Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 8, 2025
CASE NO(S).: OLT-25-000200
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant: Antrim Farms Ltd.
Subject: Consent - refused by Approval Authority
Description: To create 4 new residential lots and 4 opposing beach lots
Reference Number: PL202400145
Property Address: 12215 Rose Beach Line N0P 1X0
Municipality/UT: Chatham-Kent/Chatham-Kent
OLT Case No: OLT-25-000200
OLT Lead Case No: OLT-25-000200
OLT Case Name: Antrim Farms Ltd. v. Chatham-Kent (Municipality)
Heard: June 19, 2025 by Video Hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Antrim Farms Ltd. | R. Brown* |
| Municipality of Chatham-Kent | D. Taylor |
DECISION DELIVERED ON BY S. DEBOER AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal was the Appeal by Antrim Farms Ltd. (“Appellant”) due to the Municipality of Chatham-Kent’s (“Municipality”) refusal of the Consent Application (“Application”) for the property municipally known as 12215 Rose Beach Line (“Subject Lands”).
AREA CONTEXT
2The Subject Lands are located on Rose Beach Line, between McKinlay Road and Antrim Road. The Subject Lands are approximately 62.1 hectares (“ha”) in size and comprised of two parcels on land bisected by Rose Beach Line. To the westerly side of Rose Beach Line, the parcel is approximately 61.1 ha in size. This parcel of land is designated as Agricultural (“A1”) as per the Chatham-Kent Official Plan (“OP”) and is used primarily for cash crops. To the east of Rose Beach Line is a parcel of approximately 1.0 ha in size. The parcel to the east is a beach area that forms the edge of Lake Erie. The parcel to the east of Rose Beach Line is also designated at Agricultural (“A1”) as per the OP.
3To the north of the Subject Lands are what are considered to be primarily agricultural uses with a Regional Area of Natural and Scientific Interest (Morpeth Ravine). To the south of the Subject Lands are agricultural uses, residential strip development, and a Provincially Significant Wetland (Morpeth Creek). To the east are some residential uses and beach lands abutting Lake Erie. To the west are agricultural uses with a natural gas processing plant at the intersection of New Scotland Line and McKinlay Road.
BACKGROUND
4The purpose of the Application would convey eight (8) new lots. Four of the lots would abut the west side of Rose Beach Line and the other four opposing lots would abut the east side of Rose Beach Line and Lake Erie. The four lots on the north side of Rose Beach Line are proposed to have an approximate total area 2.1 ha in size or an approximate size of 0.5 ha each and as mentioned above, the four lots to the south of Rose Beach Line are proposed to have an approximate total area of 1.0 ha. The approximate total of each of the proposed beachside lots is approximately 0.25 ha in size. The Appellant would retain a total of approximately 59 ha, which would remain as a designation of Agricultural use mainly for cash crop purposes.
5The Application was brought before the Municipality’s Committee of Adjustment (“COA”) on January 23, 2025. It was the recommendation of the Municipality’s Planning Staff that the Application be refused as it was not consistent with the Provincial Policy Statement 2024 (“PPS 2024”), did not conform to the OP and did not conform to the Chatham-Kent Zoning By-law 216-2009 (“ZBL”). The COA Decision was issued on January 24, 2025, refusing the Application. The Applicant then filed an Appeal with the OLT on February 10, 2025, stating that the lands were too small for modern farming practices and that the Consent Application should be approved.
THE HEARING
6At the commencement of the hearing, the Tribunal marked the following as Exhibits to the hearing event:
Exhibit 1: Antrim Farms Ltd. Lay Witness Statement
Exhibit 2: Witness Statement of Greg Houston
7There were two witnesses presented to the Tribunal. The Appellant (Mr. Bernie De Brouwer) spoke as a lay witness and the Municipality presented Mr. Greg Houston as an expert land use planning witness. Mr. Houston was approved by the Tribunal to give expert opinion evidence in the area of land use planning.
Mr. De Brouwer – Appellant and Lay Witness
8It was Mr. De Brouwer’s testimony that the lots are on an area of his property that is no longer farmable. The proposed four lots on the west side of Rose Beach Line have not been farmed in years as this area is too small to operate modern farm equipment due to residential housing abutting to this area of the Subject Lands. The four lots abutting Lake Erie have never been farmed and consist of mostly a beach area and some trees adjacent to the road.
9It was Mr. De Brouwer’s intent to sell the proposed lots on the west side of Rose Beach Line with the opposing east side lot. Therefore, it would be eight lots in total owned by four individuals. The lots on the east abutting Lake Erie are too small to build on and that is why it was his intent to sell them with the adjoining lot on the west side of Rose Beach Line.
10Mr. De Brouwer continued with his testimony that he had previously severed off two lots of similar on the western side of Rose Beach Line in 2003. The Application that is before the Tribunal would make use of lands that are currently unfarmable, and they have not been used for farming purposes for many years. Mr. De Brouwer had planted a tree line at the back of the proposed lots, and this would delineate the proposed consent lots from the actual farmable area of the Subject Lands.
11Mr. De Brouwer stated that the Lower Thames Conservation Authority (“LTCA”) has designated these lots as within a “Hazard Zone” and yet the same LTCA has allowed other permitted construction to occur in this zone.
12Mr. De Brouwer stated that there are seven houses in the area surrounding the Subject Lands and that the addition of four more residential lots would not create a significant impact to the surrounding agricultural area nor to his ability to farm the rest of his lands.
13Mr. De Brouwer did confirm with the Tribunal that there are not any livestock farms within the vicinity of the proposed lots and that an MDS would not be necessary for these lots.
Greg Houston – Witness for the Municipality
14Mr. Houston gave opinion that the Application before the Tribunal is not consistent with the PPS 2024, nor does the Application conform with the OP or the ZBL.
PPS 2024
15Mr. Houston opined that the Application is not consistent with multiple sections of the PPS 2024. Mr. Houston took the Tribunal through each of the applicable Policies:
2.3.1 General Policies for Settlement Areas
- Settlement areas shall be the focus of growth and development. Within settlement areas, growth should be focused in, where applicable, strategic growth areas, including major transit station areas.
16It was Mr. Houston’s opinion that concerning Policy 2.3.1.1; the Subject Lands are not located within a Settlement Area where growth and development should be focused on. The Subject Lands are apart of an agricultural area and the Application is not consistent with this Policy.
4.3.2 Permitted Uses
- In prime agricultural areas, permitted uses and activities are: agricultural uses, agriculture-related uses and on-farm diversified uses based on provincial guidance.
Proposed agriculture-related uses and on-farm diversified uses shall be compatible with, and shall not hinder, surrounding agricultural operations. Criteria for these uses may be based on provincial guidance or municipal approaches, as set out in municipal planning documents, which achieve the same objectives.
17Mr. Houston testified that pertaining to Policy 4.3.2.1; the Subject Lands are in a prime agricultural area and require an order of protection. The Application does not propose to use the severed lands for an agricultural use, an agriculture-related use or as an on-farm diversified use. Therefore, the proposed new lots are not consistent with this Policy.
4.3.3 Lot Creation and Lot Adjustments
- Lot creation in prime agricultural areas is discouraged and may only be permitted in accordance with provincial guidance for:
a) agricultural uses, provided that the lots are of a size appropriate for the type of agricultural use(s) common in the area and are sufficiently large to maintain flexibility for future changes in the type or size of agricultural operations;
b) agriculture-related uses, provided that any new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services;
c) one new residential lot per farm consolidation for a residence surplus to an agricultural operation, provided that:
the new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services; and
the planning authority ensures that new dwellings and additional residential units are prohibited on any remnant parcel of farmland created by the severance. The approach used to ensure that no new dwellings or additional residential units are permitted on the remnant parcel may be recommended by the Province, or based on municipal approaches that achieve the same objective; and
d) infrastructure, where the facility or corridor cannot be accommodated through the use of easements or rights-of-way.
- Lot adjustments in prime agricultural areas may be permitted for legal or technical reasons.
18As for Policy 4.3.3; it was Mr. Houston’s opinion that the proposed lot creation on a prime agricultural area is discouraged and may only be permitted in accordance with provincial guidelines for agricultural uses. The lots are not of a size appropriate for the type of agricultural uses in the area; they are not proposed for agriculture-related uses and are not for a residence surplus to a farming operation as a result of farm consolidation. Therefore, Mr. Houston opined that the proposed new residential lots are not consistent with this Policy.
4.6.2 Cultural Heritage ad Archaeology
Planning authorities shall not permit development and site alteration on lands containing archaeological resources or areas of archaeological potential unless the significant archaeological resources have been conserved.
19Concerning Policy 4.6.2; Mr. Houston opined that the Appellant did not provide an archeological assessment when the Application was submitted. Without this completed assessment, the Application was deemed as not consistent with this Policy of the PPS 2024.
5.2 Natural Hazards
- Development shall generally be directed to areas outside of:
a. hazardous lands adjacent to the shorelines of the Great Lakes - St. Lawrence River System and large inland lakes which are impacted by flooding hazards, erosion hazards and/or dynamic beach hazards;
b. hazardous lands adjacent to river, stream and small inland lake systems which are impacted by flooding hazards and/or erosion hazards; and
c. hazardous sites.
- Development and site alteration shall not be permitted within:
a. the dynamic beach hazard;
b. defined portions of the flooding hazard along connecting channels (the St. Marys, St. Clair, Detroit, Niagara and St. Lawrence Rivers);
c. areas that would be rendered inaccessible to people and vehicles during times of flooding hazards, erosion hazards and/or dynamic beach hazards, unless it has been demonstrated that the site has safe access appropriate for the nature of the development and the natural hazard; and
d. a floodway regardless of whether the area of inundation contains high points of land not subject to flooding
20As for Policy 5.2.2; it was Mr. Houston’s opinion that development should be directed to areas outside of hazardous lands adjacent to the shorelines of the Great Lakes which can be impacted by erosion. The LTCA gave an opinion that a portion of the proposed lots (on the east side of Rose Beach Line) are within the designated shoreline erosion hazard and therefore, the proposed lots are not consistent with this Policy.
21Pertaining to Policy 5.2.3; Mr. Houston opined that through Staff’s consultation with the Lower Thames Valley Conservation Authority (LTVCA), access to the proposed lots via Rose Beach Line is within the shoreline erosion hazard. As such, the Application is not consistent with this Policy.
Official Plan (“OP”)
2.3.5 Community Structure
The community structure of Chatham-Kent comprises an urban component and a rural component. The urban component includes Primary Urban Centres, Secondary Urban Centres, Suburban Residential, Hamlets and Rural Settlement areas. The Rural component includes Agricultural, Estate Residential, Recreational Residential, Recreational, Rural Industrial, Highway Commercial Areas and Aggregate Resource areas. It is a goal of the Official Plan to guide the majority of growth to occur within the Urban Centre boundaries to ensure that the Municipality develops in a compact, orderly and sustainable manner within its ability to fund and support a full range of uses, infrastructure and social services, which will lead to Chatham-Kent’s long-term financial well-being. The Primary Urban Centres are the focal points where residential, commercial and industrial development will be directed in Chatham-Kent. Healthy communities incorporate principles of safety, accessibility, diversity, self-sufficiency and choice for all residents. Healthy communities in Chatham-Kent foster a thriving economy, protect and enhance their natural surroundings and celebrate their diverse heritage. The majority of new population and employment growth in Chatham-Kent will be directed to the Primary Urban Centres. Some new population and employment growth will also take place in the Secondary Urban Centres, which are served by full municipal services. Growth in Hamlets that are serviced by municipal piped water supply and private sanitary sewage will be through infilling and/or rounding out of the existing development areas. In the privately serviced Rural Settlement Areas, development will be limited to minor infilling.
22Mr. Houston opined that Policy 2.3.5 sets out that the Municipality has an urban component and a rural component. The Subject Lands are located on Agricultural lands within the rural component of Chatham-Kent community structure. This Policy states that Residential growth is not directed to Agricultural lands. As such, it was his opinion that the Application does not conform to this Policy.
Agricultural Area Policies
3.10.2.2 The Agricultural Area designation means that the primary use shall be agriculture, farm-related industrial and farm-related commercial uses and accessory uses.
3.10.2.3 Permitted uses in the Agricultural Area designation will include the growing of crops, including nursery and horticultural crops; the raising of livestock and other animals for food or fur, including poultry and fish; aquaculture; agroforestry; maple syrup production; and associated on-farm buildings and structures. Also permitted are farm-related commercial and farm-related industrial uses that are small scale and directly related to the operation, which are required to be in close proximity to the farm operation. Also permitted are sustainable forestry uses, conservation, retail stands for the sale of agricultural products produced on the same farm unit, and bed and breakfast establishments.
3.10.2.9 Except as otherwise permitted in the Official Plan, development not related to agriculture will be directed to locate in designated growth centres. Redevelopment of formerly used and vacant or underutilized land in the Agricultural Area shall be permitted for agriculture uses, agriculture-related uses, secondary uses and commercial or industrial uses that are related to or supportive of agricultural operations, provided that any new use is compatible with agricultural uses and complies with the policies of Section 3.10.
23Concerning Policies 3.10.2.2, 3.10.2.3 and 3.10.2.9; it was Mr. Houston’s opinion that the Application before the Tribunal does not allow the permitted use with what is considered to be undersized lots. Therefore, the Application does not conform to these Policies:
3.10.2.18.2 A consent to sever may be granted:
a) to divide a lot for agricultural uses subject to the following conditions:
i) the minimum area of both the retained and severed lots shall be 50 acres (20 hectares). Smaller sizes will be considered where:
it can be demonstrated that the subject parcel can be a viable economic enterprise;
the size of the parcel to be severed and the parcel to be retained is appropriate for the type of agricultural purposes for each parcel;
the size of the parcel to be severed and the parcel to be retained is appropriate for the type of agriculture for the area in which the parcels are located;
the size of the parcel to be severed and the parcel to be retained is common for the area in which the parcels are located;
the size of the parcel to be severed and the parcel to be retained is sufficiently large to maintain flexibility for future changes in the type or size of agricultural operations.
ii) The proposed consent shall comply with the Provincial Minimum Distance Separation (MDS) Formulae Implementation Guidelines.
b) where a previous or current farm consolidation has rendered a habitable farm dwelling surplus to the needs of a farm operation, subject to the following conditions:
i) By virtue of the consent, a residential dwelling will be prohibited on the remaining farm parcel through existing provisions of the Zoning By-law, and a single detached dwelling on an undersized agricultural lot will be recognized through existing provisions of the Zoning By-law.
ii) The proposed consent shall comply with the Provincial Minimum Distance Separation (MDS) Formulae Implementation Guidelines.
c) for agricultural-related uses, which means those farm-related commercial and farm-related industrial uses that are small scale, directly related to the farm operation and required to be in close proximity to the farm operation.
d) for the enlargement of an existing lot, subject to the following conditions:
i) the viability of the retained lot as a farm parcel is not threatened;
ii) a need must be demonstrated in which the proposed enlargement is for a non-farm use;
iii) the proposed severance must merge with the lot being enlarged in accordance with Sections 50(3) and (5) of the Planning Act.
e) for minor boundary adjustments or corrections and easements, and in accordance with Sections 50(3) and (5) of the Planning Act.
24Pertaining to Policy 3.10.2.18.2; Agriculture Lot Creation and Adjustments, it was Mr. Houston’s opinion that the proposed lot creation does not conform to any of the lot creation policies of the Chatham-Kent Official Plan. The lots are not of a size that is appropriate for the type of agricultural uses in the area; they are not for a residence surplus to a farming operation because of farm consolidation and are intended to be used for an agriculture-related use.
5.3 Heritage Resource Policies
5.3.2.21 The Municipality shall maintain information regarding areas of archaeological potential in Chatham-Kent. The Municipality may obtain available archaeological site data locations from the Ontario Archaeological Sites Database maintained by the Ministry of Tourism, Culture and Sport under the provisions of a municipal-provincial data-sharing agreement, for the purpose of heritage conservation planning.
The Municipality will regularly update municipal archaeological resource mapping under the provisions of a municipal-provincial data-sharing agreement, as new archaeological sites are identified and entered into the Ontario Archaeological Sites Database.
Where a development is proposed on lands with archaeological potential, an archaeological assessment shall be required by a licensed archaeologist in compliance with the Standards and Guidelines for Consultant Archaeologists (2011), and the terms and conditions of an archaeological licence under the Ontario Heritage Act. Areas of archaeological potential shall be determined by the use of provincial screening criteria.
25Concerning Policy 5.3.2.21; it was Mr. Houston’s opinion that an archaeological assessment was not submitted with the Application, as such, the Application does not conform to this Policy.
4.5.3 Flood Protection Policies
It shall be the objective of Chatham-Kent to:
4.5.3.1 Protect people and property from natural hazards in Chatham-Kent.
It shall be the policy of Chatham-Kent that:
4.5.3.2.1 Flood and erosion constraint areas consist of Floodplains, which may consist of Floodway, Floodfringes, Special Policy and erosion setback areas, as identified through consultation with the appropriate Conservation Authority. Flood and erosion constraint areas are identified on Schedule “C” Series –Natural Heritage and Hazards Features.
4.5.3.2.2 Development and site alteration will generally be directed outside of areas of flooding, erosion, and/or dynamic beach hazards along lakefronts, rivers and stream systems. Development and site alteration, however, may be permitted on certain floodplains and erosion constraint areas provided that:
a) the flood hazard can be safely addressed;
b) no new hazards are created or existing ones aggravated;
c) no adverse environmental impacts will result;
d) vehicles and people can safely enter and exit the area during times of flooding; and
e) the development does not include:
i. an institutional use associated with hospitals, nursing homes, preschool, school nurseries, day care and schools;
ii. an essential emergency service such as that provided by fire, police and ambulance stations and electrical substations; and
iii. uses associated with the disposal, manufacture, treatment or storage of hazardous substances.
4.5.3.2.3.1 Development and site alteration will not be permitted within Shoreline Hazard Lands.
4.5.3.2.3.2 Expansion of existing development within Shoreline Hazard Areas delineated in the Zoning By-law will require the approval of the appropriate Conservation Authority under the relevant Conservation Authority Regulations. Required maintenance and small-scale alterations to buildings will be permitted subject to the relevant Conservation Authority Regulations.
4.5.3.2.5 The Municipality will explore opportunities for longer term solutions to recurrent flooding where existing development exists within Shoreline Hazard Areas.
4.5.3.2.6 Hazard Areas will be zoned in the implementing Zoning By-law for Chatham-Kent.
4.5.3.2.7 Where the need has been identified, the Municipality will support detailed studies to identify and define natural hazard areas for streams, rivers, lakefronts and connecting channels in Chatham-Kent in cooperation with the appropriate Conservation Authorities. These studies will be undertaken to conserve the natural ecosystem, capitalize on tourism potential, protect adjacent land uses and enhance public safety.
It is specifically noted that:
Given the significant rate of erosion that has occurred in some areas along the Lake Erie Shoreline, the Municipality, in cooperation with the Conservation Authorities, will undertake a more detailed Coastal Study analysis to determine a development strategy for this area, which will consider bank stability, the rate of erosion, appropriate mitigation measures and the identification of lands that are unsafe for development.
26Pertaining to Policy 4.5.3 Flood Protection Policies of the Official Plan; Mr. Houston opined that the LTCA reviewed the proposal and advised the Municipality that the proposed parcels are all affected by the regulated limit of the Lake Erie shoreline and the proposal does not conform to this Policy.
ZBL
27Mr. Houston opined that the Application does not comply to the ZBL as the ZBL implements the Policies of the OP. The Application’s proposed lot areas and permitted uses do not conform to the OP. As such, the Application does not comply with the ZBL.
ANALYSIS AND FINDINGS
28The Tribunal has reviewed the Exhibits and the evidence provided by the witnesses. The Tribunal notes that the Application before it is the same Application that was refused by the Municipality in 2019. Mr. Houston stated and was not refuted in any way by the Appellant, that a pre-consultation meeting was completed between Mr. Houston and the Appellant before this Application being submitted. Mr. Houston confirmed that he did inform the Appellant that this was the same Application that had ben previously refused by the Municipality and if the Application was submitted as it was in 2019, the same result would occur. The Appellant did not provide any further documentation or planning justification to support his Application prior to its 2024 submittal.
29The Appellant did not present a land planning expert to provide contravening opinion evidence to the Municipality’s expert witness.
30Based on the totality of the evidence submitted, the Tribunal finds that the Appellant has not demonstrated to the Tribunal how the Application is consistent with the PPS, conforms to the OP and conforms to the ZBL.
31The Tribunal notes that the Appellant had two previous consent lots approved in 2003, under the authority of the 1997 PPS. The current PPS does not have the same policy direction to allow consents as it did with the 1997 PPS. Provincial policies such as the PPS are not static in nature, but rather, living documents. Simply speaking, even though “it was good enough in 2003 so it should be good enough now” may seem like common sense to the Appellant as the land itself has not changed, however, the overarching policy direction has changed. As the Application before the Tribunal is now under the Policy direction of the PPS 2024, the Tribunal therefore reiterates its finding that the Application before it has not demonstrated consistency with the PPS 2024, nor has the Application demonstrated conformity to the OP or to the ZBL.
32The Tribunal finds that based on the evidence provided, the appeal should be dismissed.
ORDER
33THE TRIBUNAL ORDERS THAT the appeal is dismissed, and the provisional consent is not to be given.
“Steve deBoer”
steve deboer
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.