DATE: 20060622

DOCKET: C44253

COURT OF APPEAL FOR ONTARIO

RE:

ALY SAÏD and LOUISE BĒLISE SAÏD (Appellants) – and – MAURICE DUVAL EXCAVATION INC. and TOWNSHIP OF ALFRED AND PLANTAGENET (Respondents in Appeal)

BEFORE:

O’CONNOR A.C.J.O., BORINS and ROULEAU JJ.A.

COUNSEL:

Michael S. Rankin and Martin J. Thompson

for the appellants

No one appearing for the Township of Alfred and Plantagenet

Marc R. Labrosse

for Maurice Duval Excavation Inc.

HEARD:

June 14, 2006

On appeal from the order of the Divisional Court (Justices P. Theodore Matlow, John H. Brockenshire and Randolph Mazza) dated June 14, 2005.

E N D O R S E M E N T

[1] The Ontario Municipal Board (“OMB”) dismissed the appellants’ objections to a licence being granted to the respondent Maurice Duval Excavation Inc. (“Duval Excavation”) to operate a sand pit on lands abutting the appellants’ property. The sand pit would be approximately 600 metres from their home. The appellants’ appeal to the Divisional Court was dismissed. They now appeal to this court from that decision.

[2] The appellants maintain that, in considering whether a licence ought to be issued under the Aggregate Resources Act, R.S.O. 1990, c. A8, the OMB had to have regard to several matters including “any planning and land use considerations”.[^1] The appellants argue that the OMB erred in:

(a) finding that the use of the lands as a sand pit complied with the zoning by-law of the local municipality;

(b) failing to recognize that the by-law of the local municipality was subordinate to the official plan of the upper tier municipality and, therefore, was inoperative to the extent that it did not comply with that official plan; and

(c) not having proper regard to the Provincial Policy Statement (1997) issued by the Ministry of Municipal Affairs and Housing.

[3] For the reasons that follow, we dismiss the appeal.

[4] The Minister of Natural Resources referred objections to the proposed sand pit, including those made by the appellants, to the OMB for determination pursuant to s. 11(5) of the Aggregate Resources Act. As found by the Divisional Court, we too are satisfied that the OMB properly carried out its assigned mandate. It considered the evidence presented and materials filed that related to all of the matters it was required, pursuant to s. 12(1) of the Aggregate Resources Act, to take into account. It then reached a reasonable decision based on the evidence presented.

[5] As mentioned above, three specific issues were raised on this appeal. The first is the proper interpretation of the by-law.

[6] The by-law in question was adopted by the local municipality in 1995. It provides that the lands in question can be used for a sand pit. The by-law does not stipulate any limit as to the size of the sand pit operation that can be established on the site. The appellants submit, however, that the by-law is inconsistent with the official plan of the local municipality. That official plan pre-dates the by-law. It provides that the lands in question can be used as a sand pit but limits the pit operation to 15,000 tons per year without amendment of the official plan. Duval Excavation’s proposed operation is for 40,000 tons per year.

[7] In our view, however, the inconsistency between the by-law and the local municipality’s official plan is resolved by reference to s. 24(4) of the Planning Act, R.S.O. 1990, c. P.13. This section provides that when a municipality adopts a by-law in a planning area “in which an official plan is in effect and, within the time limited for appeal no appeal is taken or an appeal is taken and the appeal is withdrawn or dismissed … the by-law shall be conclusively deemed to be in conformity with the official plan.” In the present case, because the local municipality’s official plan was in existence at the time the by-law was adopted and no objection to the by-law was taken, the by-law is now conclusively deemed to be in conformity with the official plan. This, in our view, means that the by-law is considered to be valid and operative according to its terms.

[8] The second issue raised by the appellants relates to the interplay between the by-law and the official plan of the upper tier municipality. Subsequent to the adoption of the by-law by the municipality, an official plan was put into place by the upper tier municipality. Duval Excavation acknowledges that this official plan does not provide that the land in question can, as proposed, be used as a sand pit. Duval Excavation submits, however, that the by-law is the governing legislation. The official plan is a planning document and, to the extent that it is not implemented by the municipality, it does not operate so as to limit the land use.

[9] We agree. The Planning Act provides for the amendment of by-laws so as to conform with the provisions of an official plan of an upper tier municipality. Section 27(1) of the Planning Act stipulates that a municipality “shall amend … every by-law … to conform with a plan that comes into effect as the official plan of the upper-tier municipality.” Section 27(2) then provides that if the local municipality has not amended its by-laws to conform with the upper tier municipality’s official plan, the upper tier municipality “may amend the … zoning by-law … in the like manner and subject to the same requirements and procedures as the council that failed to make the amendment within the one-year period as required.”

[10] In the present case, well over one year has elapsed from the adoption of the upper tier municipality’s official plan, and neither the local municipality nor the upper tier municipality have taken any steps to make the amendments as provided in s. 27(2). In our view, absent an amendment to the by-law, the by-law remains in force and is not rendered inoperative or invalid. The by-law still governs the permitted uses of lands within the municipality. Specifically, a sand pit operation continues to be a permitted use for the land in question.

[11] Significantly, s. 27(1) does not say that a non-conforming by-law is inoperative. To the contrary, the scheme of the section implies that by-laws remain in force until amended. This interpretation is reinforced by s. 27(4). That subsection stipulates that, in the case of a conflict between an official plan of a lower tier municipality and an official plan of an upper tier municipality, the latter prevails. If the legislature intended that the official plan of an upper tier municipality was to prevail over a by-law, it would have provided for it in drafting s. 27(4).

[12] With respect to the third issue, the legislation then in force required the OMB to “give due regard” to the Provincial Policy Statement (1997). This policy statement contains statements of policy with respect to mineral resources and natural heritage features. The reasons of the OMB specifically state that it did have due regard to the Provincial Policy Statement. In the circumstances of this case, we do not believe more was required. As a result, we would not give effect to this ground of appeal.

[13] In conclusion, we find that the OMB dealt with the issues correctly and gave comprehensive reasons. It is apparent that it heard a good deal of evidence and considered all of the planning issues that were raised, specifically, the impact of the sand pit on the appellants’ property. It concluded that:

[i]ssuance of the licence on the subject property would not generate unacceptable impacts on the objectors’ use of their lands with respect to dust, noise, visual impact and traffic provided that the proposed “Road Allowance Use and Maintenance Agreement” referred to above is entered into between the municipality and the proponent subject to the revisions suggested by the Board. The Saïd property would be well buffered from the sand pit operation by the thick mature tree cover at the rear of the property and on the subject lands. The sand pit use is a relatively quiet use and is a compatible use for a rural area and is considerably less noisy than a gravel pit, quarry or crushing operation.

[14] These findings of fact were not challenged and support the disposition made by the OMB. Having found no error in the OMB’s interpretation of the by-law, official plan and the Planning Act, we agree with the Divisional Court’s decision and therefore dismiss the appeal with costs fixed at $15,000 inclusive of GST and disbursements.

“D. R. O’Connor A.C.J.O.”

“S. Borins J.A.”

“Paul S. Rouleau J.A.”

[^1]: Aggregate Resource Act, R.S.O. 1990, c. A8, s. 12(1)(g).