The Bruce Trail Conservancy v. Mono (Town), 2025 CanLII 94252

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

September 12, 2025

CASE NO(S).:

OLT-24-001192

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

Applicant/Appellant:

Bruce Trail Conservancy

Subject:

Consent – Conditions of provisional consent

Description:

To create one new rural residential lot from the southern portion of the subject property

Reference Number:

B03/24

Property Address:

287199 10 Sideroad

Municipality/UT:

Mono/Dufferin

OLT Case No:

OLT-24-001192

OLT Lead Case No:

OLT-24-001192

OLT Case Name:

The Bruce Trail Conservancy v. Mono (Town)

Heard:

July 7, 2025, by Video Hearing

APPEARANCES:

Parties

Counsel/Representative*

Bruce Trail Conservancy

Jennifer Meader Meredith Baker

Town of Mono

Stan Floras

DECISION DELIVERED BY GREGORY J. INGRAM AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION

1The matter before the Tribunal is related to an appeal filed by the Bruce Trail Conservancy (“BTC” / “Appellant”) under s. 53 (19) of the Planning Act (“Act”) regarding the imposition of a Parkland Levy (“Parkland Levy” and/or “Parkland Condition”) imposed by the Committee of Adjustment (“COA”) for the Town of Mono (“Town”) as a condition of their approval of the Consent Application filed in the fall of 2024. The Parkland Condition is as follows:

Payment of a Parkland Levy to the Town in an amount equivalent to 5% of the accepted appraised land value for the approved lot, pursuant to the Planning Act, to the sole satisfaction of the Town Treasurer

2The approved consent permits the creation of a new lot from the approximately 9.95 hectares (24.6 acres) parcel (“Subject Lands”). The property is designated almost entirely Escarpment Natural, with some Escarpment Protection, under the Niagara Escarpment Plan (“NEP”) and abuts the western boundary of Hockley Valley Provincial Park. Additional surrounding uses include rural residences, woodlands, and agricultural uses.

3The severed lot has an area of 1.86 hectares (4.6 acres) and is located at 287199 10 Sideroad, East of Line in the Town and includes an existing residential dwelling and accessory structures (“Severed Lot”) leaving 8.09 hectares (20 acres) for the continuation of the Bruce Trail (“Retained Lot”).

4The BTC intends to provide public access to the Retained Lot by extending the Bruce Trail Optimum Route (most desirable location for a footpath) and connecting this area to the main Bruce Trail network.

5The Bruce Trail is over 1300 kilometers (“km”) long and allows people to explore the Niagara Escarpment. The Trail is free to the public and the provincial mandate to secure the Trail is outlined in the NEP. At this time, approximately 72% of the Trail is secured and funds to acquire additional lands primarily come from donations and individual contributions.

6The Town provides recreational infrastructure through its own trails and parks and provides programming for its approximately 9400 permanent residents. There are approximately 60 km of trails, and eight parks maintained by the Town.

PREVIOUS APPLICATIONS AND OUTCOMES

7In January 2024, the COA approved two Consent applications launched in 2023 by the BTC, each included a Parkland Levy condition requiring payment of “an amount equivalent to 5% of the accepted appraised land value for the approved lot[s].” Over the following months, the BTC made submissions requesting that the levies be waived by attending a Council meeting and sending a letter.

8In March 2024, Council amended the Parkland By-law with the following:

Subsection 3.f):

The requirement to convey parkland or make a payment of cash-in-lieu under this by-law may be waived or reduced in the case of a Development Approval that satisfies and advances the primary basic objectives articulated in the Town's Official Plan Section 13 - Major Open Space Areas, as amended, specifically ss 13(3)(a), namely, ‘natural heritage areas in public ownership, including lands owned by the County, Town, Province and Federal Ministries, as well as organizations recognized under the Conservation Land Act, including Ontario Heritage Foundation, Nature Conservancy of Canada, Bruce Trail Conservancy, and Escarpment Biosphere Conservancy’ and which waiver or reduction is determined to be in the public interest. (“2024 By-law Amendment”)

9In July 2024, legal counsel for the BTC sent a letter to the Council referencing case law and provided an analysis of the Act in support of waiving the levies applied to the 2023 Applications and requesting that it not be applied to future applications.

10Following this process, the levies remained in place and the BTC paid approximately $113,280 to the Town to satisfy the Parkland Levy condition for the 2023 Applications.

CURRENT APPLICATION PROCESS

11The BTC submitted the current Application on May 1, 2024, which was followed by two meetings of the COA to consider it. Prior to the first meeting in September the COA received a report from the Alexander Planning Inc. (contracted by the Town) recommending that a Parkland Levy be imposed as a condition of approval of the Consent Application.

12The BTC’s legal counsel, in response to the report recommendation, submitted a letter to the COA prior to the September meeting requesting that they reject Alexander Planning’s recommendation. In addition, Antoin Diamond, Vice President of Land Securement for the BTC, attended the first meeting and requested that the COA defer a decision on the Application which was granted.

13The second meeting of the COA was held on October 23, 2024. Ms. Diamond attended and again requested relief from the Parkland Condition. The COA granted provisional consent to the application subject to four conditions, one of which required a Parkland Levy.

14The COA issued their decision on November 7, 2024, which stated that the Application is approved with four conditions:

1. Payment in full of any outstanding municipal taxes, fees, or charges.

2. Submission to the Secretary-Treasurer of written confirmation from the Director of Public Works that his concerns have been satisfied.

3. Submission to the Secretary-Treasurer of three (3) copies of a deed and one (1) digital and one (1) hardcopy of the deposited Reference Plan which conforms substantially with the application as approved; and

4. Payment of a Parkland Levy to the Town in an amount equivalent to 5% of the accepted appraised land value for the approved lot, pursuant to the Act, to the sole satisfaction of the Town Treasurer.

15The decision also included an attached schedule which provided a list of reasons for the decision along with the dissenting opinions of two members of the five member COA.

16Briefly summarized, the attached schedule described the BTC as a “special interest group” and three of the five members of the COA felt that “it was not in the public interest of the citizens of Mono Town” to exempt the BTC from the Parkland Condition.

17The COA members who supported the decision identified 12 specific reasons for applying the Parkland Levy to the approval. The reasons, briefly summarized, are the following: public interest, additional costs (legal liabilities, municipal services, infrastructure, maintenance), impact on neighbouring properties, non-resident ownership of land, land already supports wildlife with no cost to the Town, potential spread of noxious weeds and predators, loss of land for food production or housing, and the Retained Land will not be part of the current use but only used at some point in the future. The Parkland Levy fees “supplement the cost of providing public recreational facilities.”

18The COA members who dissented with the application of the Parkland Levy concurred with the submission provided by the Applicant which stated that the purpose of the Application is identical to “the purpose of the parkland provisions within the Planning Act … [which] is to create parkland.” They felt that applying the Parkland Levy in this circumstance was “duplicative, given the public mandate of the applicant and dedication of its land to public access” and felt that “it is not in the public interest to impose an unreasonable requirement as a condition of the severance sought.”

19The BTC launched an appeal to the Tribunal of the Parkland Condition only and not the Decision approving the consent, on the following grounds:

a. Does not have appropriate regard for matters of provincial interest as set out in s. 2 of the Act;

b. Reduces the funds available to the BTC to “manage and create” parkland which is counter to s. 51.1 of the Act;

c. The Retained Lot is much larger than what would be required for conveyance under s. 51.1 of the Act and results in no cost to the Town as the BTC would manage the property;

d. The condition is contrary to subs. 51(25) of the Act, which requires conditions to be “reasonable, having regard to the nature of the development proposed” and fails the four-part test established by case law requiring that conditions must be “reasonable, relevant, necessary and equal.”

20For the reasons set out in this Decision below, the Tribunal finds in favour of the Appellant and grants the removal of the Parkland Levy condition. The following three conditions remain as per the Consent Application approved by the COA:

1. Payment in full of any outstanding municipal taxes, fees, or charges.

2. Submission to the Secretary-Treasurer of written confirmation from the Director of Public Works that his concerns have been satisfied.

3. Submission to the Secretary-Treasurer of three (3) copies of a deed and one (1) digital and one (1) hardcopy of the deposited Reference Plan which conforms substantially with the application as approved.

THE HEARING

21These proceedings were heard over three days, beginning on July 7, 2025, by video with written closing submissions, on consent of the Parties, received by July 25, 2025.

Preliminary Matters

22The Tribunal dealt with preliminary matters related to Participant status, Procedural Order (“PO”) dates, and notice.

23Two Participant Status requests were granted given that each request presents a clear interest in the proceedings:

• Elain Kehoe, in opposing the appeal, indicated support for the need for the Parkland Levy as the additional revenue received would help to offset the cost to taxpayers, that there is no guarantee that the land will be used as parkland or trails, and that the BTC should be treated the same as any other landowner.

• Niagara Escarpment Commission in supporting the appeal indicated that the consent does not “trigger the need for additional parkland” and instead provides additional parkland to the municipality.

24Submissions were heard from the Parties regarding the NEP Participant Status request and their compliance with submission deadlines established in the PO. While Counsel for the Town expressed reservations related to timing of the submission, a formal objection was not raised, and it was generally agreed that the NEP letter did not “raise any substantially new issues” that would prejudice either Party.

25The Tribunal is satisfied, with the consent of the Parties, that proper notice of these proceedings occurred on February 12, 2025, following the adjournment of the first date scheduled for these proceedings.

Legislative Framework

26In making a decision on a Provisional Consent appeal, the Tribunal must have regard to the matters of provincial interest set out in s. 2 of the Act. The decision must be consistent with the Provincial Planning Statement,2024 (“PPS”) and it must conform with any applicable provincial plans under s. 3(5) of the Act. The Tribunal must have regard to the criteria set out in s. 51(24) of the Act when making its decision, including conformity with the County’s Official Plan. Finally, the Tribunal must consider whether the proposed conditions are reasonable under s. 51(25) of the Act.

Conditions

(25) The approval authority may impose such conditions to the approval of a plan of subdivision as in the opinion of the approval authority are reasonable, having regard to the nature of the development proposed for the subdivision, including a requirement,

a) that land be dedicated, or other requirements met for park or other public recreational purposes under section 51.1;

27In determining whether an imposed condition is reasonable, as required under s. 51(25) of the Act, the factors that the Tribunal generally considers are whether the proposed condition is also relevant, necessary, and/or equitable.

Exhibits

28In addition to oral submissions and evidence, the following exhibits were relied upon as evidence in these proceedings:

• Exhibit 1: Notice of Hearing

• Exhibit 2: Joint Document Book

• Exhibit 2a: Ministry of Municipal Affairs and Housing Website- Municipal development and community benefits charges, and parklands MAH

• Exhibit 2b: Town of Mono COA Minutes of October 24, 2024

• Exhibit 3: Compendium of Witness Statements

• Exhibit 4: BTC Photo Book

• Exhibit 5: BTC Visuals Book

• Exhibit 6: Town Visual Evidence Book

• Exhibit 7: Agreed Statement of Facts for Land Use Planning

WITNESSES

29The Tribunal qualified the following witnesses to provide evidence in their respective areas of expertise as noted and with the consent of both Parties:

For the Appellant:

• Antoin Diamond – Vice-President of Land Procurement for the BTC; provided factual evidence

• Peter Smith – Land Use Planner, Bousfields Inc.

For the Town:

• Kimberley Heaton – Director of Recreation, Town of Mono

• Les Halucha – Treasurer, Town of Mono

• Deborah Alexander – Land Use Planner, Alexander Planning Inc.

AGREED FACTS AND ISSUES

30The Parties provided the following Agreed Statement of Facts as prepared by the planning experts:

• The trail is not currently located on the land that has been acquired. The BTC has advised it acquired the property to locate the trail where it has planned its optimum route.

• The scope of the appeal is with respect to Condition 4 only (the Parkland Condition which was applied to the approved lot) and not the decision approving the severance as a whole.

• Paragraph 3f) of By-law No. 2003-41, as amended, provides that “the requirement to convey parkland or make a payment of cash-in-lieu under this by-law may be waived or reduced in the case of a Development Approval that satisfies and advances the primary basic objectives articulated in the Town’s Official Plan Section 13 – Major Open Space Areas … and which waiver or reduction is determined to be in the public interest.”

• The severance will not directly result in new buildings or structures, new residential units, or new population, and does not result in additional demand for parkland.

Party Positions Summary

31The Town submits while it supports the existence of the Bruce Trail and recognizes its value overall, it is not in the public interest of citizens of the Town or reasonable, to exempt the BTC from the Parkland Condition. The Town submits that it is reasonable to apply the levy and that it aligns with the intent of the PPS and conforms with appropriate sections of the Act. The Town also contends that the regional and local Official Plans along with the Zoning By-law support the imposition of the levy. Specifically, the Town suggests that the approved severance represents new development and as such, places additional costs on the Town by way of services, maintenance, and increased demands on public recreational facilities.

32In contrast, the Appellant submits the imposition of the Parkland Condition in this case is contrary to the intent of the PPS and NEP, does not conform with the Act or the regional or local Official Plans and that the applicable section of the Zoning By-law provides an explicit option to exempt the BTC from the Parkland Levy. The Appellant contends that the Application of the Parkland Levy is not reasonable in this case as there is an existing dwelling and no increase in population results and therefore, there is no need for additional parkland. The Appellant also suggests that the Retained Lot represents far more ‘parkland’ which would be available for public use than required and does not result in the need for additional services and facilities because of the creation of the new lot.

EVIDENCE / ANALYSIS / FINDINGS

Is the Parkland Condition consistent with the PPS and in conformity with the Niagara Escarpment Plan?

33Peter Smith opined that the Parkland Condition is not consistent with the PPS and referred to Polices 2.1.6 and 3.9 which relate to the provision of recreation, parks, and open space uses, including trails and linkages. He proffers that by reducing the amount of funding available to the BTC following the sale of a property, the Parkland Condition impacts the BTC’s ability to provide recreational facilities.

34Planner Smith opined that the Parkland Condition presents an indirect relationship in the requirement for conformity with the NEP. Nonetheless, it is his opinion that the NEP polices do not support the Condition. He acknowledges that there is no direct reference to what conditions may be attached to the creation of a new lot, but proffers that the Parkland Condition “detracts from the BTC’s ability to … achieve the objectives of the NEP …” by reducing the funding available to fulfill its objectives.

35Planner Smith proffered that the NEP is to be read in conjunction with the PPS and will take precedence over its policies where a conflict exists. He referred to the definition of “public body” found in the NEP as particularly relevant to this analysis. Specifically, the BTC “shall be treated as it if were a public body with respect to the role of the Conservancy in securing and managing the Bruce Trail corridor under Part 3 of the NEP.”

36In contrast, Deborah Alexander opined that the Parkland Condition is reasonable and consistent with the PPS. Planner Alexander proffers that the PPS policies related to complete communities serves as the foundation for the “provision of a full range of municipal recreational programming” that is required for the Town to satisfy the intent of the PPS.

37Planner Alexander proffered that imposing the Parkland Condition is reasonable and does not conflict with the NEP. She opines that there are several different organizations who are charged with fulfilling the obligations set out in the NEP, one of which is the municipality and collecting a parkland levy allows it to fulfill its mandate and obligation.

38Planner Alexander opines that complete communities are supported by cash-in-lieu payments which support the Town in providing a range and mix of public services to meet the needs of residents regardless of age or ability. The Planner proffers that there is no evidence that suggests that the Bruce Trail is used by an abundance of residents of the Town and therefore the Town has the responsibility to direct its funds to best support its residents.

39In considering the written and oral evidence of each Planner, the Tribunal prefers the position put forward by Planner Smith and finds that applying the Parkland Condition is not consistent with the intent of the PPS and NEP as it removes valuable funding from a “public body” who also has the explicit obligation of meeting the intent of the PPS and the obligations identified in the NEP.

40Section 2.1.6 of the PPS is of relevance here as it identifies the need to accommodate “an appropriate range and mix of public service facilities, recreation, parks and open space to meet long term needs” (emphasis added). This obligation should not come at the expense of another organization who has the same mandate and in fact, adds to the ‘range and mix’ of recreational options in the area.

Does the Parkland Condition have appropriate regard for matters of provincial interest – Section 2 of the Act?

41Planner Smith opined that the Parkland Condition does not have appropriate regard for matters of provincial interest as it negatively impacts the BTCs ability to protect ecological functions and provide recreational options.

42Planner Smith opines that the parkland provisions of the Act are only properly applied where an application generates demand for new parkland and not as a means for a municipality to “remedy general financial challenges.” Approval of the Consent Application does not trigger the need for additional parkland as there is no new development proposed or permitted without approval from the municipality.

43In contrast, Planner Alexander maintains that the Parkland Condition is reasonable and has regard for matters of provincial interest as outlined in the s. 2 of the Act. She opines that the BTC planned use of the retained lot “provides a narrow recreational opportunity” and the collection of a Parkland levy supports the Town’s ability to provide fully accessible facilities and develop a safe and healthy community while protecting the financial and economic well being of the Town.

44The Tribunal prefers the evidence of Mr. Smith as it relates to the Parkland Condition and its lack of regard to matters of provincial interest. Through the imposition of the Parkland Levy, the Town directly impacts the BTC’s ability to fulfill pertinent subsections of s. 2 of the Act.

45The Tribunal concurs with the Appellants position that exempting the BTC from the Parkland Condition would not negatively impact the Town’s ability to have regard for the Matters of Provincial interest given that the Town has indicated that no new parkland is required and that it already has an extensive number of trail options, parks, and other facilities which service the residents.

Does the Parkland Condition conform with the Purpose and Intent of the Act Parkland Dedication Regime (sections 42, 51, 51.1 and 53 of the Act)?

46Peter Smith opines that the imposition of the Parkland Condition is not reasonable in accordance with s. 53 (12) which incorporates s. 51 (25) of the Act (see paragraph [26]). Planner Smith proffers that this Consent Application is unlike a typical application as it does not result in new development, “no new housing or population, and no new demand for parkland” as the detached dwelling is existing. Given this, “having regard to the nature of the proposed development” it is reasonable to exempt the BTC from a Parkland Condition.

47Planner Smith referred the Tribunal to the Municipal Development and Community Charges and Parklands website (Exhibit 2) and opined that this statement is relevant in determining the intent of a Parkland Levy: “that the purpose of a levy is to ensure that residents in growing communities will continue to have access to parks and greenspace.” Mr. Smith opined that it is not reasonable to apply a levy when the consent does not result in additional residents and in addition, the town has indicated that growth is limited and has an adequate number of parks.

48Planner Smith also refers to s. 51.1. of the Act which speaks to the conveyance of land or cash-in-lieu for “park or other public recreational purposes” and proffers that the Bruce Trail is itself a “public recreational purpose.” He opines that there is nothing in the wording of either s. 51.1 or s. 51(25) that would limit the term “public recreation purposes” to only being land municipally owned.

49Under cross examination, Planner Smith opined that the “Act is clear on the fact that the money [Parkland Levy] can be used primarily for land and if the BTC acquisition results in the need for more parkland, then requiring the money may be justified … not if bringing in more people results in other municipal services … they cannot be paid by this levy.” Mr. Smith further acknowledged that if the consent application created two vacant lots “then [the Town] could apply a fee to help support the need for parkland.”

50In determining what is considered ‘public’, Mr. Smith opined that something being ‘accessible’ by the public meets the definition and used examples of provincial parks or conservation authority lands which are not controlled by a municipal council but are clearly ‘public’.

51Antoin Diamond, in her testimony, confirms that the Bruce Trail is a public trail in referencing s. 3.1.2 of the NEP which says that “[t]he Bruce Trail serves as a common public linkage tying the parks, open spaces, natural heritage features and landforms together …” (Exhibit 3). Ms. Diamond explained that the BTC’s “overarching goal is to offer a consistent, high-quality experience that … inspires the public to help protect the Escarpment” and that for over fifty years “has provided year-round public access to the Niagara Escarpment.”

52Planner Alexander, in contrast, opines that the imposition of the Parkland Condition is reasonable to impose under ss. 51.1 and 51 (24) of the Act.

53Planner Alexander opines that the Bruce Trail provides a “narrow recreational opportunity” and should not be considered a “public recreational program” as per s. 51.1 as it is not controlled by the Town. She proffers that the Town has no ability to enforce public access to the lands which is important as the BTC could remove public access at any time.

54Further, Planner Alexander opined that given that the Bruce Trail is not suitable for all people including “young children, the elderly, persons with disabilities and some members of the senior population and provides for limited recreational opportunities … it does not have appropriate regard to ‘the health, safety, convenience, accessibility …’” as per ss. 53(12) and 51(24).

55Planner Alexander proffers that the “direct expenses” incurred by the town because of the Bruce Trail warrant the imposition of the Parkland Condition as it is reasonable, having regard to the nature of the development proposed in accordance with ss. 53(12) and 51(25) of the Act.

56Kim Heaton said that the Parkland Condition is required to help pay for “new infrastructure to provide enhanced recreational programs.” She proffered that the Bruce Trail only serves a “niche group” and does not meet the recreational needs of the Town as it is not fully accessible. It is her opinion that the users of the Bruce Trail increase the demand on the Town’s parks and recreation budget while also requiring the Town to provide parking, amenity facilities, garbage pick up, or administration.

57Ms. Heaton, under cross examination, confirmed that the Town has a partnership with the Credit Valley Conservation Area to maintain some trails and that the Town website promotes the availability of the Bruce Trail indicating that “the Town is extremely happy to have the Bruce Trail.”

58Ms. Heaton indicated that while the Town strives to make all activities/spaces accessible, she did acknowledge that it does have some “niche” activities and agreed that while the skateboard park, off-road trails, pickleball courts, and off-leash dog parks are provided by the Town, they do not necessarily benefit all residents due to their specific purposes.

59Ms. Heaton referred to a survey conducted with residents regarding their future recreation priorities which found that the acquisition of new land was not a priority, but that “hiking” is a key interest of residents. She also confirmed that the Town values “a number of non-municipal parks, open spaces and facilities … provided by community organization, public agencies, institutions, and the private sector.”

60Regarding “direct expenses”, Ms. Heaton referred to the Mono Community Centre parking and acknowledged, under cross examination, that the Town is collecting funds to expand parking at this location and indicated that “the expansion is not attributed to the Bruce Trail users.”

61The Tribunal, in considering the written and oral testimony provided with respect to the Parkland Condition prefers the evidence of Planner Smith and Ms. Diamond.

62The analysis of Planner Smith and Ms. Diamond is compelling in establishing that the BTC can be considered a “public body” with the added clarity provided by the NEP as referenced in paragraph [51] above and in s. 3.1 of the NEP, which lists a number of organizations it refers to as “public bodies” and uses the BTC as a specific example of one to be included with this list. Public access to the Bruce Trail is well established. It is not reasonable to impose a Parkland Condition on an organization that is referred to in provincial and local planning documents as a “public body” and whose mandate is to complete a public trail.

63The Tribunal also finds that “having regard to the nature of the proposed development” is significant in determining the reasonableness test within the Act. Given that a dwelling exists on the severed lot, approval of this consent does not create new or added pressure on the Town for additional parkland or other services. This is confirmed in the testimony of Ms. Heaton who indicated that no additional parkland is required in the Town.

64The Tribunal is not convinced by the testimony of Planner Alexander given the narrow view she provides of what constitutes ‘public’ and her suggestion that only Town owned and managed land can be truly ‘public’ is not compelling. Both Planner Alexander and Ms. Heaton indicate that the Parkland Levy is needed to help offset existing and potential costs and did not provide any convincing evidence to suggest that the costs will be as a result of the approval of the BTC consent application as their positions seemed to be based more on speculation than fact.

65The Tribunal finds that the consent and proposed use has regard for “the health, safety, convenience, accessibility …” as per ss. 53(12) and 51(24) as opined by Planner Smith above in proffering that the Bruce Trail meets the criteria for “park or other public recreational purposes.”

66The Tribunal is not convinced by the testimony of Planner Alexander and Ms. Heaton related to the reasoning provided in determining if an organization should be considered a “public body”. Briefly summarized, they indicated that to be considered a public space, the Trail needed to be fully accessible yet under cross examination,it was determined that the Town owns a number of spaces that are not fully accessible or used by all of its citizens. Ms. Heaton confirmed that some facilities and programs are used based on individual interests and/or physical abilities. At the same time, she indicated that the Bruce Trail is a celebrated feature of the area and confirmed this by referring to how the Town promotes its use on its own website.

Does the Parkland Condition comply with the Region and Town Official Plans?

67Planner Smith opines that the Parkland Condition does not conform with the Dufferin County Official Plan (“DCOP”) given its references to supporting the creation of trails and specifically to supporting the implementation of the Bruce Trail. He opines that the levy imposed by the Town restricts the ability of the BTC to support the provision of recreation facilities as identified in the DCOP.

68Planner Smith also opines that the Parkland Condition does not comply with the Town Official Plan (“TOP”) and referred to several polices in it that support the creation of open spaces, trails, and linkages while Policy 13(3)(a) specifically refers to the role of the BTC in that regard. Again, in reducing the funding available to the BTC, their ability to contribute to the provision of recreation options is impacted:

Policy 3(a) states that the green infrastructure consists of “natural heritage areas in public ownership, including lands owned by the County, Town, Province and Federal Ministries, as well as organizations recognized under the Conservation Land Act, including Ontario Heritage Foundation, Nature Conservancy of Canada, Bruce Trail Conservancy, and Escarpment Biosphere Conservancy”, as well as other areas, including trails and pathways. (emphasis added)

69Planner Smith opines that s. 14A, Policy (3)(h) indicates that the Town “encourages the use of agreements … to secure the protection of natural heritage features and areas.” Natural heritage areas are defined in s. 14A, Policy 5, and the BTC is explicitly listed. The imposition of a Parkland Condition further restricts the ability of the BTC to contribute to the fulfilment of the TOP policies.

70Planner Alexander, indicates that polices within the DCOP support the mandate of the BTC to create recreational activities, it also encourages the Town to achieve the maximum benefit of cash-in-lieu and therefore, she opines that the imposition of the Parkland Condition is reasonable and conforms with the DCOP.

71Ms. Alexander proffers that since the “BTC is a not-for profit and is not accountable to elected officials”, the land under their direction is not the same as that owned by a municipally elected body.

72Regarding the polices of the TOP, Planner Alexander opines that policies exist that support the importance of recreational spaces/opportunities and, since the Town has not identified the optimization of the Bruce Trail as a priority, it is reasonable to impose the Parkland Condition to assist in funding the parkland priorities that have been identified by the elected Town Council.

73The Tribunal, in considering the evidence and submissions of the Planners, prefers the evidence of Planner Smith with respect to the Parkland Condition’s conformity with the DCOP and TOP.

74The Tribunal finds it is unreasonable to impose a levy on the BTC given that both official plans reference the Bruce Trail in their policies with respect to the preservation of natural areas. The BTC is identified as a key partner which directly contradicts Planner Alexander’s portrayal of the Bruce Trail not being a priority for the town and the BTC as an “unaccountable” organization.

GOOD PLANNING AND IN THE PUBLIC INTEREST

75Planner Smith opines that the Parkland Condition does not represent good planning as it is not supported by the legislative framework set out in the Act and does not result in the need for additional parkland in the Town. The purpose of the parkland provisions of the Act are to ensure that parkland is provided to serve population growth caused by lot creation through subdivision, consent, or by development or redevelopment. Smith proffers that they are not a “generalized revenue generation tool.” In this case, there is no new development or new population growth generated by the consent. Given this summary, Planner Smith opines that the Parkland Condition is neither reasonable nor necessary.

76Regarding public interest, Planner Smith opines that the severance does not create demand for new parkland but benefits the public by facilitating the provision of land for public recreational purposes.

77Planner Alexander, in contrast, opines that the Parkland Condition represents good planning as it satisfies the requirements of the provincial and regional planning legislation and is consistent with the Town’s parks by-law.

78Regarding the public interest, Planner Alexander opined that since the COA considered several factors related to the public’s interest and that the Town has demonstrated that it incurs expenses as a direct result of the location of the Bruce Trail, the imposition of the Parkland Condition is reasonable and relevant.

79The Tribunal, in considering the evidence and oral testimony, prefers the position put forward by Planner Smith related to good planning. In particular, the Tribunal concurs with Planner Smith’s analysis which suggests that it is unreasonable to apply a Parkland Levy against a consent that does not create any additional pressure on the Town to provide more parkland and, in fact, provides additional parkland itself as an organization recognized in provincial and local planning policies with this mandate.

80The Tribunal also finds that it is not good planning to impose a Parkland Condition that restricts the ability of a partner clearly identified in its own planning policies. The Town and Region in referring specifically to the BTC in its official plans suggests that it is key to helping to fulfill commitments around the conservation of parkland for public benefit and use.

PARKLAND DEDICATION BY-LAW, as amended by By-law No. 2024-10

81Planner Smith opined that given the amendment to the Parkland Dedication By-law (see paragraph [8]), the Parkland Condition is not “relevant or necessary.” Planner Smith proffers that the staff report that accompanied the amending by-law outlined specific circumstances where exemptions would be appropriate. Specifically, it said that exemptions are appropriate when an application would help the Town to meet the objectives set out in the TOP and for those that help to address conservation requirements or provide outdoor recreation opportunities. The BTC is specifically identified as one such organization in the amendment:

advances the primary basic objectives articulated in the Town's Official Plan Section 13 - Major Open Space Areas, as amended, specifically ss 13 (3) (a), namely, ‘natural heritage areas in public ownership, including lands owned by the County, Town, Province … including Ontario Heritage Foundation, Nature Conservancy of Canada, Bruce Trail Conservancy, and Escarpment Biosphere Conservancy’ (emphasis added)

82Antoin Diamond provided context in relation to the number of severances required by the BTC to fulfill their mandate of extending the Bruce Trail and indicated that 230 severances have been completed since 1974, and over the past five years, 81 properties were acquired with 53% of them needing severances. She estimates that 60-85% of the remaining properties will need severances.

83Ms. Diamond indicated that within the Town, 37 properties still need to be acquired and that “all but one … will require severances” (Exhibit 3).

84Ms. Diamond further explained that, in addition to the matter before the Tribunal, there have been other instances where a parkland condition was imposed on the BTC. The Township of Georgian Bluffs in 2008 imposed a $150 fee and none since. In 2009, the Town of Mono imposed a $2500 fee, which it then did not require the BTC to pay and the Township of Mulmur in 2021 required a payment of $5000 as cash-in-lieu which it then donated back to the BTC.

85Ms. Diamond indicated that based on an appraisal of the Severed Lot, the Parkland Condition in this case would amount to $85,000 if the appeal is refused.

86Planner Alexander opines that the imposition of the Parkland Condition is reasonable in considering the Parkland Condition By-law Amendment. Planner Alexander proffers that given that the COA has the discretion to waive and that they considered whether it was in the public interest, they have met the intent of the zoning by-law amendment and determined that to waive the Parkland Condition is not in the public interest.

87Having considered the expert opinion evidence of both Planners and the factual details provided by Ms. Diamond, the Tribunal concurs with the Appellant that it is not reasonable to impose the Parkland Condition given the adoption of the Parkland Condition Amending By-law option provided by the Town.

88The Tribunal finds that the imposition of the Parkland Levy is not “relevant or necessary” and by imposing such a fee given the well-established mandate and commitment of the BTC to publicly accessible natural areas, does not conform with the Parkland Condition Amending By-law.

89The Tribunal concurs with the Appellant’s Counsel in her assertion that Planner Alexander does not provide a planning basis for supporting the COA’s decision to impose the levy and merely opines that since they considered the waiver request and deemed it not in the public interest, it was sound and reasonable. She does not address the reasons provided by the COA and their planning relevance. Given that the BTC is specifically identified in the Amending By-law, in the TOP, and on municipally managed promotional tools, the Tribunal finds that imposing a levy is not reasonable.

SUMMARY FINDINGS

90The Tribunal agrees with the Parties that the ‘reasonableness of a condition’ is to be determined on a ‘case by case’ basis. In this case, it is unreasonable to apply the Parkland Condition given the “nature of the development proposed.” The Tribunal is not convinced that severing a lot with an existing dwelling justifies the imposition of a Parkland Levy as it does not create a need for additional parkland or recreational services. In addition, given that the Applicant is an established organization whose mandate of acquiring naturalized areas for public access is described, recognized, and celebrated in provincial, regional, and local planning documents, further establishes the unreasonableness of a Parkland Levy. The Tribunal accepts the Appellant’s interpretation that the BTC is to be treated in a similar way to other organizations that are considered public organizations such as conservation authorities.

91The Ontario Municipal Board decision referred to by the Appellant provides additional guidance in arriving at this decision. In Reynolds v. Cobourg (Town) the Board found that imposing a parkland condition:

“allow[s] municipalities to respond to the demands for parks and recreation areas resulting from development and redevelopment proposals. They are not intended to be imposed on every proposal that could be classified as development or redevelopment.” (emphasis added)

92A significant portion of the Town’s position was built around the belief that establishing the Optimum Route on the Retained Lot would significantly increase demands on the recreational spaces and services of the Town and in turn, impact their budget. The Tribunal concurs with the submissions from the Counsel for the Appellant that there was no convincing evidence that an increased usage of the Bruce Trail would result in any substantive increase in costs to the Town. The majority of the evidence presented by the Town was based on projections and opinions, not established fact.

93The Tribunal also looks to the testimony of Ms. Diamond who provided a historical and current overview of the practices of the BTC, which confirm their commitment and ability to work with municipalities to support public access to the Bruce Trail with respect to planning and addressing any additional costs that surface.

SUMMARY OF DISPOSITION

94Having regard to the requirements in s. 51(25) of the Act, the Tribunal finds that Condition 4, Parkland Levy, is not reasonable and should not form part of the provisional Consent.

95Having weighed all the documentary and oral evidence, the legal submissions from counsel, and for the reasons set out in this Decision, the Tribunal finds that the Parkland Condition fails to have regard to the Act, fails to be consistent with the PPS, fails to conform with the Regional and Town Official Plans, and is not good planning nor in the public interest.

ORDER

96THE TRIBUNAL ORDERS that the appeal is allowed, and the Provisional Consent conditions imposed by the Committee of Adjustment of the Town of Mono dated October 24, 2024, is amended. Condition 4 (Parkland Levy) is removed, and the required conditions are the following:

Conditions:

1. Payment in full of any outstanding municipal taxes, fees, or charges.

2. Submission to the Secretary-Treasurer of written confirmation from the Director of Public Works that his concerns have been satisfied.

3. Submission to the Secretary-Treasurer of three (3) copies of a deed and one (1) digital and one (1) hardcopy of the deposited Reference Plan which conforms substantially with the application as approved.

“Gregory J. Ingram”

GREGORY J. INGRAM

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.