Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 17, 2026 CASE NO(S).: OLT-26-000021

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

Applicant/Appellant: Paul Brunskill Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision Description: Application to create a new Rural Residential designation for the proposed Retained Lot Reference Number: Z 18-25 LOB (Brunskill) Property Address: 1080 Fairy Falls Rd P0B 1A0 Municipality/UT: Lake of Bays/ District of Muskoka OLT Case No: OLT-26-000021 OLT Lead Case No: OLT-26-000021 OLT Case Name: Brunskill v Lake of Bays (Township)

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Paul Brunskill Subject: Consent - refused by Approval Authority Description: Consent - to create one new and one retained parcel of land for residential purposes Reference Number: B 15-25 LOB Brunskill Property Address: 1080 Fairy Falls Rd P0B 1A0 Municipality/UT: Lake of Bays/ District of Muskoka OLT Case No: OLT-25-000920 OLT Lead Case No: OLT-26-000021

Heard: April 8, 2026 by Video Hearing

APPEARANCES:

Parties	Counsel
Paul Brunskill	Russell Cheeseman Stephanie Fleming
Township of Lake of Bays	John Ewart (in absentia)

DECISION DELIVERED BY A. Mason AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION

1This is the decision arising from a one-day Merit Hearing of two appeals with respect to the property at 1080 Fairy Falls Road (“Property”), in the Township of the Lake of Bays (“Township”) owned by Paul Brunskill (“Appellant”). The first is an appeal under s. 53(19) of the Planning Act (“Act”) regarding an application for Consent to create one new retained lot and one new severed lot (“Consent Application”) that was refused by the Township’s Committee of Adjustment (“COA”). The second is an appeal under s. 34(11) of the Act and s. 12 of O. Reg. 173/16 from the failure of the Township to make a decision within the statutory timeframe on an application for amendment to the Township’s By-law No. 2021-111, known as the Community Planning Permit By-law (“CPP By-law Amendment”).

2The Parties raised no concerns with Notice.

3The Consent Application seeks to create two parcels of land where the Severed Lot has approximately 141 metres (“m”) of frontage on Fairy Falls Road and 2.14 hectares (“ha”) of lot area. The proposed Retained Lot has 0 m of road frontage, 7.3 ha of lot area, with an existing residential dwelling and driveway to Fairy Falls Road via a registered easement granting pedestrian and vehicular access across a residential lot previously severed from the Property.

4The CPP By-law Amendment seeks to change the zoning designations on the new lots and provide certain site-specific zoning exemptions for each of the Severed Lot and Proposed Lot, as follows:

1. For the Severed Lot: a. change the designation in the Township Official Plan (“Township OP”) from the Rural General (RG) Planning Permit Area designation to Rural Residential (RR) Planning Permit area; and b. carry forward the existing site-specific By-law 2023-134 Exception E217 (“By-law 2023-E217”) that currently applies to the entire Property permitting a minimum lot frontage of 125m and a 20m setback and vegetated buffer maintained along 75% of the front lot line on Fairy Falls Road.

2. For the Retained lot: c. change the designation in the Township OP from Rural General (RG) Planning Permit Area designation to Rural Residential (RR) Planning Permit area; and d. grant a site-specific exemption permitting 0 m of road frontage.

5The Consent Application was considered alone by the COA in October 2025, accompanied by a staff report (“Staff Report”). The Staff Report recommended denial because the proposed Consent would result in the Retained Lot being a standalone rural lot with no road frontage and the Severed Lot being below the minimum lot size of 10 ha under the Rural General designation. For these reasons the Staff Report advised that the development proposal did conform to the intent of the Township OP policies for the creation of new rural lots which require frontage on a year-round maintained public road and a minimum rural lot size. The Staff Report also included correspondence from the District of Muskoka stating that the proposal did not meet the District of Muskoka Official Plan (“District OP”) policies requiring that new lots front onto a year-round maintained public road.

6Since the Consent Application was denied by the COA, the CPP By-law Amendment to change the zoning designations and deliver the site-specific exemptions that would make the new lots compliant with the zoning regulations in the CPP By-law, was not advanced for consideration. As a result, the Appellant appealed the denial of the Consent Application and the failure of the Township to make a decision within the statutory time frame for the CPP By-law Amendment. The appeals were brought forward for consideration together at the Merit Hearing.

7In advance of the Merit Hearing, the Township advised the Tribunal that it would not be in attendance nor provide any submissions. At the Merit Hearing, the Appellant presented Savas Varadas, a full Member of the Canadian Institute of Planners and Registered Planner (Ontario), and the Tribunal qualified him to provide opinion evidence in land use planning.

8Having considered the uncontroverted sworn testimony provided in Mr. Varadas’ witness statement and viva voce at the Merit Hearing, as well as the submissions of the Appellant’s Counsel, the Tribunal is satisfied that the proposed Consent creating two new lots, and the accompanying CPP By-law Amendment that changes the designations to Rural Residential with site specific exemptions allowing 0 m of road frontage for the Retained Lot, and carrying forward the existing provisions in the site-specific By-law 2023-E173, meet all applicable statutory and policy tests and constitute good planning. As such, the Tribunal allows the appeals.

PARTICIPANT STATUS REQUESTS

9In advance of the Merit Hearing, the Tribunal received two requests for Participant status. Catherine Laureshen is a neighbour and owner of a lot previously severed from the Property by the Appellant. Crystal Shepherd is also a neighbour and owner of a lot previously severed from the Property. Both individuals provided letters of support for the development proposal and were granted Participant status by the Tribunal.

APPLICABLE LEGISLATION

10With respect to the Consent appeal under s. 53(19) of the Act, to determine whether provisional consent should be granted (with such conditions as may be required), the Tribunal must be satisfied that a Plan of Subdivision is not necessary. If not, then regard must then be given to the criteria set out in s. 51(24) of the Act, including: that the proposed consent has regard to matters of Provincial interest; whether it is premature or in the public interest; whether there is conformity to applicable Official Plans; the suitability of the land for the purposes for which it is to be subdivided; the dimensions and shapes of the proposed lots; and the adequacy of utilities and municipal services. Any conditions imposed on the Consent must be reasonable in accordance with s. 51(25) of the Act.

11With respect to the CPP By-law Amendment, under s. 4 of O. Reg. 173/16, the Tribunal must be satisfied that the proposed amendments conform to the relevant policies in the District OP and the Township OP.

12Further, as with any planning decision, the Tribunal must be satisfied that the development proposal is consistent with the Provincial Planning Statement, 2024 (“PPS 2024”) under s. 3(5) and has regard to matters of Provincial interest in s. 2 of the Act. Under s. 2.1(1) of the Act, the Tribunal must have regard for the decision made by the Approval Authority and the information and material that was before it, although the Tribunal is not bound by same. Overall, the Tribunal must decide whether the Proposal is representative of good planning and is in the public interest.

PROPOSED DEVELOPEMNT

13The two Applications are intertwined because the proposed CPP By-Law Amendments must be granted in order to make the proposed Severed Lot and Retained Lot facilitated by the Consent Application conform to the District OP and Township OP. As such, the Tribunal considers the Applications together in the below analysis.

14The proposed Consent alone results in two new lots that do not meet the technical requirements for the creation of new rural lots under the Township OP and the District OP as follows:

1. Section J3.5.2c of the District OP and s. I.17 of the Township OP set out a requirement that “new lots shall generally front on and gain access from a publicly owned and year-round maintained road”. Although Fairy Falls Road meets this road standard, the Consent Application has the effect of dividing the Property such that the Retained Lot no longer has road frontage but rather is accessed via the driveway easement.
2. The current zoning of the Property as Rural General in the Community Planning Permit By-law requires a minimum lot area of 10 ha. The proposed zone change to Rural Residential requires a minimum lot area of 2 ha such that both new lots would be compliant for lot area.
3. The existing site-specific exception By-law 2023-E217 provides for a reduced minimum lot frontage of 125 m along Fairy Falls Road, a 20 m front yard setback and a 20 m vegetated buffer on the front lot line.

15The witness for the Appellant testified that while the Retained Lot will no longer have direct frontage on Fairy Falls Road, it does not currently functionally rely on or utilize the road frontage. Mr. Varadas testified that the existing dwelling on the proposed Retained Lot will continue to be accessed via the registered easement for the driveway with no proposed change. Further, the witness testified that the size and layout of the Property means that the distance from the existing dwelling is too far to make the current road frontage on Fairy Falls Road functional. Mr. Varadas opined that, by granting the Consent, the creation of the Retained Lot would have no impact on the function of the existing dwelling or the surrounding lots since it is historically accessed over the registered easement and such will continue under the development proposal.

16With respect to the Consent criteria in s. 51(24) of the Act, Mr. Varadas testified that the development proposal met all relevant tests. In particular, the Severed Lands are flat and suitable for residential development and can be developed without harm to the natural environment, as confirmed in the Environmental Impact Study (“Environmental Study”) and Wildfire Risk Assessment Study (“Wildfire Study”) submitted with the Applications and commented on in the Staff Report. Further, the dimensions and shapes of the lots are consistent with the other lots previously severed from the Property along Fairy Falls Road. The new lots would not impact the provision of utilities since the lots will be privately serviced. Mr. Varadas opined that while the two lots proposed by the Consent do not conform to the Township OP and District OP because of the noted deficiency in direct road access for the Retained Lot, and lot size for the Severed Lot, the accompanying rezoning and site specific zoning exceptions proposed in the CPP By-law Application cure the deficiencies and meet the relevant tests for same.

17Mr. Varadas provided uncontested testimony that the site-specific exceptions proposed in the CPP By-law Amendment are carried forward from the exceptions that were already granted for the Property under By-law 2023-E217. Mr. Varadas testified that the new exception requested for the proposed Retained Lot to allow for 0 m lot frontage would continue the existing operational access to the existing dwelling.

18Mr. Varadas testified that the 0 m lot frontage proposed for the Retained Lot conforms to the intent in the District OP and is captured in the permissive language under s. J3.5.2(c) that states “new lots shall generally front on and gain access to a publicly owned and year-round maintained road” (emphasis added). The District OP provides further language in s. K5 that allows for the creation of new lots in limited circumstances without direct access to a public road where “private road access represents a “grandfather[ed]” situation. Mr. Varadas opined that the registered driveway easement for access from Fairy Falls Road to the existing dwelling on the proposed Retained Lot conforms to the District OP and Township OP by meeting the intention of these limited exceptions recognizing a previous approval and having no new impact on the surrounding lots or emergency services.

19Mr. Varadas also opined that road access to the Retained Lot conforms to the intent of the CPP By-law because of the exception found in s. 3.1.2 that provides that minor residential infilling may be considered on an existing private road in certain limited situations, such as where there is a legal right of way that has been secured. Mr. Varadas opined that the proposal for the Retained Lot, while not having direct frontage on a publicly maintained road, still has access over the registered driveway easement providing the same access as if the lot had direct road frontage. Further, Mr. Varadas opined that the exceptions set out in the Community Planning Permit By-law, Township OP and District OP for road access indicate flexibility for development in limited circumstances where year-round road frontage is not available. For these reasons, Mr. Varadas opined that the proposed CPP By-law Amendment conforms to the intent and purpose of the Township OP and the District OP policies that require direct road access for new lots.

20With respect to the higher-level policy considerations, the witness for the Appellant testified that the Applications have regard for matters of Provincial interest as set out in s. 2 of the Act. In particular, Mr. Varadas highlighted that s. 2(a), which directs the protection of ecological systems, is addressed in the mitigation measures set out in the Environmental Study and Wildfire Study. Mr. Varadas opined that the proposed Conditions of Consent establish that the environmental and fire mitigation measures in the two reports will be implemented by the Appellant to the satisfaction of the Township.

21Mr. Varadas also provided testimony that the development proposal is consistent with the policies in the PPS 2024 for development in Rural Areas. In particular, the proposal provides for appropriate lot sizes for the provision of private sewage and water services since the Retained Lot is already serviced in this manner and the proposed Severed Lot is large enough to accommodate private services under the Building Code requirements.

22In summary, Mr. Varadas provided uncontroverted testimony that the development proposal will result in minimal impacts on the Property, that the Severed Lot is suitable for development and will front upon and have access from Fairy Falls Road, and that the Retained lot will continue to be accessed via the existing driveway that is a registered easement. Mr. Varadas opined that the zoning changes in the proposed CPP By-law Application are appropriate for the lands and mitigate any environmental risks while conforming to the intent of the District OP and Township OP for Rural Residential lots. It was the summary opinion of Mr. Varadas that the proposed development has regard for matters of provincial interest in s. 2 of the Act, is consistent with the PPS 2024 and conforms to the District OP and Township OP and meets the test for the subdivision of land in s. 51(24).

23Counsel for the Appellant made submissions on the requirement in s. 2.1(1) of the Act for the Tribunal to consider the previous decision of the Approval Authority and the material that had been before it for consideration. In this case, the material provided was the Staff Report recommending denial of the Consent Application. Counsel took the position that the Consent Application was before the COA, not Township Council, and that the CPP By-law Amendment was appealed for lack of decision and thus was never before Council. As such, it was their submission that the Staff Report was untested and that the Tribunal should assign no weight to it. Further, the non-appearance of the Township at the Merit Hearing coupled with the uncontested testimony of Mr. Varadas was put forth as definitive that the Staff Report should be considered as without weight to the Tribunal’s deliberations.

ANALYSIS AND FINDINGS

24Having received and accepted the uncontroverted evidence of Mr. Varadas and the submission of Counsel, the Tribunal is satisfied that the Consent Application in conjunction with the zoning changes in the CPP By-law Amendment together facilitate the creation of two lots that meet the tests in s. 51(24) of the Act for the subdivision of land, have regard for those matters of provincial interest in s. 2, are consistent with the PPS 2024 and conform with the District OP and Township OP policies for the creation of new lots in rural areas. Further, the Tribunal is satisfied that the proposed Conditions of Consent are reasonable in accordance with s. 51(25) of the Act. Lastly, the Tribunal is satisfied that the proposed development meets the policies for zoning amendments to the Community Planning Permit By-law and constitutes good planning in the public interest.

25In considering the testimony of Mr. Varadas, the Tribunal finds it determinative that the existing registered driveway access easement will be maintained in the same position so there is no additional functional impact on the Property or the surrounding lots. While the Retained Lot, is technically deficient without the CPP By-law Amendment allowing 0 m lot frontage, there is no change to how the Property is accessed or operates today. The road frontage on Fairy Falls Road that currently makes the Property complaint under the CPP By-law and By-law 2023-E217 today is a large distance from the existing dwelling and has no functional connection to it. Therefore, severing the Property and allocating the road frontage to the proposed Severed Lot does not impact or change the form or the existing dwelling access on the proposed Retained Lot or surrounding lots. The Tribunal is satisfied that this scenario conforms to the intent of the Township OP and District OP that provide very limited circumstances for the development of new lots without frontage on a year-round maintained road.

26The Tribunal accepts the uncontroverted opinion of Mr. Varadas that the rezoning and site-specific exemptions proposed in the CPP By-law Amendment for the Severed Lot and Retained Lot are consistent with policies for rural areas in the PPS 2024, have regard for matters of provincial interest in s. 2 of the Act and are in conformity with the provisions of the District OP and Township OP. The existing dwelling is a long standing residential use on the Property and the proposed development facilitated by the Applications will not impact the surrounding lots or have adverse unmitigated impacts on the environment.

27Lastly, relying on the uncontested evidence of Mr. Varadas, the Tribunal is satisfied that the proposed Conditions of Consent were duly brought forward by the Township during the planning review process and are reasonable in accordance with s. 51(25) of the Act. Nevertheless, since the Consent requires these conditions to be fulfilled prior to registration of the new lots, and the Township did not take part in this appeal, the Tribunal will remain available to be spoken to should any issues arise.

ORDER

28THE TRIBUNAL ORDERS THAT:

1. The appeal by Paul Brunskill under s. 34(11) of the Planning Act and under s.12(1) of O. Reg. 173/16 from the failure of the Township of Lake of Bays to make a decision on the application for an amendment to the Township’s By-law No. 2021-111, known as the Community Planning Permit By-law, is allowed and the Community Planning Permit By-law is amended as attached as Attachment 1 to this Order;

2. The appeal by Paul Brunskill under s. 53(19) of the Planning Act from the refusal of the Township of Lake of Bays to grant Consent to create one new and one retained parcel of land for residential purposes is allowed, and provisional Consent is authorized subject to the Conditions of Approval imposed under s. 51(25) attached hereto as Attachment 2 to this Order;

3. The Township of Lake of Bays has the authority to clear the Conditions of Approval of the provisional Consent in Attachment 2 to this Order.

4. The municipal clerk of the Township of Lake of Bays is authorized to assign numbers to the Community Planning Permit By-law amendment contained in Attachment 1 to this Order for record-keeping purposes.

5. The Tribunal may be spoken to in the event that there are any issues arising from the implementation of this Order.

A. Mason

A. MASON 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

Attachment 2