Ontario Land Tribunal
Tribunal ontarien de l’aménagement
du territoire
ISSUE DATE:
July 24, 2025
CASE NO(S).:
OLT-24-000993
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Applicant/Appellant
Brauer Housing Developments Inc.
Subject:
Application to amend the Zoning By-law – Refusal of
application
Description:
ZBA and Consent to sever a new lot and rezone the severed
and retained lots as a result of the Consent
Reference Number:
B8-23
Property Address:
70 Pleasant Bay Road
Municipality/UT:
Prince Edward/Prince Edward
OLT Case No:
OLT-24-000993
OLT Lead Case No:
OLT-24-000993
OLT Case Name:
Brauer Housing Developments Inc. v Prince Edward (County)
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.
Subject:
Consent - refused by Approval Authority
Reference Number:
B8-23
Property Address:
70 Pleasant Bay Road
Municipality/UT:
Prince Edward/Prince Edward
OLT Case No:
OLT-24-000995
OLT Lead Case No:
OLT-24-000993
Heard:
June 17, 2025 by Video Hearing
APPEARANCES:
Parties
Counsel/Representative
Brauer Housing Developments Inc.
Laura Robinson
Country of Prince Edward
Jenna Morley
MEMORANDUM OF ORAL DECISION DELIVERED BY A. Mason ON June 17, 2025 AND INTERIM ORDER OF THE TRIBUNAL
INTRODUCTION
1This first Case Management Conference (“CMC”) was held concerning appeals under subsections 53(19) and 34(11) of the Planning Act, R. S. O. 1990, c. P.13, as amended (“Act”), with respect to the refusal of an application for Consent (“Consent”) and an application for Zoning By-law Amendment (“ZBA”) (together “Applications”) by the Council of the County of Prince Edward (“County”) with respect to the lands municipally known as 70 Pleasant Bay Road, in the County of Prince Edward (“Property”). The Applications were filed by the owner, Brauer Housing Developments Inc. (“Applicant”), with the purpose of dividing the Property into two parcels to permit the development of one single detached dwelling on each of the proposed lots on private sewer and water services.
2In advance of the CMC, the Parties advised the Tribunal that they had reached a settlement of the Applicant’s appeals (“Appeals”) and sought to convert the CMC into a hearing event to consider the settlement. As the Tribunal received no requests for Participant Status, the Parties attended with an appropriate planning witness and filed affidavit evidence in advance, the Tribunal granted the request. To that end, the Tribunal qualified Elysia Ackroyd, a Registered Professional Planner and Member of the Canadian Institute of Planners who has relevant and direct experience with the matters before the Tribunal to provide opinion evidence at the hearing event to consider the proffered settlement.
NOTICE
3An Affidavit of Service sworn on May 22, 2025, attesting to the giving of notice for this proceeding, was marked as Exhibit 1.
BACKGROUND AND ORIGINAL APPLICATIONS
4The Property is designated “Shore Land” and “Environmental Protection Area – Provincially Significant Wetland (PSW)” in the County’s Official Plan (“County OP”). The Property is zoned “Rural Residential Zone 2” (“RR2”) and “Environmental Protection – Provincially Significant Wetland” (“EP-W”) in the County’s Comprehensive Zoning By-law 1816-2006 (“County ZB”).
5The Property has a total area of 1.79 hectares and is located 1.5 kilometres from the Hamlet of Hillier and less than 5 kilometres to the Village of Consecon The Property is bounded by residential development to the north and west, with a mix of rural and agricultural uses around it.
6A dairy cattle barn is located to the north of the Property and is municipally known as 22 Pleasant Bay Road (“Barn”). The Barn is separated from the Property by a watercourse and two existing rural residential properties.
7The Applicant filed the application for the Consent seeking to divide the Property into a severed lot of 0.49 hectares (“Severed Lot”) and a retained lot of 1.3 hectares (“Retained Lot”) each for a proposed single detached dwelling.
8Through initial consultation with County, the Applicant also filed the ZBA to:
Change the zoning from the existing RR2 zone to the Rural Residential Zone 1 (“RR1”) zone to reflect the appropriate zone for the size of the proposed Severed Lot at 0.49 hectares;
Amend the EP-W zone in the County ZB on the proposed Retained Lot to reflect the accurate boundary of the wetland as determined by ground-truthing and surveying by a qualified ecologist as part of an Environmental Impact Study; and
Re-zone the 30-metre buffer portion of the Retained Lot from RR2 to the EP-W zone to prohibit development within this wetland buffer zone.
Reduce the minimum setback from the Barn under the Minimum Distance Separation (“MDS”) study conducted to determine separation distances between existing livestock facilities and a new residential land use, as detailed further below.
9The required reports were filed by the Applicant in support of the Applications, including the MDS study premised on a “Type A” land use analysis. Through subsequent consultation with County Staff, the MDS study was revised based on a “Type B” land use because the creation of the new residential lot proposed in the Consent triggers a greater setback to the Barn for the purposes of the MDS study. Based on the revised MDS study, a reduced minimum setback from the Barn of 216 metres for the Retained Lot and 275 metres for the Severed Lot was proposed. The reduced setbacks were proposed, and ultimately accepted by the County, because the two residential dwellings between the Barn and the Property already restrict the potential expansion of the agricultural operations regardless of granting the Consent.
10County Staff prepared a report that recommended approval of the Applications. In August 2024, the County Council denied the Applications and the Notice of Denial did not specify reasons for the denial. The Applicant appealed the Applications to the Tribunal in September 2024.
SETTLEMENT
11At the CMC, Counsel for the Country explained that the Parties had entered into Minutes of Settlement (“MOS”) about both the Consent and the ZBA (“Settlement”). Ms. Ackroyd explained to the Tribunal that three changes from the original Applications led to the Settlement set out in the MOS, as follows:
Quantification of the distances from the Barn to the Proposed Lot and the Severed Lot by a qualified surveyor and amendment of same in the MOS;
Amendments to the language regarding costs for road widening in the MOS; and
The addition of a new special condition to the Consent registered on title to the Property that specifies: (1) the proximity of the Retained Lot and Severed Lot to active agricultural operations that may generate noise, odour and other impacts associated with farm practices; (2) the reduced setback required under the MDS from livestock facilities and manure storage, and (3) that building permits will not be issued until compliance with the required MDS setback is confirmed by the County.
12Ms. Ackroyd provided viva voce and sworn affidavit evidence to the Tribunal attesting to the merits of the Settlement. In particular, Ms. Ackroyd testified that the ZBA has regard for matters of Provincial interest under s. 2 of the Act, with particularly relevant highlights as follows:
The amendment of the EP-W zone and creation of the 30 metres wetland buffer ensures the appropriate protection of natural features;
The ZBA will not reduce or impact agricultural lands or uses in the surrounding area.
Appropriate setbacks to adjacent wetlands will provide adequate distance between any proposed dwellings on the Severed Lot or Retained Lot.
The Severed Lot and Retained Lot will be serviced by private wells and the required hydrogeological study confirms no negative impacts on water resources have been provided.
The provision of more dwellings on lands designated and zoned for rural residential use contributes to a greater housing mix in the County that is not anticipated to have negative financial impacts on the municipality and will not require expansion of municipal infrastructure.
13Ms. Ackroyd testified that the ZBA is consistent with the Provincial Planning Statement 2024 (“PPS 2024”), highlighting the following:
The re-zoning of a portion of the land to EP-W to accurately reflects the wetland boundary will establish a buffer that is consistent with policies in s. 4.1 of the PPS 2024 regarding the wise use and management of natural resources and natural heritage areas.
The reduction in the MDS setback from the Barn supports the provision of rural residential uses while providing sufficient land areas to functionally accommodate a building envelope.
14Ms. Ackroyd testified that the ZBA conforms with policies in the County OP by providing an adequate mix of housing types fulfilled by the proposed single-family dwellings on the Severed Lot and Proposed Lot. Ms. Ackroyd also testified that the Applicant’s proposal for rural residential uses is compatible with the uses permitted in the Shore Lands designation and will not generate any new impacts to nearby agricultural operations due to the intervening rural residential uses between the Property and the Barn.
15Overall, Ms. Ackroyd opined that the Applicant’s ZBA proposal will ensure the protection of nearby natural heritage features and agricultural facilities while providing one more residential lot for development that is appropriate and in keeping with the surrounding rural residential context.
16Ms. Ackroyd testified that the Consent satisfies the criteria in s. 53 of the Act that a plan of subdivision is not necessary for the proper and orderly development of the Property. Ms. Ackroyd also testified that the proposed Consent has sufficient regard for the matters in s. 51(24) of the Act by providing a rural residential development that is compatible with surrounding uses, meets the intent and purpose of the County OP and County ZB, provides appropriate private services and access to the Property and mitigates impact on the natural environment.
17With respect to the Consent, Ms. Ackroyd testified that the proposal and conditions of approval agreed to with the County and set out in the MOS have sufficient regard for matters of Provincial interest under s. 2 of the Act and comply with the relevant provisions of the PPS 2024.
18In summary, Ms. Ackroyd opined that the proposed ZBA and Consent meet all statutory tests and represent good land use planning.
FINDINGS
19Having considered the submissions of the Parties and the uncontested viva voce and affidavit evidence of the planning witness, the Tribunal finds that ZBA proffered in the Settlement has regard for all applicable matters of Provincial interest in s. 2 of the Act, is consistent with the PPS 2024, conforms to the County ZB and represents good planning.
20Similarly, the Tribunal also finds that the proposed Consent and conditions set out in the Settlement meets all statutory tests under s. 53 of the Act for the subdivision of land, has regard for the matters in s. 53(24) of the Act and matters of Provincial interest under s. 2 of the Act, conforms to the County OP and County ZB while also being consistent with the PPS 2024 and representing good planning.
ORDER
21THE TRIBUNAL ORDERS THAT:
The appeal of the Zoning By-law Amendment to the County of Prince Edward Comprehensive Zoning By-law 1816-2006 is allowed in the form found at Attachment 1 to the Order.
The appeal of the Consent is allowed, in part, in accordance with the survey sketch at Attachment 2 to this Order and subject to the conditions provided at Attachment 3 to this Order.
The Tribunal shall withhold the issuance of its Final Order with respect to the Consent contingent upon confirmation of the County Solicitor, of the pre-requisite matters set out in Attachment 3.
22The Member will remain seized for the purposes of the issuance of the Final Order with respect to the Consent.
23If the Parties do not submit conformation of satisfaction of the pre-requisite matters in Attachment 3 and request issuance of the Final Order by August 1, 2027, Brauer Housing Developments Inc. and the County of Prince Edward shall provide a written status report to the Tribunal by that date as to the timing of expected confirmation of satisfaction of the conditions and issuance of the Final Order by the Tribunal.
24The Tribunal may, as necessary arrange for the further attendance of the Parties by Telephone Conference Call to determine additional timelines and deadlines for the submission of satisfaction of matters in Attachment 3 and issuance of the Final Order if necessary.
“A. Mason”
A. MASON 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
Attachment 2
Attachment 3