Buth v. North Grenville (Municipality), 2025 CanLII 94254

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 9, 2025

CASE NO(S).: OLT-24-000730

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

Applicant and Appellant: Mirco Buth

Subject: Minor Variance

Description: To permit structures located within 500 metre setback from open or closed landfill

Reference Number: A-13-23

Property Address: 690 Monkman Road

Municipality/UT: North Grenville/Leeds and Grenville

OLT Case No.: OLT-24-000730

OLT Lead Case No.: OLT-24-000730

OLT Case Name: Buth v. North Grenville (Municipality)

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Mirco Buth

Request for: Request for Directions for Immediate Ruling in Favour of the Applicant

Heard: March 4-5, 2025 by video hearing Written Submissions – March 24, 2025

APPEARANCES:

Parties	Counsel
Mirco Buth	Self-Represented
Municipality of North Grenville	Tony Fleming, Spencer Putnam

DECISION DELIVERED BY A. SAUVE AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1The matter before the Tribunal is the Appeal filed by Mirco Buth (“Appellant”) against the decision of the Municipality of North Grenville (“Town”) Committee of Adjustment (“COA”) to deny a Minor Variance (“MV”) Application, pursuant to s. 45(12) of the Planning Act (“Act”) for the property located at 690 Monkman Road (“subject property”).

2The Appellant is seeking relief from s. 6.43.2(b) of Comprehensive Zoning By-law 50-12 (“ZBL”) to permit retroactive permission for the construction of a single-detached dwelling and septic system. Specifically, this application seeks relief from the 500 metre (“m”) setback from the Burritts Rapids Landfill (“landfill”). The landfill has not been active for a number of years but has not been closed.

3Section 6.43.2(b) of the ZBL prohibits building within 500 m of a landfill. Section 6.43.2(c) allows for a variance to this setback:

Notwithstanding Section 6.43.2(a) and (b) above, buildings or structures may be permitted where it has been demonstrated, through a report prepared by a qualified professional, that resource use would not be feasible, or that the proposed land uses or development serves a greater long term interest and that issues of public health, public safety and environmental impact are addressed. Assessment of the proposed development proposal shall be carried out by the Committee of Adjustment where the determination of “minor” would be assessed based on the effects of the development on the adjacent pit or quarry.

4The subject property is designated as “Rural” as per Schedule A of the United Counties of Leeds and Grenville Official Plan (“County OP”), and designated as “Rural”, “Mineral Aggregate”, “Unevaluated Wetlands”, “Woodlands” and “Waste Disposal Buffer” as per Schedules “A” and “A1” of North Grenville’s Official Plan (“Town OP”). The subject property is currently zoned Rural (RU) in the ZBL.

5In 2022, the Town became aware that a single-detached dwelling had been constructed at the subject property without obtaining a building permit. The dwelling and septic system are located less than 200 metres from the landfill. The Appellant purchased the property in 2023 after discussions with Town building and planning staff.

6The Appellant filed a Minor Variance application in December 2023, that included:

a. Opinion on Residential Development, prepared by Hubley Geosciences Ltd. and dated December 14, 2023;

b. Ontario Well Record, received by the Ministry of Environment, Conservation and Parks on December 23, 2016;

c. A map titled “690 Monkman Road” showing zoning at the subject property and dated December 7, 2023;

d. A map titled “690 Monkman Road closer view” showing zoning at the subject property and dated December 7, 2023;

7The Municipality commissioned GRI Inc. to undertake a peer review of the “Opinion on Residential Development” which raised several concerns. A back-and-forth occurred, wherein the Town would request certain things and the Appellant would provide certain things. The Appellant believed what they had provided was sufficient and the application was brought to the COA. The COA did not approve the Minor Variance application and the Appellant filed this appeal thereafter.

8In short, this appeal concerns whether the well water has been sufficiently tested for contamination from being located within 200 m of the landfill.

9An Appeal pursuant to s. 45 of the Act is a hearing de novo and the Appellant bears the onus to demonstrate to the Tribunal that the criteria established in s. 45(1) have been satisfied:

a) the general intent and purpose of the Official Plan is being maintained;

b) the general intent and purpose of the Zoning By-law is being maintained;

c) the variance is desirable for the appropriate development or use of the land, building or structure; and,

d) the variance is minor in nature.

MOTION

10The morning of this Hearing, the Tribunal received a “Motion for Immediate Ruling in Favour of the Applicant” from the Appellant. The following relief was sought:

The Applicant respectfully requests that the Ontario Land Tribunal (OLT) immediately rule in favor of the minor variance request and overturn the Township of North Grenville’s refusal, on the basis that the Township has failed to provide requested evidence in advance of the hearing, in violation of procedural fairness and OLT Rules of Practice and Procedure.

11The Tribunal ordered an oral motion regarding whether the Appellant’s motion should be heard. The Appellant argued that he had requested documents from the Town the prior summer and has not received them. The Town argued that they responded to the list of documents being requested the following October and notified the Appellant that they believed several were not relevant. The Town did turn over the requested documents it believed were relevant but not all that were requested. It appears the documents not disclosed consist of emails between the previous owner of the subject property and the Town.

12The Town argued that the Appellant has known about their position regarding the documents not being disclosed since October 2024 and has made no further attempts to obtain them prior to this Motion, served the day of the Hearing. The Town further argued that the Motion does not state why or how the requested documents may be relevant.

13The Tribunal determined that the Motion was in contravention of Rule 9.1 and not served and filed properly. The Tribunal then turned its mind towards if the Motion should still be heard in order to achieve procedural fairness. The Tribunal found that the Motion should be denied as the Appellant had waited until the day of the hearing, without raising its position with the Town thereby leaving them no time to respond. Also, the Motion does not have enough information regarding the relevance of the documents.

14Separate from the relief sought in the Motion materials, there was also a request for costs. The Tribunal informed the Parties that a Motion for costs is a separate procedure and that they should contact the Case Coordinator if they wish to pursue that relief.

EVIDENCE

15The Parties submitted two documents as exhibits:

1. Document Book of Mr. Buth

2. Document Book of the Town

16The Appellant called two witnesses: himself and Karen Dunlop, the Chief Administrative Officer of the Town, whom he summonsed. The evidence of Ms. Dunlop was not helpful to the Tribunal in determining this matter as she does not hold an expertise that is relevant. However, Ms. Dunlop did confirm that the Ministry of the Environment (“MOE”) has no concerns regarding this application.

17The Appellant’s evidence can be summarized as the following:

a. The existing dwelling has been occupied for over ten years with no adverse environmental or neighborhood impacts. The well was installed approximately eight years ago by a certified driller and bears a MOE tag, confirming compliance with provincial standards.

b. The variance does not alter or intensify land use - it merely recognizes an established residential use.

c. All well water samples from 690 Monkman were taken by the Appellant and were properly tested and have returned results within acceptable drinking water standards.

d. The Town has provided no evidence of actual harm, only speculative concerns, which do not meet the threshold for denying the variance.

e. The Provincial Planning Statement (“PPS”) prioritizes housing efficiency and supply and that denying this application is contradictory to this directive.

f. Several other residential dwellings already exist within the 500-metre setback, demonstrating that this restriction has not been uniformly enforced.

g. The ZBL and Official Plans contain discretionary language (e.g., "studies may be required"), reinforcing that this situation does not mandate further studies.

h. The Tribunal should give primary weight to the MOE’s position as the ultimate environmental authority. The MOE has explicitly stated it has no concerns, yet the Township is insisting on barriers beyond what provincial regulations require. The Tribunal should not allow municipalities to impose higher, arbitrary restrictions where the governing body has already ruled there is no risk.

i. The Township is in a deeply conflicted position, acting both as landfill owner and development regulator. This creates an inherent bias against approving development near the landfill, regardless of actual risk.

j. The Tribunal must safeguard against situations where regulatory power is used to block reasonable development without clear evidence of harm.

k. The Township exceeded its authority by ignoring MOE guidance and failing to demonstrate an actual risk.

l. The Appellant admitted to taking his own water samples and bringing them for testing.

18The Tribunal found little of the evidence presented by the Appellant helpful. The Appellant presented little planning evidence and failed to understand the role of the MOE and who has the onus of proof at this hearing. Also, the Appellant brought the Tribunal to a GRI Inc. report that was commissioned by the Town to perform a peer review of the Appellant’s hydrogeological report and brought the attention of the Tribunal to the third point under Section 5: Review Summary: “There is no reason to believe that contamination issues of concern are present at the Burritts Rapids Waste Disposal Site. Conversely, there has been no reason to require sampling for other parameters.”

19However, the Appellant failed to inform the Tribunal of the next sentence in that paragraph that read: “This does not mean they are not present.”

20The Town called two witnesses: Phil Mosher, whom the Tribunal found qualified to provide expert opinion evidence in the field of land use planning, and Jordan Bowman, whom the Tribunal found qualified to provide expert evidence in the field of hydrogeology.

21Mr. Bowman testified that that the Appellant has not undertaken the hydrogeological investigation required to support a conclusion that drinking water on the Subject Site is not susceptible to current or future impacts from the migration of leachate from the landfill.

22Mr. Bowman also provided evidence that the analysis conducted by Hubley Geosciences, on behalf of the Appellant, relied on data from Egis’ annual monitoring of the Landfill and did not include independent investigations. Further, he testified that the annual monitoring program does not collect data for a number of parameters that would be of concern to private well users, such as volatile organic compounds, petroleum hydrocarbons, perfluoroalkyl and polyfluoroalkyl substances, bacteriological parameters, nitrates and other indicators of surface impacts to groundwater.

23The results from the Appellant’s sampling, Mr. Bowman testified, only indicate the presence or absence of these parameters at the time and place of testing, and do not address whether future migration may introduce these parameters to the drinking water at a later date. Mr. Bowman referred to it as a ‘snapshot’ of the condition of the well but did not address any potential future issues.

24Mr. Bowman testified that he disagreed with the June 16, 2024, Hubley Report, which opined that it is not appropriate to require the Appellant to assess the impact of human activity on drinking water unless and until health-based thresholds are exceeded or nearly exceeded. He informed the Tribunal that s. 4.6 of the D-5-5 Procedure, the Provincial guidelines for private wells, is clear that land uses within 500m of the development should be assessed and described and that s. 4.6 gives the specific example of “old, operating or proposed waste disposal sites” as significant potential sources of groundwater contamination that must be addressed.

25Mr. Bowman opined that a homeowner should not be taking their own water samples, as Mr. Buth has done, as it is unknown if it was done correctly.

26Mr. Mosher provided the Tribunal with planning evidence on behalf of the Town.

27Mr. Mosher brought the Tribunal to s. 3.6.4 of the PPS which states:

Where municipal sewage services and municipal water services or private communal sewage services and private communal water services are not available, planned or feasible, individual on-site sewage services and individual on-site water services may be used provided that site conditions are suitable for the long-term provision of such services with no negative impacts.

28Mr. Mosher also testified that the PPS defines “negative impacts”, in the context of private services, as “… potential risks to human health and safety and degradation to the quality and quantity of water … due to single, multiple or successive development.” The PPS further defines that “[n]egative impacts should be assessed through environmental studies including hydrogeological or water quality impact assessments, in accordance with provincial standards.”

29Mr. Mosher opined that the Appellant has failed to demonstrate that there will be no negative impacts and that the testing was conducted in accordance with provincial standards.

30Concerning the Town OP, Mr. Mosher brought the Tribunal to s. 4.6[i] which states:

The Ministry of Environment and Climate Change considers the most significant contaminant discharges and visual problems to be normally within 500 metres of the perimeter of a fill area. This distance is recommended to be used as a study area to assess the potential adverse impacts or risks to health and safety and to recommend necessary remedial measures when reviewing new land use proposals within this distance.

i. Proponents of development applications within 500 metres of an open or closed landfill site may be required to hire a qualified professional to undertake a study to consider factors such as ground and surface water contamination by leachate, odour, litter, dust, noise, visual impact, air emissions, vectors and vermin, and landfill generated gases, especially methane gas.

31Mr. Mosher opined that the studies and testing conducted by the Appellant are insufficient to demonstrate whether this policy has been met as they do not address potential future issues.

32Section 5.3.1[b] of the County OP states:

Development proposals within 500 metres of any active and closed or inactive waste disposal site will be accompanied by a study prepared by the proponent that satisfies the Counties and local municipality and the requirements of the Provincial guideless related to land uses on or near landfills and dumps. The study will address contamination by leachate, surface runoff, ground settlement, visual impact, soil contamination and hazardous waste, landfill generated gases and any mitigation measures required.

33Mr. Mosher opined that the studies that have been provided by the Appellant are not sufficient to determine if the Provincial guidelines have been satisfied.

34Concerning the four tests outlined in paragraph 9 above, Mr. Mosher opined that the application has not met the intent of the County and Town OPs as the Appellant was unable to demonstrate no negative impact and, without confirmation that a safe supply of potable water exists, the intent and purpose of the ZBL was not met. Mr. Mosher also opined that, because there is uncertainty surrounding whether a safe potable water supply can be provided, it cannot be determined if the minor variance being requested is minor in nature and, therefore, if the application is appropriate or desirable.

DECISION

35For the above reasons, the Tribunal dismisses the appeal. The Tribunal prefers the evidence of the Town’s witnesses. The Tribunal notes that both witnesses withstood lengthy and animated cross examination.

36The Appellant wanted the Tribunal to rely on testing that was based on samples taken by the Appellant which may not have been done properly. Also, the Town made reasonable and appropriate demands for additional testing that was not completed. The Appellant was unable to demonstrate to the Tribunal that the testing that was conducted was sufficient to ensure that there would not be future issues with the well. In short, the Appellant was relying on a ‘snapshot’ regarding the health of the well when the guidelines requested a more fulsome picture.

ORDER

37THE TRIBUNAL ORDERS THAT the appeal is dismissed and the variance to Comprehensive Zoning By-law 50-12 is not authorized.

“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.