Where are we growing

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Where are we growing

  1. 1. Ontario East Municipal Conference 2012 Where are we Growing: ProvincialLegislation, Policy and Court/OMB Decisions Ken Hare, Counsel Legal Services Branch – Municipal Affairs & Housing Ministry of the Attorney General E: ken.hare@ontario.ca September 13, 2012
  2. 2. This presentation has been prepared for educational purposesonly, and deals in summary with complex matters. It is not meantto constitute legal advice, but merely summarizes select parts oflegislation, policies and plans.The information referred to herein is subject to change. Theinformation in this presentation should not be relied upon as asubstitute for specialized legal or professional advice. The authordoes not accept responsibility for reliance on the contents of thepresentation, or for any direct or indirect consequences arisingfrom its use.This presentation does not reflect the position of the Ministry ofthe Attorney General, the Ministry of Municipal Affairs andHousing, or the Province of Ontario.
  3. 3. Outline of PresentationPart 1: Provincial Policy - Led Land Use Planning System• Establishing the Provincial Policy Led System• Provincial Interests, Provincial Policy Statement, and Provincial Plans• Implementing the Policy Led System Through Land Use Planning and other Decisions• What is a “Decision affecting a planning matter”?• Provincial Policies – Implementation Standards• Requirement to “have regard to” municipal decisionsPart 2: Provincial Policy Statement• Implementing and Interpreting the Provincial Policy Statement• Applying a Comprehensive Policy Framework versus (Re)Balancing PoliciesPart 3: Where Are We Growing …. cases addressing• Settlement Area Expansions• Limited Residential Development in Rural Areas• Lot Creation in Prime Agricultural Areas• Resource-Based Recreational Activities
  4. 4. PART 1: Provincial Policy - Led System Provincial Policy = Provincial Policy Statement & Provincial Plans (primarily)
  5. 5. Provincial Policy - Led Land Use Planning SystemPlanning Act • Establishes provincial policy-led system (s.1.1, 3(5)) • Identifies matters of provincial interests (s.2). • Authority to create Provincial Policy Statements (3(1)) • Implementation standards for Provincial Policy Statement (consistent with) & Provincial Plans (conform with/not conflict with). Other Legislation • Authority to create Provincial Plans. • Establish implementation standards (conform with/not conflict with)
  6. 6. Establishing the Provincial Policy Led Land Use Planning SystemPlanning Act1.1 The purposes of this Act are, (a) to promote sustainable economic development in a healthy natural environment within the policy and by the means provided under this Act; (b) to provide for a land use planning system led by provincial policy; (c) to integrate matters of provincial interest in provincial and municipal planning decisions; (d) to provide for planning processes that are fair by making them open, accessible, timely and efficient; (e) to encourage co-operation and co-ordination among various interests; (f) to recognize the decision-making authority and accountability of municipal councils in planning.
  7. 7. Provincial Interests (s.2)2. The Minister, the council of a municipality, a local board, a planning board and the Municipal Board, in carrying out their responsibilities under this Act, shall have regard to, among other matters, matters of provincial interest such as,(a) the protection of ecological systems, including natural areas, features and functions;(b) the protection of the agricultural resources of the Province;(c) the conservation and management of natural resources and the mineral resource base;(d) the conservation of features of significant architectural, cultural, historical, archaeological or scientific interest;(e) the supply, efficient use and conservation of energy and water;(f) the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems;(g) the minimization of waste;(h) the orderly development of safe and healthy communities;(h.1) the accessibility for persons with disabilities to all facilities, services and matters to which this Act applies;(i) the adequate provision and distribution of educational, health, social, cultural and recreational facilities;(j) the adequate provision of a full range of housing;(k) the adequate provision of employment opportunities;(l) the protection of the financial and economic well-being of the Province and its municipalities;(m) the co-ordination of planning activities of public bodies;(n) the resolution of planning conflicts involving public and private interests;(o) the protection of public health and safety;(p) the appropriate location of growth and development;(q) The promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians.
  8. 8. Provincial Policy StatementPolicy statements3. (1) The Minister, or the Minister together with any other minister of the Crown, mayfrom time to time issue policy statements that have been approved by the LieutenantGovernor in Council on matters relating to municipal planning that in the opinion of theMinister are of provincial interest.• PPS, 2005 approved by Lieutenant Governor in Council, Order 140/2005. Came into effect March 1, 2005. Replaces PPS, 1996 (amended 1997).• Provides a policy framework addressing provincial interests.• All land use planning decisions, advice and comments “shall be consistent with” provincial policy statements [s.3(5)-(6)].• Municipalities are the prime implementers.• The PPS shall be reviewed at least every 5 years [3(10)]. A review is ongoing in 2012.
  9. 9. Provincial PlansPlanning Act – Definition (s.1.1) - “provincial plan” means,(a) the Greenbelt Plan established under section 3 of the Greenbelt Act, 2005,(b) the Niagara Escarpment Plan established under section 3 of the Niagara Escarpment Planning and Development Act,(c) the Oak Ridges Moraine Conservation Plan established under section 3 of the Oak Ridges Moraine Conservation Act, 2001,(d) a development plan approved under the Ontario Planning and Development Act, 1994, [i.e. Parkway Belt West Plan, and Central Pickering Development Plan](e) a growth plan approved under the Places to Grow Act, 2005, or(f) a prescribed plan or policy or a prescribed provision of a prescribed plan or policy made or approved by the Lieutenant Governor in Council, a minister of the Crown, a ministry or a board, commission or agency of the Government of Ontario;The Lake Simcoe Protection Plan under the Lake Simcoe Protection Act, 2008is not a provincial plan under the Planning Act, but some policies of the LSPPeffectively operate as such.
  10. 10. Provincial Plans Created under authority of various statutes. Provide provincial direction for specific geographic areas of the province regarding environmental, growth management, resource and economic matters.Greenbelt Act, Oak Ridges Niagara Ontario Planning Places to Grow Ontario Planning Lake Simcoe 2005 Moraine Escarpment and Development Act, 2005 and Development Protection Act, Conservation Act, Planning and Act, 1994 Act, 1994 2008 2001 Development ActGreenbelt Plan Oak Ridges Moraine Growth Plan for the Niagara Escarpment Parkway Belt Greater Golden Central Pickering Lake Simcoe (MAH) Conservation Plan Plan West Plan Protection Plan* Horseshoe Development Plan (MAH) (MNR) (MAH) (MOE) (MOI) (MAH) Work in conjunction with the Planning Act and Provincial Policy Statement.*The Lake Simcoe Protection Plan created under the authority of the Lake Simcoe Protection Act, 2008 is not a provincial planunder the Planning Act, but some policies of the LSPP effectively operate as such.
  11. 11. Implementing the Provincial Policy Led Systemthrough land use planning (and other) decisionsPlanning Act, s. 3(5)A decision of the council of a municipality, a local board, a planning board, aminister of the Crown and a ministry, board, commission or agency of thegovernment, including the Municipal Board, in respect of the exercise of anyauthority that affects a planning matter,(a) shall be consistent with the policy statements issued under subsection (1) that are in effect on the date of the decision; and(b) shall conform with the provincial plans that are in effect on that date, or shall not conflict with them, as the case may be.
  12. 12. Reflecting the Provincial Policy Led System in landuse planning (and other) commentsPlanning Act, s. 3(6)Comments, submissions or advice affecting a planning matter that areprovided by the council of a municipality, a local board, a planning board, aminister or ministry, board, commission or agency of the government,(a) shall be consistent with the policy statements issued under subsection (1) that are in effect on the date the comments, submissions or advice are provided; and(b) shall conform with the provincial plans that are in effect on that date, or shall not conflict with them, as the case may be.
  13. 13. What is a decision affecting a “Planning Matter”?Russell v. Ontario [1999] O.J. No. 2045 (C.A.) defined"planning matter" as used in s.3 of the Planning Act as: • "official plans, zoning by-laws or other tools employed by municipalities for land use planning" and • "other land-use decisions that are ordinarily made by municipalities and, if required, approved by provincial authorities"
  14. 14. What is a decision affecting a “Planning Matter”? Not just Planning Act decisions. “Planning matters” found to include certain decisions made under the following statutes: Aggregate Resources Act Said Alfred and Plantagenet (Township) Pit Application (Re), [2004] O.M.B.D. No. 649, aff’d by [2006] O.J. No. 2487 (C.A.) Ontario Heritage Act Birchgrove Estates Inc. v. Oakville (Town) (2007), 55 O.M.B.R. 299 Farming and Food Production Protection Act, 1998 Hill & Hill Farms Ltd. v. Bluewater (Mun.) (2006), 82 O.R. (3d) 505 (C.A.) Building Code Act, 1992 Lock v. Middlesex Centre (Township) Chief Building Official (2001), 22 M.P.L.R. (3d) 66 (Ont. S.C.J.) Municipal Act, 2001 1245724 Ontario Ltd. v. King (Township) (1999), 5 MPLR (3d) 280 (O.M.B.) Development Charges Act, 1997 Chartwell Seniors Housing REIT v. Durham (Mun.), [2010] O.M.B.D. No. 129 (O.M.B.)
  15. 15. Implementation Standards• “The terms “shall be consistent with” provides very little – if any – discretion in applying the terms of the Comprehensive Policy Statement …” Township of Delhi Official Plan Amendment No. 64, OMB [1997]• “Shall be consistent with" is a higher policy implementation standard and is a more demanding test that [sic] the previous "shall have regard for" test that was contained in the previous Planning Act.” Dew v. Municipality of Lambton Shores , OMB [2007]• “The GP [Growth Plan] imposes the requirement of conformity, while the PPS test is “consistency with”. There is no dispute that the more onerous test is “conformity with”. 1541179 Ontario Ltd et al v. Region of Waterloo, OMB [2012]
  16. 16. Implementing the Provincial Policy Led System - Differing Implementation Standards Common understanding of the strength of different standards.*Least Strong StrongestStandard Standard Shall Have Shall Be Shall Conform Regard To Consistent With With s.2 Prov. Interests s.3(5)(a) - PPS 3(5)(b) – Prov. Plans s.3(6)(a) - PPS 3(6)(b) – Prov. Plans s.2.1 – Municipal Council Decisions * Does not address “shall not conflict with”
  17. 17. Provincial Plan – Implementation Standards“Shall conform with” standard in s.3(5)(b) of the Planning Act• s.14 of the Places to Grow Act, 2005 (re Growth Plan)• s.7 of the Greenbelt Act, 2005 (re Greenbelt Plan)• s.7 of the Oak Ridges Moraine Conservation Act, 2001 (re ORM Plan).“Shall not conflict” standard in s.3(5)(b) of the Planning Act• s.13 of the Niagara Escarpment Planning and Development Act (re Niagara Escarpment Plan)• s.13 of the Ontario Planning and Development Act, 1994 (re Parkway Belt West Plan, and Central Pickering Development Plan).
  18. 18. Implementing the Provincial Policy Led System –Municipal Decisions [2.1] and Provincial Policy [s.3(5)]• There is a tension in the land use planning system between local decision making and the implementation of the provincial policy led system. Decisions of councils and approval authorities 2.1 When an approval authority or the Municipal Board makes a decision under this Act that relates to a planning matter, it shall have regard to, (a) any decision that is made under this Act by a municipal council or by an approval authority and relates to the same planning matter; and (b) any supporting information and material that the municipal council or approval authority considered in making the decision described in clause (a). 2006, c. 23, s. 4. Policy statements and provincial plans 3(5) A decision of the council of a municipality, a local board, a planning board, a minister of the Crown and a ministry, board, commission or agency of the government, including the Municipal Board, in respect of the exercise of any authority that affects a planning matter, (a) shall be consistent with the policy statements issued under subsection (1) that are in effect on the date of the decision; and (b) shall conform with the provincial plans that are in effect on that date, or shall not conflict with them, as the case may be.
  19. 19. Implementing the Provincial Policy Led System –Municipal Decisions [2.1] and Provincial Policy [s.3(5)]Menkes Gibson Square Inc. v City of Toronto (City), OMB [2008]• “The policy statements and the various provincial plans coming into effect in the last few years in this province are not to be regarded as adjuncts, footnotes or supplements. They are policies to be given full force and effect to which other conflicting policies are to be subordinated. Contrast the language between Section 3(5) ("consistent with" and "conforming to") with the language in Section 2.1 ("have regard to") from the standpoint of the approval authority and the OMB, one is left without doubt about the supremacy and overriding authority of the provincial PPS and the provincial plans (at ¶ 14).City of Ottawa v. Minto Communities Inc., (Ont. Div.Ct.) [2009]• "The words "have regard to" do not by themselves suggest more than minimal deference to the decision of Municipal Council. However, in the context of the Planning Act, and balancing the public interest mandates of both the Board and the municipality, I would agree with Member Stefanko in Keswick Sutherland that the Board has an obligation to at least scrutinize and carefully consider the Council decision, as well as the information and material that was before Council. Furthermore, because Bill 51 now obliges Council to give written reasons when refusing to adopt requested planning amendments, which are part of the record before the Board, the Board also ought to carefully and explicitly consider the specific reasons expressed by Council. However, the Board does not have to find that the Council decision is demonstrably unreasonable to arrive at an opposite conclusion.”
  20. 20. Provincial Policy-Led Planning System Planning Act + PPS + Provincial Plans (if any) + Official Plan + Zoning By-law = guide decision-makingMinistry of Municipal MMAH lead Municipal Activity Municipal MunicipalAffairs and Housing (approval authority Activity Activity for OP may be MMAH or upper-tier) Planning Act Provincial Municipal Land Division, Building Permit enabling Policy Official Plan & Site Plan & other legislation Statement Zoning By-law (implementation) construction approvals Other Provincial Plans Legislation (if applicable)
  21. 21. PART 2:Provincial Policy Statement
  22. 22. Marandal Enterprises Inc. v. City of Barrie (2012)• “The PPS and Growth Plan share a common vision of healthy, prosperous and productive urban and rural communities where agricultural lands and natural resources will be protected and managed with sound judgement and where settlement areas will be the focus of a mix of residential and commercial growth in a compact and efficient form, with the avoidance of urban sprawl. In these documents, the efficient use of land, resources, infrastructure and public services is required.”
  23. 23. Provincial Policy Statement, 2005• Parts I to IV – Preamble and Context• Part V – Policies 1.0 Building Strong Communities 2.0 Wise Use and Management of Resources 3.0 Protecting Public Health and Safety 4.0 Implementation 5.0 Schedule – Natural Heritage Protection Line 6.0 Definitions
  24. 24. Implementing and Interpreting the ProvincialPolicy Statement• Provincial Policy Statement, 2005 “4.0 Implementation and Interpretation 4.3 This Provincial Policy Statement shall be read in its entirety and all relevant policies are to be applied to each situation. 4.6 The policies of this Provincial Policy Statement represent minimum standards … “ “The fundamental principles set out in the Provincial Policy Statement apply throughout Ontario, despite regional variations.” (PPS, Part IV, p.3)• InfoSheet: Applying the Provincial Policy Statement, Spring 2005 Having provincial policies that establish minimum standards is important to ensure the protection and wise management of key matters that affect our collective well-being – such as the protection of our water, our environment and our farmlands. (p.3)
  25. 25. Applying a Comprehensive PolicyFramework versus (re)Balancing PoliciesInfoSheet: Applying the Provincial Policy Statement (2005) by Municipal Affairs“The PPS recognizes the complex interrelationships which exist between strong communities, a cleanand healthy environment and a strong economy, and provide policy direction to achieve anappropriate balance between these interests.”ADMNS Kelvingrove Investment Corp v. City of Toronto (2010)“The assumption about “conflicting goals” was also discussed by the Board in Solaris Energy PartnersInc. v. Township of East Hawksbury, issued on May 5, 2009: There is no initial presumption that Provincial directions conflict … The first step is to inquire whether those directions can be reconciled on closer analysis.Counsel for the Applicant called for “balance” anyway … As a framework, the Board findsshortcomings in that approach. The PPS contains no instructions to “weigh heritage against otherpriorities.””
  26. 26. Applying a Comprehensive PolicyFramework versus (re)Balancing PoliciesOntario (Ministry of Municipal Affairs and Housing) v. Region of Niagara (2008)• Applicant’s planner indicated that decision makers had to consider every PPS policy when making any planning decision. Provincial planners indicated that decision makers must determine which policies are relevant and then apply those policies.• “The planners for the province … testified that indeed the PPS is a single and coherent planning policy document, which should be read in its entirety. However, there is an internal framework and logic to the PPS that directs decision makes to apply the pertinent policy provisions to the matter under consideration…it was Ms. Von Kursell’s planning opinion that it is Section 2.3 Natural Heritage of the PPS, which contains the pertinent policies to address these site issues. Section 2.3 contains the minimum standards upon which the proposal must be tested.” (para 37)• “… the Board finds that it is Section 2.3 Natural Heritage which contains the applicable and pertinent policies of the PPS to be considered for the matters at hand … the above mentioned policies must be carefully considered and that the golf course proposal must meet the standards set out in these policies.” (para 41)
  27. 27. Applying a Comprehensive PolicyFramework versus (re)Balancing PoliciesMarandal Enterprises Inc. v. City of Barrie (2012)• “The Board agrees with the opinion … that these provincial documents give guidance and direction to local planning jurisdictions, and are concerned with the planning of large areas that are to be developed in a manner that addresses matters of provincial interest expressed in these documents and the Planning Act. The Board agrees … that these provincial documents apply to the planning of whole communities and not to individual properties…”Victoria Point Homes Inc. v. City of Orillia (1998)• “A policy statement issued under Section 3 of the Act reflects objectives and directions on planning matters that are considered of particular interest and priority for the province. Thus, the policy statements articulate larger, more global priorities and policies than might be found in local planning documents. Some of these provincial policies are of general application, and some, such as policies on wetlands, are more specific.”
  28. 28. PART 3: Where are we Growing… cases addressing • settlement area expansions • limited residential development in rural areas • lot creation in prime agricultural areas • resource-based recreational activities
  29. 29. PPS - Settlement Area Expansions1.1.3.9 A planning authority may identify a settlement area or allow the expansion of asettlement area boundary only at the time of a comprehensive review and only where ithas been demonstrated that:(a) sufficient opportunities for growth are not available through intensification, redevelopment and designated growth areas to accommodate the projected needs over the identified planning horizon;(a) the infrastructure and public service facilities which are planned or available are suitable for the development over the long term and protect public health and safety;(b) in prime agricultural areas: 1. the lands do not comprise specialty crop areas; 2. there are no reasonable alternatives which avoid prime agricultural areas; and 3. there are no reasonable alternatives on lower priority agricultural lands in prime agricultural areas; and(a) in prime agricultural areas:impacts from new or expanding settlement areas on agricultural operations which are adjacent or close to the settlement area are mitigated to the extent feasible.
  30. 30. Settlement Area Expansions1633799 Ontario Inc. et al v. City of Ottawa• Three phases to urban boundary hearing regarding Official Plan Amendment No. 76 (resulting from official plan review) adopted by the City and modified/approved by the Minister. Phase 1 Urban Boundary Hearing - OMB Decision, June 2011• Two primary issues addressed by the OMB: (1) whether the municipal approach of using a 15 year planning horizon for residential uses, and 20 year horizon for employment uses was consistent with PPS Policy 1.1.2; and, (2) the approach used to determine how much land is required over the planning horizon (determined by the OMB) to accommodate growth.
  31. 31. 1633799 Ontario Inc. et al v. City of Ottawa … contPlanning Horizon - 15 year/20 year split or 20 years for both residential and employment?• “The time horizon is a choice for the municipality. Once the choice is made everything that happens in a very complex land need and supply forecasts that follows is dependent on the timing of the forecast. The clear wording of policy 1.1.2 is with the words “shall… to meet the projected horizon of up to 20 years” and with the test for meeting the PPS to be consistent with the projected needs for the chosen planning horizon is “that sufficient lands shall be made available”. Of assistance is the reference to “a time horizon”. Notwithstanding the earlier selection of the joint planning horizon to 2031, the effect of the Council approval is to have separate planning horizons for residential at 15 and employment uses at 20 years. This on its fact is inconsistent with other PPS provisions providing for a co-ordinated, integrated and comprehensive approach.” (p.12-13)• “The Board finds that OPA 76 is not consistent with the PPS and specifically 1.1.2 thereof that sufficient land has not been made available to meet projected housing needs. The change in the planning horizon at the time of adoption of OPA 76 to avoid the numbers generated is not good planning and reflects negatively on the earlier public process.” (p.14)• The OMB rejected the split 15 year/20 year planning horizon adopted by the City of Ottawa.
  32. 32. How much land is required for growth over the planning horizon?• In considering the City of Ottawa approach to calculating how much land is needed to accommodate growth over the planning horizon the Board refers to another settlement area boundary OMB decision: “in considering appeals to expand the urban boundary of a municipality the Board recognizes that for an urban municipality the establishment of its growth strategy is one of the most fundamental planning decisions it can make. It gives effect to its economic development and growth strategy, gives direction to its long term capital budget, and establishes for the private sector and the general public the basic land use expectations of the municipality. The Board should not interfere in this fundamental planning exercise and decision making process unless it is clear: 1) that the municipality has made a fundamental error in its assessment of its need for urban land to achieve its projected urban growth and approved development strategies, or 2) that the decision to expand or not to expand the urban boundary is at odds with the directions of the Provincial Policy Statement, or 3) That there has been a breach of the prescribed planning process afforded indviduals as a matter of right.” (p.16)
  33. 33. How much land is required for growth over the planning horizon?• “The Board finds the City methodology to be reasonable and defensible.” (p.15)• “The City figures and results are preferred by the Board for the following reasons; There are may adjustments or propensities possible, as admitted by all land economists. The attempt is to make as education informed projections as possible, with the knowlege that not all changes to past trends can be factored – for example – the boom to bust in the high tech growth in the Silicone Valley in the City of Ottawa. Likewise the baby boom growth era, particularly for single dwellings may not continue as the same rate as in the past.” (p. 16)• “… the contest is respecting total growth projections over the full planning horizon to 2031. The City has chosen a more cautious approach given surplus lands in the last 2001 analysis for the 2003 Official Plan. There is a basis for such caution. There is no fundamental error in City growth projections.” (p. 17)• “The Board prefers the … conclusion of 850 gross hectares based upon the timing of materials available and the considered propensities.” (p. 17)
  34. 34. PPS - Limited ResidentialDevelopment in Rural AreasProvincial Policy Statement1.1.4.1 In rural areas located in municipalities:a) permitted uses and activities shall relate to the management or useof resources, resource-based recreational activities, limited residentialdevelopment and other rural land uses;
  35. 35. Limited Residential Developmentin Rural AreasJodamar Properties Ltd. v. Mun. of Chatham-Kent, OMB 2009• Proposed official Plan and zoning amendments to allow 148 townhouse units to be integrated with an existing golf course.• “The term limited residential is not defined in the PPS. The Board agrees with the opinions of Mr. Zelinka and Ms. Ryall that the scale of development is not limited given that it would be a one-year supply of development for the Chatham settlement area and the density of development would not qualify as limited within the meaning of the PPS.”• “In some areas the PPS must be strictly interpreted; the creation of lots in prime agricultural areas is one example.”
  36. 36. Limited Residential Developmentin Rural AreasRoy v. Township of Oliver Paipoonge, OMB 2011• A proposed official plan amendment to permit a nine lot residential subdivision in a rural area.• The Provincial planner indicated “… that 3 lots would be considered “limited” rural development; that the proposed nine lot subdivision would consume 41% of the average growth rate of 22 units annually … a nine lot subdivision is significant in the local context …”• The Board noted that the applicant’s planner “…failed to deal with the question of what constitutes “limited development” according to the PPS. His testimony focused on the minutiae associated with the proposed subdivision and expressed the position that if there are no impacts what is the problem.”• Board found proposal was not consistent with the PPS and refused the proposed official plan amendment.
  37. 37. PPS - Lot Creation in Prime Agricultural Areas2.3.4.1 Lot creation in prime agricultural areas is discouraged and may only be permitted for:(a) agricultural uses, provided that the lots are of a size appropriate for the type of agricultural use(s) common in the area and are sufficiently large to maintain flexibility for future changes in the type or size of agricultural operations;(b) agriculture-related uses, provided that any new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services;(c) a residence surplus to a farming operation as a result of farm consolidation, provided that the planning authority ensures that new residential dwellings are prohibited on any vacant remnant parcel of farmland created by the severance. The approach used to ensure that no new residential dwellings are permitted on the remnant parcel may be recommended by the Province, or based on municipal approaches which achieve the same objective; and(d) infrastructure, where the facility or corridor cannot be accommodated through the use of easements or rights-of-way.2.3.4.3 The creation of new residential lots in prime agricultural areas shall not be permitted,except in accordance with policy 2.3.4.1(c).
  38. 38. Lot Creation in Prime Agricultural AreasEppel v. County of Oxford (2012)• Applicant’s planner supported a severance within a prime agricultural area “…the Severance was consistent with the PPS … the intent of the PPS (which is to be read in its entirety) is to protect agricultural uses and to prohibit new residential dwelling units. If the land were severed, there would not be, in her opinion any adverse effect on surrounding agricultural lands and no new residential dwelling is proposed.”• The Board was not persuaded by the opinion evidence of the applicant’s planner.• “The language of the PPS with respect to lot creation is clear and precise. The only exception available to the Applicant cannot be met by the very admission of Ms. Barisdale. I have no choice but to apply the literal and specific language of 2.3.4.1© and 2.3.4.3 in this case and when I co, the Severance falls far short of consistency with the PPS.• In my view, it is not my role to create an additional exception to a prime agricultural area prohibition contained in the PPS. If I approved the subject application, that is exactly what I would be doing. In relation to the PPS, the responsibility for establishing any additional exception or permission rests with the purview of the Ontario legislature. My responsibility it to apply policy, not to create it.”
  39. 39. Lot Creation in Prime Agricultural AreasScott v. City of Kawartha Lakes (2008)• “…the ban in Section 2.3.4.3 applies “in prime agricultural areas” which are not synonymous with “prime agricultural lands”. Not all the properties in a prime agricultural area need to be prime agricultural lands: according to the PPS Definition Section, a prime agricultural area, is one where prime agricultural lands “predominate”. The ban applies to the entire area, even if there are pockets of substandard soils which the owner wants to sever.
  40. 40. Lot Creation in Prime Agricultural AreasLeigh v. County of Simcoe, OMB (2012)“As the County’s counsel submitted, the emergence of retirement farms along County roads all overthe province in the past few decades has resulted in the PPS including its restrictive language andsuggesting that the assembly of such lots into larger agricultural lands is the best way to protect andpreserve the use. As Mr. Green pointed out, the Applicant’s possible desire to semi-retire to aresidential use of the severed subject property is precisely the type of problem that municipalities arefacing. Echoing the aforementioned Farm Trends Report, these lots tend to hinder larger agriculturaloperations, which are deemed by the province and municipalities to be the more economical andeffective approach to ensuring agricultural lands can continue to produce foods for the people ofOntario. Unless these lands comprise special soils or specials operations, they tend to end up asresidences for urban dwellers who dream of being country landowners, maintaining small operationsand building large homes, which come with septic systems, swimming pools and landscaping plans.The Board finds persuasive Mr. Green’s submission that this amendment should be refused in orderto protect the provinces and the municipality agricultural lands for the future.”
  41. 41. Resource Based Recreational Activities(PPS and Growth Plan)Provincial Policy Statement1.1.4.1 In rural areas located in municipalities:a) permitted uses and activities shall relate to the management or use ofresources, resource-based recreational activities, limited residential developmentand other rural land uses;1.1.5.1 In rural areas located in territory without municipal organization, thefocus of development activity shall be activities and land uses related to themanagement or use of resources and resource-based recreational activities.Growth Plan for the Greater Golden Horseshoe, 20062.2.2.1 Population and employment growth will be accommodated by … i) directingdevelopment to settlement areas, except where necessary for development related to themanagement or use of resources, resource-based recreational activities, and rural landuses that cannot be located in settlement areas …
  42. 42. Are residential lots (cottages, houses) aresource-based recreational activity?• The Ontario Municipal Board has inconsistently ruled on whether residential lots with access to natural features (lakes in particular) are resource-based recreational uses.• In Pacey v. Timiskaming and in Angus v. Rainy River Member Sniezek notes that the determination of whether a development is a resource-based recreational activity is based on the use of the development, not the uses that may coincide with the use of the development. A house alongside a park, then, is still a house and not a park – and it is the use as a house that will be considered under the PPS.• A different approach was taken in two Growth Plan decisions by Member Sills in Worboy v. Smith-Ennismore-Lakefield (Township) and in Kawartha Lakes (City) Zoning By-law No. 39-30 (Re). Member Sills referred to the close relationship between the residences and the presence of the recreational resource. In Worboy, she looked to real estate markets to demonstrate that buyers were seeking out waterfront access; in Kawartha Lakes, she noted that the presence of residential lots supported the use of the golf course next door. Member Sills accepted that the housing units comprised a resource-based recreational use.
  43. 43. Are residential lots (cottages, houses) aresource-based recreational activity?Pacey v. District of Timiskaming (2011)“The development of a lot does not in the Boards opinion constitute "resourcebased recreational activity". The seasonal or permanent resident may partakeof these activities but these are ancillary uses to the main use as livingaccommodation. The intent of resource-based recreational activity is toencourage uses such as hunting and fishing lodges that are dependent on theattraction of the natural environment to attract customers, not those wishingto build private accommodations in the wilderness.”
  44. 44. Summary• The Provincial policy-led system is established by the Planning Act and other legislation such as the Places to Grow Act, 2005.• There is a legal requirement to make planning decisions consistent with the Provincial Policy Statement and in conformity with / not in conflict with Provincial Plans.• The Provincial Policy Statement (“PPS”) is to be read in its entirety and relevant policies are to be applied to a planning decision.• The PPS is a coherent policy document with an internal framework and logic. Policies may require interpretation before being applied.• When presented with conflicting approaches (e.g. land owner versus municipality) the Ontario Municipal Board is inclined to uphold municipal decisions where they are consistent with/conform with provincial policy.• There is a body of OMB and court cases that may inform decision makers regarding the application of specific provincial policies.

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