Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 12, 2025 CASE NO(S).: OLT-24-000885

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: City of Hamilton Subject: Consent Description: To create two separate lots in accordance with Consent Application FL/B-23:82 Reference Number: FL/B-23:82 Property Address: 764 Valens Road Municipality/UT: Hamilton/Hamilton OLT Case No.: OLT-24-000885 OLT Lead Case No.: OLT-24-000885 OLT Case Name: City of Hamilton v. City of Hamilton (City)

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: City of Hamilton Subject: Minor Variance Description: To create two separate lots in accordance with Consent Application FL/B-23:82 Reference Number: FL/A-23:312 Property Address: 764 Valens Road Municipality/UT: Hamilton/Hamilton OLT Case No.: OLT-24-000886 OLT Lead Case No.: OLT-24-000885 OLT Case Name: City of Hamilton v. City of Hamilton (City)

Heard: August 27, 2025, by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
William and Theresa Slemko	Stephen Churm
City of Hamilton	Melanie Benedict*

MEMORANDUM OF ORAL DECISION DELIVERED BY P. TOMILIN ON AUGUST 27, 2025 AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The matter before the Tribunal is the Appeal filed by the City of Hamilton (“City”) against the decision of the City Committee of Adjustment (“COA”) to approve a Consent application and a Minor Variance (“MV”) application (“Applications”), pursuant to ss. 53(19) and 45(12) of the Planning Act (“Act”) for William and Theresa Slemko (“Applicants”), the owners of the property located at 764 Valens Road (“subject property / site”).

2The subject property is legally described as Part of Lot 25, Concession 4 Beverly, Part 1, 62R8514; Flamborough City of Hamilton. It is located south of 5th Concession Road West and north of Concession 4 West, within a rural area with predominantly agricultural uses.

3The site has an approximate lot area of 26.5 hectares (“ha”) with multiple frontages due to the locations of 756 Valens Road and 760 Valens Road.

4The subject property is occupied by a two-storey single detached dwelling, an accessory barn structure and an existing agricultural operation for use by the farm. A natural heritage water/wetland feature is located to the north and is regulated by the Hamilton Conservation Authority.

5The Applicants are seeking to separate the dwelling lot from the larger farm parcel, in order to rectify an inadvertent merger which occurred following a previous consent approval (City File FL/B-05:231), which transferred a portion of the subject lands to lands immediately south of 674 Valens Road. This inadvertent merger caused the previously separate dwelling parcel to merge with the adjacent farm parcel. The Reference Plan history indicates the dwelling parcel was previously split from the farm parcel in 1987, and existed as a separate parcel until 2006, when the inadvertent merger occurred.

6In addition to the Consent application, the Applicants are seeking authorization of the following MV:

1. To permit a minimum lot area of 0.24 ha for the severed parcel, whereas the City’s Zoning By-law No. 05-200 (“ZBL”) requires a minimum lot area of 0.4 ha for a rural lot with a single detached dwelling;
2. To permit a minimum lot area of 26.0 ha for the retained parcel, whereas a minimum lot area of 40.4 ha for an agricultural lot is required; and
3. To permit a minimum side yard setback of 13.0 metres (“m”) for the barn structure on the retained parcel, whereas 15 m is required.

7There were no Status Requests for this matter.

PRELIMINARY MATTER

8In advance of the Hearing, the Tribunal received a notification via the assigned Case Coordinator that the Applicants do not intend to participate in the Hearing to challenge the City.

LEGISLATIVE FRAMEWORK

9The issue before the Tribunal is whether the Consent Application meet the general requirements set out in the applicable provincial planning legislation, municipal planning policies, the specific criteria of the Act and represent good planning. The proposed severances must also meet the applicable policies of the Rural Hamilton Official Plan (“RHOP”), ZBL, and satisfy the relevant criteria set out in ss. 51(24) of the Act.

10The Tribunal shall also have regard to matters of Provincial interest.

11An Appeal pursuant to s. 45 of the Act is a Hearing de novo, and the Applicant bears the onus to demonstrate to the Tribunal that the criteria established in ss. 45(1) of the Act has been satisfied:

1. The intent and purpose of the official plan is being maintained;
2. The intent and purpose of the ZBL is being maintained;
3. It is desirable for the appropriate development or use of the land, building or structure; and
4. It is minor in nature.

HEARING

12Two witnesses appeared on behalf of the City and were qualified by the Tribunal to provide expert opinion evidence. David Bonaventura was qualified to provide evidence in the area of land use planning and Ahmad Sarwar was qualified as a hydrogeologist.

13Mr. Bonaventura explained that Development Planning staff recommended to the COA that the Applications be denied, as the RHOP prohibits the creation of new residential lots outside of two exceptions. The exceptions are: if the subject property is located within a Rural Settlement Area or if the parcel is subject to a farm consolidation and the existing dwelling was deemed surplus to the farm operation.

14In addition, Planning staff submitted to the COA that the minimum required lot size would be 0.55 ha, which the proposed severed parcel does not meet. If the proposed severed parcel were to be increased to the required minimum, one of the conditions for consideration was a Scoped Hydrogeological Report. Despite those comments, the COA approved the Applications without any conditions.

15Mr. Bonaventura reviewed the applicable ss. 53(12) and 51(24) of the Act related to consents and subdivisions of land. He testified that the proposal does not have sufficient regard for the criteria for the subdivision of land found in ss. 51(24), including criteria (b), (f), (o) and (p); regarding matters of provincial interest identified in s. 2 of the Act. Also, the proposed lot creation does not conform to the RHOP’s policies regarding lot creation in the rural area, the suitability of the land for residential lot creation, the proposed size of the severed and retained parcels and the adequate provision of utilities.

16Additionally, Mr. Bonaventura is of the opinion that the consent application is not consistent with the Provincial Planning Statement, 2024 (“PPS”), as the proposed severed parcel is of an insufficient size for the suitable provision of private wastewater services.

17Mr. Bonaventura said that the consent application does not conflict with the Greenbelt Plan, 2017.

18He reviewed the RHOP and pointed out that it does not contain a policy framework or criteria regarding the inadvertent merging of lands within the rural area of the City. He stated that, due to the length of time passed since the merging of the lands occurred, the proposed severance was reviewed through the existing policy framework regarding lot creation for the rural area of the RHOP.

19Mr. Bonaventura opined that the proposal does not conform to Policy F.1.14.2.1, as a new residential parcel is not located within a Rural Settlement Area nor is it a dwelling rendered surplus as the result of a farm consolidation. And the proposed severance does not conform with the criteria for lot creation provided in Policy F.1.14.2.3, as the proposal is to create a new residential parcel.

20Mr. Bonaventura summarized that the consent application does not have sufficient regard for the criteria of ss. 51(24), has insufficient regard for matters of provincial interest as set out in s. 2 of the Act, is not consistent with the PPS and does not conform to the RHOP. Thus, the severance application should be denied.

21Mr. Bonaventura went through MV requirements. He noted that the proposed development is not consistent with the PPS, as the proposed severed parcel is of an insufficient size for the suitable provision of private wastewater services.

22He stated that the requested MV does not meet the lot creation policies of the RHOP due to it being of an insufficient size to ensure that private services can be implemented without posing a public health risk. Additionally, the requested relief does not maintain the intent of the ZBL, as the existing parcel is already undersized at 26.45 ha and the requested MV would increase non-conformity.

23Mr. Bonaventura concluded that, in his professional opinion, the requested MV does not meet the four tests, as required by ss. 45(1) of the Act, it is not minor in nature, is not desirable for the appropriate development or use of the land, does not maintain the intent and purpose of the ZBL and RHOP and should not be granted.

24Mr. Sarwar provided perspective regarding water supply and wastewater for the proposed Applications. In his analysis and calculations, he relied on the City Hydrogeological Guideline and Ontario Ministry of Environment – Guideline D-5-4 and D-5-5.

25He testified that the Ontario Drinking Water Quality Standards are regulated by the Ontario Safe Drinking Water Act (2002) and prescribe the maximum amount of nitrogen in the form of nitrate is 10 milligrams per litre (“mg/L”). This interpretive technical assessment for sustainable servicing references the native soils’ attenuating capacity for septic effluent nitrate, a critical health concern with concentration limits for safe potable water. The assessment of nitrate attenuating capacity is applied at the planning stage to ensure appropriate lot sizing at the outset, by ensuring that adequate natural and sustainable attenuating capacity for nitrates is available.

26He said that nitrate attenuating capacity is determined by native soil dilutive qualities and through an assessment by calculation of nitrate concentration at the lot boundary, using a standard mass balance approach.

27Mr. Sarwar explained to the Tribunal that, for the proposed lot size, the calculated boundary nitrate concentration is 16.88 mg/L, well in excess of the province’s drinking water criteria of 10 mg/L.

28Mr. Sarwar emphasized that, as outlined in the Nitrate Fact Sheet included in the City’s Rural Well Water Quality Report (2017), exceeding permitted nitrate concentrations pose serious health concerns associated with long-term consumption of drinking water with concentration of nitrate above 10 mg/L, such as “Blue Baby” Syndrome for infants less than 6-months of age, passing nitrite to unborn children by pregnant women and gastric cancer.

29Mr. Sarwar proffered that the consent application does not comply with the following policies of the RHOP: C.5.1.1 (c), (e) and (g); F.1.14.2.1 (c) and (v); F.3.2.5.3 and F.3.2.5.4 (a), (b), (c) and (d) and should not be granted.

ANALYSIS AND FINDINGS

30The only evidence before the Tribunal for these Applications is that of Messrs. Bonaventura and Sarwar. Their evidence was clear and uncontested.

31The Tribunal finds that the proposed Applications do not meet the criteria, as set out in s. 2, ss. 45(12) and 51(24) of the Act, are not consistent with the PPS, do not meet applicable policies of RHOP, do not represent good planning and are not in the public interest.

ORDER

32THE TRIBUNAL, having been advised that the applicant does not wish to proceed with this matter;

33THE TRIBUNAL ORDERS THAT the appeals are allowed, the consent is not to be given and the variances to By-law No. 05-200 are not authorized.

“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.