Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 23, 2025

CASE NO(S).: OLT-23-001161

PROCEEDING COMMENCED UNDER subsection 28(15) of the Conservation Authorities Act, 1997, S.O. 1990, c. 27

Appellant: Rastko Stojkovski

Respondent: Essex Region Conservation Authority

Subject: Appeal of decision Description: To Undertake the Reconstruction of a House and Detached Structure

Property Address: 138 Lakeshore Drive

Municipality/UT: Leamington/Essex

OLT Case No.: OLT-23-001161 OLT Lead Case No.: OLT-23-001161

OLT Case Name: Stojkovski v. Essex Region Conservation Authority

Heard: June 24-25, 2025 by video hearing, written submissions completed July 18, 2025

APPEARANCES:

Parties	Counsel
Rastko Stojkovski (“Applicant”/“Appellant”)	Darwin Harasym
Essex Region Conservation Authority (“ERCA”)	Michael Gordner

DECISION DELIVERED BY W. DANIEL BEST AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This Decision and Order arises from an appeal filed by the Applicant pursuant to s. 28(15) of the Conservation Authorities Act, 1997, S.O. 1990, c. 27 (“CAA”), against the decision of the ERCA to refuse to issue a development permit for the property located at 138 Lakeshore Drive, in the Municipality of Leamington (“municipality”) (“Subject Property”).

2The Subject Property has a lot area of approximately of 16,000 square feet (“ft²”) and contains an existing residential structure and a detached structure that has been identified as a garage.

3The Subject Property is located within the ERCA regulated area identified as the Southeast Leamington Area.

4The Subject Property is located in an area that has been the subject of a number of technical studies that confirm the presence and significance of both flooding and erosion.

BACKGROUND

5On September 25, 2018, the Appellant met with a representative from the ERCA to discuss the hazards in the Southeast Leamington Area, construction limitations on the site, and the requirements for permits.

6The two structures on the Subject Property were identified as being in the flood hazard and erosion hazard area.

7The first site visit by the ERCA was on January 18, 2019. Works had begun on the Subject Property prior to that date and stopped on or about January 18, 2019.

8The works related to the pre-existing residential structure on the Subject Property. The works do not involve the altering of the footprint of the residential structure.

9The ERCA proceeded with charges of undertaking a development without permission under s. 16 of the CAA.

10The Appellant addressed the charges by entering into a Superior Court Order dated January 14, 2020 which directed the Appellant to obtain a development permit within two years.

11An application for a development permit (“application”) was submitted on January 14, 2020 by the Appellant.

12Correspondence issued by the ERCA on January 20, 2020, advised the Appellant that the submitted application did not meet requirements for minimum flood protection, minimum erosion protection and ingress/egress requirements for health and safety. The Appellant was advised that he would be required to appear in front of the ERCA Board of Directors to request that they issue the approval. ERCA staff advised that they would be recommending that the ERCA Board of Directors deny the application.

13The application was placed on hold by the ERCA.

14The Appellant submitted a number of construction drawings to the ERCA. On April 13, 2023, a fifth and final set of drawings was submitted.

15By correspondence dated May 10, 2023, ERCA staff advised that the scope and scale of the development activities constituted a reconstruction. This resulted in the need for the structures to satisfy all requirements for development in hazard lands. The correspondence identified that to undertake development, described as constructing a new building, a major building addition/renovation or building reconstruction along a shoreline or floodplain within Ontario, all Provincial and local conservation authority policies for development within hazard lands must be satisfied.

16The policies referred to in [15] included identifying how the development is being floodproofed; structures need to provide long-term stability for 100 years of protection for the development; and how safe access to and from the site during times of flooding, erosion or other emergencies is being addressed.

17Staff advised that the application did not satisfy floodproofing or erosion requirements for a reconstruction and that staff would be recommending to the ERCA Hearing Board to deny the application.

18On October 12, 2023, the ERCA Hearing Board denied the application for the Subject Property as the proposal did not adequately satisfy applicable hazard management policy requirements as set out in Ontario Regulation 158/06, and the ERCA Board accepted the concerns set out in the staff report:

• Scope of works constituted a “reconstruction” and therefore must satisfy current development standards.
• Staff must have regard for the significance of the hazard as it relates to risks to life and property.
• There is a significant safety risk with the occupancy of the dwelling.
• The application did not satisfy the minimum flood protection requirements for both structures.
• The application did not satisfy the minimum erosion protection requirements for both structures.

19The Tribunal was advised by the Parties that the issue of the detached structure had been resolved.

DECISION

20The Tribunal allows the appeal in part and directs the ERCA to issue a development permit.

LEGISLATIVE FRAMEWORK

21Pursuant to s. 28.1(26) of the CAA, the Tribunal has authority to take evidence, to refuse the permit or order the authority to issue the permit, with or without conditions.

22Ontario Regulation 41/24: Prohibited Activities, Exemptions And Permits (“O. Reg 41/24”) defines development activity:

Definitions

1. (1) In section 28 of the Act and in this Regulation,

“development activity” means,

(a) the construction, reconstruction, erection or placing of a building or structure of any kind,

(b) any change to a building or structure that would have the effect of altering the use or potential use of the building or structure, increasing the size of the building or structure or increasing the number of dwelling units in the building or structure,

(c) site grading, or

(d) the temporary or permanent placing, dumping or removal of any material, originating on the site or elsewhere;

23Pursuant to s. 28.1(1) of the CAA, a Permit may be issued if in the opinion of the authority certain criteria are all met:

Permits

28.1 (1) An authority may issue a permit to a person to engage in an activity specified in the permit that would otherwise be prohibited by section 28, if, in the opinion of the authority,

(a) the activity is not likely to affect the control of flooding, erosion, dynamic beaches or unstable soil or bedrock;

(b) the activity is not likely to create conditions or circumstances that, in the event of a natural hazard, might jeopardize the health or safety of persons or result in the damage or destruction of property; and

(c) any other requirements that may be prescribed by the regulations are met.

24A decision of the Tribunal, in respect of any Authority, that affects a planning matter, shall be consistent with the Provincial Planning Statement 2024 (“PPS”) as set out in s. 3(5) of the Planning Act, R.S.O. 1990, c. P.13 (“Act”).

25The Tribunal has regard to the non-binding policies of the ERCA.

ISSES

26The following are the key issues before the Tribunal:

• Do the works completed to date and the proposed works constitute a development activity for the purposes of s. 28 of the CAA and O. Reg 41/24?
• If so, should a development permit be granted in accordance with s. 28.1(1) of the CAA?

SUBMISSIONS AND EVIDENCE

27The Tribunal heard evidence from four witnesses. Only one witness, Peter Zuzek, was qualified to provide opinion evidence in their field of expertise, as outlined below:

PARTY	NAME	PURPOSE OR FIELD OF EXPERTISE
Appellant	Boban Stojkovski	Fact Evidence
Appellant	Maged Basilious	Fact Evidence
ERCA	Peter Zuzek	Hazardous Lands as set out in the CAA
ERCA	Dan Jenner	Fact Evidence

28The following materials were identified as Exhibits and marked as follows:

a. Exhibit 1: Joint Document Book #1;

b. Exhibit 2: Joint Document Book #2;

c. Exhibit 3: Joint Document Book #3

d. Exhibit 4: Joint Document Book #4

e. Exhibit 5: Agreed Statement of Facts

f. Exhibit 6: Interim Guidelines to Support Conservation Authority Administration of “Ontario Regulation 41/24”, amended by the ERCA, March 2024 (“Interim Guidelines”)

POSITION OF THE PARTIES

Position of the Appellant

29The Appellant’s position is that the works constitute a renovation, not a reconstruction. The works are internal renovations to an existing building within the roofline and exterior walls and above the existing foundation.

30Mr. Stojkovski stated that there were no pictures at the time of the purchase of the cottage (residential structure) and that it was vacant, appeared livable, but not up to modern standards.

31Mr. Stojkovski denies that he stated the residential property was unoccupied for ten years.

32Mr. Stojkovski advised that the Subject property is zoned residential and there is no intent to change its use. The Subject Property will be a family cottage.

33Mr. Stojkovski confirmed he had applied for a building permit but was advised by the municipality that he needed approval from ERCA prior to the issuance of a building permit.

34Mr. Stojkovski stated that the municipality called the works a major renovation, but ERCA called the works new construction.

35Under cross-examination, Mr. Stojkovski advised that it was his understanding that he was being denied a permit for construction on hazard lands.

36Mr. Stojkovski confirmed that the use of the residential structure is not being changed and will be a residential use.

37Mr. Stojkovski rejected the argument that the use of the residential structure is defined as going from “uninhabitable to habitable”.

38The Architectural drawings submitted by Mr. Basilious show work that had been done by the Appellant and work to be done.

39Mr. Basilious reviewed the scope of work on the residential structure that was consistent with the Agreed Statement of Facts (“ASF”):

• The replacement of windows, siding and roof shingles, interior finishes, installation of electrical wiring and devices, and plumbing fixtures.
• The demolition work consisted of the removal of all interior and exterior doors, removal of all windows, removal of all flooring, removal of all cabinets, removal of wall gypsum board, removal of wall insulation, removal of all trim and base board, removal of all plumbing fixtures and rough in, removal of all heating equipment and ductwork, and removal of all electrical wiring and devices.
• The new work included new interior and exterior doors, new windows, new flooring, new cabinets, new wall framing (in identified areas), new beams and lintels (in identified areas), new gypsum board and insulation, new trim and base board, new plumbing and fixtures, new heating equipment and ductwork, new electrical wiring and devices, exterior walls were reconstructed (in identified areas).

40Mr. Harasym, Counsel for the Appellant, argued that the works are not affecting or creating any hazards as they are all pre-existing.

41Mr. Harasym acknowledged that the Interim Guidelines were not in effect at the time of the Application but questioned why the Interim Guidelines were not included in the materials before the Tribunal as this is a hearing de novo.

42Mr. Harasym relied on the Interim Guidelines and argued in written submissions that:

As such, it is now policy of ERCA that no permit is required (i.e. it is not “development activities”) for a proposal such as this. That analysis could change if other changes are being made “associated with the internal renovations”, with the policy giving the examples of “upgrades or replacement of a septic system” and “new openings for doors or windows”. None of those examples are present in this case.

Development activity associated with existing uses within Great Lakes and large inland lakes shorelines such as non-habitable structures and minor additions to existing buildings or structures is often differentiated from new development activity to allow landowners to maintain, and to a limited extent, improve their properties.

43Mr. Harasym argued that the proposed works do not constitute “development activities” as defined by the CAA and ERCA’s adopted Interim Guidelines. He continued that the “Tribunal ought to rule that the Appellant does not require a development permit from ERCA or in the alternative, the Tribunal directs that the development permit be issued as the works are not affecting nor creating any of the alleged hazards.”

Position of ERCA

44Peter Zuzek was the only expert witness at the Hearing. Mr. Zuzek confirmed that the existing structures on the Subject Property are on hazardous lands.

45Mr. Zuzek opined that a 100-year flood would completely inundate the structure’s foundation and lead to substantial structural damage during storms. He continued that in any given year there is a 1 percent chance of a 100-year flood occurring.

46Mr. Zuzek confirmed that the existing structures on the Subject Property are in the erosion hazard.

47Mr. Zuzek stated that the erosion hazard setback is 125 metres (“m”) from the shoreline. At present, the southeast corner of the principal building is only a couple of metres from the shoreline or more than 120 m short of the minimum requirement.

48Mr. Zuzek opined that there is “an imminent risk the building could be damaged or destroyed by erosion and flooding forces during a Lake Erie storm event. These hazards make this residence unsafe to occupy.”

49Mr. Zuzek advised that the PPS recommends avoiding development on hazardous lands due to safety concerns, as does the CAA and O. Reg 41/24. He further advised that new development should be directed to areas away from flooding and erosion hazards and that this proposed development is not consistent with provincial policy, the CAA, or O. Reg 41/24.

50Based on the foregoing, Mr. Zuzek opined that further development activities on the Subject Property should cease.

51Dan Jenner is the Regulation Coordinator of the ERCA and is responsible for reviewing and addressing residential development in regulated areas of the ERCA and enforcement of s. 28 of the CAA matters of compliance and enforcement.

52Mr. Jenner provided a chronology of events related to interaction with the Appellant, including charges against the Appellant for undertaking development without a permit in January, 2019.

53Mr. Jenner stated that based on his conversation with the Appellant, the residential structure had not been lived in for about ten years.

54Mr. Jenner confirmed that he considered a change of use to be habitable to uninhabitable.

55Mr. Jenner advised that major renovations were considered new construction under “our legislation and policies.” He further advised the Applicant that new construction includes “things like new electrical, new plumbing, new walls, and structural repairs.”

56Mr. Jenner instructed the Appellant that “this office was not able to issue permits for new construction” and that “no works should be undertaken without permits or approvals from this office.”

57Mr. Jenner stated that the charges were addressed by the Appellant agreeing to a Superior Court Order which provided a two-year time limit to proceed with the s. 28 permitting process ending in January 2022.

58Mr. Jenner advised that after multiple submissions, on April 14, 2023, he accepted a set of drawings as complete so that a review could be undertaken.

59ERCA issued correspondence on May 10, 2023 that the scope and scale of the development activities constituted a reconstruction, requiring the need for the structures to satisfy all current requirements for development in hazard lands. The correspondence stated that the Appellant had not addressed flooding or erosion hazards.

60Mr. Jenner stated that staff were not provided the opportunity to undertake an assessment of the structures to determine if repairs or renovations could be permitted prior to the works being undertaken. He further stated that the scope of works that were undertaken prior to the application and required to complete the structure constituted a reconstruction.

61Mr. Jenner expressed concern that although the Appellant is accepting of the associated natural hazard risks, there is no way to ensure that the Subject Property is not sold to a new owner who is not aware of the risks associated with the Subject Property.

62Mr. Jenner concluded that the approval of the application would result in conditions or circumstances that jeopardize the health and safety of persons.

FINDINGS AND ANALYSIS

63There is no dispute that the structures are located within the flood hazard and erosion hazard. Although the Tribunal finds the evidence of Mr. Zuzek informative, it does not assist the Tribunal in resolving the issues currently before it.

64The Tribunal finds that the oral and written evidence provided by the fact witnesses clearly was to further and justify the respective positions.

65This led the Tribunal to consider the relevancy and probative value of the fact witnesses’ evidence.

66The Tribunal found the evidence provided by the fact witnesses to be relevant to assist in providing about perspectives about where communication between the Parties could be interpreted differently, and where breakdowns in communication occurred.

67The Tribunal determined that with the exception of Mr. Basilious, the probative value of the evidence proffered by Mr. Jenner and Mr. Stojkovski was outweighed by the prejudicial effect.

68Mr. Stojkovski’s evidence was largely opinion based and at times contradictory. As such, beyond context, the Tribunal puts very little weight on his evidence.

69The Tribunal found that Mr. Jenner’s evidence was more justification based and inconsistent but assisted the Tribunal in establishing timelines and context.

70During cross-examination, Mr. Jenner was taken to the conclusion section of his witness statement, where the following was highlighted:

Even if the current property owner is accepting of the associated natural hazard risks, there is no way to ensure that this property is not sold to a new owner who is not aware of the risks associated with this location.

Mr. Jenner stated that he considered the legislative framework when reaching his conclusion. However, when pressed, Mr. Jenner acknowledged that nowhere in legislation will you find the conclusion highlighted above.

71Additionally, during cross-examination, Mr. Jenner was taken to page 241 of the document book which highlighted the following from the 2006 Draft Guidelines Policies and Procedures:

Major renovations including major structural changes/improvements to the existing structure (i.e. major changes to floor plans, roof lines, foundation, etc.) will be deemed new construction and will not be permitted within stable slope allowance. Normal/typical maintenance and upkeep of an existing structure (i.e. new siding, replacement of windows, shingles, etc.) will be permitted provided the use of the structure has not changed.

Mr. Jenner advised in cross examination that he reviewed the above section with Mr. Stojkovski. He further advised that the ERCA did not formally adopt the 2006 Draft Guidelines Policies and in 2011 the ERCA Board approved BD 13.11 Transitional Regulations Policy to use the most applicable and appropriate hazard management guidelines.

72The Tribunal notes that guidelines from 1987 and the aforementioned 2006 Draft Guidelines Policies were incorporated into Joint Document Book 1. Mr. Jenner stated that the guidelines from 1987 did not speak to renovations, maintenance or re-construction of buildings within the 100-year erosion hazard and the 2006 guidelines were not adopted.

73Mr. Jenner referenced the BD 13.11 Transition Regulations Policy which was approved by the ERCA Board to “use the most applicable and appropriate hazard management guidelines.” It appears this document was part of the policy assessment to review the application but was not included in the evidence before the Tribunal.

74The Interim Guidelines, adopted by the ERCA Board in March 2024, were not included as an exhibit until introduced by the Appellant as Exhibit 6. The Tribunal finds the Interim Guidelines are informative to the application of O. Reg 41/24 and the development proposal.

75The Tribunal finds that the ERCA could have reviewed the application with the Interim Guidelines prior to this Hearing, but it appears may have chosen not to do so and relied on Mr. Jenner’s comment under cross-examination that “it did not exist” at the time of the application.

76Pursuant to s. 28.1(26) of the CAA, the Tribunal is limited in its authority to take evidence, refuse the permit or order the authority to issue the permit, with or without conditions.

77The Tribunal notes that s. 1.5.5.3 of the Interim Guidelines speak to repairs and renovations to an existing building within the existing roofline and exterior walls and above the existing foundation within a hazard area would generally not require a permit of the CA, unless the proposal is associated with a change in use or increases the number of dwelling units [emphasis added]. The section continues that when reviewing internal renovation proposals, CAs will need to consider other changes that may be associated with an internal renovation. These additional activities may meet the definition of development activity [emphasis added].

78S. 4.3 of the Interim Guidelines identifies what a development activity is associated with:

Development activity associated with existing uses within Great Lakes and large inland lakes shorelines such as non-habitable structures and minor additions to existing buildings or structures is often differentiated from new development activity to allow landowners to maintain, and to a limited extent, improve their properties.

Each CA should define within their own policy document what constitutes a minor addition within their area of jurisdiction; however, a minor addition definition should not exceed Provincial Guidelines of 30% of the foundation area for shoreline erosion hazards and 50% of the foundation area for shoreline flooding hazards9. It is recommended that each CA should consider the following in developing their definition:

a) the type of use (i.e., residential habitable, residential non-habitable, commercial, industrial, institutional, etc.;

b) the total floor area and the footprint area within the floodplain when determining the permissible area increase;

c) in addition to the traditional percentage increase of existing floor/footprint area, a cap on the permissible addition in terms of total square footage;

d) a means of addressing cumulative impacts over time, such as applying the permissible area increase and cap to all additions from an appropriate time designated within the CA’s policy document;

e) no increase in the number of dwelling units; and

f) that the minor addition is protected against the flood and erosion hazard.

79The Tribunal notes that s 4.3 of the Interim Guidelines is also instructive through the use of the term “should” which the Tribunal considers a lower bar than “shall” or “must” and reflects a recommendation or suggestion.

80In s. 4.3 of the Interim Guidelines, the term “residential habitable” and “residential non-habitable” was referenced. These terms appeared to be one of the foundational elements of the position of the ERCA and they were rejected by the Appellant. The Tribunal notes that this is one of a number of considerations that each CA should consider when developing their definition of a development activity.

81The Tribunal accepts that the structural works identified, the scope of exterior studs and boards would meet the threshold of a reconstruction.

82The balance of the internal/external works were to maintain and improve the residential structure and as the Interim Guidelines highlighted “is often differentiated from new development activity to allow landowners to maintain, and to a limited extent, improve their properties”. In this aspect, the Tribunal disagrees with the assertion from Mr. Jenner that these works would be “new construction” as he asserts in [55].

83Based on the foregoing, the Tribunal finds that the proposed scope of the works would constitute a reconstruction as identified in [81], result in being a development activity under s. 28 of the CAA and accordingly requires a development permit.

84Prior to the issuance of a permit under s. 28.1 of the CAA, an authority must consider if the activity is not likely to affect the control of flooding, erosion, dynamic beaches or unstable soil or bedrock. An authority must also consider that the activity is not likely to create conditions or circumstances that, in the event of a natural hazard, might jeopardize the health or safety of persons or result in the damage or destruction of property.

85The Tribunal looks to Provenzano v Central Lake Ontario Conservation Authority, 2024 CanLII 102751 (“Provenzano”) for guidance regarding the issuance of development permit in this matter.

86In Provenzano at paragraph [114], the Tribunal found the following:

[114] With respect to the argument by Counsel for the Appellant, if no change to the building was proposed, which would have the effect of increasing the size of the building, then his statement that the Permit Application has no impact on safe access would be correct. However, given that an increase in the size of the building and increasing the risk to personal health and safety of both occupants and emergency personnel, the Permit Application proposing development activity by increasing the size of the building within hazardous lands and without safe access is likely to create conditions or circumstances that in the event of a natural hazard, the health and safety of persons might be jeopardized. [Emphasis added]

87The Tribunal finds that the language of the CAA supports Provenzano’s approach to assessing hazards in determining a permit application, given that the s. 28.1 permitting system is an exception to the general prohibition in s. 28 against development activity on hazardous lands, among other restrictions. To this point, the presence of an existing hazard is a given when considering permit applications under the CAA, and that risk arising from those existing hazards alone are not necessarily, in themselves, grounds to reject an application.

88The Tribunal finds that the development activity is not likely to affect or create conditions identified and the requirements from the prescribed regulations are met as the conditions are pre-existing and the issuance of the permit does not worsen what already exists.

89Policy 5.1 of the PPS is that development “shall be directed away from areas of natural or human-made hazards where there is an unacceptable risk to public health or safety or of property damage, and not create new or aggravate existing hazards.”

90Policy 5.2.2.a) identifies that development will be generally directed to areas outside of “hazardous lands adjacent to the shorelines of the Great Lakes - St. Lawrence River System and large inland lakes which are impacted by flooding hazards, erosion hazards and/or dynamic beach hazards.”

91Policy 5.2.2.8 states that

Further to policy 5.2.7, and except as prohibited in policies 5.2.3 and 5.2.6, development and site alteration may be permitted in those portions of hazardous lands and hazardous sites where the effects and risk to public safety are minor, could be mitigated in accordance with provincial standards, and where all of the following are demonstrated and achieved:

a) development and site alteration is carried out in accordance with floodproofing standards, protection works standards, and access standards;

b) vehicles and people have a way of safely entering and exiting the area during times of flooding, erosion and other emergencies;

c) new hazards are not created, and existing hazards are not aggravated; and

d) no adverse environmental impacts will result.

92The Tribunal finds that the application is consistent with the PPS. The works are within the existing footprint with no impact to site alteration. The access and egress to the Subject Property is pre-existing. There are no new hazards created or existing hazards aggravated. There are no adverse environmental impacts resulting from the works. Accordingly, the works are consistent with the PPS.

COSTS

93The Tribunal notes that the ERCA asked the Tribunal to consider the issue of costs in their closing submissions.

94The decision to award costs is discretionary and the exercise of such discretion is rare, as there is a relatively high threshold to be met.

95In reflecting on this Hearing, it is not obvious to the Tribunal that any one Party’s conduct stands out as meeting the threshold which would attract such an award. While the parties remain free to make detailed written requests for costs in accordance with Rule 23 under the OLT Rules of Practice and Procedure, it should be borne in mind that the behaviour of the requesting Party will also be subject to the Tribunal’s scrutiny in the context of making a decision on whether such an award is warranted.

CONCLUSION

96Based on the scope of the works presented by the Appellant, a development permit is required. As the development activities are not in contravention of s. 28.1(1) of the CAA, associated regulations and guidelines, and consistent with the PPS, the ERCA is directed to issue a development permit.

ORDER

97THE TRIBUNAL ORDERS THAT the appeal is allowed and that the Essex Region Conservation Authority issue the development permit to Rastko Stojkovski for 138 Lakeshore Drive , in the Municipality of Leamington to undertake the reconstruction of the pre-existing residential structure.

“W. Daniel Best”

W. DANIEL BEST

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.