Tuinstra v. Grimsby (Town), 2026 CanLII 35706

Ontario Land Tribunal

Issue Date: April 13, 2026 Case No(s).: OLT-22-002876 (Formerly PL210237)

Proceeding Commenced Under subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Ken and Lori Tuinstra Subject: Consent Description: To create a new lot for future residential use Reference Number: B02-21 Property Address: 9 Doran Avenue Municipality/UT: Grimsby/Niagara OLT Case No.: OLT-22-002876 Legacy Case No.: PL210237 OLT Lead Case No.: OLT-22-002876 Legacy Lead Case No.: PL210237 OLT Case Name: Tuinstra v. Grimsby (Town)

Proceeding Commenced Under subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Ken and Lori Tuinstra Subject: Minor Variance Description: To facilitate 2 semi-detached on the proposed severances land and an existing duplex on the retainment land with frontage on the public portion of Doran Avenue Reference Number: A01-25 Property Address: 9 Doran Avenue Municipality/UT: Grimsby/Niagara OLT Case No.: OLT-25-000492 OLT Lead Case No.: OLT-22-002876 Legacy Lead Case No.: PL210237

Heard: September 10-12 by Video Hearing and September 29, 2025 in Writing

Appearances

Parties Ken and Lori Tuinstra Counsel/Representative Meaghan McDermid

Parties Town of Grimsby Counsel/Representative Tom Halinski

Decision Delivered by Bita M. Rajaee and Order of the Tribunal

Introduction

1This Hearing arose from appeals by Ken and Lori Tuinstra ("Applicant"), pursuant to sections 53(19) and 45(12) of the Planning Act ("Act"). The Applicant seeks a consent to sever the property municipally known as 9 Doran Avenue ("Subject Property), in the Town of Grimsby ("Town"), as well as Minor Variances to facilitate development on the severed lots. The Town's Committee of Adjustments ("COA") denied the consent application on March 16, 2021, and the Minor Variances application on May 20, 2025.

2The Parties raised no concerns with the Tribunal-issued Notice. No other individual sought Party or Participant status at this proceeding.

Decision

3The Tribunal grants the provisional consent subject to the conditions proposed by the Town, including the condition requiring that the Applicant dedicate a section of the Subject Property to the Town to be a public highway. As a result of this decision, the Tribunal adjourns the Minor Variances appeal until such time as the Parties provide information to the Tribunal as outlined below.

Consent and Minor Variance

4The Applicant requests that the Subject Property be severed in accordance with this sketch:

5The Subject Property is proposed to be divided into three parts, as follows:

a. Part 1A: severed (to accommodate the western half of a proposed semi-detached dwelling);

b. Part 1B: severed (to accommodate the eastern half of a proposed semi-detached dwelling); and

c. Part 2: retained (to accommodate the existing single detached dwelling).

6To facilitate development on the severed lands, the Applicant is also seeking the following variances to the Town's Zoning By-law 14-45 ("ZBL"), as amended:

Part 1A (semi-detached dwelling – west unit)

1. To permit a minimum frontage of 3.78m (per unit) for a semi-detached dwelling, whereas 7.5m (per unit) is required, as per Section 7.2.1, Table 11, of the ZBL.
2. To permit a rear yard of 0.0 m for a semi-detached dwelling, whereas 7.5 m is required, as per Section 7.2.1, Table 11, of the ZBL.
3. To permit a maximum driveway width for a driveway providing access to an attached garage of 8.35 metres, whereas a maximum driveway width of 3.0 metres is permitted, as per Section 4.31 d) i) of the ZBL.

Part 1B (semi-detached dwelling – east unit)

1. To permit a minimum frontage of 3.78m (per unit) for a semi-detached dwelling, whereas 7.5m (per unit) is required, as per Section 7.2.1, Table 11, of the ZBL.
2. To permit a rear yard of 1.0 m for a semi-detached dwelling, whereas 7.5 m is required, as per Section 7.2.1, Table 11, of the ZBL.
3. To permit a maximum driveway width for a driveway providing access to an attached garage of 8.35 metres, whereas a maximum driveway width of 3.0 metres is permitted, as per Section 4.31 d) i) of the ZBL.

Part 2 (duplex)

1. To permit a minimum frontage of 3.8m for a duplex, whereas 12m is required, as per Section 7.2.1, Table 11, of the ZBL.
2. To permit a rear yard of 0.9 m for a duplex, whereas 7.5 m is required, as per Section 7.2.1, Table 11, of the ZBL.

Preliminary Issues

Revised Applications

7The Consent application was denied by the COA on March 16, 2021. Since then, the consent plan has changed to the one that came before the Tribunal. The Minor Variance application was submitted years later, on December 23, 2024, and contained the updated consent sketch. The Minor Variances that were before the Tribunal contained a slight change from those that were before the COA.

8While Consent and Minor Variance applications are de novo Hearings, the Tribunal must still assess the plans that had come before the COA, and cannot consider brand new applications. However, there is an exception to this rule. Namely, if Notice was provided of the change or if the change was minor (sections 53(35.1) and 45(18.1.1) of the Act), the Tribunal has authority to hear that appeal. In this particular case, the Parties submitted that Notice was provided with respect to the revised consent plan and the revision to the Minor Variances was minor. Thus, the Tribunal has authority to consider these appeals. The applicable provisions of the Act are the following:

Amended application - consents

53(35) On an appeal, the Tribunal may make a decision on an application which has been amended from the original application if, at any time before issuing its order, written notice is given to the persons and public bodies prescribed under subsection (10) and to any person or public body conferred with under subsection (11) on the original application. 2017, c. 23, Sched. 5, s. 100 (6).

No written notice

53(35.1) The Tribunal is not required to give written notice under subsection (35) if, in the opinion of the Tribunal, the amendment to the original application is minor. 2017, c. 23, Sched. 5, s. 100 (6).

Amended application – minor variances

45(18.1) On an appeal, the Tribunal may make a decision on an application which has been amended from the original application if, before issuing its order, written notice is given to the persons and public bodies who received notice of the original application under subsection (5) and to other persons and agencies prescribed under that subsection. 1993, c. 26, s. 56; 1994, c. 23, s. 26 (7); 2017, c. 23, Sched. 5, s. 80.

Exception

45(18.1.1) The Tribunal is not required to give notice under subsection (18.1) if, in its opinion, the amendment to the original application is minor. 2017, c. 23, Sched. 5, s. 98 (5).

9With respect to the Consent application, the Applicant's Counsel submitted that Notice was provided of the changed plan, in accordance with section 53(35) of the Act. The revised consent plan was submitted as part of the Minor Variance application. Notice of the revised consent was given through that minor variance process, and the Town did not raise any concerns about the Notice at that time, nor did any other individuals raise any concerns. The Applicant also explained that a further, more recent revision was made during the hearing, but that this change was minor, involving a small increase in paved area and not creating a new or different proposal. Thus, in accordance with section 53(35.1) of the Act, no further notice is required.

10With respect to the Minor Variance application, an additional Minor Variance for driveway width was added because it had been accidentally missed earlier. The Applicant's Counsel submitted that this reflected an existing site condition and was minor, and in accordance with section 45(18.1.1) of the Act, no further notice was required.

11The Applicant's Counsel further submitted that, overall, no members of the public raised concerns with the changes to the Consent, the revisions did not affect the existing right-of-way, and no one was prejudiced against by the changes. The Town confirmed that it had no concerns with the revised applications, did not object to the revisions, and did not believe that further notice was required. The witnesses testifying at the Hearing confirmed that changes to the variances were minor.

12Upon consideration of the submissions of both Counsel, and review of the revisions to the applications, the Tribunal determined that it had authority to proceed with the Hearing, in accordance with sections 53(35), 53(35.1), and 45(18.1.1) of the Act. The Tribunal determined that no further notice was required, as notice had already been provided with respect to the revised Consent application and the other changes that were made were minor.

Applicant's Request to Strike Evidence

13Prior to the Hearing, the Town provided a witness statement by Gord Feniak, P.Eng. Paragraph 3.9 of this statement read as follows:

3.9 Insufficient information has been provided with respect to the proposed servicing scheme. In my opinion, it is impractical to expect service connections for water, sanitary sewer, gas, hydro etc. all within a frontage of just 3.4 meters per lot. I will be addressing this concern in more detail, but with respect to Mr. Soni's witness statement it should be noted that additional infrastructure works will be required in the vicinity of the Doran constriction making its removal more feasible.

14The Applicant objected to this paragraph's inclusion in the evidence, and asked that the witness not be permitted to comment on feasibility issues, because it raised concerns about whether the proposed new lots could be serviced. According to the Applicant, this concern had been raised for the first time just two days before the hearing when the witness statement was served. This was unfair because servicing feasibility had never been identified as a problem during the five years that the Consent application had been under review. The Public Works Department had imposed conditions requiring municipal servicing, but never stated that servicing was not feasible. The Town filed no servicing reports or technical materials, and the Applicant was never asked to prepare a servicing study. It was not a condition to the consent that the Applicant provide this evidence in advance. Therefore, the Applicant argued that no evidence regarding how the lots are to be serviced would be before the Tribunal, and if the Town raised this, the Applicant would not be able to respond properly to this new issue, as it did not have a witness or any materials regarding this feasibility issue, having been under the impression that servicing was to be dealt with by way of the Conditions. Thus, the Applicant asked the Tribunal to strike this paragraph and prevent the Town from raising servicing feasibility issues.

15The Town responded that, because this was a Minor Variance and Consent hearing, there was no legal requirement to exchange witness statements or issue lists in advance. Mr. Feniak's statement was filed voluntarily as a courtesy, and doing so did not create a duty to provide further technical materials. Servicing is a fundamental issue that the Tribunal should consider and the Town is entitled to raise concerns regarding how the proposed lots would be serviced, especially given the lot configuration and proposed access. The Town emphasized that this was a de novo hearing, meaning new evidence could be introduced, and that it would be unfair to prevent the Tribunal from hearing relevant evidence. The Town also noted that the Applicant would have the opportunity to respond through cross-examination and reply evidence.

16The Tribunal refused to strike paragraph 3.9 of Mr. Feniak's witness statement and allowed the evidence to remain on record. It agreed with the Town that the Hearing was de novo, which permits the introduction of new issues and information, even if it had not been raised earlier in the application process. The Tribunal also noted that a formal servicing feasibility study was not required, but that the proposed Conditions to the consent suggested servicing was a relevant issue in the proceeding. The Tribunal concluded that procedural fairness was preserved because the Applicant could cross-examine the Town's witness and provide a reply if necessary. As a result, the Tribunal determined that it was appropriate to consider the evidence related to servicing feasibility in making its decision.

17Of note, ultimately, in its consideration of this matter, the Tribunal finds that consideration of servicing issues is not material to its finding on the appropriateness of the Consent condition in dispute. As such, it has not addressed servicing issues in this decision. The Tribunal agrees with the Applicant that the conditions to the consent adequately speak to servicing issues.

Subject Property

18The Subject Property is located at the eastern end of Doran Avenue. The western portion of Doran Avenue is a public right-of-way ("Public Road"). About 45.7 metres ("m") from the eastern terminus of Doran Avenue, the Public Road ends and becomes part of the private property of the Applicant ("Private Road"). This Private Road is part of the Subject Property, with the Applicant's property line dividing Doran Avenue into a public and a private portion. The Private Road is, however, subject to a legal right-of-way that provides access to 7 Doran Avenue, an otherwise landlocked property located west of the Subject Property, as well as St. Joseph's Catholic School, located east of the Subject Property.

19As the Private Road currently functions as a right-of-way for the school, it contains public utilities which are serviced and maintained by the Town (such as garbage collection and snow removal). At the eastern terminus of Doran Avenue (the end of the Private Road) there is a gated egress (exit only) for the school. Doran Avenue terminates at this location, and the existing asphalt surface on Doran Avenue is widened at this location. Sidewalks exist on the both sides of the Public Road and terminate at the Subject Property. There are no sidewalks on the Private Road.

20The Subject Property is an irregular flag lot with about 37.2 feet of frontage, a depth of 145.7 feet, and a total area of 510 square metres. It contains a one-storey dwelling facing south onto the Private Road. The rear of the Subject Property features a downward slope beginning approximately 29 m from the Private Road.

21The surrounding area includes St. Joseph's Catholic School immediately to the east, 7 Doran Avenue to the west (which relies on the Private Road for access), and residential rear yards to the north fronting onto Ontario Street. To the south, across Doran Avenue, is a parking lot associated with the school. The broader neighbourhood is characterized by a mix of housing types ranging from one to three storeys (including single-detached, semi-detached, duplex, and multi-unit dwellings), along with nearby mixed-use and commercial developments. A four-storey mixed-use condominium is under construction to the southwest, and there are nearby commercial uses at the intersection of Doran Avenue and Ontario Street.

22Additionally, the Subject Property is located within an area identified by the Niagara Region as having archaeological potential, meaning archaeological resources may be present. The Niagara Peninsula Conservation Authority ("NPCA") has also identified a regulated hazard slope located to the immediate north of the proposed and existing structures at this address.

Issues and Witnesses

23The Applicant and the Town agreed that intensification was appropriate at this location, and agreed on the scale, density, and built form of the proposal. The sole point of dispute had to do with how the Private Road should be treated. As one of the conditions to the Consent, the Town proposed the following ("Condition in Dispute"):

The applicant/owner shall provide a public road allowance, including an approved dead-end treatment (e.g., cul-de-sac or hammerhead), to the satisfaction of the Director of Public Works, acting reasonably recognizing that the existing public road allowance is sub-standard and the design may therefore be not to standard but must be functional as well as safe for motorists and pedestrian traffic. This right-of-way must be dedicated to the Town of Grimsby as a public highway.

24This Condition in Dispute requires the Private Road to be dedicated to the Town, such that the entirety of Doran Avenue becomes a Public Road. A related proposed Condition to this, that added to the dispute, was the following:

At the applicant/owner's sole expense, a public roadway, approved dead-end treatment (subject to refinement based on current site conditions), and all associated municipal services must be constructed and extended within the right-of-way located south of the subject lands, to the satisfaction of the Director of Public Works.

25The Applicant did not have an issue with the municipal services portion of this Condition but did not agree to the portion regarding the public roadway and approved dead-end treatment. This was the issue that the Tribunal was asked to determine.

26Both Parties agreed that Consent would be appropriate, but disagreed as to whether the Condition in Dispute should be imposed. With respect to the Minor Variances, the Town submitted that the ones the Applicant was currently seeking were only required if the Condition in Dispute was not imposed. If imposed, then the proposed Minor Variances would need to be revised and some may be eliminated.

27Of note, while the only dispute between the Parties was with respect to the Condition in Dispute, this is a de novo hearing, and the Tribunal must still consider the legislative test for a Consent, such as the requirements outlined in section 53(12) of the Act, and the legislative test for Minor Variance, such as the test outlined in section 45(12) of the Act.

28The following witnesses testified at the Hearing:

Applicant Darshan Soni Expert in Transportation Engineering

David Riley Expert in Land Use Planning

Town Gord Feniak Expert in Municipal Engineering

Michaela Bray Expert in Land Use Planning

29The Curriculum Vitae and signed Acknowledgement of Expert Duty form for each of the witness listed above were provided, confirming their expertise in each of their respective fields. Each witness was qualified by the Tribunal, without objection, to provide expert opinion evidence in the fields noted above.

Position of the Parties

30The Applicant asked the Tribunal to grant provisional consent based on the August 28, 2025 consent plan (as shown in paragraph [4] of this Decision), subject to the Conditions proposed by the Town (except for the Condition in Dispute), and to approve the related Minor Variances needed to implement that plan. The Applicant's Counsel submitted that all witnesses agreed that the site has unique and challenging features, but they disagreed on how best to address them. The Applicant proposed keeping the Private Road a private one while improving safety and functionality. This would be done by clearing, paving, and marking the swept path area needed for vehicle turning, and by adding this area to the right-of-way on title so it remains clear and legally protected in the future ("Swept Path Solution"). This approach would recognize the Subject Property's constraints while still allowing infill development to proceed.

31The Applicant argued that, in contrast, the Town's approach would require the road to be brought into public ownership, along with extensive upgrades, a turnaround area, and dedication of the road after construction. These requirements would force them to solely cover the full cost of road and drainage issues, including problems caused by the adjacent school property, with no compromise from the Town. Further, these requirements would make the development financially and physically unfeasible. The Applicant relied on the evidence of its transportation engineer, Mr. Soni, to posit that the proposed Private Road improvements and variances meet policy requirements and allow the semi-detached development to proceed safely.

32The Town submitted that the applications should be approved only if the Town's proposed conditions, including the Condition in Dispute, are imposed. Otherwise, the applications do not meet the tests under the Act. The Town maintained that its conditions are supported by the evidence and meet the legal test set out in legislation and case law. Specifically, section 51(25)(b) of the Act allows for a condition such as the Condition in Dispute to be imposed. Furthermore, the Tribunal must consider whether it is good planning to create two new lots along a road that is partly public and partly private. In this case, the Tribunal has an opportunity to fix a long-standing road safety and access problem at the end of Doran Avenue. According to the Town, accepting its Condition in Dispute would improve safety, resolve pinch points where vehicles cannot pass, provide proper turnarounds, and ensure that all properties, including the adjacent school, front onto a public road. Moreover, the Town would then have clear responsibility for maintenance, lighting, and road standards.

33The Town disagreed that the Condition in Dispute would render the project unfeasible, explaining that it was deliberately written to be flexible and to recognize that the existing road condition (Public Road turning into a Private Road leading to an elementary school) is sub-standard and constrained. The Condition allows for different design options, including various types of turnarounds, as long as the final solution is safe and functional for both vehicles and pedestrians. The Town emphasized that its role would be to collaborate with the Applicant to arrive at an acceptable solution.

34The Town asked the Tribunal to approve the applications subject to its Conditions, or alternatively to dismiss the appeals as they would fail to meet the tests under sections 53(12) and 45(1) of the Act. The Town's Counsel explained that the Tribunal should first decide the Consent application, because if consent is not granted, the Minor Variances may be unnecessary or changed. If the Town's Conditions are accepted, fewer and smaller variances would be required (if any), and the Parties would need time to adjust the exact numbers for those variances. Thus, the Tribunal's Order with respect to the Minor Variances could be an interim order to allow time to tweak the variances. The Town concluded that if its Conditions are accepted, it takes no issue with the approval of the Consent, and the proposal would represent a reasonable and safe planning outcome.

The Consent

35The Tribunal agrees with the Town that, in this case, it must look at the Consent first, because if the Consent is not approved, there is no need to look at the requested Minor Variances. Furthermore, if the Condition in Dispute is attached to the Consent, some or all of the Minor Variances may no longer be required or may have to be revised. As such, the Tribunal considers the Consent first.

36In making a decision on a Provisional Consent appeal, the Tribunal must have regard to the matters of provincial interest set out in section 2 of the Act and the criteria set out in section 51(24) of the Act. The decision must be consistent with the Provincial Planning Statement, 2024 ("PPS") and it must conform with any applicable provincial plans under section 3(5) of the Act.

37As indicated above, the Parties agreed and submitted that a severance at this location was appropriate. The land use planning witnesses from both sides agreed that the Consent met the legislative tests, with the Town's planner stipulating that this would be the case only if the Condition in Dispute was attached to the approval. As detailed below, the Tribunal finds that the Condition in Dispute is appropriate. Thus, the Tribunal, persuaded by the evidence provided, agrees with both Parties and finds that the Consent facilitates a positive outcome for the Subject Property in a manner that fits into the established and evolving context of the immediate surroundings and broader neighbourhood. It has regard for all applicable and relevant matters of provincial interest as outlined in section 2 of the Act, as well as the criteria indicated in section 51(24) of the Act, is consistent with the PPS, and conforms to the Town's Official Plan. It is good planning and in the public interest. Thus, the Consent warrants approval.

Test for Consideration of Consent Conditions

38Both Parties agreed that, pursuant to section 51(25)(b) of the Act, the Tribunal has the authority to require land to be dedicated for roads as a condition of consent. However, that authority is not unlimited. Section 51(25) of the Act allows the imposition of any condition that the Tribunal finds "reasonable, having regard to the nature of the development proposed for the subdivision." This wording requires establishing a link between any proposed condition and the actual development proposed. The leading case on this issue is Taylor v. Guelph (City), 1998 CarswellOnt 6168, [1998] O.M.B.D. No. 869, which set out a four-part test for assessing the appropriateness of consent conditions: reasonableness, relevance, necessity, and equity.

Part 1 of the Test: Reasonableness / Nature of the Development

39Pursuant to section 51(25) of the Act, whether a condition is reasonable and relevant must take into account the nature and scale of the proposed development.

40The Applicant argued that in this case the development consists of only two dwelling units. By contrast, the scope of road work the Condition in Dispute would require (bringing the Private Road up to acceptable standard), as described by Mr. Feniak, was extensive and included major upgrades such as surveys, geotechnical studies, road reconstruction (including of a turnaround area), slope changes, relocating driveways and hydrants, widening the road, installing municipal services, sidewalks, street lighting, and possibly new fencing. This level of work is unreasonable for a small infill project involving a single semi-detached dwelling. The Applicant also pointed out that Mr. Feniak could not provide any examples where such extensive requirements were imposed for only two units and instead relied solely on subdivision examples. This approach, according to the Applicant, is flawed because a consent application is not a subdivision, and subdivision-level thinking should not be applied. Specifically, according to section 53 of the Act, in order to grant a provisional consent, the approval authority must be satisfied that a plan of subdivision is not necessary. Thus, the Applicant argued, subdivision thinking should not be applied to a consent, and Mr. Feniak's assessment, which relied on subdivisions, is flawed.

41The Town responded that requiring road dedication and upgrades is reasonable because it would address long-standing substandard conditions and properly tie the improvements to the proposed development. Bringing the road into public ownership would allow all affected properties, including the school and the proposed lots, to front a public road, improve safety for vehicles and pedestrians, provide proper turnaround space for large vehicles such as snowplows and garbage trucks, and numerous other benefits. In contrast, the Private Road arrangement is problematic because it lacks municipal standards, insurance coverage, enforceable parking rules, and clear maintenance responsibilities. The current proposal does not work from an engineering perspective and the Town's Conditions (specifically the Condition in Dispute) are necessary to ensure the development is designed and functions safely and properly.

42The Tribunal was persuaded by the Town that the functioning of this Private Road as a Public Road has caused concerns and substandard results. Moreover, the Tribunal was persuaded by the Town that this Condition is indeed tied to the development, as it would result in numerous factors that would be helpful to the development specifically. Some examples that the Town cited, and the Tribunal was persuaded by, were that this Condition would:

a. Allow 7 Doran Avenue, the Subject Property, and the proposed lots to all properly front a public highway, without needing drastic frontage variances (currently proposed to divide the Private Road into three, despite functioning as one);

b. Create safe vehicular access to and from four properties including the elementary school;

c. Create a safer dead-end treatment which allows for vehicles (including snowplows, waste collection vehicles, delivery vehicles, and so on) to have space to turn around safely;

d. Ensure all vehicle movements required are on a public road and not on private property;

e. Provide room for snow storage;

f. Extend the sanitary sewer to allow standard connections for the proposed lots;

g. Ensure proper storm water measures are put in place;

h. Allow for proper streetlighting as well as for sidewalks spanning all of Doran Avenue (rather than just the Public Road section);

i. Mean that the existing watermain on private property – or any new/improved pipes – would then become located on Town property; and

j. Ensure clarity on the responsibilities of the maintenance of all infrastructure (road surface, sewers, etc.).

43The Tribunal was persuaded by various examples, such as those listed above, that what would result from the implementation of the Condition in Dispute would directly impact and improve the nature of the development proposed. Moreover, the Tribunal was persuaded by the Town that the current functioning of the Private Road, as is, would negatively impact the proposed development. The Private Road is situated in a way that it frequently must function like a Public Road. However, as the Town's Counsel explained, there are a number of problems with it including the following:

a. The minimum maintenance standards as required by regulation do not apply;

b. There is no municipal insurance coverage for the Private Road;

c. Parking by-law does not apply if cars are parked in the way;

d. Arrangements for repair and maintenance of this portion, if it remains a Private Road, would be divided among three owners and would therefore be complicated and uncertain; and

e. Services would need to cross property lines on the Private Road, and there would be no place to build curb stops.

44The Tribunal was persuaded that the problems the Town identified would cause problems for the proposed development. The clarity that would result from this Condition in Dispute would provide significant benefits that would be directly related to the development. A future owner of these parcels would benefit from these results. In short, the Tribunal was persuaded that the Condition in Dispute is reasonable as it would resolve a number of problems that relate to the nature of the development.

45The Tribunal is not persuaded by the Applicant's argument that this level of work is unreasonable for a small infill project. The level of work required for each project is dependent on the particular features of that project. In this case, the Subject Property is unique and contains a Private Road that functions as a Public Road. The proposal presented would aggravate problems that result from this particular unique feature. The Condition in Dispute would resolve those problems and allow future users of these properties to have more safety and certainty as a result. Thus, it is reasonable with respect to the nature of the proposed development.

Part 2 of the Test: Relevance

46The relevance part of the test requires a direct link between the proposed condition and the proposed development, as emphasized in the case of Jock River Farms Ltd. v. Ottawa-Carleton (Regional Municipality), 1999 CarswellOnt 5299, [1999] O.M.B.D. No. 864 ("Jock River Case"), presented by the Applicant. In that case, it was found that, even where a condition is necessary, it may still fail if it primarily benefits a broader area rather than the development itself. Thus, the Tribunal must look beyond whether it has the power to impose the condition and instead decide whether the condition is appropriate in the specific circumstances of the case.

47The Applicant argued that the Condition in Dispute fails the relevance branch of the test because it is being requested by the Town to serve a different purpose than the dwellings to be built on the Subject Property. The Town's concerns, particularly those raised by Mr. Feniak, were driven mainly by the presence of the adjacent school and not by the construction of a new semi-detached dwelling. According to the Applicant, Mr. Feniak acknowledged that his primary concerns were: pedestrian safety related to the school; and issues with the width of the road (at the narrow pinch point) that largely resulted from the presence of school buses. He stated that his concerns would be reduced if the school was separated by a solid fence. One of the other Conditions requested by the Town is the requirement that the Applicant install sidewalks. According to the Applicant, Mr. Feniak confirmed that he would accept a sidewalk even if it was only located on the side of the road opposite from the proposed dwellings and on the school side. The Applicant argued that this clearly shows that the requested road improvements and dedication (Condition in Dispute) are intended to serve the school rather than the proposed development. Thus, in accordance with the Jock River Case, since this Condition in Dispute is meant to address broader or unrelated issues, it cannot and should not be imposed on this Consent application.

48The Town responded that the current situation of Doran Avenue is clearly substandard and unsafe. The Town pointed to evidence showing that sidewalks end abruptly at the end of the Public Road, garbage trucks must reverse along Doran Road due to the lack of a turnaround area, and the roadway narrows significantly at a pinch point located on the Subject Property. The Town also highlighted steep grades, problematic fire hydrant issues, poor sightlines near the school entrance, and conflicts between vehicles, buses (including school buses), and pedestrians, all of which raise safety concerns. The Town submitted that these substandard specifications are directly related to the Subject Property and the proposed development because the Applicant purchased a property that includes a right-of-way serving the school. According to the Town, it is not reasonable for the Applicant to claim that the school-related safety issues are unrelated when the Subject Property has long been part of the access system for the school. The Town also noted that both engineering experts agreed that roads should be designed for all users (current and anticipated future users) and that long-standing substandard conditions should be improved rather than continued. On this basis, the Town posited that the Condition in Dispute is relevant to the development and is necessary to address existing and future safety concerns.

49The Tribunal is persuaded by the Town that the Condition in Dispute is related to the proposed development. The Subject Property and the school are intricately linked and have been so from when the Applicant purchased the Subject Property. In fact, the purchase of the Subject Property was subject to a right of way in favour of the school, with the school having the right to use the Private Road. Thus, the two are intricately linked. The Tribunal is persuaded by the Town that the connection between the school and the Subject Property in the purchase agreement provides relevancy for the Condition in Dispute. In other words, since the purchase agreement already intricately links the two, resolving the problems arising from this agreement would make the Condition in Dispute relevant to both the Subject Property and the school.

50The Applicant takes the position that the Condition in Dispute would only be beneficial to the school. However, the existences of the school causes problems for the Subject Property as well. For example, the presence of school children, and the lack of a sidewalk for them to move safely is a problem and potential liability for the owners of the Subject Property. In other words, while the problems arising from the current situation in this area impact the school, they impact the proposed development as well. The Condition in Dispute would resolve these problems. This resolution would be beneficial to the school, but the Tribunal is persuaded that it would be just as beneficial to the proposed development. It would provide for clarity, safety, and ease of use for all involved, especially the future residents of the proposed development who would have to deal with those problems daily.

Part 3 of the Test: Necessity

51The Applicant argued that dedicating the road and requiring major roadwork (Condition in Dispute) are not necessary for the proposed development of two new dwelling units. Traffic on the Private Road is currently low and would remain low with the addition of two semi-detached homes. Existing services such as garbage collection, snow removal, mail delivery, and moving trucks already serve the Subject Property and would not be negatively affected. The Applicant stated that these services would operate more safely once the Swept Path Solution is implemented, as it would allow for vehicles to turn. Mr. Soni, the Applicant's transportation engineer, testified that vehicles as big as an SU-9 truck could turn around at the terminus of Doran Avenue if given an additional allowance of approximately 3 m to the south of the Private Road (on the asphalt driveway north of the school egress gate) and an additional allowance of approximately 5.5 m north of the Private Road. Mr. Soni showed, through a swept path analysis, that a full hammerhead or cul-de-sac turnaround (options suggested in the Condition in Dispute) were not required and that vehicles could turn safely using the proposed design.

52The Applicant also responded to the Town's criticisms of the Swept Path Solution. Mr. Soni explained that reverse movements would be infrequent and manageable, and that safety could be maintained through backup alarms and spotters. The Applicant's Counsel submitted that the Town's engineer acknowledged that he does not normally require buffers around turning areas in similar residential settings. The Applicant posited that any concerns about parking and visitors went beyond the Town's zoning standards, and there was no justification for higher requirements than what the zoning by-law required. Regarding the Town's enforceability concerns (about parking), the Applicant proposed that pavement markings and a development agreement registered on title (adding the swept path area to the right of access area) would legally protect the swept path area and ensure it remains clear. This development agreement would allow all who have the right to be able to use it. Moreover, the Applicant clarified that alternative designs had been considered, even if the details were not fully known to the Town's planner, and argued that agreeing to limited improvements does not justify imposing much larger road works. Relying on case law noted above, the Applicant maintained that conditions should be limited to what is actually needed for this small-scale development and not expanded to address issues driven by the adjacent school.

53The Town disagreed. As Mr. Feniak testified, the Swept Path Solution was unsafe and insufficient, particularly because of the proximity to an elementary school. This solution causes concerns about: vehicles reversing near school property (with reversing motion being inherently unsafe and to be avoided if possible); the lack of legal rights to use school lands for turning; the absence of room for driver error; risks to pedestrian safety; lack of snow storage area; and the need for residents of the new lots to park perfectly and in a very specific location at all times for this to work (so that vehicles encroaching on their land while turning do not hit the parked vehicles). The Town emphasized the proximity to the elementary school amplified these safety concerns. Moreover, part of the Swept Path Solution required vehicle movement onto the school property (to be able to reverse, they have to drive into the school property). Currently, the school has a gate that is farther in than the property line and remains open, allowing vehicles to reverse on its property. However, the Town pointed out that the Applicant's Solution relied on the assumption that the school would not move its gate location to its property boundary and would continue to allow the Applicant to use its property. If the school did choose to move the gate, the Applicant would no longer be able to use that area or turn around, and the Swept Path Solution would no longer work. Thus, the Condition in Dispute was necessary to the proposed development.

54In addition to practical concerns, the Town submitted that the proposal does not conform with the Town's Official Plan ("OP) policies, as required by criteria 51(24)(c) of the Act. For example, the Town highlighted the following policies:

5.4.1.4 No buildings or structures will be permitted on any lot that does not have frontage and direct access to an open, improved public road which is maintained on a year round basis.

9.17.4 Road Access

a) The lot to be retained and the lot to be severed must have frontage on and have direct access to an open, improved public road which is maintained on a year round basis and the frontage must conform with Zoning By-law requirements.

b) Lots shall not be created which would access onto a road where a traffic hazard would be created due to limited sight lines on curves or grades.

[Emphasis added by Tribunal.]

55OP policies 5.4.1.4 and 9.17.4(a) require frontage on and direct access to a public road. To accept the Applicant's position that the proposal complies with the OP by way of the flag lot design, the Tribunal would have to interpret "frontage" and "direct access" to be the same thing. However, these concepts are not one and the same. If they were, they would not have both been indicated separately in the OP policy. As the Town's Counsel submitted, this is a "trite principle of statutory interpretation." If both are noted separately, it means that both are required: the proposal must have frontage on a public road as well as direct access to it. In this case, while the proposal technically has frontage on a public road, the flag lot design of the proposal, the Town's Counsel stated, is the "furthest thing" from providing "direct access" to it. Moreover, contrary to OP Policy 9.17.4(b), the proposal would lead to increased traffic hazards. The Condition in Dispute would allow the proposal to front on to and have direct access to a public road, and would also minimize traffic hazards that currently exist at the Subject Property.

56Moreover, the Town submitted that, contrary to the testimony of the Applicant's planner, the flag lot design is not necessary because feasible alternatives exist, such as a different lot configuration or re-orienting the proposed homes to provide more room in the front. Moreover, the Condition in Dispute would result in the additional benefit of the lots meeting the minimum frontage requirements in the Town's ZBL, making the Minor Variances required either unnecessary or substantially less. Thus, contrary to the Applicant's position that the Condition in Dispute is not necessary to the development and will hinder the development, the Town submitted that it is necessary to the development to ensure safety and proper design.

57The Tribunal was persuaded by the Town that the issue of the Private Road and how to deal with it in relation to the school is a necessary part of the proposed development and affects the proposal. The Tribunal was further persuaded by the Town that the Swept Path Solution does not adequately resolve the concerns with the current situation of the Subject Property in relation to the school. The Condition in Dispute would resolve those concerns and is therefore necessary to the proposed development.

58Moreover, the Tribunal was not persuaded that the proposed flagpole design meets the requirements of the Town's OP. Rather, the Tribunal finds that the OP requires a development to have both "frontage" and "direct access" to a public road. The current design does not allow for "direct access" of each severed property to the Public Road. If the Condition in Dispute is implemented, however, the proposed development would entirely conform to those provisions of the OP and would also not increase traffic hazards in accordance with OP Policy 9.17.4(b). Thus, the Tribunal finds that the Condition in Dispute is necessary to the proposed development.

Part 4 of the Test: Equity

59The Applicant argued that the Town's Condition in Dispute is not equitable as it either cannot be fulfilled (since it depends on third parties) or makes the development unfeasible. Specifically, the Applicant stated:

a. Cost: The Condition in Dispute would require the Applicant to fix a long-standing road and safety problem caused by the school entirely at the Applicant's expense, which would be unfair. These issues existed long before the proposed development and are not the result of adding two dwelling units. Furthermore, the scope of work to bring the Private Road up to acceptable standard is extensive and would involve: survey work, geotechnical work, construction of a turnaround area whether it be hammerhead or cul-de-sac, flattening out the slope of the road, moving driveways, moving hydrants (and possibly adding one), expanding the road southward to remove the constriction or pinch point, installing municipal services up into the road and lateral connections, constructing sidewalks on at least one side of the road, installing street lights, and possibly replacing boundary fencing. It is unfair for the Applicant to have to be the sole bearer of this cost.

b. Expropriation: If the current condition of the road was so problematic, the Town could have always taken steps to expropriate the Private Road portion of the Subject Property, but is instead trying to get that land without adequate compensation by way of consent conditions. To use this development to fix a long-standing problem created by the school would not be fair to the Applicant and is not equitable.

The Applicant's Counsel presented the case of Sparkhall v. Scarborough (Borough), 1981 CarswellOnt 1522, 13 O.M.B.R. ("Sparkhall Case"), wherein it was stated that requiring dedication of land without good reason or explanation "amounts to expropriation without compensation and is not advisable." Similarly, while section 51(25) of the Act allows for land dedication to be a condition to consent, if that's not reasonable, then it amounts to an expropriation without compensation. To put another way, having consent condition authority available does not mean that expropriation may not be the more appropriate procedure. In this case, the Applicant argued, expropriation would be more appropriate.

c. Unfeasibility of the Development: The Town is effectively requiring a hammerhead or cul-de-sac solution (since the Condition in Dispute states: "The applicant/owner shall provide a public road allowance, including an approved dead-end treatment (e.g., cul-de-sac or hammerhead)..."). Requiring a full turnaround facility would take up too much developable land and make the project impossible to build, despite years of effort to find a workable design. The Applicant has considered various options but has not been able to make any design work other than this one. This current design will not be feasible if the Condition in Dispute is granted. As the Applicant's planner testified, the Subject Property has significant constraints, and to get a reasonable footprint for the dwellings, the Private Road portion must remain.

d. Third Party Involvement: The Town's solution (the turnaround facility) would depend on cooperation from the school, a third party that the Applicant does not and cannot control. The Applicant referred to the case of Havenwood Properties (Central) Limited v. Brampton, 2019 CanLII 72641 (ON LPAT), wherein the Tribunal had found that a condition which requires consent and action of a third party (unless it has already consented) cannot be reasonable or equitable (paragraph 37). The Applicant's Counsel submitted in closing submissions that "The turnaround facility would either require land from the school, which the Applicant does not control, or [if the Condition in Dispute is granted] even more developable area...rendering the proposed development incapable of being constructed."

60The Town responded that the Condition in Dispute is equitable and supported by the evidence. Requiring road dedication and improvements is a normal and appropriate part of ensuring safe and functional development, especially in an unusual situation like this one. The Town's Counsel and witnesses emphasized that there are no other examples of flag lots in the Town, and this would be the only one of a 90-degree flag lot anywhere in the Town. With respect to the Applicant's particular concerns regarding the Condition in Dispute not being equitable, the Town's Counsel submitted:

a. Cost: If the road is conveyed, the Applicant would pay for construction, but long-term maintenance would become the Town's responsibility. Moreover, solving the problems present with the application would be beneficial to the proposed dwelling and incurring that cost would be the cost of the project.

b. Expropriation: The ability to impose consent conditions is not limited by the fact that a municipality could have expropriated the land in the past. The municipality in this case received an application and in response to the application determined that a problem should be fixed rather than aggravated by additional dwellings. With respect to the Sparkhall Case, the Town's Counsel pointed out that, in the same case, it is stated, "No one at the hearing alleged that any of the disputed conditions arose as a consequence of the severance and the board agrees." This is different from the present case where the Town has shown that the Condition in Dispute is directly related to the consent. Thus, the Sparkhall Case was not applicable. The Town has the option to use either expropriation or consent conditions. The two sections co-exist and neither takes precedence over the other. There is no caselaw that restricts the correlation between the Act and expropriation. In this case, the Town chose to proceed by way of a consent condition, which was fair in light of the fact that the Condition in Dispute is reasonable and entirely necessary to the proposed development.

c. Unfeasibility of the Development: There is no evidence that the Condition in Dispute would prevent development or cause hardship to the Applicant, as the wording (that a dead-end treatment shall be provided, but not mandating how that treatment should be) provides flexibility in how a solution is achieved. The Applicant's assertion that the Condition in Dispute would impair their ability to develop the Subject Property is because they have only considered one location for the dwellings, without seriously looking at alternatives. However, the Town's Counsel submitted that the particular features of the Subject Property (such as the existence of an NPCA-regulated hazard slope to the north of the property) do not necessarily mean that the dwellings cannot be located anywhere else. As the NPCA noted when commenting on the Application, "Development nearby hazard slopes may require a Geotechnical Report to support development based on the contexts of the feature and the proposed degree of impact from development." This was not prohibitive to locating the dwelling somewhere else. It simply meant that an NPCA permit would be required to allow for an alternative location for the dwelling. Alternative development options have not been fully explored here, and the Condition in Dispute is not prohibitive to the development.

61The Tribunal is persuaded by the Town's evidence that the Condition in Dispute is fair and equitable. The Tribunal finds as follows:

a. The Tribunal is not persuaded that the cost was unfairly placed on the Applicant's shoulder. While the construction of the improvements is to be covered by the Applicant, the maintenance of the road, after it is conveyed, would be the responsibility of the Town. If the Private Road remains private, the cost of maintaining the road for the foreseeable future would be on the shoulder of the Applicant only. Additionally, construction costs are generally the responsibility of an Applicant in proposed developments, and thus, this is not a surprise or an unfair expectation. The Applicant would be conducting constructions on that portion of the Subject Property regardless. Moreover, as was found earlier, the conveyance would benefit both the Applicant and the school, and is necessary to the proposed development. Thus, the costs to be incurred is not unfairly on the shoulder of the Applicant for the benefit of a third party. Rather, the cost incurred would benefit the development.

b. With respect to the expropriation question, the Tribunal is persuaded by the Town that the Act allows for municipalities to obtain land by way of consent conditions in response to an application, which is what happened here. The Tribunal agrees that if expropriation was the only option for municipalities, then section 51(25)(b) would not have been included in the Act, and this sort of condition would not have been allowed. It is up to a municipality to assess when and how to obtain land, whether by way of expropriation or consent conditions. Expropriations appear to take place when a municipality is initiating a project. In this case, it is the Applicant who is initiating the project. The Town is simply responding and has made the determination that the development would be best supported if the Private Road is made public. The Tribunal is persuaded by this position, and finds that the Town is reasonable to determine that approving the application without the Condition in Dispute would cause more problems for its citizens.

The Tribunal is also convinced that a condition does not become unreasonable simply because expropriation is also available as an option. A municipality has both options available and it is not unreasonable to choose one over the other. Lastly, the Tribunal does not agree with the Applicant that land is being taken without compensation. The compensation is the granting of the consent. The Applicant is receiving the ability to make one land into multiple, which is itself compensation for adhering to certain conditions (the conveyance of land in this case). Thus, the Condition in Dispute is not an attempt to take land without adequate compensation.

c. With respect to the position that the Condition in Dispute makes the development unfeasible, the Tribunal disagrees. The Tribunal did not receive adequate evidence to demonstrate that the dwellings could only be located on those sections of the land as currently proposed. As submitted by the Town, and accepted by the Tribunal, alternatives seem to be possible. Moreover, the currently proposed development appears to be problematic regardless. The Town provided numerous examples of this, such as: the current proposal would require people to park exactly correctly in every instance; the school would have to keep its gate open at all times to allow people to turn; and the Applicant's proposal would require third party cooperation. Thus, the Tribunal was not persuaded that the development as proposed would be feasible. Rather, the Condition in Dispute would assist. In short, the Applicant did not present adequate evidence to show that this Condition in Dispute would be impossible to fulfil or would thwart the development.

With respect to the Applicant's concern with the wording of the Condition in Dispute that: "The applicant/owner shall provide a public road allowance, including an approved dead-end treatment (e.g., cul-de-sac or hammerhead)..." [emphasis added], the Tribunal finds that the bolded words are options and not mandatory. To clarify, the Applicant's position was that this wording restricted the Applicant, making the development unfeasible. The Town stated that the Condition contemplates various solutions, such as a turnaround cul-de-sac or a hammerhead, but these are not mandated and the Tribunal can change or modify this. The Tribunal agrees that the Condition in Dispute specifically states "e.g.", which means that these are examples and not requirements. The Applicant can disregard these suggestions and go with another dead-end treatment that is acceptable. Thus, the Tribunal does not find that modifying the Condition is necessary.

62In short, the Tribunal finds that the Condition in Dispute meets the equitable branch of the test.

Conclusion

63At the core of every planning decision before the Tribunal is whether that decision is good planning. The Tribunal finds that it is good planning to resolve a long-standing problem, rather than aggravate it, when the opportunity is before it to do so. In this case, the Condition in Dispute is related to the proposed development, is reasonable, and will allow those using these lands, whether the owners or third parties, to benefit from clarity, safety, and simplicity. Moreover, the Condition in Dispute complies with all legislative requirements, and is relevant, necessary, and equitable. Thus, the Tribunal finds that it is good planning and should be imposed on the Consent.

64Upon consideration of the evidence before it, the Tribunal finds that the provisional consent, if accompanied by the conditions proposed by the Town (and agreed to for the most part by the Applicant), should be granted.

Minor Variances

65In this case, the Minor Variances heavily rely on whether the Condition in Dispute is granted. The Variances result from the flagpole design of the lot, which would no longer be the case if the Condition in Dispute is maintained by the Tribunal. The Variances would either become unnecessary or need modification. Thus, the Town requested that if the Condition in Dispute is attached to the consent, the Tribunal grant an Interim Order and give the Parties time to discuss and revise the variances.

66As the Tribunal has determined that the Condition in Dispute is appropriate, the Tribunal will adjourn the Minor Variance matter and provide the Parties with time to revise them. The Tribunal will require the Parties to provide an update on the status of the Variances by Monday, January 11, 2027. If the Parties are unable to reach an agreement, a video hearing will be scheduled to address the Variances. If the Parties are able to reach an agreement, a Hearing in writing will be scheduled to allow the Tribunal to consider the revised Variances and authorize them if warranted. If the Parties determine that no further Variances are required, the Minor Variances appeal is to be withdrawn.

Order

67THE TRIBUNAL has been asked to consider a Consent application and a Minor Variance application which have been amended from the original applications that were before the Committee of Adjustments, and the Tribunal has determined, as provided for in sections 53(35), 53(35.1), and 45(18.1.1) of the Planning Act ("Act"), that no further notice is required.

68THE TRIBUNAL ORDERS THAT the appeal by Ken and Lori Tuinstra ("Applicant") pursuant to section 53(19) of the Act is allowed and the provisional consent is to be given subject to the conditions set out in Attachment 1 to this Order; and

69THE TRIBUNAL FURTHER ORDERS THAT:

a. The appeal by the Applicant pursuant to section 45(1) of the Act is adjourned ("Minor Variance Appeal"). The Parties are to provide a status update to the Tribunal's Case Coordinator by Monday, January 11, 2027.

i. If the Parties have reached a settlement agreement, a Hearing in writing is to be scheduled to address the Minor Variance Appeal.

ii. If the Parties have not reached an agreement, a video Hearing will be scheduled to address the issues in dispute.

b. The Panel Member will remain seized for the purpose of addressing the Minor Variance Appeal.

70The Tribunal may be spoken to in the event that some matter should arise in connection with the implementation of this Order.

"Bita M. Rajaee"

BITA M. RAJAEE

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.

Attachment 1

Consent Conditions

Standard Conditions

1. That the applicant provide the Secretary/Treasurer with deeds in triplicate for conveyance of the subject parcel, a registerable legal description of the subject parcel together with a copy of the deposited reference plan, if applicable, for the issuance of the Certificate of Consent.

2. That the final certificate fee, payable to the Town of Grimsby be submitted to the Secretary/Treasurer.

3. That all conditions of consent be fulfilled within two (2) years from the date of the Tribunal's order pursuant to Subsection 53(41) of the Planning Act, failing which this consent shall be deemed to be refused.

4. That the address change fee be submitted to the Town of Grimsby for municipal addressing to be assigned to the severed lots.

Public Road Allowance

5. The applicant/owner shall provide a public road allowance, including an approved dead-end treatment (e.g., cul-de-sac or hammerhead), to the satisfaction of the Director of Public Works, acting reasonably recognizing that the existing public road allowance is sub-standard and the design may therefore be not to standard but must be functional as well as safe for motorists and pedestrian traffic. This right-of-way must be dedicated to the Town of Grimsby as a public highway.

6. At the applicant/owner's sole expense, a public roadway, approved dead-end treatment (subject to refinement based on current site conditions), and all associated municipal services must be constructed and extended within the right-of-way located south of the subject lands, to the satisfaction of the Director of Public Works.

Public Works

7. The applicant/owner shall enter into a Development Agreement with the Town of Grimsby and satisfy all related financial and technical requirements. This includes, but is not limited to:

a. Securing works through a Letter of Credit or Surety Bond;

b. Payment of all municipal fees and development charges;

c. Installation of roadworks, streetlighting, underground services (sewers and watermains), storm drainage, sidewalks, fencing, and signage;

d. Any additional conditions as specified by the Town.

8. All required municipal services must be provided by the applicant/owner at their sole expense. Servicing, lot grading, and drainage plans must be submitted to the Public Works Department for review and approval.

9. The applicant shall submit a Geotechnical Report to the satisfaction of the NPCA.

Heritage Planning

10. That the Applicant/Owner submit the completed Stage 1 Archaeological Assessment (and subsequent studies, if applicable) as well as a letter from the Ministry of Citizenship and Multiculturalism, confirming that all the submitted archaeological assessments (Stage 1, Stage 2 and others, if applicable) have been entered into the Ontario Public Register of Archaeological Reports as a condition of licensing in accordance with the Ontario Heritage Act are required. If the Ministry requires further archaeological work to be completed prior to acknowledging the report, the report(s) must also be submitted to and acknowledged by the Ministry, to the satisfaction of the Town of Grimsby, prior to clearance of this condition. No demolition, grading or other soil disturbances shall take place on the subject property prior to the issuance of a letter from MCM through Town of Grimsby, confirming that all archaeological resource concerns have met licensing and resource conservation requirements.

11. That the following warning clause be observed, noting the Applicant's risk that construction activities would need to cease, and an archaeological assessment would be required if any deeply buried archaeological resources are encountered during excavation work:

"If deeply buried or previously undiscovered archaeological remains/resources are found during development activities on the subject lands, all activities must stop immediately. If the discovery is human remains, contact the Niagara Regional Police Service and coroner to secure the site. If the discovery is not human remains, the area must be secured to prevent site disturbance. The project proponent must then follow the steps outlined in the Niagara Region Archaeological Management Plan: Appendix C found at the following link: https://www.niagararegion.ca/projects/archaeological-management-plan/default.aspx"