1. Ontario East Municipal Conference 2012
Where are we Growing: Provincial
Legislation, 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. This presentation has been prepared for educational purposes
only, and deals in summary with complex matters. It is not meant
to constitute legal advice, but merely summarizes select parts of
legislation, policies and plans.
The information referred to herein is subject to change. The
information in this presentation should not be relied upon as a
substitute for specialized legal or professional advice. The author
does not accept responsibility for reliance on the contents of the
presentation, or for any direct or indirect consequences arising
from its use.
This presentation does not reflect the position of the Ministry of
the Attorney General, the Ministry of Municipal Affairs and
Housing, or the Province of Ontario.

3. Outline of Presentation
Part 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 decisions
Part 2: Provincial Policy Statement
• Implementing and Interpreting the Provincial Policy Statement
• Applying a Comprehensive Policy Framework versus (Re)Balancing Policies
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

4. PART 1: Provincial Policy - Led System
Provincial Policy = Provincial Policy Statement & Provincial Plans (primarily)

5. Provincial Policy - Led Land Use Planning System
Planning 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. Establishing the Provincial Policy
Led Land Use Planning System
Planning Act
1.1 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. 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. Provincial Policy Statement
Policy statements
3. (1) The Minister, or the Minister together with any other minister of the Crown, may
from time to time issue policy statements that have been approved by the Lieutenant
Governor in Council on matters relating to municipal planning that in the opinion of the
Minister 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. Provincial Plans
Planning 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, 2008
is not a provincial plan under the Planning Act, but some policies of the LSPP
effectively operate as such.

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 Act
Greenbelt 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 plan
under the Planning Act, but some policies of the LSPP effectively operate as such.

11. Implementing the Provincial Policy Led System
through land use planning (and other) decisions
Planning Act, s. 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.

12. Reflecting the Provincial Policy Led System in land
use planning (and other) comments
Planning Act, s. 3(6)
Comments, submissions or advice affecting a planning matter that are
provided by the council of a municipality, a local board, a planning board, a
minister 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. 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. 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. 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. Implementing the Provincial Policy Led System -
Differing Implementation Standards
Common understanding of the strength of different standards.*
Least Strong Strongest
Standard 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. 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. 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. 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. Provincial Policy-Led Planning System
Planning Act + PPS + Provincial Plans (if any) + Official Plan + Zoning By-law = guide decision-making
Ministry of Municipal MMAH lead Municipal Activity Municipal Municipal
Affairs 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)

22. PART 2:
Provincial Policy Statement

23. 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.”

24. 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

25. Implementing and Interpreting the Provincial
Policy 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)

26. Applying a Comprehensive Policy
Framework versus (re)Balancing Policies
InfoSheet: Applying the Provincial Policy Statement (2005) by Municipal Affairs
“The PPS recognizes the complex interrelationships which exist between strong communities, a clean
and healthy environment and a strong economy, and provide policy direction to achieve an
appropriate 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 Partners
Inc. 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 finds
shortcomings in that approach. The PPS contains no instructions to “weigh heritage against other
priorities.””

27. Applying a Comprehensive Policy
Framework versus (re)Balancing Policies
Ontario (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)

28. Applying a Comprehensive Policy
Framework versus (re)Balancing Policies
Marandal 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.”

29. 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

30. PPS - Settlement Area Expansions
1.1.3.9 A planning authority may identify a settlement area or allow the expansion of a
settlement area boundary only at the time of a comprehensive review and only where it
has 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.

31. Settlement Area Expansions
1633799 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.

32. 1633799 Ontario Inc. et al v. City of Ottawa … cont
Planning 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.

33. 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)

34. 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)

35. PPS - Limited Residential
Development in Rural Areas
Provincial Policy Statement
1.1.4.1 In rural areas located in municipalities:
a) permitted uses and activities shall relate to the management or use
of resources, resource-based recreational activities, limited residential
development and other rural land uses;

36. Limited Residential Development
in Rural Areas
Jodamar 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.”

37. Limited Residential Development
in Rural Areas
Roy 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.

38. PPS - Lot Creation in Prime Agricultural Areas
2.3.4.1 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).

39. Lot Creation in Prime Agricultural Areas
Eppel 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.”

40. Lot Creation in Prime Agricultural Areas
Scott 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.

41. Lot Creation in Prime Agricultural Areas
Leigh v. County of Simcoe, OMB (2012)
“As the County’s counsel submitted, the emergence of retirement farms along County roads all over
the province in the past few decades has resulted in the PPS including its restrictive language and
suggesting that the assembly of such lots into larger agricultural lands is the best way to protect and
preserve the use. As Mr. Green pointed out, the Applicant’s possible desire to semi-retire to a
residential use of the severed subject property is precisely the type of problem that municipalities are
facing. Echoing the aforementioned Farm Trends Report, these lots tend to hinder larger agricultural
operations, which are deemed by the province and municipalities to be the more economical and
effective approach to ensuring agricultural lands can continue to produce foods for the people of
Ontario. Unless these lands comprise special soils or specials operations, they tend to end up as
residences for urban dwellers who dream of being country landowners, maintaining small operations
and 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 order
to protect the provinces and the municipality agricultural lands for the future.”

42. Resource Based Recreational Activities
(PPS and Growth Plan)
Provincial Policy Statement
1.1.4.1 In rural areas located in municipalities:
a) permitted uses and activities shall relate to the management or use of
resources, resource-based recreational activities, limited residential development
and other rural land uses;
1.1.5.1 In rural areas located in territory without municipal organization, the
focus of development activity shall be activities and land uses related to the
management or use of resources and resource-based recreational activities.
Growth Plan for the Greater Golden Horseshoe, 2006
2.2.2.1 Population and employment growth will be accommodated by … i) directing
development to settlement areas, except where necessary for development related to the
management or use of resources, resource-based recreational activities, and rural land
uses that cannot be located in settlement areas …

43. Are residential lots (cottages, houses) a
resource-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.

44. Are residential lots (cottages, houses) a
resource-based recreational activity?
Pacey v. District of Timiskaming (2011)
“The development of a lot does not in the Board's opinion constitute "resource
based recreational activity". The seasonal or permanent resident may partake
of these activities but these are ancillary uses to the main use as living
accommodation. The intent of resource-based recreational activity is to
encourage uses such as hunting and fishing lodges that are dependent on the
attraction of the natural environment to attract customers, not those wishing
to build private accommodations in the wilderness.”

45. 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.