Brock Development Group Inc. v. London (City), 2025 CanLII 79650

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 08, 2025

CASE NO(S).: OLT-24-000228

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

Applicant and Appellant: Brock Development Group Inc.

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit rezoning from Agricultural Zone to Agricultural Special Provision for the construction of a single detached dwelling.

Reference Number: Z-9673

Property Address: 2598 - 2624 Woodhull Road

Municipality/UT: London/Middlesex

OLT Case No.: OLT-24-000228

OLT Lead Case No.: OLT-24-000228

OLT Case Name: Brock Development Group Inc. v. London (City)

Heard: November 4-8, 2024, by Video November 26, 2025 for Written Submissions

APPEARANCES:

Parties	Counsel
Brock Development Group Inc. (“Appellant”)	Analee Baroudi
City of London (“City”)	Aynsley Hovius Christina McCreery

DECISION DELIVERED BY a. sauve AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1The matter before the Ontario Land Tribunal (“Tribunal”), was with respect to the Appeal of the refusal of the City of London (“City”) to approve an application to amend the Zoning By-law (“ZBA”) for the property known municipally as 2598-2624 Woodhull Road in the City of London (“Subject Land”).

2The purpose of the application is to rezone both parcels due to a consent application allowing a lot line adjustment for the construction of a single detached dwelling on 2624 Woodhull Road, an existing vacant lot. The proposed ZBA, submitted on April 17, 2023, aims to permit a single detached dwelling on the Subject Land, transitioning it from an Agricultural (AG2) Zone to an Agricultural Special Provision (AG2()) Zone at 2598 Woodhull Road and an Agricultural Special Provision (AG2()) Zone at 2624 Woodhull Road.

3There are several significant natural features located on the Subject Lands, including a large significant woodland which is identified in green in the concept site plan below.

4The Subject Lands are located within the Dingman Creek Sub watershed. There is a small watercourse located in the eastern portion of the Subject Lands that flows downstream into Dingman Creek. Dingman Creek is located on the adjacent lands approximately 8 metres-15.5 metres to the east.

5The Subject Lands are located in the Woodhull Planning District on the east side of Woodhull Road. The lands have a total area of approximately 0.52 hectares with a combined lot frontage of approximately 119.6 metres along Woodhull Road. 2598 Woodhull Road currently contains a single detached dwelling and detached garage, while 2624 Woodhull Road is currently vacant. Both properties are also partially zoned Open Space (OS4) to recognize and protect the on-site natural heritage features on the east side of the lots.

6The following table summarizes the special provisions that have been proposed by the Appellant:

Regulation (AG2) – 2624 Woodhull Road Lot Frontage (minimum) 300 metres – proposed 38.0 metres Lot Area (minimum) 30 hectares – proposed 0.18 hectares Front Yard Depth (minimum) 30.0 metres - proposed14.0 metres Interior Side Yard Depth (minimum) 30.0 metres – proposed 3.0 metres Rear Yard Depth (minimum) 30.0 metres – proposed 1.0 metres Lot Coverage (maximum) 10% - proposed 24% Additional Permitted Uses to include Single detached dwellings

Regulation (AG2) – 2598 Woodhull Road Lot Frontage (minimum) 300 metres - proposed 81.6 metres Lot Area (minimum) 30 hectares – proposed 0.34 hectares South Interior Side Yard Depth (minimum) 30.0 metres – proposed 27.4 metres

7The proposed ZBA would also rezone a 10- metre proposed natural heritage buffer area along the significant woodland to Open Space, whereas it is currently zoned AG2. The h-2 zone would be removed from the AG-2 portion of the lands on the adjusted existing lot at 2624 Woodhull Road.

8In 2021, consent and minor variance applications were submitted to the City to sever 0.19 hectares from 2598 Woodhull Road to be added to 2624 Woodhull Road. The purpose of this severance application was to increase the size of 2624 to create a more viable building envelope to construct a new detached dwelling. A minor variance application was also submitted at that time to allow for the non-farm single detached dwelling use and the appropriate zoning regulations.

9The prior consent and minor variance applications were refused by the City and appealed to the Tribunal. A settlement was reached. The minor variance appeal was withdrawn, and a joint request was made by the City and the Appellant to approve the severance. The Tribunal issued its decision on September 28, 2022, Brock Development Group v London (City), 2022 CanLII 90983 (ON LT), (“2022 Decision”), approving the severance subject to a list of conditions. Condition 8 requires that the subject lands be appropriately zoned to permit the proposed non-farm residential use. The Applicant submitted this application for the proposed ZBA to clear condition 8 to the severance. A Slope Stability and Geotechnical Investigation (“Slope Study”) and an Environmental Impact Study (“EIS”) were filed in support of the application.

10The requested special provisions are necessary to accommodate the development of the proposed single-detached dwelling. The existing dwelling at 2598 Woodhull Road and the rear portion of the land zoned as Open Space (OS4) will remain unchanged. The Application was considered complete on November 6, 2023, with the current land use being a single detached dwelling and vacant.

11The Staff Report recommended approval of the application; however, the Planning and Environment Committee rejected the application for the Proposed ZBA citing proximity to significant woodland and non-compliance with City of London Environmental Management Guidelines. City Council subsequently upheld this decision, refusing the application at a meeting on January 23, 2024, with a Notice of Refusal issued on February 2, 2024, citing the same reasons for denial.

LEGISLATIVE TEST

12When considering an appeal of an application to amend a ZBL filed pursuant to s. 34(11) the Tribunal must have regard to matters of Provincial interest as set out in s. 2 of the Act. Section 3(5) of the Act requires that decisions of the Tribunal affecting planning matters be consistent with the Provincial Planning Statement, 2024 (“PPS”). The Tribunal must also be satisfied that the ZBA conforms with the official plan(s) in effect.

13In consideration of the statutory requirements, as set out above, the Tribunal must be satisfied that the ZBA represent good planning and is in the public interest.

EVIDENCE

14The Appellant called three witnesses in this hearing: Michelle Doornbosch (Land Use Planning), Dave Hayman (Ecologist), and City Staff Planner Mike Corby (Land Use Planning). The City called two witnesses in this hearing: Thomas A. Storey (Land Use Planning) and Anna Cunningham (Ecologist). All witnesses were found to be experts in their related fields and could provide expert opinion evidence over the course of the Hearing.

15The following were made exhibits at this hearing:

1. Hearing Plan
2. Final Issues List
3. Agreed Statement of Facts (Ecology)
4. Agreed Statement of Facts (Planning)
5. Appellant Evidence Brief
6. Witness Statement of Anna Cunningham
7. Witness Statement of Tom Storey
8. Reply Statement of Tom Storey
9. City Document Book
10. a) Participant Inculet - Letter to OLT Submission 2 b) Participant Inculet - Reasons for appeal part 2 c)PEC Submission
11. a) Participant Gowanlock - summary letter b) Participant Gowanlock - Future Land Uses as Hobby Farm c) Participant Gowanlock - Risk to Tree Root Damage d) Participant Gowanlock - Woodhull Road Safety
12. a) Participant Thames Talbot Land Trust - Participant Status Request Form b) Participant Thames Talbot Land Trust – Participant Comments
13. Definition of Viable
14. Sunset Creek EIS
15. Title Search for 2624 Woodhull Road
16. Rural Neighbourhoods Place Type Policies
17. OMAFRA MDS Document
18. EXP Slope Study

LOT ADJUSTMENT OR CREATION OF NEW LOT

16One of the primary issues the Tribunal is tasked with determining is whether the 2022 Decision created a new lot or was a lot or boundary adjustment. In short, if a new lot was found to be created only a farm dwelling would be allowed to be created on the property as per policy 4.3.2 of the PPS and policy 1190 of the City of London Official Plan (“OP”) If the Tribunal finds that the 2022 Decision ordered a lot adjustment than the proposed dwelling would not offend those policies.

17The Appellant has no plans to use the property for agricultural purposes, as a farm dwelling, although in the previous Application the Appellant had proposed the creation of a dwelling and hobby farm. That is no longer the case as the current Application is solely for the creation of a dwelling.

18The Tribunal finds that the 2022 Decision, which was the result of a settlement agreement between the Parties, clearly contemplated a lot adjustment and not the creation of a new lot as the two lots were already in existence.

19Paragraph [2] of the 2022 Decision states:

Prior to the hearing, the parties entered into a settlement agreement and the Appellant withdrew its minor variance application. The only application before the Tribunal is the consent application. The consent application, if allowed, will result in a lot boundary adjustment.

20Paragraph [19] of the 2022 Decision states:

The evidence identified that the PPS includes policies for the protection of prime agricultural land, like the Subject Property. The PPS permits residential development where it is locally appropriate. Lot adjustments are permitted for minor boundary adjustments, as in this case, provided that they do not result in the creation of a new lot.

21The above is not an exhaustive list of the 2022 Decision referring to the Consent Application as a lot boundary/boundary adjustment.

22Policy 4.3.3 of the PPS, which instructs that prime agricultural areas are to be protected for long-term agricultural uses, states that; “Lot adjustments in prime agricultural areas may be permitted for legal or technical reasons.”

23The term “lot adjustments” is not defined, but the term “legal or technical reasons” is and it states:

Legal or technical reasons: means severances for purposes such as easements, corrections of deeds, quit claims, and minor boundary adjustments, which do not result in the creation of a new lot.

24Mr. Storey, the Planning witness for the City, did not present a credible argument regarding why he believed a new lot had been created when the Decision referenced a boundary adjustment between two already existing lots. Mr. Storey did testify that one of the lots may have been created as a road allowance which would have an effect on this analysis but offered no evidence to support that claim although he did take steps to try and locate such evidence.

ZONING BY-LAW AMENDMENT ANALYSIS

25Mr. Storey did not turn his mind towards how the Application could be evaluated against the legislative tests if the 2022 Decision ordered a lot adjustment in his evidence. Mr. Storey agreed under cross-examination that if the Tribunal finds that the 2022 Decision was for a lot adjustment than a non-farm residential dwelling would be allowed on the lot. The witnesses for the Appellant also agreed with that statement.

26The majority of the evidence used in this analysis came from the oral evidence and Planning Report of Mr. Corby.

27The ZBA request for 2598 Woodhull Road is solely to recognize the building already on the lot that are legal non-conforming as it was constructed prior to the current Zoning By-law. The Appellant is not seeking any additional special provisions regarding that property.

Minimum frontage of 38.0 metres (2624 Woodhull Road) and 81.6 metres (2598 Woodhull Road)

28The intent of regulating minimum lot frontages is to ensure lots are adequately sized and shaped to support the intended use of the lands. Mr. Corby testified that neither of the existing lots of record at 2598 nor 2624 Woodhull Road have the required lot frontage of 300 metres prior to the conditionally approved consent for lot adjustment. Mr. Corby testified that the consent for lot adjustment will effectively increase the frontage of 2624 Woodhull Road, permitting a larger property width that can better accommodate the development of the proposed single detached dwelling. He also informed the Tribunal that single detached dwellings are being added as an additional use on the subject lands which do not require as large of a lot frontage as the uses permitted within the Agricultural zone on the site. Mr. Corby also testified that the single detached dwellings zoned Residential R1 (R1-11) along Elviage drive, in close proximity to the subject lands, only require a lot frontage of 24 metres to support a single detached dwelling.

Minimum lot area of 0.18 hectares (2624 Woodhull Road) and 0.34 hectares (2598 Woodhull Road)

[29] The intent of regulating minimum lot areas in agricultural zones is to ensure that there is an appropriate amount of land to facilitate the permitted uses. Mr. Corby testified that neither of the existing lots of record at 2598 nor 2624 Woodhull Road were 40-hectares prior to the conditional approved consent for lot adjustment. Mr. Corby opined that the consent for lot adjustment will effectively increase the lot size of 2624 Woodhull Road, improving the quality and quantity of lands available on this site, while minimally reducing the size of 2598 Woodhull Road. He also informed that Tribunal that the single detached dwellings zoned Residential R1 (R1-11) along Elviage drive, in close proximity to the subject lands, only require a lot area of 1390 square metres (or 0.14 hectares) to support a single detached dwelling.

30Mr. Corby testified that the reduced minimum lot area refers specifically to the area zoned as Agriculture (AG2) whereas the total lot areas, including the Open Space zone, is much larger and when accounting for the Open Space zoned lands the total lot area of 2624 Woodhull Road is 0.4 hectares, and the total lot area of 2598 Woodhull Road is 0.93 hectares.

Minimum front yard depth of 14.0 metres (2624 Woodhull Road)

31The intent of a front yard depth is to ensure sufficient space between the buildings and front lot line to accommodate all site functions while also taking into consideration Minimum Distance Separation (“MDS”) requirements. Mr. Corby opined that the reduced front yard depth will help situate the proposed development an appropriate distance from the street to minimize the impact of the single detached dwelling on the natural features as well as to situate the dwelling outside of the erosion hazard lands.

Minimum interior side yard depth of 3.0 metres (2624 Woodhull Road) and minimum south interior side yard depth of 27.4 metres (2598 Woodhull Road)

32The intent of interior side yard setbacks is to provide adequate separation and to mitigate potential impacts between the proposed development and adjacent properties. Mr. Corby opined that in the agricultural (AG2) zones side yard setbacks are larger to ensure sufficient setbacks are provided to facilitate the permitted uses, including livestock facilities that are subject to the Minimum Distance Separation (MDS I) requirements. In this case, Mr. Corby continued, neither the subject lands at 2598 nor 2624 Woodhull Road nor the abutting property at 2648 Woodhull Road have or are proposing uses other than single detached dwellings.

33Mr. Corby testified that the existence of natural heritage features also limits the site’s capacity to accommodate agricultural type uses while meeting the Minimum Distance Separation (“MDS”) requirements. Mr. Corby also testified that the reduced south interior side yard setback of 27.4 metres for 2598 Woodhull Road is recognizing the setback from the new property line and that prior to the consent for lot adjustment the property complied with the required south interior side yard depth. As a result of the consent application, the detached garage is situated slightly closer to the south property line than is permitted.

Minimum rear yard depth of 1.0 metres (2624 Woodhull Road)

34The intent of a rear yard depth is to provide adequate separation and to mitigate potential impacts between the proposed development and adjacent properties. Mr. Corby testified that the zoning line (the line that separates the Agriculture (AG2) zone and the Open Space (OS5) zone) acts as the line in which the rear yard depth is measured to rather than the typical rear property line. Mr. Corby informed the Tribunal that the setback is measured to the proposed covered porch whereas the main dwelling is situated at a larger setback to the zone line. He opined that the open space lands have been expanded to provide for adequate buffering to the natural heritage features and he was satisfied that no adverse impacts to the natural heritage features are anticipated.

To permit a maximum lot coverage of 24 percent (2624 Woodhull Road)

35The intent of regulating the maximum permitted lot coverage in the agricultural zone is to ensure structures remain subordinate to the main agricultural uses. Mr. Corby’s evidence was that in the agricultural (AG2) zone in particular, a maximum lot coverage of 10 percent is required (whereas other agricultural zones required a maximum lot coverage of 20 percent) to facilitate the permitted uses. Mr. Corby opined that, in this case, the increased maximum lot coverage is a result of the reduced lot area based on the final zone line and is considered sufficient to accommodate the proposed single detached dwelling.

ENVIRONMENTAL IMPACT STUDY

36The Tribunal heard from two Ecologists during the Hearing; Mr. Hayman who was retained by the Appellant and Ms. Cunningham who was retained by the City. Ms. Cunningham did not attend the Subject Land.

37Policy 1414 of the OP states that:

The location, width, composition and use of ecological buffers necessary to protect the natural heritage areas from the impacts of development on adjacent lands will be specified through application of the Environment Management Guidelines as part of an approved secondary plan and/or an environmental impact study (“EIS”). The City may also consider technical and/or scientific documents that reflect improvements in scientific knowledge regarding natural features.

38Mr. Hayman testified that the EIS that was submitted by the Appellant demonstrated that the Significant Woodland feature is protected and there will be no negative impacts from the proposed development.

39Ms. Cunningham took the position in her evidence in chief that the proposed development requires a 30-metre buffer pursuant to the EMG. Mr. Hayman testified that the EMG are merely guidelines to assist proponents with the review, evaluation and discussion of impacts and mitigations when building next to natural heritage features. Mr. Hayman opined that the EMG recognizes the need for flexibility within the EIS process to establish appropriate protection measures that are suited to the site, the proposed development and the site-specific sensitivities of the adjacent feature to be protected.

40Ms. Cunningham admitted under cross examination that the EMG may permit a reduced buffer from the minimum buffers contained in Table 5-2 for Significant Woodlands over two hectares in size where an EIS demonstrates no negative impacts. Mr. Hayman testified that it is not the case that an acceptable site-specific environmental study must recommend a buffer width that either complies with the minimums in Table 5-2 or is greater than the minimums. After Ms. Cunningham’s cross examination, the Tribunal noted that both she and Mr. Hayman agree on how the EMGs should be interpreted: The EMGs permit less than the 30m minimum buffer for a Significant Woodland that is greater than 2 hectares in size (such as the Significant Woodland in this case) where an EIS can demonstrate that the reduced buffer width will have no negative impacts on the feature to be protected.

41The EIS contains an extensive analysis of the potential impacts of the proposed development, along with recommendations for mitigation, management, and monitoring. It was the evidence of Mr. Hayman that the proposed ZBA will have no negative impacts on the natural features on the Subject Lands or on the adjacent lands.

42Ms. Cunningham testified that potential negative impacts could still occur if the homeowner plants an invasive species beside the natural feature, or from headlights from a car in the driveway, potential landscaping encroachments, or if the owners had a pet and the pet entered and damaged the natural feature. Ms. Cunningham’s argument was not persuasive that, realistically, any actual harm could occur from these activities.

43Ms. Cunningham also raised a concern in her evidence that the EIS did not provide an impact assessment for post development surface water flows. She testified that there was not enough information provided by the Appellant to conclude that there will be no negative impacts. One of the neighbours to the property, and a Participant in this Hearing, Mr. Gowanlock, expressed concern about a saturated area of his property and raised the flow pattern from the Subject Land as a potential reason.

44Mr. Hayman testified there will be no negative impacts from post development stormwater flows because there are safeguards in place that will ensure a satisfactory stormwater management plan is prepared before the development can proceed. Also, the Tribunal was informed by Ms. Doornbosch that the conditions to the Consent were revised prior to this hearing to include a requirement for the Appellant to provide a stormwater management plan to the satisfaction of the City.

45The Appellant and the City will both have an obligation to ensure that a satisfactory stormwater management plan is prepared before the Consent can be finalized. The Tribunal was also informed that a stormwater management plan will also be required as part of the Building Permit process.

46As an appropriate stormwater management plan will be in place the Tribunal finds that there will be no negative impacts in relation to stormwater.

PARTICIPANTS

47At a Case Management Conference held on October 10, 2024 the following were granted Participant status:

1. Richard and Nancy Inculet.
2. Kevin and Diane Gowanlock.
3. Thames Talbot Land Trust.

48All three Participants are opposed to the proposed development. The overall concerns stem from the potential negative impact the development could have on the natural features near the Subject Land.

49The Gowanlock’s also raised the issue of where the proposed driveway is going to be placed as some areas may not be visible to drivers. However, the Tribunal finds that it does not have enough evidence regarding this issue to make the determination that, on a balance of probabilities, there is a safety issue regarding the placement of the driveway.

DECISION

50The Tribunal finds that the requested ZBA: has due regard for matters of Provincial interest in s. 2 of the Act, is consistent with the PPS, conforms with the OP, is a suitable amendment within the policies and provisions of the ZBL, and thus, represents good planning in the public interest.

ORDER

51THE TRIBUNAL ORDERS that the appeal is allowed, and the City of London Zoning By-law No. Z.-1 is hereby amended as set out in Attachment 1 to this Order. The Tribunal authorizes the municipal clerk of the City of London to assign a number to this by-law for record-keeping purposes.

“A. Sauve”

A. SAUVE

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