Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

February 19, 2026

CASE NO(S).:

OLT-24-000558

OLT-24-001045

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

Applicant and Appellant:

Laura Aaron & Jennifer Aaron

Subject:

Minor Variance

Description:

Minor Variance to replace existing deck with a new safer deck

Reference Number:

A06-2024

Property Address:

10034 Huron Drive

Municipality/UT:

Lambton Shores/Lambton

OLT Case No.:

OLT-24-000558

OLT Lead Case No.:

OLT-24-000558

OLT Case Name:

Aaron v. Lambton Shores (Municipality)

PROCEEDING COMMENCED UNDER subsections 28.1(20) of the Conservation Authorities Act, R.S.O. 1990, c, C.27

Applicant/Appellant:

Laura Aaron and Jennifer Aaron

Respondent:

Ausable Bayfield Conservation Authority

Description

Appealing the decision made by Ausable Bayfield Conservation Authority (“ABCA”)

Reference Number:

Y2-05-21

Property Address:

10034 Huron Drive

Municipality/UT:

Lambton/Lambton Shores

OLT Case No.:

OLT-24-001045

OLT Lead Case No.:

OLT-24-001045

OLT Case Name:

Aaron v. Ausable Bayfield Conservation Authority

Heard:

November 12 – 14, 18, 19, 24, 2025, by Video Hearing

APPEARANCES:

Parties

Counsel

Laura Aaron and Jennifer Aaron (Property Trustees for Sheldon Aaron)

Jacob Damstra

Municipality of Lambton Shores

Kelly Nenniger

Ausable Bayfield Conservation Authority

John Goudy

DECISION DELIVERED BY gregory j. ingram AND ORDER OF THE TRIBUNAL

INTRODUCTION / BACKGROUND

1These proceedings are being held with respect to two appeals launched by Laura Aaron and Jennifer Aaron (“Appellants”) pertaining to the property known as 10034 Huron Drive (“Subject Property”) in the Municipality of Lambton Shores (“Municipality”). The Subject Property has beach front access and abuts onto the Lake Huron shoreline in Grand Bend. The Application for a Minor Variance seeks relief from section 3.19.1 – Setbacks from Drains and Watercourses of the Municipality’s Zoning By-law and proposes to remove two existing decks (upper and lower in the rear yard) and construct a 69.8 square metre (“m²”) deck located at a 0 metre (“m”) setback and projecting beyond the top-of-bank of Lake Huron but behind existing timber cribs which were constructed in the late 1980s (“Proposal”).

2The Appellants are appealing both the Municipality’s Committee of Adjustment’s (“COA”) denial of their Minor Variance application in April 2024, pursuant to section 45(12) of the Planning Act, R.S.O. 1990, c.P13, as amended (“Planning Act”) and the refusal of an Application for a Development Approval Permit (“ADAP”) by the Ausable Bayfield Conservation Authority (“ABCA”) in July 2024, under section 28.1(20) of the Conservation Authorities Act, R.S.O. 1990,c.C.27 (“Conservation Act”) for the Proposal described above.

3At the Case Management Conference (“CMC”) held in July 2025, the Tribunal granted a request by the Appellants, with the consent of the other Parties, for the two appeals to be heard at the same time given that the appeals are regarding the same property and much of the evidence is relevant to both appeals and only the legislative tests differ.

Minor Variance Application

4The Subject Property is within an area designated “Urban Centre” and within the “Primary Corridor” of the Natural Heritage System in the County of Lambton Official Plan (“CLOP”). The CLOP indicates that the area is within the “Great Lakes System” and is characterized by “dynamic beach processes” which are recognized as a form of “Natural Hazard” by the CLOP’s policy framework.

5Lambton Shores Official Plan (“LSOP”) designates the lakeside portion of the Subject Property as within “Lakeshore Area 1” as defined by the ABCA’s Shoreline Management Plan (“SMP”) with the balance of the Subject Property (inland portion) designated “Grand Bend Residential” and is within “Lakeshore Area 2” of the SMP. A new deck is proposed to be within “Lakeshore Area 1”.

6The Subject Property is zoned “Residential-6 (R6)” in the Municipality’s Zoning By-law No. 1 of 2023 (“ZBL”) with the lake facing portion of the Subject Property zoned “Environmental Protection – Hazard (EP-H)”. Section 3.19: Setbacks from Drains or Watercourses of the ZBL establishes a mandatory 15 m setback from the top-of-bank of Lake Huron for all buildings and structures whereas the Appellants have asked for relief to permit a 0 m setback.

7The COA Notice of Decision denied the relief sought indicating that the requested relief does not meet any of the four tests in the Planning Act for a minor variance. The COA invited comments regarding the application from other government / municipal agencies / departments and in this case, the ABCA comments were not in support of the relief sought.

8The ABCA recommended denial of the minor variance. Briefly summarized, the ABCA letter indicated that they did not see the Proposal as minor and that the proposed location is “highly hazardous”. There is no information that the existing deck legally exists and that the proposed structure is far larger than the existing deck. The letter also noted that ABCA policy only permits “like for like” replacement of a legally existing deck.

Application for Development Approval Permit

9In addition to the Minor Variance Application, the Appellants initiated an ADAP in July 2023 to the ABCA seeking permission to replace the existing deck structure with a remodelled / reconstructed deck designed by a structural engineer with additional support and guidance from a Coastal Engineer.

10In the ADAP letter, Counsel for the Appellants indicated that the project is not “like for like” replacement but constitutes “removal, remodelling, and reconstruction of a new deck structure”. Further the relocation of the new deck is “entirely landward of the pre-existing shoreline protection” (existing timber cribs) which connect to form a continuous wall with existing gabion baskets to the north and south of the Subject Property. Counsel suggests that this continuous wall creates a situation where “the areas landward of [the] existing shoreline protection are no longer subject to dynamic beach processes as there is minimal, if any, sand exchange occurring landward of that protection.” Counsel contends that this cribbing also addresses any safety concerns as the proposed deck structure would be behind the cribbing which limits the dynamic beach processes.

11The ABCA issued a letter dated July 22, 2024, denying the ADAP indicating that it “fails to meet section 28.1 (1) (a) and 28.1(1) (b) of the Conservation Act”.

NOTICE AND PARTY STATUS

12The Tribunal reviewed documentation related to notice at the July 2025 CMC and is satisfied that notice has been served for both appeals and no further notice is required. It also granted Party status to ABCA related to the Minor Variance appeal. The Municipality did not seek Party status for the Development Approval Permit appeal.

KEY ISSUE

13Does the Proposal to build a new professionally engineered deck structure above and behind existing timber cribs and within a dynamic beach hazard area meet the applicable legislative tests?

PARTY POSITIONS

14The Appellant contends that provincial, regional, and local planning and conservation legislation / policies / guidelines do not impose “an absolute prohibition of all development or site alteration within the dynamic beach hazard”. Counsel submits that expert opinion evidence of both a structural and a coastal engineer confirm that the Proposal aligns with the intent of the legislation as the placement and design protects public health and safety, does not create a risk of damage to the Subject Property or neighbouring properties, does not create new or additional hazards, or have an adverse environmental impact.

15The Municipality submits that the Minor Variance appeal should be denied as the Proposal is entirely located within the “Lakeshore Area 1” of the dynamic beach hazard area zone in the SMP and poses significant safety concerns for both the property owners and other users of Lake Huron. The Municipality submits that the “clear meaning” of the text provided in provincial, regional, and local planning policies / guidelines prohibits development within the dynamic beach hazard area. Counsel contends that in addition to the legislative prohibition on new structures being built in this zone, the proposed deck is “twice as big” as the existing unpermitted decks and is a significant deviation from the policies that support the zoning by-law.

16The ABCA is a Party to both appeals. Regarding the Conservation Act appeal, the ABCA submits that the Proposal does not satisfy the statutory or policy requirements of section 28.1 of the Conservation Act. Counsel submits that the Proposal “must be dismissed” as the likelihood of harm to the health and safety of persons and damage to property is high, given the proposed location within the dynamic beach hazard.

17Regarding the Minor Variance appeal, Counsel for ABCA submits that the critical criteria used in consideration of the ADAP by the ABCA is also important to the Minor Variance Application / Appeal. Counsel indicates that the relief sought places the new deck “significantly closer to the hazards of Lake Huron” than the 15 m setback required. The reduced setback is a significant barrier to satisfying the test of a minor variance given the safety issues of locating a large deck within the Dynamic Beach Hazard “Lakeshore Area 1”. Counsel submits that provincial, regional, and local planning policies address the safety of individuals and property by prohibiting new development in “Lakeshore Area 1” regardless of the type of design and impact of landowner placed cribbing.

18The Tribunal, having considered the oral and documented evidence provided during these proceedings and for the reasons set out in the Decision below, denies both appeals.

THE HEARING

19These proceedings were originally scheduled be heard over five days by video, but required the addition of a sixth date, November 24, 2025, with written closing submissions, on consent of the Parties, submitted by December 12, 2025.

20The Municipality raised an issue related to ownership of the Subject Property during cross-examination of Laura Aaron. Counsel submitted into evidence a copy of the Parcel Registry which identifies Laura Aaron and Jennifer Aaron as owners of the Subject Property and not Sheldon Aaron, in whose name the appeals were launched. Counsel for the Appellants, with the consent of the other Parties, was provided an opportunity to clarify the ownership issue and, on the second day of these proceedings, provided an explanation by legal letter which was entered with the Parcel Registry document as Exhibit 2. The clarification provided satisfied the Tribunal and, with the consent of the other Parties, no further submissions were requested or heard regarding this matter.

LEGISLATIVE, REGULATORY, AND POLICY FRAMEWORK

Minor Variance

21The Tribunal’s authority to grant variances is given under section 45(1) of the Planning Act, which sets out the four tests that must be satisfied by an applicant, when making an application for the authorization of variances. The tests require that the variances:

a. Maintain the general intent and purpose of the CLOP and the LSOP;

b. Maintain the general intent and purpose of the Municipality ZBL;

c. Be desirable for the appropriate development or use of the land, building, or structure; and,

d. Be minor in nature.

22The proposed variances must also be consistent with the Provincial Planning Statement, 2024 (“PPS 2024”). When making its decision, the Tribunal must have regard to the matters of provincial interest set out in section 2 of the Planning Act. It must also have regard to the decision of the COA and the information considered by it, as required under section 2.1(1) of the Planning Act, though it is not bound by that decision.

23Under section 45(18) of the Planning Act, this Hearing is de novo, meaning that the entire application must be considered anew, and the Tribunal is not merely reviewing those aspects of the COA’s decision to which the Appellant objects. The onus of satisfying the Tribunal that the application meets these tests remains on the applicant.

Application For Development Approval Permit

24Pursuant to section 28.1of the Conservation Act, the Tribunal may refuse the Permit Application or order the Authority to issue the Permit, with or without conditions.

Powers of the Tribunal

Definitions

(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;

“hazardous land” means land that could be unsafe for development because of naturally occurring processes associated with flooding, erosion, dynamic beaches or unstable soil or bedrock;

25Pursuant to section 28.1(1) of the Conservation Act, 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.

26A decision of the Tribunal, in respect of any Authority, that affects a planning matter, shall be consistent with the PPS 2024 as set out in s. 3(5) of the Planning Act and have regard to the Policies of the Conservation Authority.

WITNESSESS AND EXHIBITS

27A total of seven witnesses provided testimony under oath during these proceedings and six exhibits were entered into evidence.

28Counsel for the Appellant called the following witnesses:

• Laura Aaron, a Joint Trustee with Jennifer Aaron for the Property of Sheldon Aaron, municipally known as 10034 Huron Drive, Lambton Shores, Ontario. She was qualified as a fact witness.

• Dwayne Buck, a professional engineer, was qualified by the Tribunal to provide opinion evidence in structural engineering specifically in relation to structural design within the area of beach / structural safety, stability and design.

• Chris Gibbons, a professional engineer practicing as a senior coastal engineer, was qualified by the Tribunal to provide expert opinion evidence in coastal engineering.

• Michael Davis, a professional land use planner, was qualified by the Tribunal to provide opinion evidence in land use planning.

29Counsel for the Municipality called the following witness:

• William Nywening, a professional land use planner, was qualified by the Tribunal to provide expert opinion evidence in land use planning.

30Counsel for the ABCA called the following witnesses:

• Andrew Bicknell, a professional engineer and Manager of Water and Planning for ABCA. He was qualified as a fact witness.

• Derek Williamson, a professional engineer and coastal engineer by specialization, was qualified by the Tribunal to provide expert opinion evidence in coastal engineering, mapping, and regulation of and development within coastal hazard lands subject to erosion, flooding, and dynamic beach hazards.

31The following exhibits were entered into evidence during the Hearing:

1. Exhibit 1: Joint Document Book (includes witness statements and replies, municipal documents, photos, excerpts from various planning and conservation policies/guidelines that were referred to during the proceedings)

2. Exhibit 2: Parcel Register – Aaron Property and Legal Letter from Marni Pernica, Aird & Berlis LLP dated Nov. 12, 2025

3. Exhibit 3: Michael Davis Expert Duty Form

4. Exhibit 4: Ministry of Natural Resources Technical Guide: Section 7

5. Exhibit 5: Shoreline Policy in Dynamic Beach Area – ABCA Website Screen Capture

6. Exhibit 6: Denomme and Nywening Email Exchange – August 2023

EVIDENCE AND ANALYSIS

32In hearing the two appeals at the same time, the Parties recognize that some evidence is pertinent to the overall understanding of the Proposal and the subsequent positions of each Party related to each appeal.

33The information and testimony provided in this section is pertinent to both appeals and is provided here in conjunction with the testimony and analysis reflected below in both the Minor Variance and ADAP sections of the Decision.

34Figure 5.7: Lakeshore Areas 1 and 2 for the Dynamic Beach Hazard of the ABCA Shoreline Management Plan (Exhibit 1) below is referred to throughout these proceedings by Counsel and witnesses:

Dynamic Beach Hazard

Lakeshore Area 1: That area landward (or inland) from the water’s edge including the 100 year flood level

plus a distance of 30 m measured horizontally. This 30 m includes the 15 m allowance for wave uprush and

other water related hazards plus an additional ABCA 15 m allowance (equal to one half (15 m) of the dynamic beach allowance) as shown in Figure 5.7. This is part of the active beach zone and portion of the dune complex that would be affected by wave action during extreme events including the 100-year event.

Lakeshore Area 2: That area landward (or inland) from Lakeshore Area 1 to the inshore limit of the dynamic

beach (further 15 m landward from the inshore limit of Lakeshore Area 1). This area is also part of the active

beach zone and dune complex that would be affected by wave action during extreme events including the 100-year event. The Dynamic Beach Hazard for Lakeshore Area 2 is shown in Figure 5.7.

Deck Structural Design

35Dwayne Buck is the only structural engineer who provided evidence in these proceedings. Engineer Buck testified that the proposed deck structure design is intended to have limited impact on the dune using a screw pile design into subgrade material. He indicated that this provides high structural strength and doesn’t rely on the sandy soil of the dune. Connections to the deck would be made from galvanized steel to prohibit rust or corrosion and the structure would receive no assistance from the cribs as it would be supported on its own.

36Engineer Buck opines that the design will have no impact on the doon or beach area and will remain secure in the event of a flood or storm, therefore protecting human safety. Under cross examination, Engineer Buck acknowledged that the design is appropriate for the location and minimizes the risk to health and safety, but it “doesn’t fully eliminate it”. He confirmed that the current design shows the deck protruding beyond the timber crib with helical piles in front of it.

37Engineer Buck indicated that soil testing would have to occur as a next step if the Proposal is approved as he does not currently know the depth or make-up of the subsoil. Engineer Buck also testified that if the deck cannot be anchored securely to the subsoil, then there is “no safe way to construct it”.

38Engineer Buck informed the Tribunal that if a permit is issued, detailed drawings would be produced and discussions with ABCA would occur to finalize the design. The initial drawings show tempered glass guardrails and horizontal wood framing under the deck for equipment storage along with stairs from the deck to the bottom of the shore.

MINOR VARIANCE

Does the proposed minor variance have regard to matters of provincial interest pursuant to section 2 of the Planning Act, and in particular subsections 2(a), (c), (h), (o), (p)?

39William Nywening opines that the Proposal does not have regard to matters of provincial interest and in particular subsections 2 (a), (h), (o), and (p) of the Planning Act. Planner Nywening proffers that the Proposal would interfere with the natural sand exchange processes and is located within an identified hazard area. He also proffers that the structure could be damaged during a naturalevent and the damage only realized after it is being used again.

40Under cross-examination, Planner Nywening acknowledged that in theory / general terms, he could agree that the Proposal has regard for health and safety but “because we are dealing with a dynamic beach, you do not have the option to mitigate through design”.

41Engineer Williamson, with regard to subsection 2 (o) of the Planning Act, said that the proposed deck design does not eliminate the potential for damage or loss of the structure which in turn could adversely impact public safety in the future by “encouraging activity in a hazardous area” and that the impact of long-term erosion is unpredictable.

42Engineer Williamson opines that it is not clear that the helical piles proposed for the deck design are intended for use in a Great Lake environment and questions whether they are appropriate for a deck of the size proposed. He questions whether the manufacturer recommends using them in an “area impacted by ice” or if they are only intended for use over land.

43Under cross examination, Engineer Williamson acknowledged that a deck appropriately designed by a structural and coastal engineer could address concerns for public safety but opined that a crib is not a permanent solution which is confirmed by the damage to the cribs shown through visual evidence used by others for these proceedings.

44Planner Davis, in contrast, said that the Proposal has appropriate regard for provincial interests and in particular with subsection 2 (o) of the Planning Act and its reference to public safety. He opines that the proposed deck, given its location behind the cribs and engineered design, protects public safety. Regarding subsection 2 (a) of the Planning Act, Planner Davis opines that the site being located behind the crib structure, is no longer in the dynamic beach and natural features are not impacted.

45The Tribunal having consider the written and oral testimony, finds that the Proposal does not have regard for provincial matters and prefers the position put forward by Planner Nywening and Engineer Williamson.

46The Tribunal acknowledges that while the engineered design and plan for the proposed deck shows regard for human safety, it does not, on its own, show regard for provincial matters when the proposed location of the deck is in an identified hazardous zone that is only less hazardous because of a man-made barrier that was intended to preserve the shoreline and is not intended as a barrier to protect and allow for new construction.

Is the proposed minor variance consistent with the PPS 2024, and, in particular, is it consistent with sections 5.1, 5.2.1, 5.2.2 a), 5.2.3 a), and if applicable, 5.2.8?

47Planner Nywening opines that the relief sought is not consistent with PPS 2024 as the proposed development is located within “hazardous lands” and more specifically a “dynamic beach” located on a Great Lake. The definitions in the PPS 2024 are as follows, with emphasis added by Planner Nywening:

Hazardous lands: means property or lands that could be unsafe for development due to naturally occurring processes. Along the shorelines of the Great Lakes -St. Lawrence River System, this means the land, including that covered by water, between the international boundary, where applicable, and the furthest landward limit of the flooding hazard, erosion hazard or dynamic beach hazard limits. Along the shorelines of large inland lakes, this means the land, including that covered by water, between a defined offshore distance or depth and the furthest landward limit of the flooding hazard, erosion hazard or dynamic beach hazard limits. Along river, stream and small inland lake systems, this means the land, including that covered by water, to the furthest landward limit of the flooding hazard or erosion hazard limits

Dynamic beach hazard: means areas of inherently unstable accumulations of shoreline sediments along the Great Lakes - St. Lawrence River System and large inland lakes, as identified by provincial standards, as amended from time to time. The dynamic beach hazard limit consists of the flooding hazard limit plus a dynamic beach allowance.

48Planner Nywening opines that the proposed deck fits within the definition of “development” and is located within hazardous lands, thus is prohibited by the PPS 2024. Further, he proffers that the application suggests that ongoing maintenance around the proposed deck will be required, which is also contrary to PPS 2024 as it defines site alteration as “means such as grading, excavation and the placement of fill that would change the landform and natural vegetative characteristics of a site”.

49Planner Nywening referred to the PPS 2024 as a “gateway” document related to planning matters and if the criteria it identifies cannot be met then the “development should not be permitted”.

50Planner Nywening opines that the Proposal is not consistent with sections 5.1 and 5.2 of the PPS 2024 as it is in dynamic beach natural hazard lands which have been identified by the Municipality and the ABCA through their policies which restrict development, to be consistent with the PPS 2024.

51Planner Nywening opines that section 5.2.2.a) of the PPS 2024 “generally directs development outside of the hazardous lands adjacent to the Great Lakes” and section 5.2.3.a) of the PPS 2024, which specifically prohibits development and site alteration in the dynamic beach hazards, are clear in establishing the intent of the PPS 2024. Further he refers to section 5.2.8 of the PPS 2024 which identifies conditions where development may occur, and he proffers that none apply to this Proposal as dynamic beach hazards are identified in section 5.2.3.a) of the PPS 2024 as a place where development and site alteration cannot be considered.

52In addition to his analysis of section 5 of the PPS 2024, Planner Nywening opines that the Ontario Government publication, Understanding Natural Hazards-Great Lakes-St. Lawrence River System and large inland lakes, river and stream systems and hazardous sites guideline (“Technical Guide”) assists in the implementation of the natural hazards policies of the PPS 2024.

53Specifically, he referred to section 6.3 of the Technical Guide which indicates that any redefining of dynamic beach processes in an area designated a dynamic beach hazard can only occur through a study undertaken by a planning authority:

A planning authority may undertake a study to determine the dynamic beach limit which would be based on the flooding hazard limit (the 100-year flood level plus an allowance for wave uprush and other water related hazards) plus Scientific and engineered dynamic beach allowance as determined by a valid study.

54Planner Nywening opines that shoreline protective works such as cribs do not alter what is considered hazard lands. Only a study conducted by a planning authority can make such a change in designation and that has not happened in this case by the municipality or the Appellant. The SMP, in section 4.1, states that “the natural shoreline hazard…should not be modified by the presence of existing or proposed shoreline protection.”

55In contrast, Michael Davis opines that the Proposal is consistent with the PPS 2024. He described the Proposal as being like many other decks in the area and described it as the “unspoken neighbourhood norm”. He indicated that planning is outcome oriented and not tied to one specific line in a document. He proffers that the PPS 2024 provides direction to the Municipality as a whole and consistency with the PPS 2024 with respect to this appeal means to “avoid disruption to dynamic beaches and to not aggravating other properties due to development”.

56Planner Davis opined that given the proposed location of the deck is above and behind the timber cribs, it is no longer “functionally” in the “dynamic beach but is in a more stable area”. Planner Davis proffers that given the function of the crib and how it impacts what occurs in the dynamic beach area, the prohibitive language in section 5.2.3 of the PPS 2024 does not need to apply in a such a restrictive way.

57Engineer Gibbons said that the PPS 2024 is not sufficient to discuss shoreline hazards and, under cross examination, acknowledged that it also is not silent with respect to shoreline protection works.

58Under cross-examination regarding the delineation of the degree of hazardous conditions because of the timber cribs, Planner Davis indicated he was not trying to “redraw the hazard lines” but simply recognizing that “the characteristics are not consistent with the dynamic beach” landward of the cribs. Further, he proffered that the dune/beach is not a significant natural heritage feature in terms of the PPS 2024: “There has been no requirement for an environmental impact study which supports the position that there are no natural heritage features, no protected features, that would make a deck inappropriate”.

59Under cross-examination, Planner Davis opined that the PPS 2024 contemplates shoreline protection for new construction, but it does not anticipate a site that no longer demonstrates the hazards the policy was designed to protect.

60Under cross examination, Planner Davis acknowledged that the Tribunal Decision needs to be consistent with the PPS 2024 which supersedes site specific technical guidelines.

61Under cross examination by the Municipality, Engineer Gibbons maintained that the PPS 2024 does not give an exemption in the dynamic beach area where shoreline protection exists but also contends that the PPS 2024 is not sufficient to discuss shoreline hazards. Engineer Gibbons also acknowledged that the PPS 2024 is not silent on the role of shoreline protection and its role in permitting development but held that it provides “insufficient detail and doesn’t address design standards”.

62Engineer Gibbons, under cross examination, indicated that the Ministry of Natural Resources (“MNR”) Technical guide provides the technical foundation to enforce and roll out what is contemplated in the PPS 2024. It “gets into the weeds of coastal structures…provides specific details, a guide and is a planning tool for conservation authorities, homeowners, and developers.” He said that it pertains to natural hazards, is also published by the province and meant to be read with the PPS 2024.

63In considering the oral evidence and materials provided and marked as exhibits, the Tribunal finds that the Proposal is not consistent with the PPS 2024 and prefers the evidence provided by Planner Nywening and Engineer Williamson related to this issue.

64The PPS 2024 explicitly identifies the dynamic beach hazard and provides specific guidance related to its care and management:

5.2.3.: Development and site alteration shall not be permitted within:

a) the dynamic beach hazard;

5.2.8: Further to policy 5.2.7, and except as prohibited in policies 5.2.3 (emphasis added)

65The Tribunal finds , as per section 6.3 of the Technical Guide, that no formal study has been completed to alter the defined dynamic beach hazard zone, and therefore the policies that restrict development in the entire area apply. The provincial and regional guidelines are explicitly named to provide direction to landowners and municipalities on what is permitted in hazardous areas such as the dynamic beach.

66While the Tribunal appreciates the suggestion that the cribbing “functionally” reduces the impact of the dynamic beach, no evidence was presented that suggests there are provisions in the PPS 2024 or the Technical Guide that Dynamic Beach Hazard boundaries can be redefined simply through the establishment of a shoreline erosion structure (timber cribs) requiring ongoing maintenance and repair as noted in testimony.

Does the proposed minor variance maintain the general intent and purpose of the CLOP and the LSOP?

67Planner Nywening opines that the Proposal does not maintain the general intent and purpose of the CLOP or the LSOP which support the ABCA Shoreline Management Plan and are consistent with the PPS 2024.

68Planner Nywening proffered that section 8 of the CLOP reflects the restrictive language of section 5 of the PPS 2024 while also recognizing the importance of the SMP and the role the ABCA plays in natural hazard areas.

69Planner Nywening opines that the prohibition of development in a dynamic beach hazard outlined in section 8.5.3 of the CLOP is the guiding direction related to development in the dynamic beach hazards and overrides other sections that may be more permissive. It reads:

Dynamic beaches, as evidenced by sand dunes and described in the shoreline management plans prepared by the Conservation Authorities, will be identified in local official plans and conserved to safeguard the natural dune ecosystem, tourism potential, adjacent land uses, and related public safety. Development is not permitted within the limits of the dynamic beach hazard. (emphasis added)

70Planner Nywening proffers that section 8.7 - Natural Hazards is clear around the intent and purpose of the CLOP and its restrictive language around development in a dynamic beach hazard:

• 8.7.1 New development will generally be directed away from areas with known…natural hazards... which include…dynamic beach hazards

• 8.7.2 The County will assist local municipalities to develop policies that will not allow development and site alteration within…the dynamic beach hazard

71Regarding the protection of new development in a natural hazard, Planner Nywening opines that timber cribs are not permitted and referenced section 8.7.13 of the CLOP which indicates that setbacks are the “preferred method…as opposed to relying on structural or non-structural protection measures that require maintenance and upgrading over time”.

72Engineer Williamson maintains that refusal of the minor variance application is consistent with the CLOP which has a goal of preventing development from “Lakeshore Area 1” designated zones which are in place to “help prevent the loss of life and damage to property”. He said that there are no site conditions that suggest that the Subject Property should be considered as an exception to the rule. Specifically, he indicates that the existing timber crib is showing signs of “damage and has limited project life”.

73The LSOP designates the Subject Property as “Grand Bend Residential” and “Lakeshore” and includes overlay designations of “Lakeshore Area 1”, “Lakeshore Area 2”, and “General Regulation Area”. The “Lakeshore” designation includes the portion of the Subject Property from approximately the rear wall of the house to the lake.

74Planner Nywening proffers that the fourth paragraph in section 3.3.1.2 of the LSOP provides clear direction on “structural or non-structural” measures to support new development and they are not permitted. The policy requires technical studies (i.e.,: geotechnical engineering, coastal engineering) may be required to determine appropriate setbacks and none of which have been completed.

75Section 3.3.2.1 of the LSOP indicates that the Municipality recognizes the ABCA SMP role in implementing the Natural Hazard Policies of the PPS 2024 at the local level.

76Planner Nywening opines that policies 3.3, 3.3.2, and 3.3.2.1 of the LSOP describe “Lakeshore Area 1” as the “higher risk area but generally direct development outside of both Lakeshore Area 1 and…2”. More specifically, he proffers that a portion of policy 3.3.2.1 “specifically states that permissions for decks are limited to repair and maintenance of existing decks” which means that the new deck in the Proposal is not permitted.

77In re-examination, Planner Nywening opined that section 3.3.2.2. - Shoreline Protection provides additional clarity on the purpose and intent of the LSOP related to development along the shoreline. It defines shoreline protection works (includes structural and non-structural) and references the ongoing pressure to maintain and enhance existing beaches and minimize erosion while stabilizing “clay bluffs and direct[ing] development away from the hazardous areas”:

In order to allow the continuation of natural shoreline processes development setbacks from the hazard will be required. Shoreline protection works are not permitted for new development and are not encouraged for developed areas. (emphasis added)

78Planner Nywening, in the Planning Staff Report provided to the COA, summarizes his position in this way:

With the proposed deck being contrary to…the written recommendation of the ABCA and… contrary to…the “Lakeshore” designation’s policy specifically about decks and [to] the SMP’s permitted uses for Lakeshore Area 1, the proposed deck does not meet the intent of the Lambton Shores Official Plan or the County Official Plan under which the natural hazard policies of the Local OP were developed.

79Under cross-examination, Counsel for the Appellant submitted to Planner Nywening that section 8.7.4 of the CLOP provides criteria to assist so that development can occur and as long as the criteria can be achieved, the project can go ahead. Planner Nywening opined that this section cannot permit development that is not permitted in section 5.2.3 a) of the PPS 2024.

80In contrast, Michael Davis said that the Proposal maintains the general intent and purpose of the CLOP or the LSOP. He proffers that the intent of the CLOP policies is to prevent or reduce the likelihood of any disruption to the naturally occurring coastal processes and minimize the adverse impacts to the environment and neighbouring properties. Planner Davis proffers that given the proposed design of the deck and the findings of the Appellant’s coastal engineer the Proposal improves the safety and coastal compatibility without introducing new risk and therefore meets the general intent of the CLOP and the LSOP.

81Planner Davis concurs with Planner Nywening that the polices in section 8.0 of the CLOP are relevant to this Proposal but differs in his interpretation and application of them.

82Planner Davis opines that section 8.7.2 of the CLOP, which indicates that the County will assist local municipalities to develop policies that “will not allow development and site alteration within…the dynamic beach hazard”, should not be considered a directive of the CLOP.

83Planner Davis, opines that section 8.7.4 of the CLOP identifies conditions that determine when development is applicable and “site alteration can occur on natural hazard lands” if the following can be achieved:

a) all policies are met with respect to any coincidental natural heritage features;

b) hazards can be safely addressed and development and site alteration is carried out in accordance with floodproofing, protection, and access standards and procedures such as those related to coastal and geotechnical engineering practices;

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

d) no adverse environmental impacts will result;

e) vehicle and pedestrian access is available during times of flooding, erosion, and other emergencies (unless the site access is appropriate for the nature of development); and

f) the proposed use is not an institutional use, essential emergency services, or operations related to the disposal, manufacture, treatment or storage of hazardous substances.

84Planner Davis opines that given the testimony of the Appellant’s structural and coastal engineers, the proposed deck complies and can be built. He proffers that the policies do not “directly apply to a specific application” but need to align with the policy framework which, in his opinion, permit the Proposal to be built.

85Regarding the LSOP, Planner Davis opines that the overall goal of policy 3.3 - Hazard and Lakeshore is to protect public health and safety by directing development away from the hazardous lands and he proffers that “these policies clearly recognize that site-specific technical studies may refine hazard boundaries and inform appropriate development decisions”.

86Planner Davis opines that the proposed design and deck placement, supported by Chris Gibbon’s coastal engineering assessment, is no longer hazardous, so there is no need to apply the policies as the dangers they were intended to guard against no longer exist.

87Under cross-examination, Planner Davis indicated that he would not support the Minor Variance Application if it were not for the assessment provided by Mr. Gibbons.

88Planner Davis, under cross-examination opined that the SMP refers to an area within the dynamic beach hazard as being “less hazardous” when it was suggested by Counsel for the Municipality that there is no distinguishment in planning policy.

89In considering the oral evidence and materials provided and marked as exhibits, the Tribunal finds that the Proposal does not maintain the general intent and purpose of the CLOP and LSOP.

90The Tribunal prefers the analysis provided by Planner Nywening and agrees that the Official Plans supported by the SMP clearly differentiate the dynamic beach hazard and how that area is to be managed.

91The division of the area into two specific sections further highlights the sensitivity to allowing any kind of development let alone development in the “Lakeshore Area 1” zone.

92The Tribunal finds that section 8.5.3 reflects the intent and purpose of the CLOP: “Development is not permitted within the limits of the dynamic beach hazard.”

93Regarding the suggestion that the Proposal should be permitted due to the impact of the existing cribbing and its lessening of dynamic beach processes, the Tribunal looks to policies 8.7.1, 8.7.2 and 8.7.13 of the CLOP which, briefly summarized, indicate that new development should be directed away from natural hazards and specifically, dynamic beach hazards; policies should be developed that do not allow development or site alteration in a dynamic beach hazard and that development setbacks are the preferred method for protecting new development, not structural or non-structural protection measures that “require maintenance and upgrading over time”.

94The Tribunal finds that the existence of “crib” structures is also contemplated in the LSOP in section 3.3.1.2 (see paragraph [74]) and section 3.3.2.2 (see paragraph [76]) and is not a permitted reason to deviate from the prohibition of development in the dynamic beach hazard area.

Does the proposed minor variance maintain the general intent and purpose of the Lambton Shores ZBL?

95According to the Planning Staff report submitted to the COA, the existing uses of the property are permitted in the “R6” Zone and the proposed deck is accessory to the existing single detached dwelling and complies with the permitted uses and site regulations under sections 12.1 and 12.2 of the ZBL. Planner Nywening indicated that the “Environmental Protection – Hazard (EP-H)” zone area on the property is in the water.

96Planner Nywening opines that the proposed deck does not maintain the general intent and purpose of the ZBL and proffers that all planning documents go beyond general policies about restricting development in shoreline hazards with very specific statements that identify dynamic beaches.

97Planner Nywening opines that the definition of “Dynamic Beach” is informative in determining if the Proposal maintains the general intent and purpose of the ZBL:

"DYNAMIC BEACH" means areas of inherently unstable accumulations of shoreline sediments along Lake Huron. The DEFINED PORTION OF THE DYNAMIC BEACH means those portions which are highly unstable and/or critical to the natural protection and maintenance of the first main dune feature and/or beach profile, where any development or Site Alteration would create or aggravate flooding or erosion hazards, cause updrift and/or downdrift impacts and/or cause environmental impacts.

98Planner Nywening opines that the differentiation provided by section 3.19.1 of the ZBL between general shoreline setback provisions and those required along Lake Huron is significant in determining whether the Proposal meets the general intent and purpose of the ZBL. Generally, this section sets a 15 m top-of-bank (also referred to as top-of-slope, confirmed in 2024) minimum setback that may be reduced to 7.5 m on a watercourse “other than Lake Huron”.

99Planner Nywening held that the reliance on existing cribbing is not permitted to justify development in the Dynamic Beach Hazard based on section 5.7 of the SMP which indicates that non-essential structures are not permitted and outlines the permitted size and location of a deck. The proposed deck will be 69.8 m² and the SMP says “they should not exceed 16 m²”.

100He opines that the list in Appendix F of the SMP further establishes an intent to limit development in a dynamic beach hazard and specifically to decks, only permits “like for like repair and legally existing decks” while prohibiting new decks.

101In contrast, Planner Davis opines that the Proposal maintains the intent and purpose of the ZBL as it does not contemplate exceptions to the 15 m setback along Lake Huron where “engineered shoreline protection exists, as it does in this case”.

102Planner Davis proffers that the proposed deck will be constructed “entirely landward” of the existing timber crib which is protected from dynamic beach processes and therefore the intent of the section 3.19.1 of the ZBL is honoured.

103Planner Davis opines that Gibbon’s Coastal Report provides clear technical evidence that the area behind the timber crib no longer functions as part of the dynamic beach system thus minimizing safety concerns and impact on dynamic beach processes.

104In considering the oral evidence and materials provided and marked as exhibits, the Tribunal finds that the Proposal does not maintain the intent and purpose of the ZBL.

105The Tribunal prefers the analysis of Planner Nywening with respect to the importance of the restrictive language in the definition of a Dynamic Beach and its relevance to development within the dynamic beach area.

106The Tribunal also agrees that the specific reference in section 3.19.1 of the ZBL permitting a reduced shoreline setback on all watercourses except Lake Huron is significant. This indicates that the intent and purpose is that development does not occur in this area.

Is the Proposal desirable for the appropriate development or use of the land at 10034 Huron Drive?

107Planner Nywening said that the Proposal is not appropriate development. He maintained that the size, being about the size of a “three car garage”, is well beyond what is needed for simple enjoyment of the property. He also indicated that the Proposal potentially increases the amount of activity in a hazardous area which creates unnecessary exposure and increased safety issues.

108Planner Nywening maintained that the SMP does not support the location or size of deck proposed. He points to its detailed specifications for footpaths, setbacks for kayak storage, 15 m setback, and specific deck size restrictions. It indicates that decks should not exceed 16 m² in area. The proposed deck is approximately 69.8 m² according to the Planning Report provided to the COA.

109Planner Davis, in contrast, said that the presence of similar structures on neighbouring properties is a planning consideration when looking at desirability, compatibility, placement, scale, and visual aesthetic.

110Planner Davis proffered that the “replacement deck” is not a new use but should be considered a re-investment in an existing one and is more compatible with the site and shoreline conditions than the structures it replaces. He maintains that it “fits well within the established pattern of development in the Beach O’Pines area”.

111Planner Davis said that the mapping delineation is based on overall conditions for the whole area but given this specific circumstance a minor variance is appropriate given the shoreline protection that is in place.

112The Tribunal finds that the Proposal is not desirable for the appropriate development of the Subject Property after considering the oral evidence and materials provided and marked as exhibits.

113The Tribunal prefers the opinion of Planner Nywening and agrees that the Proposal does not align with the direction and guidance provided by the applicable planning documents. The size and location of the deck are not desirable based on the relevant planning policies and guidelines. The size of the deck far exceeds the permitted size where it would be permitted by policy, let alone its proposed location being along the Lake Huron shoreline and in a dynamic beach hazard.

Is the relief sought minor and does it represent good land use planning and in the public interest?

114The planners agree that determining if a variance is minor is not simply a number exercise. In this case though, Planner Nywening opines that the relief requested is not minor and is a “large departure from current policy”.

115Planner Nywening said that the requested setback reduction is inappropriate given that the request results in the placement of a large deck in “Lakeshore Area 1” of the dynamic beach which “significantly undermines the integrity” of several planning and conservation policies / guidelines and granting the variance would not have a minor impact.

116Planner Nywening proffers that the Proposal is not minor in that all planning documents “go beyond general policies with respect to restricting development in shoreline hazards”.

117Planner Davis maintains that minor means “impact on surrounding area and being in the overall public interest”. He proffers that while the reduction from 15 m setback to 0 m seems significant; the “real world impact” is minor.

118Planner Davis opines that the deck is landward except for the stairs which results in no increased exposure or hazard and doesn’t compromise views or other functional uses.

119Planner Davis also said that the engineered design of the structure is significant as it is proposed that the deck would be built on helical piles which significantly reduces the “magnitude of what is being asked”. He proffers that the design proposed, located behind timber cribs allows for “passive / intermittent enjoyment of the waterfront”.

120Planner Davis opines that, based on the Gibbons coastal engineering report, the “shoreline protection [timber cribs] limit dynamic beach processes” on the landward side which results in characteristics that are not consistent with a dynamic beach.

121The Tribunal finds that the relief sought is not minor, does not represent good planning, and is not in the public interest after considering the oral evidence and materials provided and marked as exhibits.

122The Tribunal prefers the evidence provided by Planner Nywening and agrees that the relief sought is a significant departure from the pertinent policies / guidelines that speak to development in a dynamic beach hazard and most significantly, development in “Lakeshore Area 1” as defined by the SMP.

123The Tribunal concurs that determining if the relief sought is minor is not simply a ‘numbers game’ as suggested by both planners but in this case, where guidelines express permissive language for some setbacks and specifically restrict setbacks as is the case for this location, its significance must be weighted accordingly.

124The Tribunal recognizes that the characteristics of the dynamic beach are impacted by the existence of the timber cribbing, but this does not change the intent of the policies and guidelines pertinent to this Proposal. Both the County of Lambton and Municipality of Lambton Shores Official Plans recognize the existence of structural barriers and provide direction against its use to permit construction on the lakeward side. Setbacks are the preferred method for determining what happens along the Lake Huron shoreline in a designated dynamic beach hazard.

APPLICATION FOR DEVELOPMENT APPROVAL PERMIT

125The statutory test to adjudicate an appeal of a permit denial is outlined above at paragraphs [24] to [26]. The ADAP confirms that the Appellant is not asking for a “like for like” deck replacement but “a removal, remodelling and reconstruction of a new deck structure” permit request.

126The Municipality of Lambton Shores did not have Party status for this appeal.

127The ABCA submits that the proposed deck fails to satisfy the three tests required to be issued a permit. It must pass the section 28.1(1) of the Conservation Act test, be consistent with the PPS 2024, and must be consistent with the ABCA, SMP, and Development Guidelines, and it does not. The policies, guidelines, and documents used by the ABCA staff to assess the Proposal are listed in Exhibit 1 (bottom of pg. 353).

Is the Proposal consistent with the PPS 2024 and, in particular, with natural hazards policies 5.1, 5.2.1, 5.2.2 a), 5.2.3 a), and if applicable, 5.2.8?

128The ABCA contends that the PPS 2024 and the Conservation Act policies are “reflective of the province’s intended application of the section 28 (1) test” as the ABCA is prohibited from granting a permit decision that is inconsistent with these policies.

129The Tribunal, in addition to the evidence and analysis outlined above regarding the PPS 2024 (between paragraphs [47] to [66]), examines additional evidence here related to the ADAP.

130The ABCA submits that section 5.2.1 of the PPS 2024 establishes them as the agency responsible for managing development within hazardous areas “in accordance with provincial standards [as] set out in the MNR Technical Guide”. As the agency with these responsibilities, it adopted a SMP in 1994 to implement the PPS 2024 and MNR Technical Guide. The current version of the SMP was updated in 2019.

131The ABCA maintains that the Proposal is not consistent with the PPS 2024 as it meets the definition of development – “construction of buildings and structures requiring approval under the Planning Act” – which will be in the Dynamic Beach Hazard where development is prohibited due to being “inherently unstable”.

132Andrew Bicknell provided factual testimony outlining the applicable policies and processes followed by the ABCA in considering an ADAP. He indicated that confirming the location of a proposal is the first step and which then determines what regulations apply before looking at other applicable policies for guidance to determine whether the appropriate tests have been met to grant a permit. As per the photo below, the proposed deck is in “Lakeshore Area 1” and the flood hazard zone where development is highly regulated:

(Exhibit 1, pg. 457)

133Regarding the PPS 2024, Manager Bicknell indicated that the ABCA relied primarily on section 5.2.3(a) which states that “Development and site alteration shall not be permitted within: the dynamic beach hazard”.

134He also indicated that Part 5 of the MNR Technical Guide for the Great Lakes- St. Lawrence River Shorelines provides additional support for the direction found in the PPS 2024 as it defines the dynamic beach hazard and provides technical details on what constitutes a dynamic beach hazard. Figure 5.4 (Exhibit 1) below was used to explain the specific details of the dynamic beach hazard.

138Engineer Williamson maintains that while the Proposal emphasizes the impact of a timber crib to limit dynamic beach processes, he acknowledges that the “timber crib offer[s] some short-term limited protection… [but it] is not a permanent solution or barrier to the hazard” and that regulating development in the hazardous area is consistent with the various subsections in section 5 of the PPS 2024. He does not share the opinion that the proposed location satisfactorily minimizes the risk to public safety and contends that it is possible that the deck could collapse after severe undermining and damage to pile structures.

139Engineer Williamson said that shoreline protection installed by a landowner may not be reliable as cribs may be buried and last for a long time and then be exposed by high water and not last very long. They also require the landowner to maintain them. He does not agree with the assessment that the shoreline protection has halted dynamic beach processes as there is evidence that the exchange of sand continues to occur and indicates that the existing shoreline can continue to erode.

140Engineer Gibbons maintains that in interpreting section 5.2.3 (a) of the PPS 2024 through the definitions of development, site alteration and dynamic beach the engineered deck, positioned above and landward of the cribs is not reflected in the definitions this policy applies to and is therefore not prohibited. He also maintains that it is significant that shoreline protection is not mentioned in this section.

141The Tribunal finds that the Proposal is not consistent with the PPS 2024 for the reasons outlined in paragraphs [65] to [68] above.

142The Tribunal finds that the Proposal is considered development as defined by the PPS 2024, located in the Dynamic Beach Hazard, and that section 5.2.8, while allowing some development in other locations, indicates “except as prohibited in policies 5.2.3 which says that “Development and site alteration shall not be permitted within: a) the dynamic beach hazard””.

Does the proposed development activity satisfy the requirements for a permit

under section 28.1(1) of the Conservation Act, c. C.27

and Prohibited Activities, Exemptions and Permits, O. Reg. 41/24?

143Manager Bicknell said that section 28.1 (1) (a) and (b) of the Conservation Act “are the predominate tests that the ABCA considers in considering the issuance of a permit”. He maintained that implementation of this legislation is achieved through Ontario Regulation 41/24 - Prohibited Activities, Exemptions and Permits.

a. Is the development activity not likely to affect the control of flooding, erosion, dynamic beaches, or unstable soil or bedrock?

144There is general agreement between Engineers Gibbons and Williamson that the proposed deck will have little effect on the control of flooding or erosion, however both testified that the existence of skirting or storage under the deck would have an impact on the movement of sand within the dynamic beach.

145On this issue alone, Counsel for the ABCA submits that the Proposal does not satisfy the requirements for a permit under section 28.1 (1) (a) of the Conservation Act.

146Counsel for the Appellant submitted that his clients are open to limiting or eliminating any skirting or storage below the platform of the proposed deck as a condition of an approved permit application.

147Manager Bicknell indicated that there isn’t an option to revise a permit application but once a permit is granted, conditions may be attached as per section 9(1) of the Conservation Act to:

(a) assist in preventing or mitigating any effects on the control of flooding, erosion, dynamic beaches

(b) assist in preventing or mitigating any effects on human health or safety or any damage or destruction of property in the event of a natural hazard; or

(c) support the administration or implementation of the permit, including conditions related to reporting, notification, monitoring and compliance with the permit.

148The Tribunal finds that based on the testimony of both Engineer Gibbons and Williamson the Proposal is not likely to impact the control of flooding, erosion, or unstable soil or bedrock.

149It is generally agreed that with the wooden cladding at the front of the structure, there will some impact on the dynamic beach and therefore this requirement is not satisfied based on the plans submitted.

b. Is the development activity 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?

150The Parties differ in their interpretation and application of this test in considering the Proposal.

151The ABCA contends that the question to be determined “is whether conditions or circumstances are likely created…that give rise to the possibility…of harm or damage” to human health or safety or cause damage to or destruction of public property.

152Engineer Williamson opines that the Proposal creates conditions that increase the possibility of harm or damage to human health and safety or cause damage to or destruction of public property. His opinion is based on the following:

• The closer a structure is to the lake the more intense the natural processes. For example, the larger the wave in deeper water, the larger closer to the shoreline;

• When exposed to high water levels and waves, erosion could occur that could result in a sudden collapse of the deck which, in the event people are on or around the deck at the time of collapse, their heath and safety would be impacted;.

• Would require evidence that helical piles are suitable for the proposed use and contends that they may not stand up to the natural forces of the lake through all seasons;

• The timber crib structure is of unknown structural/foundation detail, is showing signs of damage, and has a limited project life. This means that the sand behind the timber crib will almost certainly become a more active part of the dynamic beach at some point in the future. “It is not a permanent solution”;

• The dynamic beach functions as it normally would with the cribs in place; sometimes they are visible and sometimes not at all; and

• They could change over time with it becoming closer to the lake or closer to the land.

153Engineer Williamson, under cross examination, maintains that he has a number of concerns with the crib work and its potential for failure and causing damage to the deck. He acknowledged that the deck will be “pretty high” so he doesn’t anticipate much damage from waves but proffers that the location of the ‘footings’ could be damaged from sand or ice which could cause a drastic change to the condition in which the structure was built.

154Under cross examination, Engineer Williamson indicated that he frequently works with structural engineers in the design of structures that could be impacted by coastal forces and when asked if he had any reason to doubt Engineer Buck’s analysis and design, Engineer Williamson said, “ice is a complicated thing to address…I don’t know how he assessed the impact”.

155Engineer Williamson, under cross examination, opined that if technology is engineered to withstand coastal processes (ice, etc.), “the risk of a collapse would mitigate the risk. A more robust, engineered deck would be impacted less and as a result have less of a chance of risk to health and wellness”.

156Regarding the crib structure, Engineer Williamson, under cross examination, said it wasn’t his intent to assess the condition of the cribs or he would have done a site visit. He opines that there is no way to predict how long the cribs will last as it depends on the conditions, the type of wood, the dynamic beach action, and ice. Regular monitoring and maintenance are required, and significant deterioration may be occurring but may not be evident during periods when the cribs are inaccessible due to prolonged period of high-water levels.

157Laura Aaron indicated that she has been visiting the property for 48 years and signed the ‘power of attorney’ in 2022. Under cross-examination, Ms. Aaron indicated that she has not been involved in the maintenance and upkeep prior to this time and “certainly nothing to do with the structure or alteration of the property”. She also indicated that there is no record of a minor variance being approved for the existing decks and didn’t believe that the cribbing adhered to any municipal building standard given the lack of permitting for the decks.

158In contrast with the ABCA position, the Appellant contends that the total elimination of risk is not the intention of this test but that it must be determined if the “proposed deck is likely to create circumstances or conditions, which in the event of a hazard, might jeopardize health or safety or result in damage or destruction”.

159The Appellant submits, based on the structural design testimony of Engineer Buck and coastal processes testimony of Engineer Chris Gibbons, the Proposal is unlikely to create circumstances or conditions, which in the event of a hazard, might jeopardize health or safety of people or result in damage or destruction to property.

160An overview of Engineer Buck’s testimony related to the design of the Proposal, its structural components and location at the Subject Property are located at paragraphs [36] to [39] above.

161Engineer Gibbons attended the site and provided an overview of the condition of the existing timber cribs and analysis of the coastal processes of the dynamic beach at the Subject Property.

162Engineer Gibbons coastal engineering testimony supports the construction of the Proposal for the following reasons:

• It will be located on the landward side of existing timber cribs which prevent the natural sand exchange between the dune and beach. He proffers that the crib creates a boundary that allows sand to flow overtop but not through the crib.

• Neighbouring properties have similar shore protection which aligns with the cribbing of the Subject Property.

• The proposed deck should have less impact on coastal processes than the existing deck.

• The proposed deck is designed by a qualified structural engineer and the “loading of coastal forces” have been considered in the design. He maintains that the design using helical piles will not impede sediment transport along the shoreline, considers loading from waves and wave run-up and that the supports do not rely on the presence of the sand on the beach or dune.

163Regarding the use of helical piles, Engineer Gibbons said that he is seeing them used more in the last 10 years and maintains that their anchoring into silt and clay is more stable and then the shaft can be raised as high as required. He indicated that they are being used to support steel sheet type shoreline protection and often used in deeper waters. He also noted that they are being used in house construction which suggests they are strong enough for a deck.

164Engineer Gibbons said that the proposed deck will not be impacted by over-topping waves but will mostly experience spray due to its elevation. The crib “does take a lot of the energy out of the overtopping wave”.

165Regarding the timber cribs, Engineer Gibbons indicated that they are almost 30 years old and in fair condition, but some have broken timbers and missing lattice members. He proffered that maintenance is normal and is accounted for in the design plan and indicated that the ABCA Development Guidelines recognize the need for ongoing maintenance of shore protection (Exhibit 1, pg. 566). He anticipates that repair would be permitted as it is his opinion that the crib is meant to protect the dwelling not just reduce shore erosion. Under cross examination, he acknowledged that there is no assurance that someone would replace a crib structure in need of repair or replacement.

166Engineer Gibbons indicated that it would be difficult to replace the crib in its current position but opines that it should be allowed if needed. He indicated that if there were no crib, “this would be a different discussion entirely”. Under cross examination, Engineer Gibbons opined that a common mode of failure of timber cribs “is to topple forward into the lake” and acknowledged that a helical pile, in this case, could be damaged if this were to happen.

167The Tribunal finds that the proposed deck is 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 given its close proximity to the lake.

168While there is little dispute between experts about the strength of the deck itself, the Tribunal prefers the analysis of Engineer Williamson with respect to the potential impact on the health or safety of persons or result in the damage or destruction of property because of the proposed location of the deck and its reliance on timber cribs and helical cribs to withstand the varied natural hazards to which it would be exposed.

169The Tribunal prefers Engineer Williamson’s testimony that there is an increased potential for harm to individuals given the size of the deck and its location lakeward of the shoreline. The SMP Guidelines provide specific direction on the placement and size of a deck within a dynamic beach hazard and this proposal significantly varies from both.

Is the proposed development activity consistent with the policies of the ACAB made under the Conservation Act, R.S.O. 1990, c. C.27 and regulations made pursuant to the Conservation Act, in particular the following policies?

a. If applicable, the Policies and Procedures Manual for the Administration of Ontario Regulation 147/06 and Municipal Plan Input and Review Manual (2007):

i. Guiding Policies – Section 3.1 – Watercourses, Valleylands, Hazardous Lands, Wetlands and Shorelines

ii. General Policies – Section 3.12 and subsections – Lake Huron Shoreline;

iii. Specific Policies – Shoreline – Section 3.28 and subsections

b. Shoreline Management Plan, 2019

c. Development Guidelines made under the Shoreline Management Plan, 2019

170ABCA submits that the Proposal is not consistent with the ABCA Polices for Administration of Ontario Regulation 147/06 or with the SMP or its Development Guidelines.

171Manager Bicknell indicated that the proposed deck would be located entirely within the flood hazard and provided an overview of the defined area of the dynamic beach hazard as outlined in the SMP. He indicated that the landward limit of the Lake Huron flood hazard as a 15 m setback from the 100-year high lake level based on the 1988 high lake level, although the high lake level exceeded this level in 2020, and the policy has not been updated. He confirmed that in addition to the 15 m setback from the high lake level mark, the landward limit of “Lakeshore Area 1” is a further 15 m from the landward limit of the flood hazard. “Lakeshore Area 2” extends landward from the landward limit of “Lakeshore Area 1” for an additional distance of 30 m.

172Manager Bicknell maintained that the SMP is a management plan to assist the ABCA in carrying out regulatory responsibilities and as a resource guide. He emphasized that section 5.1 - Overall Management Approach of the SMP (Exhibit 1, pg. 543) demonstrates how the local policies are to align with other provincial and regional planning policies and regulations:

the approach that is recommended is one that advocates for responsible management along the entire ABCA shoreline. This requires a strategic approach that looks to eliminate the risk to human life and property damage over time by ensuring that buildings and structures are located outside of the hazard. This approach is one that is upheld by existing Provincial Policy, supported by legislation and the mandate assigned to conservation authorities and confirmed in existing municipal planning documents. (emphasis added)

173Manager Bicknell referred to Appendix F: Development Guidelines – Dynamic Beach Areas in the SMP which indicates for “Lakeshore Area 1” (Dune and Flood Portion) that both deck “like for like” repair and maintenance of legally existing decks are permitted, and that “new” decks are not permitted.

174Manager Bicknell indicated that ABCA mapping to delineate the various elements of hazard along the lakeshore does not have regard for any type of shoreline protection which he deems is consistent with the Technical Guide for Great Lakes - St. Lawrence River Shorelines, Part 5 - Dynamic Beach Hazard. He said that the second criteria in section 5.3 of the Technical Guide indicates how a dynamic beach allowance is determined:

the landward limit of the flooding hazard (100-year flood level plus a flood allowance for wave uprush and other water related hazards) plus a dynamic beach allowance based on a study using accepted scientific and engineering principles.

175Engineer Williamson maintains that the Proposal is not consistent with policies for the Administration of Ontario Regulation 147/06, section 3.1, which says that:

development…is prohibited within a watercourse…hazardous lands…and lands adjacent to …the Great Lakes – St. Lawrence River System…that may be affected by …dynamic beaches.” (Exhibit 1, pg. 460)

176Engineer Williamson also contends that the Proposal is not consistent with section 3.12 of the Ontario Regulation 147/06 which states that development is prohibited a dynamic beach plus 30 m and with the proposed deck at the face of the crib, it would be within the erosion hazard.

177Engineer Williamson said that Ontario Regulation 147/06, section 3.28.3 is applicable to the beach access stairs but the exemption it provides does not apply to the proposed deck.

178Engineer Williamson contends that the SMP and Development Guidelines 2019 should be read together and maintains that a new deck is not permitted in “Lakeshore Area 1” and is only permitted in “Lakeshore Area 2” if it is landward of the foredune. He opines that the foredune extends to the top of the bank (or foredune) and the fact that the proposed deck extends beyond the top of the bank, it is not consistent with the Development Guidelines.

179Under cross examination, Engineer Williamson acknowledged that the existence of larger trees and other vegetation behind the cribs suggests more stability which is different than areas without shoreline protection.

180In contrast to the ABCA position, the Appellant submits that the proposed deck has regard for the SMP and Development Guidelines by upholding their purposes and intent.

181Engineer Gibbons agrees that the proposed deck is in “Lakeshore Area 1” of the Dynamic Beach Hazard but maintains that the Development Guidelines and SMP are non-binding guidelines for the granting of permits in a regulated area.

182Under cross-examination, Engineer Gibbons indicated that the word “flexibility” suggests that the MNR Technical guide allows more flexibility, and he acknowledged that other provincial planning documents do not allow development simply because shoreline protection measures are in place.

183Engineer Gibbons supports the construction of the proposed deck based on the proposed design by a structural engineer and his own coastal engineering assessment which proffers that the impact of existing timber cribbing reduces the impact of the dynamic beach processes while also allowing them to continue and is not likely to affect the control of flooding, erosion, dynamic beaches or create a risk to the health or safety of persons or property.

184Engineer Gibbons opines that the MNR Technical Guide and the SMP provide policies regarding the installation of decks if shoreline protection is present. He contends that in this case then, a modified interpretation of the intent of the policy by a qualified coastal engineer is appropriate. Under cross-examination, he indicated that site specific modelling and mapping was not appropriate given that that a deck is a small structure and would not change the values found in an updated assessment.

185Engineer Gibbons contends characteristics of a dynamic beach are no longer evident due to the impact of the timber crib and shore protection of neighbouring properties.

186Regarding the engineered design of the proposed deck, Engineer Gibbons’ opines that it puts the deck 3 m above the top of the crib which provides sufficient vertical clearance. He maintains that the proposed deck will have a minimal effect on neighbouring properties as they also have shoreline protection that aligns with the timber cribs of the Subject Property.

187Engineer Gibbons acknowledges that there are inherent risks along the shorelines of the Great Lakes and while protection works can reasonably mitigate these hazards, they cannot entirely be eliminated, and shoreline protection needs to be monitored and maintained as required. He offers that the helical “piles need to be designed to support the proposed deck without the crib in place and with a significant loss in beach sand”.

188The Tribunal, having considered all of the materials, testimony, submissions from Counsel, and materials before it, finds that the Proposal is not consistent with the policies of the ABCA made under the Conservation Act.

189The Tribunal prefers the testimony of Manager Bicknell and Engineer Williamson in their analysis and application of the policies and guidelines relevant to this Proposal.

190The Tribunal finds that the SMP contemplates a variety of potential scenarios related to development / construction in a dynamic beach hazard zone and provides specific direction for such things as seasonal storage of canoes / kayaks, beach access paths, vegetation management, maximum size, and location of structures.

191The Tribunal finds the reference to the purpose of shoreline protection is important as it states that “shore protection is permitted for protecting primary buildings… [and] is not permitted for non-essential structures”. This indicates that the existence of shoreline protection is not to create opportunities for additional development but to solely protect primary structures.

192Regarding the opinion that the timber cribbing lessons/reduces the characteristics of the dynamic beach hazard and as a result, permits construction of a deck, section 5.3 of the Technical Guide for Great Lakes-St. Lawrence River Shorelines, Part 5 - Dynamic Beach Hazard is helpful. While the Tribunal respects the assessment provided by Engineer Gibbons related to the lessening of the dynamic beach processes, that is not enough to change what is permitted in “Lakeshore Area 1”. This policy requires that any changes of the “dynamic beach allowance [are] based on a study using accepted scientific and engineering principles” which Engineer Gibbons said his assessment is not.

193Engineer Gibbons testimony is helpful with respect to understanding the hazardous beach dynamics. He indicated that his report was a site evaluation, not a site-specific technical analysis of the kind which could theoretically be used to adjust the hazard area boundaries. He also opined that if such an analysis was conducted it would be unlikely to change the area designated as a dynamic beach hazard which supports the Tribunal finding that the development restrictions outlined in the various policies and guidelines related to the dynamic beach hazard would continue to apply.

SUMMARY OF DISPOSITION – MINOR VARIANCE

194The Tribunal, having considered all oral testimony, municipal records, reports, and submissions of Counsel for each of the Parties, denies the Minor Variance appeal. Specific findings for each test are outlined above.

195The Tribunal, overall, finds that the relief sought is not minor and the analysis provided in the Ontario Divisional Court Decision Vincent v. Gasperis useful. While the whole quote is applicable, the definition of minor being something “lesser or comparatively small in size or importance” is particularly helpful and the determination that “a variance can be more than a minor variance for two reasons, namely that it is too large to be considered minor or that it is too important to be considered minor” are particularly relevant to this appeal.

196The Tribunal finds that the Proposal to remove two existing decks (one in good repair) and replace them with one deck that is approximately three times the size with a 0 m setback when the SMP says that 16 m² is permitted if it is 15 m “landward of the line of vegetation” is not a “minor” request nor is it minor in importance. The dynamic beach hazard is referenced specifically in each of the pertinent planning policy documents as either a prohibited area or at the least, a very regulated area with respect to development and use.

197The Tribunal, in considering the “broader context, intent, and purpose” of this appeal, as suggested by Counsel for the Appellant, finds that the SMP provides consideration / flexibility by providing a way for a landowner to construct a deck or storage at the shoreline while still adhering to the restrictive language in the PPS 2024, CLOP, and LSOP.

198The Tribunal finds that raising a deck above the hazard zone while relying on existing timber cribs to minimize the potential future effects of the dynamic beach hazard does not negate the policies and guidelines that prohibit or restrict construction in the dynamic beach hazard. It was established in testimony that the existence of shoreline protection is contemplated in the planning policies considered for this appeal and the SMP provides direction as to the size and location of a deck in the dynamic hazard zone with respect to safety.

199The Tribunal finds that the minor variance does not represent good planning nor is it in the public interest. Planning policies applicable to this appeal provide very prescriptive language related to development within a dynamic beach hazard and it was consistent among the witnesses that the closer a deck is to the water, the more vulnerable it is to the coastal processes which would place any users at increased risk of injury due to potential coastal events.

SUMMARY OF DISPOSITION – APPLICATION FOR DEVELOPMENT PERMIT

192The Tribunal, having considered all oral testimony, ABCA records, reports and submissions of Counsel of the Parties, denies the Application for Development Permit appeal.

200The Tribunal finds that the existence of cribbing does not negate the PPS 2024, Conservation Act policies / guidelines, or the ABCA policies / guidelines that apply to the dynamic beach hazard. The timber cribbing that has been in place for almost 30 years is intended to reduce the erosion of the shoreline and not as a means to new construction in the hazardous zone. While engineering may be able to mitigate the safety concerns of construction in this area somewhat, it is not the intent of any of the planning or Conservation Act policies / guidelines to permit the existence of cribbing as a replacement for the actual shoreline and redefine where development / construction may occur in the dynamic beach hazard zone.

ORDER

201THE TRIBUNAL ORDERS THAT the appeal under section 45 (12) of the Planning Act is dismissed and the variance from section 3.19.1 of Zoning By-law No. 1 of 2003 is not authorized.

202THE TRIBUNAL ORDERS THAT the appeal under section 28.1 of the Conservation Authorities Act and the permit sought to engage in the construction of a new deck is refused.

“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.