purpose of regulatory uses, and that it represents good planning and is in the public interest.

Matthew Wesley

78Wesley submitted that the MVA was granted for the height the conditions noting that the loft could only be used for storage and that it was only discovered afterwards that the Appellant’s use was not allowed.

79When entering the space, Wesley observed open and empty space and concluded, at that time, that it was consistent with the proposed use. The Appellant was contacted regarding the proposed use and it was determined that use of the rooms as office and craft rooms were not to support additional bedrooms.

80PPH was involved but jurisdiction was transferred to the Municipality, and when the inspector reached out to inquire, the response was not to approve as contrary to the conditions in the approved MVA.

81The assessment was performed and it was determined that the septic tank system did not have capacity for the office and craft rooms to operate as bedrooms (Exhibit 2, Page 549, section 1.8). Habitable rooms larger then 7 m², under the definition of “Bedroom” in section 1.8 of Zoning By-law No. B2024-045, include rooms such as den, office, or craft room, but a bathroom is not calculated as bedrooms.

82Wesley testified that in past scenarios he discovered that spaces have been operating as bedrooms, and cited for safety concerns with the absence of smoke alarms, septic tank system capacity, and added that the septic tank system for the Subject Property was sized for four bedrooms in the main dwelling and that it cannot accommodate two additional bedrooms.

83Wesley indicated that a habitable room is required to be larger then 7 m² and that the angled ceiling minimum size for bedrooms are not met when you do not include the floor area where heights are 6 inches. He concurred that when ceiling clearance is less then 3.4 ft that they would be excluded as per the OBC. He agreed that floor areas that have significant height deficiencies should not be in the calculations, and that he was not aware of minimum heights and that he took the Appellant’s application at face value. Wesley confirmed that the Municipality had not considered whether the floor area of the rooms would meet the minimum floor area for a bedroom of 7 m². Further, he opined that he would not consider height at that time, that the Appellant is not an expert, and that ceiling heights were not presented and likely just missed. He opined that, if approved by the Tribunal, the Appellant would be compliant if rooms are under 7 m² as they would not be considered bedrooms, adding that Appellant could resubmit with a different floor area to be looked at fresh, and they would then apply for the OBC permit.

84On September 18, 2024, Wesley conducted a review of the sewage system. At the time of his review, Wesley was not considering a request for a permit and therefore it is only adequacy that is part of the analysis. However, if there is construction, you would look at laws, applied inside, and it is not a problem if it is an exercise in review of the OBC.

85In consideration of a pre-emptive email exchange, and prior to the Appellant’s application, Wesley agreed that it is actually not up to him to advise PPH, but that he did reply to PPH Inspector Rumesh Ratneswaran. In an email exchange between Wesley and Mr. Ratneswaran (Exhibit 1, pages 2438-2439), there was a request to see if the loft use had been deemed as a bedroom. On continued cross-examination, Wesley conceded that, at that point, the Appellant’s application had not been filed yet, and in another email, it was indicated that the County had dropped the ball.

86He submitted that the OBC handbook does not define the dwelling units, but that when reviewing for seasonal recreational use he applied conservative 90% reductions and noted that if there were not bedrooms it would change his opinion.

87More development and build form mean more runoff to the Lake, however, in learning the garage is significantly back from the shoreline, if there is permeable surface, Wesley opined that he would not be concerned noting, however, if the runoff flows west and slopes to neighbouring property, it could still have impact, however, he stated that he “didn’t go that far on Google Earth”. That said, he could see the shoreline is 85 ft wide, then trees, grass, garage, and driveway with permeable spaces to assist with storm water management, but has not verified the permeable space, as not on-site, and that there is an area to the west which is cleared, and even though this area is 145.02 ft from water, it could potentially drain to the west over hardened surfaces closer to the Lake. Wesley agreed that it would be better if the clear area is gravel.

88Wesley opined that he does not think recommendations regarding emptying the septic tank system is mitigation as it passively drains into the bed. If it is a holding tank pumped out and taken off site it may make a difference and that planning authorities shall protect or include environmental impacts. While Wesley opined, he didn’t think it currently protects, improves, or restores, he thought that a “honey truck” emptied would.

Brent Parsons

89Parsons opined that he looked at potential loading and oxygen issues and the resulting impacts, and in January 2020 was retained to assess the Lake, including water quality and shoreline capacity.

90He typically considers phosphorus and dissolved oxygen concentrations, and in particular, the mean volume, including the bottom layer that remains cold through the season as it is the most important component to assess the deep-water oxygen.

91Parsons describe that there are three kinds of assessments: 1) Impact assessments – assesses total phosphorus; 2) Lakeshore capacity model – looks at human sources to see what changes in association with development scenarios; and 3) Deep water oxygen model – assesses mean volume measurement, for recreational capacity.

92Oxygen concentrations in the Lake indicate that the Lake does not have capacity for development. Biologists studied and determined relatively small changes can impact metabolism.

93The oxygen report data indicated that the average concentration was 4, meaning significantly below 7, and therefore no migration. A single development is minor, but if others follow then concentration decreases and there would be nowhere to migrate and no growth of Trout as habitat would be poor.

94The development of 544 shoreline properties and 54 shoreline lots and accompanying recreational uses, such as boating and swimming, would result in very busy recreational care and capacity, which is beyond acceptable nutrient and effluent from properties.

95In Fligg’s testimony, natural heritage assesses land use change. Increases in wastewater were not assessed, and noted that typically, those assessments would include water quality assessment such as soil, definition of vegetation buffer and resulting impacts.

Chris Jones

96Jones opined that there are regulations which permit a range of buildings and structures and that dwellings are not to be used, and therefore, the Appellant’s application is a departure from this approach, and that upper floor of building has been constructed as a dwelling unit identified by cooking, eating, sanitary and sleeping uses. Jones added that there is potential for accommodation of dwelling uses on an at-capacity lake, which is also a Lake Trout Lake.

97The Appellant’s proposal generally adds an additional accessory development building to the shoreline, impacting the regulation and management of the shoreline. Jones called attention to ss. 2(a), (h), and (r) of the Act, noting these principles guide approval authorities in making decisions that align with provincial interests.

98The Subject Property shall be restricted by definition of new development. Item 10 of section H. in Jones’ Witness Statement references established policies for sensitive waters (section 4.4.3 in the COP), which establishes policies related to the Shoreline Areas and Waterfront designation, and specifically identifies at-capacity and Lake Trout Lake concerns.

99The PPS 2024 requires protection from potential impacts of at-capacity, highly sensitive Lake Trout Lakes and those with water quality issues. Jones opined the ZBA is not consistent with the PPS 2024 and does not represent good planning.

100Item 4 of section H. in Jones’ Witness Statement notes section 3.1.1 of the COP is a policy that speaks to impact of development on water resources. It looks at management concerns, issues from human activity, increased demand on water resources, competing users, and their effects.

101The COP identifies lot creation as having negative impacts, and therefore, the ZBA does not conform to the COP. Lot creations, new development, and additional dwelling units are prohibited as they create new demands and add recreational uses, which are not an appropriate land use.

102In looking at the COP regarding the Echo system section, it states that it is no longer acceptable to impair water quality, and in section 4.2.3 of the COP, limited development is permitted in areas outside the Settlement Area designations. In 4.4.2 of the COP, Shoreland and Waterfront designations are to protect and restore waterfront.

103There are challenges for the Municipality to manage and protect lakes, and from a planning perspective, that is in the public interest as developments can be easily altered.

104Currently one dwelling and one accessory is allowed, and garages are restricted from including habitual uses.

105Section 4.30.3 of ZBL B2014-070 authorizes an as-of-right expansion to any non-compliant as-of-right dwelling notwithstanding that “expansions to or replacement of existing dwelling located within the required 30 metre setback from the high-water mark shall be permitted” subject to limited percentage for expansions.

106Jones confirmed that he did not look inside the garage and felt it was not necessary. Jones opined that, in SR uses, he doesn’t believe bathrooms are prohibited. However, once sanitary facilities are provided there is a prospect that it could accommodate other prohibited human habitation and confirmed that if there was a one floor garage that the definition does not expressly prohibit sanitary, or kitchen uses.

107They do not zone for configuration or design. They deal with height and do not get “into where the walls are”, as that is relating to the OBC. Zoning stays out of the interior. Zoning allows for varying types of units, but shoreline areas go to context of redevelopment, building, and floor plans.

108The conservation authority generally only deals with flood line regulation, the high-water areas, and the required 30 m setback from the shoreline, other than legal non-conforming.

109Jones opined that, if there is not a new lot created, it is something not expressly prohibited, and on Crystal Lake it is site-specific.

110Jones acknowledged that, on the day the Appellant’s “modest site specific, limited use” of an existing property application was denied, a proposal with a 217% expansion was approved. Additionally, others with 50% plus expansions were approved and some occurred in the water yard, which included significant expansion of the septic footprint.

111Jones opined he did not oppose because even though the example given had more land disturbance than the Appellant’s land disturbance, there is a policy to accommodate expansion for principal property uses, and that rightly or wrongly, these are the challenges. He added that, though there are bigger, new septic tank systems, they can come with some upgrade benefits.

112Jones acknowledge that he didn’t include the site-specific recommendations and he knows there are exceptions and standards which are constantly evolving and (Exhibit 1, page 981 and pages 984-985) on Concession 10 which is just down the road from the Subject Property of the Appellant, with permitted SR uses like those of the Appellant’s request, including habitable use to permit a loft clean-up room, office, and weight room. Jones conceded it was that property that was the actual precedent, not the Subject Property of the Appellant. Jones noted that that particular approval was older.

113Jones concurred that there were numerous other exceptions, such as:

• The ones cited SR-25 (Exhibit 1, page 983-984) with a habitable space in the form of sleeping quarters;

• Other exceptions in portion of garage are SR-31 (Exhibit 1, page 987), and Shoreline Residential-Private Access (“SR-PA”) SR-PA-5 Exception (Exhibit 1, page 994-995), which allows for one additional guest dwelling on private access;

• SR-PA-64 Exception (Exhibit 1, pages 1028-1029) allows for full dwelling which may have a kitchen and development allowing a secondary dwelling unit; and

• SR-PA-86 Exception (Exhibit 1, pages 1046-1047), notwithstanding the inclusion of guest cabin, can have a bathroom, but not kitchen. Jones conceded this example is “bang on” in terms of similar features to the subject property but noted there are 4,700 properties and only 300 exceptions.

114Jones opined that, while ZBL B2014-070 prohibits sleeping areas less than 7 m², he still views rooms as being capable of accommodating bedrooms. He added that, in administering and providing advice on how something will be utilized down the road, the Municipality still does not have absolute assurances that that won’t happen.

115In review of planning instruments, Jones indicated like Parsons that, if there are no bedrooms, he would not be concerned. Jones opined that he is “trying to approach his review with consistency” when considering permitted limited upgrades regardless that they are not changing intensity, but shifting use spread out on the Subject Property. He acknowledged the contradictions and that there are exceptions, including the property down the road, but added that the majority, while inside the water area, relate to principal use.

116Jones acknowledged that the Subject Property is further away from the Lake with a distance of 145 ft, given compliance only requires 100 ft. As the cottage is nearer the waters’ edge, with an as-of-right to expand, what is being asked for instead is a more modest way to add living space. While Jones agreed they have to take the Appellant’s proposal at face value, he stated that in reality changes will eventually happen and there would be “temptation” to convert the rooms to bedrooms.

117Jones accepted that, if the clients get approval, Duguay’s language would, for the draft ZBA, accurately reflect the floor plans, but in terms of regulatory language he may make some changes.

118Jones agreed that the Tribunal is not responsible for municipal by-law enforcement.

119Jones opined that in redevelopment of a principal use where it is known that there is a water quality problem, that at least there is an opportunity to work with owners who can be on-site, noting the Subject Property is an accessory building. Jones further submitted that, in working in shoreline units, he has seen all kinds of things and that you effectively end up with independent domiciles with docks and landscaping amenities, but anyone could apply for a separate septic tank system.

LEGISLATIVE REQUIREMENTS AND FINDINGS

120The Tribunal, in weighing the evidence provided by the witnesses of the Appellant and Municipality, is satisfied that the Appellant’s application meets the tests set out in the Act as they relate to a ZBA application referenced in this decision at paragraphs [61] and [62] and were adhering to the relevant policies specifically noted at paragraphs [63] to [65]. finding that the proposed ZBA:

1. Is consistent with the PPS 2024, read in its entirety, and in consideration of relevant land use policies. The ZBA does have regard for provincial interests under s. 2(a) of the Act, in the protection of ecological systems, s. 2(h) of the Act, regarding orderly development of safe and healthy communities, and s. 2(r)of the Act, regarding the promotion of built form that is well designed.

2. Conforms with the COP, demonstrated throughout the planning opinion which acknowledges that the COP is waiting on final provincial approvals of a revised plan. That said, land use designations for Waterfront Residential use are the same or very similar in both versions as referenced in the PJR referencing the relevant sections of both the COP and TL OP related to Shoreline, Recreational Dwelling, Permitted Uses, Pattern of Development, Services, and Zoning;

3. Conform to the TL OP and long-term planning goals. Sections 4.5 and 8 relating to shoreline planning and protections have been addressed in evidence by the opinion evidence and in cross-examination of the three witnesses for the Municipality, who conceded that, if there are no bedrooms, the calculations on impact would be different.

4. Has land use compatibility, ensuring appropriate land use relationships, preventing conflicts between residential, commercial, industrial, and environmental areas; and

5. Is in the public interest and justification demonstrates a clear planning rationale considering infrastructure, environmental impacts, and community needs.

128The Tribunal finds there are site-specific exceptions for limited residential uses of accessory structures in SR zones. These are in compliance with ZBL B2014-070. Multiple examples of the Municipality’s planning testimony under cross-examination are noted in paragraphs [112] and [113], and in Exhibit 1.

129The Tribunal further finds compliance with the Municipality’s By-laws and the PPS 2024 evidence regarding setbacks from shoreline and septic tanks systems (Exhibit 1, pages 132-135).

130The Tribunal finds that the Appellant’s application conforms to the TL OP (Exhibit 1, pages 142-149), and represents good planning and is in the public interest.

131The Tribunal finds that the statutory meeting requirements, held under s. 34 of the Act, were met on November 5, 2024, and the Tribunal is not in receipt of any related complaints to the public input. Two letters of support were provided to the Tribunal.

DECISION AND CONCLUDING FINDINGS

132Considerations were weighted with all due regard for potential impacts to the at-capacity Lake, Lake Trout Lake concerns and human use environmental impacts. The Tribunal is satisfied that the Appellant’s site-specific proposal has:

• Limited proposed use;

• No evidentiary increase to the number of people using the Subject Property; and

• That significant distance of the Subject Property away from the Lake to be credible.

The Tribunal is satisfied that the opinion evidence and submission testimony for the Appellant’s proposal will not result in negative impacts to the sensitive needs of the at-capacity Lake Trout Lake.

133The Tribunal also finds that the repetitive assumptions throughout the Municipality’s witnesses’ opinion testimonies, used in their assessments, skewed conclusions related to impacts. The testimony consistently looked to potential uses and not the actual proposed uses before the Tribunal. The assertions that the limited use proposed could be converted to bedrooms, and even that they would “likely” be converted to bedrooms, teetered on unconscious bias. The Tribunal is satisfied with Armster’s under oath submissions, finds them credible and accepts that the Appellant has no intention to use the craft and office rooms as bedrooms, as it is not permitted, and that they could sleep ten people in their existing cottage.

134While the Tribunal acknowledges the Appellant’s initial infraction in proceeding with alterations to the Subject Property without the necessary approvals, the Tribunal finds the compliance efforts since, and the commitment to continue to work with the experts, to be a positive outcome.

135The Tribunal finds it is not required to have “absolute assurance” (see paragraph [114] above) for future uses. The issue is whether what is proposed as permitted uses, and the regulation of what is prohibited, constitutes good planning on the usual tests required by the Act.

136The absence of consideration of the floor area calculations of Subject Property rooms did not take into account the limitations of the sloped ceilings, and therefore, did not recognize that they could not be considered bedrooms by the OBC (see Exhibit 1, page 80 and Exhibit 2, page 24).

137The Tribunal is not responsible for municipal by-law enforcement (see Serpa v Toronto (City), 2018 CanLII 78781 (ON LPAT)).

138Having reviewed all the materials submitted and presented at the Hearing and having considered the opinion testimony and evidence of the Appellant and that of the Municipality, and finding that the ZBA is in keeping with the general intent and purpose of the land use designations and related policies of the PPS 2024, the COP, and the TL OP, the Tribunal approves the Appeal based on the merits of the planning evidence before it.

ORDER

139THE TRIBUNAL ORDERS THAT the Appeal is allowed and Zoning By-law No. B2014-070 is hereby amended, as set out in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk of the Municipality of Trent Lakes to assign a number to this By-law for record keeping purposes.

“G. Ross”

G. ROSS

MEMBER

“P. Tomilin”

P. TOMILIN

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