Kittmer v. Zorra (Township), 2026 CanLII 22801

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 10, 2026

CASE NO(S).: OLT-25-000408

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: David Kittmer

Subject: Application to amend the Official Plan – Refusal of application

Description: To permit undersized agricultural lot area to facilitate future application for consent to sever

Reference Number: OP 24-15-5

Property Address: 963452 96 Rd

Municipality/UT: Zorra/Oxford

OLT Case No.: OLT-25-000408

OLT Lead Case No.: OLT-25-000408

OLT Case Name: Kittmer v Zorra (Township)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant/Appellant: David Kittmer

Subject: Application to amend the Zoning By-law – Refusal of application

Description: To permit undersized agricultural lot area to facilitate future application for consent to sever

Reference Number: ZN 5-24-11

Property Address: 963452 96 Rd

Municipality/UT: Zorra/Oxford

OLT Case No.: OLT-25-000376

OLT Lead Case No.: OLT-25-000408

Heard: November 3-4, 2025 by video hearing

APPEARANCES:

Parties

Counsel

David Kittmer

Analee Baroudi

County of Oxford

Colin Leger

Township of Zorra

Colin Leger

DECISION DELIVERED BY S. BOBKA AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This Decision arises from a merit hearing for appeals filed by David Kittmer (“Appellant”) pursuant to ss. 22(7) and 34(11) of the Planning Act (“Act”) for applications for an Official Plan Amendment (“OPA”) and a Zoning By-law Amendment (“ZBA”) for the property municipally known as 963452 Road 96 (“Subject Property”).

2The proposed OPA and ZBA would add a site-specific policy and zone provision to facilitate the future creation of an undersized agricultural lot, approximately 8.2 hectares (“ha”) in size. The ZBA would recognize a minimum lot area of approximately 8.2 ha, whereas the current minimum lot area is 30 ha.

3The County of Oxford (“County”) Council denied the proposed OPA, and the Township of Zorra (“Township”) Council denied the proposed ZBA. The Appellant subsequently appealed those decisions to the Tribunal.

LEGISLATIVE FRAMEWORK

4In making its Decision, the Tribunal must be satisfied that the proposed instruments have regard for the matters of provincial interest under s. 2 of the Act and are consistent with the Provincial Planning Statement, 2024 (“PPS”). For the ZBA appeal, the Tribunal must determine whether the proposed amendment conforms to applicable official plans, in this case, the County Official Plan (“COP”).

5The Tribunal must also, in general, have regard for any related decisions of the municipality, as well as the information considered by it, in accordance with s. 2.1(1) of the Act, and be satisfied that the proposed OPA and ZBA represent good planning and are in the public interest.

HEARING

6In support of the applications, the Appellant called Rita Jabbour, a Registered Professional Planner, and in opposition, the County and Township called Spencer McDonald, also a Registered Professional Planner. Upon review and consideration of their respective Curricula Vitae and Acknowledgement of Expert’s Duty forms, and with no objections from any Party, the Tribunal qualified both Ms. Jabbour and Mr. McDonald to provide opinion evidence in land use planning.

Background

7Mr. McDonald provided contextual background information on the Subject Property and the history of the applications.

8The Subject Property is approximately 48 ha (118.6 acres), is located on the south side of Road 96, lying between the 27th Line and the 29th Line, in the northerly portion of the Township, and is within a prime agricultural area. It is currently under agricultural production (cash crops) and contains an existing single-detached dwelling, as well as existing agricultural storage buildings.

9The surrounding land uses include mostly cash crop and livestock agricultural operations. There are existing aggregate operations located to the southeast of the Subject Property.

10The Subject Property:

1. Is designated as ‘Agricultural Reserve’ and portions are designated ‘Environmental Protection’ in the COP;

2. Is zoned 'General Agricultural (A2) Zone' in the Township By-law (No. 35-99);

3. Contains significant natural heritage features and areas of ecological importance, including significant wetlands, woodlands and areas, and both floodplain and slope hazards;

4. Contains Woodlands identified as Significant Ecologically Important in the draft Oxford Natural Heritage Systems Study in both the western and southwestern portions;

5. Contains areas identified as significant wetlands, riverine erosion hazards, unstable soils, and riverine flood hazards throughout the western portion; and

6. Contains a municipal drain (part of the Wildwood Lake Tributary System) and a large pond area, which are regulated by the Upper Thames River Conservation Authority (“UTRCA”).

11The proposed OPA would add a site-specific agricultural zone for the Subject Property to provide policy direction allowing for the future creation of an undersized agricultural lot of approximately 8.2 ha in size.

12The proposed ZBA would place the future-proposed undersized lot into a site-specific agricultural zone to recognize the reduced lot area.

13The proposed undersized agricultural lot (approximately 8.2 ha) would be the remnant or retained parcel in a future consent application and would contain the existing dwelling, agricultural buildings, the pond, and approximately 5.3 ha of tillable agricultural land.

14The applications were deemed complete on December 17, 2024, and were circulated to the applicable agencies for commentary. The UTRCA indicated that they regulate the Subject Property, that they generally do not support the fragmentation of hazard lands, and that permits would be required for any work proposed within the UTRCA’s regulation limit. The Ministry of Environment, Conservation and Parks Species at Risk Branch indicated a high likelihood for Species at Risk in the forested area, the field, and the watered habitat on the Subject Property. They strongly suggested that due diligence be taken to make certain that Species at Risk, and their habitat, are not impacted by the activities occurring on the Subject Property following any zone change.

15The Township Staff Report was presented to Township Council on April 16, 2025, and the County Council Report was presented to County Council on May 14, 2025 (collectively “Reports”). Mr. McDonald prepared both Reports, which each recommended denial of the applications, as they were not consistent with the PPS regarding lot creation in prime agricultural areas, and did not conform to the COP with respect to agricultural lot creation in the County’s Agricultural Reserve.

16Township Council refused the ZBA application on April 16, 2025, and County Council refused the OPA application on May 14, 2025.

17Ms. Jabbour also provided information on the Subject Property and its uses. It was originally used as cattle pasture, with a pond built as a water source for the cattle in the 1960s. In the mid-1980’s, concerns about contamination of the pond were raised and the farm transitioned to cash crops (including hay, corn, soybeans, wheat, barley, mixed grain, and fall cover crops).

18She explained that the Appellant’s focus for the proposed retained parcel is the growing and processing of specialty crops (including fruits, vegetables, flowers, heirloom plants) and native trees, which have been grown and sold for the past two years, as well as the collection and processing of their seeds for wholesale production and sale. She also said that the Appellant makes products from the crops grown on the farm (such as preserves, cut flower décor, creams, and salves) and was exploring possible aquaculture activities for the pond.

19Ms. Jabbour said that the proposed severed parcel is currently farmed for traditional cash cropping (corn, soybeans, wheat) by the owners of the agricultural lands to the south and it has operated independently from the proposed retained parcel.

20Ms. Jabbour highlighted that, in 2024, the Appellant consulted with the UTRCA, who recommended a plan for buffers (“Upper Thames Buffer”) around the pond and that other marginal lands be retired from agricultural production due to erosion issues and sloping terrain.

Issue 1: Matters of Provincial Interest

21Regarding the matters of provincial interest, both experts focussed their evidence on s. 2(b) of the Act, which involves “the protection of agricultural resources in the Province.”

22It was Ms. Jabbour’s opinion that the proposed OPA and ZBA have regard to s. 2(b) of the Act. She said that protecting agricultural resources is not limited to large parcels of land.

23She stated that:

1. The proposed OPA and ZBA were required to “recognize two (2) distinct agricultural operations occurring on [the Subject Property] …” and “to facilitate a greater diversity of agricultural uses in the area”;

2. The OPA and ZBA do “not propose a change in land use which would permit non-agricultural use or the removal of lands from the prime agricultural area/agricultural reserve”;

3. The uses on both the proposed “retained and severed parcels and associated buildings and structures will continue to be for agricultural uses which are permitted in the PPS …”;

4. There are no new non-agricultural buildings or structures proposed on either parcel;

5. Any land proposed to be retired from agriculture for the Upper Thames Buffer is “marginal and is intended to ensure environmentally safe agricultural practices on the retained parcel to align with the sustainable philosophy of the farm”; and

6. On the proposed severed parcel, traditional cash cropping (corn, wheat, soybeans) will continue. The size of the proposed severed parcel will be greater than the minimum lot area for agricultural parcels (30 ha) under the COP.

24Ms. Jabbour concluded that, as there would be no change in the use of the land as an agricultural resource, the intent of s. 2(b) of the Act is maintained and the agricultural resources of the Province of Ontario (“Province”) are protected.

25Mr. McDonald opined that the proposed instruments do not have regard for the protection of agricultural resources in the Province.

26He said that the protection of agricultural resources includes “protecting larger farm holdings from being fragmented.…” Avoiding fragmentation is important as larger holdings afford greater flexibility for future farming operations. He explained that more intensive agricultural uses, such as large cash cropping, often require larger land holdings to remain viable.

27Mr. McDonald said that the proposed consent (which the OPA and ZBA would facilitate) would fragment existing farmland. An undersized lot, as proposed, would not be capable of sustaining a large cash crop operation. He opined that, by facilitating a future undersized lot of approximately 8.2 ha, these applications are proposing to fragment existing farmland.

28He concluded that the proposed instruments, which enable the creation of an undersized agricultural lot, do not have regard for s. 2 (b) of the Act, as:

1. They fragment farmland;

2. The new lot would be too small to support more intensive uses common in the area (such as large cash crops); and

3. They reduce flexibility for future agricultural operations on the Subject Property.

Tribunal Analysis and Findings

29Through their testimony, the experts agreed that cash cropping was an agricultural use. They agreed that cash cropping is common in the area, whether looking at the close surrounding area or the whole of the County. The experts further agreed that cash cropping included both larger scale crops (such as corn, wheat, soy, etc.) and smaller scale crops (such as flowers, fruits, vegetables, etc.).

30The Tribunal accepts Mr. McDonald’s evidence that a new undersized lot would be too small to support large cash cropping. His evidence was that the current Subject Property would be able to sustain both large scale cash cropping and small scale cash cropping, while a smaller sized 8.2 ha parcel would only be suitable for the latter.

31Ms. Jabbour’s evidence was that the creation of an undersized parcel is required to recognize the two distinct uses on the Subject Property; however, the Tribunal is not satisfied that this is the case. The very fact that both large and small scale cash cropping are currently occurring demonstrates that the two distinct uses can co-exist and continue on the Subject Property.

32The Tribunal finds that maintaining a larger parcel protects the Province’s agricultural resources as it does not fragment farmland, and by allowing more uses, it ensures more flexibility. The Tribunal finds that the proposed instruments do not have regard for s. 2(b) of the Act.

Issue 2: Provincial Planning Statement, 2024

33Much of the discussion regarding consistency with the PPS involved s. 4.3.3.1.a), which speaks to lot creation in prime agricultural areas and states:

1. Lot creation in prime agricultural areas is discouraged and may only be permitted in accordance with provincial guidance for:

a. agricultural uses, provided that the lots are of a size appropriate for the type of agricultural use(s) common in the area and are sufficiently large to maintain flexibility for future changes in the type or size of agricultural operations.

34It was Ms. Jabbour’s opinion that that the proposed instruments were consistent with the PPS, specifically sections 4.1, 4.2, 4.3, 4.3.1.2, 4.3.3, 4.3.3.1.a), and 5.2.

35Ms. Jabbour said that in planning legislation consistency means that the proposed instrument is not contradictory to and does not “vary from the … policies contained within the PPS, 2024. The OPA and ZBA must be clearly in agreement with PPS, 2024.” She highlighted the difference between policies that provide direction (with language such as ‘shall’ or ‘shall not’) and policies that use enabling or supportive language (with language such as ‘should’, ‘promote’, and ‘encourage’) and said that there is “some discretion when applying a policy with enabling or supportive language in contrast to policy that is a directive, limitation or prohibition.” She said that lot creation, as outlined in s. 4.3.3.1a) of the PPS, is discouraged but not prohibited.

36Ms. Jabbour reviewed the policies relating to Natural Heritage in s. 4.1 and to Water in s. 4.2 of the PPS. She highlighted that ‘development’ is a defined term in the PPS, and it includes the creation of a new lot. She opined that while “the OPA and ZBA will facilitate “Development” in the form of a future consent (lot creation), the consent will not result in site alteration within the valley lands or wetlands …”, nor would it “result in the degradation of the quality or quantity of the water resource or its hydrologic function.”

37Ms. Jabbour reviewed the policies relating to Natural Hazards in s. 5.2 of the PPS. She explained that a portion of the Subject Property contains a riverine flooding and erosion hazard. She said that “No new buildings or structures are proposed within that portion of the Subject Lands affected by the Erosion Hazard and Unstable Soils. Therefore, potential erosion hazards can be avoided.”

38Turning to the policies regarding Agriculture in s. 4.3 of the PPS, Ms. Jabbour said that:

1. The proposed OPA, ZBA and future consent will have no impact on the use of the retained and severed parcels; both will continue to be used for agricultural uses which are permitted in the PPS;

2. There is no change in the land use proposed by the OPA and ZBA, no non-agricultural uses are proposed, nor are any lands removed from the prime agricultural area; and

3. No new non-agricultural buildings or structures are proposed on either parcel.

39She referred to s. 4.3.2 of the PPS regarding Permitted Uses, specifically s. 4.3.2.2, which states that “In prime agricultural areas, all types, sizes and intensities of agricultural uses and normal farm practices shall be promoted and protected in accordance with provincial standards.” She emphasized that the PPS protects and promotes all types, sizes, and intensities of agricultural uses in prime agricultural areas.

40Regarding s. 4.3.3.1.a) of the PPS, Ms. Jabbour highlighted that the PPS defines ‘Agricultural Uses’ as “the growing of crops, including nursery and horticulture crops; apiaries; and, associated on-farm building and structures including but not limited to value-retaining facilities ...” (emphasis added by Ms. Jabbour). She also referred to the Province’s Guidelines on Permitted Uses in the Prime Agricultural Areas (“Province’s Guidelines”), which say that agricultural uses are undertaken with the expectation of gain or reward.

41She reiterated that the proposed severed parcel would continue to be used for traditional cash cropping (i.e. field crops), while the retained parcel is intended to “grow and harvest heirloom plants and native trees and [to] collect and process their seeds for wholesale production and sale.”

42In her discussion of lot creation (regarding s. 4.3.3.1.a), Ms. Jabbour also referred to:

1. The ConnectON economic development geo-mapping tool, which provides mapping for the agri-food sector; and

2. The ‘Guide to Farms, Food and Local Fare in the County’ (“Tourism Guide”) published by Tourism Oxford.

43She opined that these documents show that there are many farms (with diverse agricultural operations) in the area that are operating on parcels of less than 8.2 ha. She said that:

These operations have been used to evaluate the sufficiency of the proposed lot size for the retained lot (+8.2 hectare) and its ability to maintain flexibility for future changes in the type and size of agricultural operations ranging from livestock operations (such as cattle and poultry farming) to other animal production (such as beekeeping for honey production) to cash crop production (such as corn, soybeans and ornamental plants). (Exhibit 2, p. 28, paragraph 158)

44However, upon cross-examination, Ms. Jabbour admitted that the Tourism Guide was not a planning document and that its intent was to attract tourists. As a result, large cash cropping operations were not featured in the Tourism Guide, as these were generally not tourist destinations.

45Ms. Jabbour concluded that:

…the proposed OPA and ZBA will facilitate lot creation for an agricultural use (cash crop) that is common in the area and that is sufficiently large enough to maintain flexibility for future changes in the type or size of agricultural operations. (Exhibit 2, p. 30, paragraph 166)

46Mr. McDonald opined that the proposed OPA and ZBA are not consistent with the PPS.

47He said that the Subject Property is considered prime agriculture land and is in an area where agricultural lands predominate. He highlighted s. 4.3.1.2 of the PPS which states that: “As part of the agricultural land base, prime agricultural areas, including specialty crop areas, shall be designated and protected for long-term use for agriculture.”

48He agreed with Ms. Jabbour that both the proposed retained and severed parcels are intended to remain agricultural. However, he found that the applications:

…are not consistent with Section 4.3.3.1.a) as the resulting size of the proposed lot to be retained is not appropriate for the type of agricultural use(s) common in the area and is not sufficiently large to maintain flexibility for future changes in the type or size of agricultural operations. (Exhibit 1, p. 11, paragraph 41)

49He explained that in the County, and specifically in the Township, agriculture generally features large farming operations for either:

…cash cropping purposes (corn, soybeans, hay, winter wheat, potatoes, barley, mixed grain) or livestock operations (dairy, swine, poultry, goats and beef) with the necessary land areas for nutrient management. Smaller, more intensive agriculture, such as greenhouses and vegetable production, is not common… (Exhibit 3, p. 11, paragraph 42)

50He reviewed 371 agricultural parcels surrounding the Subject Property, including existing undersized lots, and found that the average parcel size is 28 ha, whereas the applications propose a lot size of 8.2 ha. Based on this, it was his opinion that the size of the proposed 8.2 ha lot is not common.

51Mr. McDonald said that the applications are not consistent with the PPS as they do not reflect the direction in the PPS to ensure agricultural lots are of a size appropriate for the type of agricultural uses common to the area, or large enough to maintain flexibility for future changes in the type or size of agricultural operations.

52Mr. McDonald also highlighted s. 2.1.1.3 of the Province’s Guidelines, which he opined, are intended to help decision makers interpreting the PPS.

53He explained that s. 4.3.2.2 of the PPS states: “In prime agricultural areas, all types, sizes and intensities of agricultural uses and normal farm practices shall be promoted and protected in accordance with provincial standards.”

54In relation to the above, s. 2.1.1.3 of the Province’s Guidelines provides the following:

This criterion is not intended to suggest that small farm lots may be created. In general, the larger the farm parcel, the more adaptable it is to changing conditions and the more efficient it is to run the farm. Keeping farms large enough to maintain flexibility is key to agricultural viability and to achieving the PPS requirement of protecting prime agricultural areas for long-term use in agriculture. (Exhibit 3, page 12, paragraph 47)

55Mr. McDonald concluded that the creation of an 8.2 ha undersized lot is not consistent with the PPS, as informed by Section 2.1.1.3 of the Province’s Guidelines.

Tribunal Analysis and Findings

56The language in s. 4.3.3.1.a) of the PPS first specifies that lot creation in prime agricultural areas is discouraged. It may only be permitted for agricultural uses when:

1. The size is appropriate for the type of agricultural use(s) common in the area; and

2. It is large enough to maintain flexibility in size or type of future operations.

57The Tribunal finds that the proposal does not meet either of these criteria.

58Regarding the appropriate size, there is no dispute that small cash cropping (as conducted and proposed by the Appellant) is common to the area and that the proposed undersized lot would be of a size suitable for small cash cropping. But large cash cropping is also common to the area. As stated by Mr. McDonald, agriculture in the County and Township is “generally characterized by large farming operations for cash cropping purposes (corn, soybeans, hay, winter wheat, potatoes, barley, mixed grain) ...” and creating an undersized lot of 8.2 ha would not be appropriate for this use.

59Regarding the maintenance of flexibility, as proffered by Ms. Jabbour, allowing the undersized lot maintains a certain level of flexibility, which she opined was sufficient, in that different types of small cash cropping are possible on an 8.2 ha lot. However, the Tribunal finds that more flexibility is maintained by ensuring the Subject Property remains large enough to enable both large and small cash cropping operations. Ms. Jabbour’s evidence puts forward a narrow interpretation of flexibility, which the Tribunal finds is not consistent with the PPS.

60As highlighted by Mr. McDonald, the Province’s Guidelines clearly state that: “Keeping farms large enough to maintain flexibility is key to agricultural viability and to achieving the PPS requirement of protecting prime agricultural areas for long-term use in agriculture.”

61Maintaining the larger parcel allows for greater flexibility in the type or size of future agricultural operations, while allowing the smaller parcel would limit future uses to types of agricultural that require 8.2 ha or less. The Tribunal finds that this is not consistent with s. 4.3.3.1.a) of the PPS.

62Both witnesses also referred to s. 4.3.2.2, which states: “In prime agricultural areas, all types, sizes and intensities of agricultural uses and normal farm practices shall be promoted and protected ….” By keeping the larger lot, it is promoting and protecting both large and small scale cash cropping, which would include all types, sizes, and intensities; whereas, if the undersized 8.2 ha parcel is permitted, then it is only promoting and protecting the smaller type of cash cropping (or other agricultural uses that could be accommodated on an undersized parcel of 8.2 ha (such as apiaries)). Given this, the Tribunal finds that allowing the undersized lot would not be consistent with this section of the PPS.

CONCLUSION

63The proposed instruments would lay the path for the creation of an undersized lot. As discussed above, the Tribunal finds that the proposed instruments do not have regard for the matters of provincial interest and are not consistent with the PPS, as the proposal would result in the fragmentation of prime agricultural land and would create a lot with limited flexibility for future uses.

64The Tribunal was not convinced by Ms. Jabbour’s evidence that the proposed instruments (and future proposed consent) are required to recognize the two distinct agricultural operations occurring on the Subject Property. She said in her testimony that the two types of cash cropping (large and small) are currently occurring on the Subject Property, and she agreed, in cross-examination, that the two current uses could continue without the approval of the applications.

65The Tribunal prefers the evidence of Mr. McDonald, finding it to be more logical, succinct, and clearly laid out. The Tribunal finds that small cash cropping can continue on the Subject Property, but large cash cropping would not be possible on the proposed undersized lot. The Tribunal also finds that, in this case, preserving more flexibility will better protect the agricultural resources of the Province. In addition, disallowing the creation of an undersized lot prevents the fragmentation of agricultural lands.

66The Tribunal further finds that, as the creation of an undersized lot would not protect the agricultural resources of the Province and is not consistent with the PPS, the proposal does not represent good planning and would not be in the public interest.

67Given the above findings, the Tribunal does not find it necessary to review and analyze conformity with the COP.

68The Tribunal has had regard to the decisions of the County and Township and the information considered.

69The Tribunal will not approve the proposed OPA and ZBA.

ORDER

70THE TRIBUNAL ORDERS that the appeals are dismissed and the requested amendments to the County of Oxford Official Plan and the Township of Zorra Zoning By-law No. 35-99 are refused.

“S. Bobka”

S. BOBKA

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.