Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 02, 2026
CASE NO(S).: OLT-26-000038
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Monica Murad
Subject: Application to amend the Zoning By-law – Refusal or neglect to make a decision
Description: To permit conversion of a renovated barn to contain six (6) temporary occupancy units
Reference Number: ZBA-06-25
Property Address: 401 Elgar Drive
Municipality/UT: Cavan Monaghan/Peterborough
OLT Case No.: OLT-26-000038
OLT Lead Case No.: OLT-26-000038
OLT Case Name: Murad v. Cavan Monaghan (Township)
Heard: May 25 and 26, 2026 by video hearing
APPEARANCES:
Parties
Monica Murad
Counsel
John Ewart
Township of Cavan Monaghan
Tom Halinski
DECISION DELIVERED BY David Brown AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION AND BACKGROUND
1The matter before the Tribunal concerns an appeal filed by Monica Murad (“Applicant”) pursuant to s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Planning Act”), against the refusal of an application to amend the Township of Cavan Monaghan (“Township”) Zoning By-law No. 2018-58 (“Zoning By-law”) by the Council of the Township.
2The Applicant filed an application to amend the Zoning By-law (“ZBA”) applying to the lands known municipally as 401 Elgar Drive (“Subject Property”). The ZBA requested permission to allow a second single detached dwelling on the Subject Property for the purposes of temporary accommodation.
3A Statutory Public Meeting was held by the Township Council, and after consideration of the ZBA, Township Council denied the ZBA.
4At the centre of this appeal is the use of a former drive shed structure that was located on the Subject Property. The Applicant purports that the drive shed was modified and continues to be used for the same purposes as the previous structure. The Township considers the work undertaken by the Applicant as new construction and the use of the new structure is not permitted by the Zoning By-law. Further, the construction occurred without the benefit of a building permit.
5The Applicant claims that the former drive shed was used by the previous owner as an airplane hangar and included temporary living accommodations. Based on this historic use, the Applicant claims that the proposed temporary residential use and storage use of the modified structure is a continuation of the legal non-conforming use.
6The Township disputes the claims of legal non-conforming status and submits the Applicant has failed to demonstrate that the described use of the former drive shed lawfully existed on the date of the enactment of the original Township Zoning By-law No. 2252 (ZB 2252) or that the use lawfully existed on November 15, 2001, as required by the Oak Ridges Moraine Conservation Plan (“ORMCP”) and the Township Official Plan (“Township OP”).
7An Affidavit of Service, sworn March 5, 2026, was filed with the Tribunal (Exhibit 1) confirming that Notice of the proceedings was provided in accordance with the directions provided by the Tribunal.
8The Tribunal granted Participant status to Eva Bykhovsky, a neighbouring property owner, Jane Zednik, an area resident and acquaintance of the former owners, and Save the Oak Ridges Moraine Coalition, a Not-for-Profit Corporation registered with the Province of Ontario, whose interest is in the protection and preservation of the Oak Ridges Moraine.
9The Tribunal, having considered the submissions of the Parties and the materials filed with the Tribunal, finds that the ZBA does not conform with the policies of the ORMCP and the Township OP, and dismisses the appeal for the reasons set out, as follows.
PLANNING EVIDENCE
10The Tribunal considered viva voce testimony from two qualified land use planners, Robert Clark, on behalf of the Applicant, and Karen Ellis, the Director of Planning at the Township. Mr. Clark filed a Witness Statement with the Tribunal (Exhibit 3) and Ms. Ellis relied on the staff report she authored for Township Council’s consideration at the public meeting (Exhibit 2, Tab 27).
11The Planners are generally in agreement with the planning policy framework that applies to the consideration of the appeal.
12The planning policy analysis undertaken by the Planners addresses the relevant matters of provincial interest identified in s. 2 of the Planning Act, including agricultural resources and the resolution of planning conflicts during the course of their testimony.
13In consideration of the Provincial Planning Statement, 2024 (“PPS”), the Planners agree that the PPS classifies the Subject Property as Rural Lands. The Tribunal finds that the Rural Lands policies permit residential development and agricultural uses. The PPS does not specifically address second detached residential dwellings on Rural Lands, being the matter at issue in these proceedings, and the Tribunal turns to the ORMCP and the Township OP for direction in that regard.
14The Subject Property is designated Natural Core Area in the ORMCP. The objectives of the ORMCP include direction to protect the ecological and hydrological integrity of the Oak Ridges Moraine. The Applicant filed an Environmental Impact Study supporting the ZBA and the Planners are in agreement there are no ecological or hydrological impacts resulting from the new construction that has occurred on the Subject Property, however, Ms. Ellis did raise a concern that the increase in the use of the Subject Property could result in an ecological impact.
15Section 6 of the ORMCP sets out policies addressing existing uses, buildings, and structures, as set out below:
6.(1) Nothing in this Plan applies to prevent,
(a) the use of any land, building or structure for a purpose prohibited by this Plan, if the lands, building or structure was lawfully used for that purpose on November 15, 2001 and continues to be used for that purpose; or
(b) the erection or use for a purpose prohibited by this Plan of a building or structure for which a permit has been issued under subsection 8 (2) of the Building Code Act, 1992 on or before November 15, 2001 if,
(i) the permit has not been revoked under subsection 8 (10) of the Building Code Act, 1992, and
(ii) (ii) the building or structure when erected is used and continues to be used for the purpose for which it was erected.
6.(2) Nothing in this Plan applies to prevent the expansion of an existing building or structure on the same lot, if the applicant demonstrates that,
(a) there will be no change in use; and
(b) the expansion will not adversely affect the ecological integrity of the Plan Area […]
16The ORMCP defines “existing” as: “to mean lawfully in existence on November 15, 2001, and for greater certainty does not include a use, building or structure that is in existence on that date without being lawful.”
17Mr. Clark proffers that his review of the aerial photography prior to 2001 shows the existence of the drive shed structure prior to its modification, and markings on the northerly portion of the Subject Property suggest the existence of an air strip. His understanding from speaking with neighbours and the Applicant is that the drive shed was used as a hangar for an airplane and glider, owned by the previous owner. Further, he understands that the annual maintenance certification of the aircraft occurred at the Subject Property and required the housing of the maintenance staff for temporary periods. The temporary accommodations were located in the hangar and included kitchen facilities, a washroom, and sleeping accommodations in the form of three cots. Mr. Clark referenced the Affidavit sworn by Roy Murad (“Owner’s Affidavit”), the current owner’s spouse, outlining Mr. Murad’s observations within the drive shed structure at the time of purchase of the Subject Property. Mr. Clark explained that he relies on this information in forming his opinion.
18Mr. Clark proffers that the drive shed was used for storage, in the form of an airplane and glider, and included a residential use. Section 6.(2) of the ORMCP provides for the modification of an existing structure, provided there is no change in use and there is no impact on the ecological integrity of the Oak Ridges Moraine area. Mr. Clark opines that there is no change in the use of the modified structure and there is no ecological impact arising from the modifications to the structure, and that therefore, the ZBA to recognize the modified structure conforms to the ORMCP.
19Ms. Ellis contends that the Owner’s Affidavit does not demonstrate the lawful use of the former drive shed as a residential use and she further advises that there are no records within the Township or the County of Peterborough (“County”) that support the Applicant’s assertion with respect to the lawful use of the former drive shed structure. The Applicant has not demonstrated that the use of the former drive shed, as an airplane hangar or as residential accommodations, lawfully existed on November 15, 2001, the date identified in the ORMCP. Accordingly, Ms. Ellis is of the opinion that the newly constructed building that replaced the former drive shed is a second residential dwelling on the Subject Property. The ORMCP does not permit a second residential dwelling in the Natural Core Area and Ms. Ellis opines that the ZBA does not conform to the ORMCP.
20The County Official Plan references the ORMCP and directs readers to the Township Official Plan (“Township OP”) for policies applying to lands located within the Oak Ridges Moraine.
21The Township OP designates the Subject Property as ORM–Natural Core Area. Section 6.3.2 of the Township OP sets out the permitted uses and there was concurrence between the Planners that a second detached residential dwelling is not a permitted use.
22Section 3.17 of the Township OP sets out the policies for applying specifically to areas within the Oak Ridges Moraine. Sections 3.17.3 a) and b) of the Township OP, set out below, substantially reiterate the provision of Section 6.(1) and 6.(2) of the ORMCP as it relates to existing uses, buildings, and structures.
3.17.3 Existing Uses, Buildings and Structures
a) Nothing in this Plan is intended to prevent the use of any land, building or structure currently in existence if the land, building or structure was lawfully used for that purpose on November 15, 2001 and continues to be used for that purpose;
b) Nothing in this Plan applies to prevent the expansion of an existing building or structure on the same lot, if the applicant demonstrates that there will be no change in use and the expansion will not adversely affect the ecological integrity of the Oak Ridges Moraine…
23Mr. Clark opines that the ZBA is consistent with the policies of the Township OP as the policies contemplate the modification of a legal non-conforming structure and the continuation of the existing within the modified structure. Mr. Clark asserts that the temporary residential accommodation and storage will be maintained within the modified structure.
24Ms. Ellis contends that the Applicant has not demonstrated the use of the drive shed structure was an airplane hangar or included temporary accommodations as of the date of the enactment of the ZB 2252, being January 27, 1977. Ms. Ellis explained that ZB 2252 zoned the portion of the Subject Property that included the former drive shed as Rural (RU). The Rural (RU) zone permitted a single detached dwelling as an accessory use to an agricultural use and made no provisions for an airplane hangar or temporary residential accommodations in an accessory structure.
25Further, Ms. Ellis contends that the Applicant has not demonstrated the lawful use of the drive shed for any purpose other than the permitted accessory agricultural storage that existed on November 15, 2001. November 15, 2001, being the date identified in the Township OP applying to the ORM–Natural Core Area designation, which is the same date identified in the ORMCP policies.
26Section 6.3 of the Township OP sets out the policies for lands designated Natural Core Area located in the Oak Ridges Moraine. Section 6.3.2 in the Township OP lists the permitted uses, which include existing agricultural operations and single detached dwellings, subject to specific restrictions, as follows:
6.3.2 The permitted use of land in the Natural Core Areas designation on Schedules A and A-1 shall include: […]
g) Single-detached dwellings and accessory uses on existing lots of record if it is demonstrated that:
i) There is no alternative and the expansion, alteration or establishment is directed away from the feature to the maximum extent possible;
ii) The impact of the expansion or alteration on the feature and its functions is minimized to the maximum extent possible; and,
iii) The expansion or alteration is not located in a floodplain or erosion hazard area.
27Ms. Ellis proffers that the list of permitted uses does not include a second detached residential dwelling.
28Ms. Ellis proffers that the sections of the ORMCP and the Township OP the Applicant is relying upon do not apply as the lawful use of the drive shed structure has not been established. Thus, Ms. Ellis opines that the existing building and existing use policies contained in the ORMCP and Township OP are not applicable in this instance. Section 6.3 of the Township OP applies to the ZBA and the request to allow a second detached residential dwelling on the Subject Property does not conform with the Township OP or the ORMCP and should be denied.
29Mr. Clark requested the Tribunal allow the appeal and recognize the temporary residential use of the drive shed as legal non-conforming and approve the modified structure, and the continued use of the modified structure for temporary residential accommodation and storage, as provided for in the sections of the ORMCP and Township OP.
ANALYSIS AND FINDINGS
30The Tribunal finds that the conformity with the ORMCP and the Township OP turns on whether the purported use of the drive shed by the Applicant was lawfully existing on November 15, 2001.
31The Tribunal finds that the Applicant has not been able to demonstrate to the Township, or to the Tribunal, that there is any evidence that the use of the drive shed structure was for anything other than a storage building accessory to the agricultural use of the Subject Property.
32The Participant Statements of Ms. Zednick and Ms. Bykhovsky support the claim that the previous owner had an airplane and a glider and used the drive shed to store the airplane and glider. However, as indicated by the Town’s Planner, this use was not permitted by the zoning in force on November 15, 2001.
33The assertion of the Applicant, through their Planner, that the drive shed had a more complex use beyond the simple storage of an airplane, is a convenient narrative to support the Applicant’s application. Without some form of evidence other than speculation of the use of the drive shed structure for any use beyond the storage of an airplane, the Tribunal is not satisfied that a residential use existed in the drive shed in the form alleged by the Applicant.
34The Owner’s Affidavit is not demonstrative of a residential use of the former drive shed structure in the context that was presented by the Applicant’s Planner. The Applicant’s assertion that the annual airplane certification process requires the mechanics to sleep in the hangar with the airplane is unfounded and the Tribunal was presented with no evidence to support such an assertion. The interpretation of the documentation related to the requirements for the certification of an airplane advanced by the Applicant was beyond the expertise of the Applicant’s Planner and the Tribunal assigns very little weight to the documentation.
35The Tribunal further reasons that, even had the Applicant been able to demonstrate the use existed as described, the threshold is that the use lawfully existed. This threshold would require the demonstration of the existence of the use prior to the enactment of ZB 2252 (January 27, 1977). Ms. Bykhovsky and Ms. Zednick, in their Participant Statements, both indicated that the previous owner purchased the Subject Property in 1989, well after the enactment of ZB 2252 in 1977. These statements were not challenged, and the Tribunal accepts the claims.
36The Tribunal further finds that the legal non-conforming temporary residential use being claimed by the Applicant would be an accessory use to the principal use of the drive shed, that being the storage and annual maintenance of an airplane. The reconstructed building that replaced the former drive shed appears to be a residential structure, and if any storage does exist within the structure, it is clearly subordinate to the residential use. The Applicant’s Planner proffered that there is storage in the building, however, no documentation, be it in the form of floor plans or photographs, was presented to support the claim.
37The Applicant’s Planner was presented with photographs obtained from a website advertising luxury vacation rentals during cross-examination. The photographs on the website show the subject structure which is clearly being marketed as a residential dwelling available for rental. This evidence was not challenged by the Applicant, and the Tribunal finds that the principal use of the structure is a residential dwelling and there is no storage. This does not represent a continuation of a previous use as alleged by the Applicant.
38In consideration of the historic use of the drive shed structure, as set out above, the Tribunal finds that the newly constructed building is not an expansion of a lawfully existing structure, and the use of the structure is not a continuation of a lawfully existing use of the former drive shed structure. The evidence before the Tribunal definitively describes a second detached residential dwelling on the Subject Property.
39The Tribunal reasons that the policies contained in the ORMCP and the Township OP, related to lawfully existing uses and structures, are not applicable to the ZBA. The ORMCP does not permit a second detached residential dwelling on lands designated Natural Core Area. Similarly, the Township OP does not permit a second detached residential dwelling on lands designated Natural Core Area.
40The Tribunal finds that the ZBA does not conform to the ORMCP or the Township OP.
41In consideration of the matters of provincial interest set out s. 2 of the Planning Act, the Tribunal finds that the actions of the Applicant in constructing the new structure without the benefit of a building permit is contrary to the provincial interest of the orderly development of safe communities. Orderly development includes complying with the laws of the Province and the by-laws of the local municipality. The second detached residential dwelling at issue in these proceedings was constructed without a building permit and it is unknown whether the structure conforms to the requirements of the Ontario Building Code and it has been acknowledged by virtue of the ZBA that the development does not conform with the provisions of the Zoning By-law. This does not represent orderly development and creates a safety concern for the occupancy and use of the structure.
42Pursuant to s. 2.1 of the Planning Act, the Tribunal reviewed the minutes of the Township Council meeting where it considered the ZBA and the decision it rendered.
43Section 3(5) of the Planning Act requires decisions of the Tribunal to be consistent with the PPS and to conform with provincial plans. The ORMCP is one such a provincial plan. The PPS sets out that the municipal official plans are the most important vehicle for implementation of the PPS1. Further, provincial plans, such as the ORMCP, are to be read in conjunction with the PPS, and where the ORMCP contains more specific policies than the PPS, the ORMCP satisfies the more general requirements of the PPS2. The Tribunal finds that the ZBA does not conform with the ORMCP, and therefore, is not consistent with the PPS.
44For the reasons set out above, the Tribunal dismisses the appeal and the ZBA is refused.
ORDER
45THE TRIBUNAL ORDERS THAT the appeal is dismissed and the requested amendment to Zoning By-law No. 2018-58 is refused.
“David Brown”
DAVID BROWN
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.