Grey Association for Better Planning v. Artemesia Waters Ltd. et al.

[Indexed as: Grey Association for Better Planning v. Artemesia Waters Ltd.]

62 O.R. (3d) 200

[2002] O.J. No. 4660

Court File No. 504/02

Ontario Superior Court of Justice

Divisional Court

McNeely, Carnwath and Czutrin JJ.

November 21, 2002.

Planning -- Official plan -- Zoning by-law -- Taking of water is land use subject to regulation under the Planning Act -- Planning Act, R.S.O. 1990, c. P.13.

AW Ltd. and DH owned land in the Township of Artemesia in the County of Grey, and AW Ltd. obtained a permit to take water from the land under s. 34 of the Ontario Water Resources Act, R.S.O. 1990, c. O.40. In May 2000, they applied to the county and the township for amendments to the official plan and zoning by-law to permit the extraction, storing and loading of water onto transport trucks. When the municipalities did not amend the official plan and zoning by-law, AW Ltd. and DH appealed to the Ontario Municipal Board ("OMB") and, on their motion, the Board granted an order that the Board accepted that, for the appeals, the taking of water was legally permitted so long as the water taking was in accordance with the permit to take water. The Board ruled that, based on the evidence of a planner, the taking of water was not a use of land for which the Board had jurisdiction and that, in the appeals, the Board would consider only matters relating to a storage and loading facility. Leave having been granted, the Grey Association for Better Planning appealed the OMB's decision to the Divisional Court.

Held, the appeal should be allowed.

The OMB erred. The interpretation of "use of land" in the Planning Act is a question of law and not an issue of fact to be decided on the basis of the evidence of a planner. The taking of water is a use of land within the meaning of the Planning Act. In deciding that taking of water was not a use of land and in confining the subsequent hearing to issues relating to the storage and loading of water, the OMB was refusing to consider an essential aspect of the appeal before it. In so doing, it denied those opposed to the appeal the right to adduce evidence and argument relevant to the question of whether the proposed operation should be a permitted use under the official plan and zoning by-law. Accordingly, the decisions of the OMB under appeal should be set aside and the matter should be referred back to the board for rehearing.

APPEAL from an order of the Ontario Municipal Board. [page201]

Cases referred to Pickering Township v. Godfrey, 1958 95 (ON CA), [1958] O.R. 429, 14 D.L.R. (2d) 520 (C.A.); Uxbridge (Township) v. Timber Brothers Sand & Gravel Ltd. (1975), 1975 507 (ON CA), 7 O.R. (2d) 484, 55 D.L.R. (3d) 516, 4 C.E.L.N. 4 (C.A.) [Leave to appeal to S.C.C. refused (1975), 7 O.R. (2d) 484n], revg 1973 555 (ON SC), [1973] 3 O.R. 107, 36 D.L.R. (3d) 42 (H.C.J.) Statutes referred to Ontario Water Resources Act, R.S.O. 1990, c. O.40, s. 34 Planning Act, R.S.O. 1990, c. P.13

Rodney Northey, for appellant. Donald Greenfield, for respondents.

[1] BY THE COURT: -- The appellant, pursuant to leave granted by Belleghem K., appeals decisions of the Ontario Municipal Board, which directed amendments to the official plans and zoning by-law of the County of Grey and Township of Artemesia to permit the use of a parcel of land for a spring water loading facility. The decision of the Municipal Board was itself made on appeal by the present respondents from the refusal of the named municipalities to so amend their official plans and zoning by-law.

[2] In granting leave to appeal, Belleghem J. suggested the following three questions required consideration by the Divisional Court:

(a) Is water taking a use of land within the meaning of the Planning Act?

(b) If so, would the Ontario Municipal Board be required to consider an amendment to the by-law?

(c) Does the existence of a Water Taking Permit under the Ontario Water Resources Act override the Ontario Municipal Board/municipality obligation under the Planning Act to apply the water taking provisions set out in Section 5.3.3 of the Grey County Official plan?

[3] Before considering the legal issues, we shall set out the factual background. Artemesia Waters Ltd. and Douglas Hatch in trust own land in the Township of Artemesia in the County of Grey. The official plans and zoning by-law in effect did not permit the use of the land for commercial water taking, storage or loading. On October 5, 1999, the respondent, Artemesia Waters Ltd., obtained a permit to take water from the said land from a Director under s. 34 of the Ontario Water Resources Act, R.S.O. 1990, c. O.40. Leave to appeal this decision was refused by the Environmental Appeal Board which, referring to the arguments of local residents opposed to the taking of water, said:

These issues (land value and land planning) appear outside the jurisdiction of the OWRA for the Director to make a decision on. Therefore, I will not comment further on these issues.

[4] In May 2000, the respondent applied to the County of Grey and the Township of Artemesia to amend their official plans and zoning by-law to permit "the extraction, storing and loading of water onto transport trucks" as permitted uses on their parcel of land. The applicants submitted a proposed draft by-law which read in part:

In addition to the Permitted Uses of Section 6.1, lands zoned A1 - Exception may be used for Water Loading Facility subject to the definition and regulations provided herein; [page202]

For the purposes of this by-law, a Water Loading Facility means a small scale industrial use where lands, building or structures are used for the purpose of extracting, storing and loading water onto transport trucks.

[5] The municipalities did not amend their official plans and zoning by-law as requested and on October 5, 2001, the present respondents appealed to the Ontario Municipal Board.

[6] On January 17, 2001, the present respondents made a motion to the Ontario Municipal Board. The notice of motion read in part:

The Motion is for:

(1) An order of the Board that:

(a) As a Permit to Take Water from the lands identified in the permit as the south half of lot 132 Concession 3, S.W.T.S.R., Township of Artemesia (now the Municipality of Grey Highlands) (the site) by the Director, Ministry of the Environment under the Ontario Water Resources Act has been granted to the Appellant, Artemesia Waters Ltd., and applications requesting leave to appeal the decision of the Director, Ministry of the Environment to issue the permit were denied by the Environmental Appeal Board the suitability of the Site for the taking of water is not an issue at the forthcoming O.M.B. Hearing, and the Board accepts, for the purposes of the Hearing relating to the Appeals before the Board, that the taking of water at the site is legally permitted so long as the water taking is in accordance with the said Permit to Take Water.

[7] The Ontario Municipal Board, in the person of Mr. Ronald J. Emo, heard the motion and granted the order requested. The Board held that the taking of water was not a use of land, that the Ontario Municipal Board (and by inference the municipalities) had no jurisdiction to deal with the taking of water and that at the upcoming appeal hearing before the Board only matters relating to a storage and loading facility would be considered.

[8] Mr. Emo gave the following reason for his decision: "I am satisfied on the only planning opinion submitted that the taking of water is not a 'use of land'." The planning opinion referred to was that of Mr. Hatch's planner set out in an affidavit filed on the motion.

[9] In approaching the matter in the way that it did, the Board was clearly in error. The proper interpretation of the words "use of land" in the Planning Act was a question of law to be decided by the Board itself and not an issue of fact to be decided on the basis of the affidavit evidence of a planner. The important issue in the present appeal is not whether the Board approached the question in the right way but whether it answered the question correctly. It is the opinion of this court that the Board did not, and that the taking of water as proposed [page203] by the present respondents was a use of land within the meaning of the Planning Act and properly the subject matter of the appeal hearing the Board was to hold.

[10] The operation that was before the Board, and which was previously before the municipalities, was the taking, storage and loading of water on a particular piece of land. The entire operation constituted a single use of land and the question before the Board was whether the entire operation, including the taking of water, should be a permitted use. In deciding that the taking of water was not a use of land and in confining the subsequent hearing to issues relating to the storage and loading of water, the Board was refusing to consider an essential, if not the most essential, aspect of the appeal before it. In so doing, it denied those opposed to the appeal the right to adduce evidence and argument relevant to the question of whether the proposed operation should be a permitted use under the official plan and zoning by-law.

[11] While the Board in reaching its decision did not rely on the decisions of the Ontario Court of Appeal in Pickering Township v. Godfrey, 1958 95 (ON CA), [1958] O.R. 429, 14 D.L.R. (2d) 520 (C.A.) and Uxbridge (Township) v. Timber Brothers Sand & Gravel Ltd. (1975), 1975 507 (ON CA), 7 O.R. (2d) 484, 55 D.L.R. (3d) 516 (C.A.), counsel for the respondents on the appeal before this court did so. It was argued that those cases decided that the taking of gravel from land by operating a gravel pit was not a use of land and that by analogy neither is the taking of water. We do not agree. The taking of gravel from land is an activity different in nature and in its consequences from the use of land for the extraction of water from an aquifer underlying not only the land on which the activity is carried out but other lands. Since the decisions in the two cases mentioned have been statutorily reversed (to use the expression of Belleghem J.), they no longer apply even to gravel pits. It is not necessary and may not be appropriate for this court to express any opinion as to the correctness of the decisions at the time they were made. We are satisfied, however, that the installation of piping and pumps and other apparatus on land for the purpose of extracting water is a "use of land" not only in common parlance but under the Planning Act as well.

[12] Accordingly, the decisions of the Ontario Municipal Board under appeal are set aside and the matter is referred back to the Board for rehearing.

[13] While this is sufficient to dispose of the appeal, the second question posed by Belleghem J. was whether, if water taking is a use of land, the Board would be required to consider an amendment to the by-law. The original application to the municipalities [page204] and the subsequent appeal to the Board covered the entire operation of the respondents"the extracting, storage and loading of water". This is the application that was before the Board and it is the application that is to be considered at the new hearing.

[14] The third question posed by Belleghem J. was whether the existence of a Water Taking Permit under the Ontario Water Resources Act overrides the Ontario Municipal Board/municipal obligation under the Planning Act to apply the water taking provisions set out in s. 5.3.3 of the Grey County Official Plan. This question appears to assume that the Board has an obligation to apply the very specific provisions of s. 5.3.3 of the Official Plan in dealing with the appeal. Since the very application before the Board is an application to make a site specific amendment to the existing official plan, it is not correct to say that the Board must follow the specific provisions of the very plan it is being asked to amend. There is no necessary conflict between the provisions of the Ontario Water Resources Act and the Planning Act. Both acts govern the activities of the respondents but each does so from a different perspective and for different purposes. It will be for the Board on the whole of the evidence and argument before it at the new hearing to decide whether amendments to the official plans and by-law should be directed and, if so, what those amendments should be.

[15] At the outset of the hearing, the respondents sought leave to introduce evidence as to actions taken by them subsequent to the hearing before the Board. Leave was granted and the new material was reviewed. It is not considered relevant to the issues before the court on this appeal and has not been relied on in dealing with the appeal.

[16] Since the appellant has been successful, it is entitled to costs and the parties may make their submissions as to costs in writing within 30 days.

Order accordingly.