Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 09, 2026

CASE NO(S).: OLT-24-000419

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

Applicant and Appellant: Brian Lewis

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: Amendment to permit alterations to a Settlement Area boundary

Reference Number: OPA 6

Property Address: 1119 County Road 20

Municipality/UT: Kingsville / Essex

OLT Case No.: OLT-24-001196

OLT Lead Case No.: OLT-24-000419

OLT Case Name: Lewis v. Kingsville (Town)

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

Applicant and Appellant: Brian Lewis

Subject: Request to amend the Official Plan – Failure to adopt the requested amendment

Description: To permit the adjustment of the Settlement Area Boundary through a land swap

Reference Number: OPA 18

Property Address: 1119 County Road 20

Municipality/UT: Kingsville / Essex

OLT Case No.: OLT-24-000419

OLT Lead Case No.: OLT-24-000419

OLT Case Name: Lewis v. Kingsville (Town)

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

Applicant and Appellant: Brian Lewis

Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision

Description: To permit the adjustment of the Settlement Area Boundary through a land swap

Reference Number: ZBA-2024-2

Property Address: 1119 County Road 20

Municipality/UT: Kingsville / Essex

OLT Case No.: OLT-24-000420

OLT Lead Case No.: OLT-24-000419

Heard: October 27, 28 and 29, 2025 by video hearing

APPEARANCES:

Parties	Counsel
Brian Lewis	Eric Davis
Town of Kingsville County of Essex	William Good Claire Bebington

DECISION DELIVERED BY YASNA FAGHANI AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Applicant, Brian Lewis, wishes to swap the land use designation and zoning on adjacent 4.4-hectare portions of 1119 County Road 20, Kingsville, Ontario (Subject Property).

2The Applicant appealed to the Town of Kingsville (“Town”) for a Zoning By-Law Amendment (ZBA) and an Official Plan Amendment (OPA) as well as to the County of Essex (“County”) for an OPA. It appealed to this Tribunal because the Town refused the Applications and the County failed to make a decision within the time period prescribed in the Planning Act (”Act”).

3The proposed swap entails rezoning portions that are currently zoned Lakeshore Residential subject to a holding provision (LR(h)) and replacing them with Agricultural zoning (A1) (“Area 1”), as well as rezoning lands that are A1 and replacing these with LR (h) (“Area 2”). The Subject Property is located in the Secondary Settlement area of the Town. Therefore, to implement the swap, the Town settlement boundary would need to be altered through the amendment of the County Official Plan (“County OP”) and Town Official Plan (“Town OP”).

4The swap is a 1:1 ratio, which means 4.4 hectares are requested to be removed from one zone and 4.4 hectares are requested to be replaced with another zone.

5The Applicant considers its request a simple land swap; however, the Town believes that that the change in land use requires many more considerations before approval of the Applications can be granted.

6Residents in the community who were granted Participant status voiced concerns through written submissions about the Applicant’s land swap proposals. The concerns included flooding risk, loss of agricultural land, environmental impact, and traffic issues, amongst others.

7After hearing the evidence of the Parties’ experts, considering the submissions of their Counsel and the Participants, the Tribunal determined that the central issues that need to be addressed are: 1) whether the land swap constitutes a “development”, and if so, has the Applicant provided the required studies; 2) whether the proposal entails the creation of a new settlement boundary, and if so, has the Applicant provided the required studies; and, 3) whether the Applicant has adequate regard for the new A1 zone which would result if the appeal is allowed.

8For the reasons set out below in this Decision, the Tribunal dismisses the appeals.

SUBJECT PROPERTY AND SURROUNDING NEIGHBOURHOOD

9The Subject Property has a total land area of approximately 40.7 hectares with approximately 523 metres of frontage on Lewis Ave, approximately 173 metres of frontage along Cedar Drive and approximately 182 metres of frontage along County Road 20. It is primarily used for agricultural field crop production. It has a single- detached dwelling adjacent to County Road 20 and four accessory dwellings with a woodlot located in the central portion of the lot.

10To the north of the Subject Property, across County Road 20, the lands are agricultural, with single-family residential dwellings on several of the lots. To the east and west of the northern portion of the Subject Property are a mix of single-detached dwellings and agricultural lands.

11The Cedarhurst Park residential area consists of single-detached dwellings and is located directly east of the southern portion of the Subject Property. To the west of the southern portion of the Subject Property are agricultural lands, with Cedar Creek beyond. To the south of the Subject Property, across Cedar Drive, are mainly single- detached dwellings and one commercial business.

LEGISLATION, PLANS AND POLICIES

12The relevant legislative framework and planning policies applicable to the appeal include: the Act, the Provincial Planning Statement, 2024 (“PPS 2024”), the Town OP and the ZBL, as well as the County OP.

13The Tribunal also must have regard to the decision of the Town and the information and materials that were before the Town as required by the Act. With respect to the County’s failure to make a decision, the Tribunal must have regard to any information and material which was received by the County in relation to the matter as required by the Act and finally the Tribunal must be satisfied that the Proposal represents good land use planning and is in the public interest.

EVIDENCE, ANALYSIS AND FINDINGS

1) Is the proposed land swap considered a “development”? If so, has the Applicant provided the necessary studies?

14The Applicant submits that no physical development is being proposed at this time. The Town argues that, by considering the definition of “development” in the PPS 2024 and County OP, as well as the definition of “use” in the Zoning By-law, when one portion of the land is changed or “swapped” for the use of another portion of the land, the request is in fact a “development”.

15The expert witness for the Town, Mr. William Pol, explained that under the PPS 2024, “Development: means the creation of a new lot, change in land use, or the construction of buildings and structures requiring approval under the Planning Act […]” (Emphasis added herein).

16The County OP has the same definition found in the PPS 2024. The Town OP does not define “development”. According to the Zoning By-law, section (s.) 3.11.17 : “Use: when used as a noun, shall mean the purpose for which any land, building or structure is designed, arranged or intended to be occupied or used, or for which it is occupied, used or maintained; when used as a verb, it shall have a corresponding meaning” (underlined emphasis). Mr. Pol stated that, in this case, there is an intent to change the use of one area of the land from (LR (h)) to A1 and another intent to change the use from A1 to (LR (h)).

17According to Mr. Pol, the change in use in fact constitutes a development. There is intention for one area of the land to be residentially developed in the future (therefore, intention to be occupied). He further explained that, when there is a development, the PPS 2024, County OP and Town OP require a number of studies (which will be discussed further below in this Decision), before the OPA can be allowed and the ZBA approved.

18The expert witness on behalf of the Applicant, Mr. Jay McGuffin, was not questioned on whether a change in land use means there is “development”. However, in the written closing submissions of the Applicant’s counsel, the Applicant agreed that the swap of land use designation and zoning meets the broad definition. With that said, the Applicant argued that the County and Town OPs do not make it obligatory that a number of studies be conducted. Counsel for the Applicant referenced sections of the County and Town OP with the term “may” (discussed below), to support the Applicant’s argument.

19During cross-examination, Ms. Vitra Chodha, the Town planner summoned by the Applicant, stated that the proposed swap was not a change in land use but a change in land use designation.

20The Tribunal is satisfied by the evidence of Mr. Pol that the change in land use, especially the fact that one portion of the land is intended to be residentially developed in the future, is indeed a development. In the closing submissions of the Applicant’s counsel, the Applicant’s counsel agreed that when considering the definition of “development” in the applicable legislation and policies, the proposed land swap constitutes a development.

21Next, the Tribunal must determine what is required when development is being proposed on the Subject Property. There is no dispute that the Subject Property is designated Provincially Significant Wetland, Natural Environment Overlay, Natural Environment, and Floodplain Development Control Area Overlay in the County OP and Town OP. The agreed statement of facts (“Agreed Statement of Facts”) submitted by the Parties supports these designations.

22According to Mr. Pol, the land swap is not consistent with the PPS 2024 because the Applicant has not demonstrated that there will be no negative impact on the natural features. As per policy 4.1.5, development shall not be permitted in “significant wetlands (…)” or “significant areas of natural and scientific interest (…) unless it has been demonstrated that there will be no negative impacts on the natural features or their ecological functions.”

23As per policy 4.1.8, “Development (…) shall not be permitted on adjacent lands to the natural heritage features and areas identified in policies […] (…) unless the ecological function of the adjacent lands has been evaluated and it has been demonstrated that there will be no negative impacts on the natural features or on their ecological functions.”

24The Applicant confirmed that the Subject Lands meet the definition of “adjacent lands” and that no study has been conducted to demonstrate negative impacts at this time (for example, not an environmental impact assessment). Mr. McGuffin stated that the intention is to reposition future development away from the natural features (in Area 2 rather than Area 1), thereby helping to preserve them. According to Mr. McGuffin, once the physical development plans have been perfected, the Applicant would submit planning applications along with the appropriate studies (stormwater management requirements, environmental impact assessment, amongst various other reports). Further, he stated that at this stage, the Town only requested a Planning Justification Report in support of the Applications and no other reports.

25Both Mr. McGuffin and Ms. Chodha stated that this “phased” approach is a “routine” approach; the approval of the land designation would come first, followed by submitting a development application and required studies later. Ms. Chodha noted that many of the studies required (environmental impact assessment, agricultural study, and servicing studies) are appropriate at the subdivision or site plan stage, not for an OPA or a ZBA.

26The Tribunal was not provided with evidence to suggest this “phased” approach is routine or typical on lands considered “significant wetlands”. As such, the Tribunal finds that the Applications are not consistent with the PPS, 2024, as the Applicant has not demonstrated that there will be no negative impacts, as explicitly required under the PPS 2024.

27As discussed earlier, the Applicant’s counsel referenced s.4.15 of the County OP and s.8.4.1 of the Town OP, which discuss development in the context of the “development process” and “complete applications”. Here it is suggested that the County and municipality “may” require some studies. These sections are not specific to “significant wetlands”.

28Section s.4.15 of the County OP states that a number of studies, such as agricultural impact assessment, environmental impact assessment and flooding studies, amongst a list of other studies, may be required, and that the need and timing of the reports will be determined by the local municipality at the pre-consultation meeting. Section 8.4.1 of the Town OP discusses what is necessary to consider a planning application as complete under the Act – for example, a pre-consultation taking place with the municipality followed by discussions regarding the need for one or more studies.

29Counsel for the Town argued that s. 8.A.2.2 of the County OP and s. 5.2.1 of the Town OP require the preparation of an environmental impact assessment when development occurs within or adjacent to sensitive features. According to s. 8.A.2.2 of the County OP:

Local Official Plans and Zoning By-laws will distinguish between the floodway and the flood fringe areas, in consultation with or confirmed by the applicable Conservation Authority. Development will not be permitted in the floodway, except in accordance with Provincial Policy. (Emphasis added.)

30Section 5.2.1 of the Town OP relates to the Lake Erie Hazard Area and Floodplain Development Control Area. Here, the section states:

Early consultation with the Town and the Essex Region Conservation Authority is required to determine whether lands within the floodprone areas have safe access appropriate for the nature of the development and the natural hazard.

Development and site alteration shall only be permitted in areas identified as being susceptible to flooding and/or erosion if:

• No adverse environmental impacts will result (preparation of an Environmental Impact Assessment may be required). (Emphasis added.)

31The Tribunal prefers the Town’s evidence regarding the need for an environmental impact assessment because the sections it referenced deal with lands that have sensitive features and are not simply sections that relate to a “complete application”. For example, s. 8.A.2.2 of the County OP clearly states that development in the floodway will not to be permitted except in accordance with Provincial Policy. The PPS 2024 is the instrument that makes it clear that no negative impacts must be demonstrated. As established earlier, the Applications are not consistent with the PPS 2024. As for s. 5.2.1 of the Town OP, the Tribunal recognizes that the word “may” rather than “shall” imports more flexibility and is not a strict requirement when it comes to floodplain development control area.

32The Tribunal heard evidence that the Essex Region Conservation Authority (“ERCA”) had been consulted as the southern portion of the Subject Property falls within the Floodplain Development Control Area. The area lies within the regularity (1:100 Year) floodplain of the adjacent watercourse. ERCA is aware of the plans to direct residential development away from the flood prone areas. The evidence presented was that ERCA requires the owner to obtain a permit and ERCA prior to construction or any other activities, as per s. 28 of the Conservation Authorities Act. The Tribunal finds that the requirement of s. 5.2.1 has been met; ERCA has been consulted.

33With that said, the need for an environmental impact assessment to determine negative impacts comes from the fact that the Applications must be consistent with the PPS 2024, as discussed earlier. The Applicant has failed to establish consistency with the PPS 2024.

2) Does the proposal entail the creation of a new settlement boundary? If so, what are the requirements before the Applications are allowed?

34There was disagreement between the Parties about the necessary requirements when a change is made to settlement boundaries within the Town. The Town and County OPA applications would re-designate 4.4 hectares of settlement boundary on the Subject Property at the southern portion (Area 1) and 4.4 acres to the settlement boundary further to the north (Area 2).

35The Applicant argued that the swap is not a “new” or “expanded” settlement area boundary, rather that the change represents and “adjustment” to an existing settlement area boundary. The Applicant explained that this adjustment was done within the context of policy 1.1.3.9 of the then-applicable Provincial Policy Statement, 2020 (“PPS, 2020”) and not policy 1.1.3.8 of the PPS 2020 which contemplated the “establishment” or “expansion” of the settlement area boundary.

36While beneficial for background information, the Tribunal is bound to analyze whether the Applications are consistent with PPS 2024, as this is the applicable policy instrument.

37The Town argued that the PPS 2024 is prescriptive in terms of what is required by planning authorities. According to policy 2.3.2.1, “in identifying a new settlement area or allowing a settlement area boundary expansion, planning authorities shall consider the following […] b) if there is sufficient capacity in existing or planned infrastructure and public service facilities”.

38Further, under policy 2.3.2.2 it states: “Notwithstanding policy 2.3.2.1 b), planning authorities may identify a new settlement area only where it has been demonstrated that the infrastructure and public services facilities to support development are planned or available.” (Emphasis added.)

39Under cross-examination, Mr. Pol testified that, according to the PPS 2024, settlement areas and boundaries can change and the intention of the policy document is for changes to happen. However, he said that since the Applicant did not do any studies, it is not possible to know if there is sufficient infrastructure to support development.

40Mr. McGuffin said that the proposed swap entails maintaining the existing Lakeshore Residencial zoning along with the holding provision for the lands considered for future development (Area 2). He stated that the holding provision is “an appropriate tool to ensure development is approved in its various iterations”. The Tribunal also heard evidence that the holding provision will “ensure that adequate capacity is available to support future development before it can be removed.” As a result, Mr. McGuffin found that the proposed swap was consistent with the policies of the PPS 2024. He also added that, in his view, the intent of the new PPS 2024 was to make settlement boundary adjustments easier, and so that adjustments could be done outside of a “comprehensive review”.

41When Mr. Pol was questioned regarding the holding provision in Area 2, he testified that municipal servicing should first be considered before changing the settlement boundary. He further stated that the regulatory and policy framework make it clear that the answer to the question about servicing, as in whether Area 2 can be physically serviced, needs to be confirmed before granting the Applications.

42In his witness statement, Mr. Pol elaborates:

[…] The purpose of Section 2.10 Holding (h) Zone Provisions is to establish the permitted land uses, the minimum lot size and building regulations in advance of the owner completing certain conditions, for these lands to have full municipal services. Approval of this symbol is premised on the ability for the condition to be fulfilled. The text of the zoning regulation requires paved road, a municipal sanitary sewer and approved storm water outlet. The clause fails to include the provision of municipal water services. The Appellant has not demonstrated that North Area can be provided these services or that these services can be provided without including the lands in South Area for an efficient provision of these services. It is therefore premature to apply the “h” symbol if the Town does not know if full municipal sanitary, stormwater and water services can be provided to the North Area. (Emphasis added)

43The Tribunal is persuaded by the evidence of Mr. Pol regarding the need to consider whether adequate municipal services are available.

44The term “adjustment” of the settlement area boundary no longer exists in the PPS 2024. The terms under consideration are “new settlement area” or “settlement area boundary expansions”. In the present case, the evidence is clear that there is no expansion of a settlement boundary (there is no addition of hectares of lands to the settlement boundary). As such, the Tribunal needs to consider is the requirements when a “new settlement area” is created. As well, the Tribunal is persuaded by Mr. Pol’s evidence that the lands in Area 2 were not part of the settlement area boundary and there is now a request to include them in the settlement area boundary, therefore, the result is a new settlement area.

45In the case of a “new settlement boundary”, the PPS 2024 makes it clear that infrastructure and public service facilities to support the development are planned or available. In this case, no studies have been conducted, and as Mr. Pol points out, the holding provision is deficient in considering whether municipal water services are available. In addition, when considering the definition of “infrastructure” in the PPS 2024, “storm water management systems” is included in the list of services.

46Based on the above, the Tribunal finds that the Applicant has failed to demonstrate that the new settlement boundary is consistent with the PPS 2024.

3) Has the Applicant given adequate regard to the Agricultural Lands?

47Mr. Pol testified that an Agricultural Assessment was not conducted as required by policies 4.3.4 and 2.3.2 (f) of the PPS 2024, which are the provisions that outline the requirements when there is removal of land from “prime agricultural area” for “expansion or identification of settlement areas”. More concerning for Mr. Pol was the fact that the new A1 zone would permit 39 additional as-of-right uses, including the construction of a greenhouse or winery, without additional studies from the Town.

48He elaborated in his witness statement that the intent of the additional uses “is to strengthen the Agriculture Area by recognizing the importance of Agricultura (sic) and related and complementary agriculture uses. No consideration has been given to the potential impact of these thirty-nine Agriculture uses in relation to the surrounding residential, natural heritage or agricultural uses.”

49When Ms. Chodha was examined regarding the potential development in the A1 zone, she said that she did not foresee “substantial development” in the A-1 zone because these lands are close to provincially significant wetlands and the Act requires building permit approval and environmental impact assessment when development is considered within 120 metres of significant wetlands. When asked if she had any concerns regarding lack of municipal control in relation to development in the A1 zone, she explicitly answered in the negative.

50In addition, Mr. McGuffin testified that, if there is a proposal for development in the floodplain, s. 28 of the Conservation Authorities Act requires the municipality to circulate the proposal to the Conservation Authority before a building permit can be obtained. This may mean the completion of technical studies prior to development. Mr. McGuffin also confirmed that the Applicant intends to maintain farming operations on the prime agricultural land (Area 1) and that the Conservation Authority has expressed a desire for the lands in the southern portion to be addressed as part of a restoration plan. According to Mr. McGuffin, this would align with the policies of the County OP about facilitating and supporting the preservation, protection, and enhancement of existing natural heritage features as stated in section 3.4.2 (a) of the County OP.

51The Tribunal finds that policy 4.3.4 of the PPS 2024 dictates that removal of land from prime agricultural areas for expansion, or identification of settlement areas, must be done in accordance with policy 2.3.2. According to policy .2.3.2 (f), when identifying a new settlement area (as determined earlier in this decision), planning authorities “shall consider […] whether impacts on the agriculture system are avoided […] as determined through an agricultural impact assessment or equivalent analysis”. (Emphasis added.)

52Here, the term “shall consider” is mandatory versus the more flexible term “may”. It is therefore imperative that an agricultural impact assessment be conducted in the case of a new settlement area when prime agriculture lands are to be impacted.

53The Applicant has not conducted an agricultural impact assessment and therefore the Applications are not consistent with the PPS 2024.

CONCLUSION

54The Applicant has failed to establish that the Applications are consistent with PPS 2024 as several technical studies have yet to be submitted. While the Applicant frames his request as a “land swap”, the request is in fact a “development”, and as a result an environmental impact assessment is necessary. In addition, the establishment of a “new settlement area”, as discussed earlier, requires several additional studies. Finally, since the Applicant is removing lands from prime agricultural area to establish the “new settlement area”, an agricultural impact assessment is also necessary.

ORDER

55THE TRIBUNAL ORDERS that the Appeals are dismissed and the requested amendments to the Official Plan of Town of Kingsville, the Official Plan of County of Essex and the Town of Kingsville Comprehensive Zoning Bylaw 1-2014 are refused.

“Yasna Faghani”

YASNA FAGHANI

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.