A municipal council approval of a consent to sever three lots in a rural-agricultural area in Northumberland County was recently put to the test when adjacent residents began to wonder how they might be impacted by the approved development. The proponent had applied to subdivide an existing 8.5-hectare lot, currently in agricultural production, into four new rural-residential lots.
The planning issue
When the residents received notice of a planning application to sever a neighbouring property they had valid reasons to be concerned but no experience navigating the land use approvals or appeals process. They attended the Town’s public meetings, expressed their views and raised questions, yet the Town approved the application. Unsatisfied with the outcome and unsure what else could be done, they reached out to LPASC to explore what options were available, including the possibility of an appeal.
After hearing the concerns of the residents and thoroughly analyzing the planning application and relevant policy frameworks, an LPASC planner determined the case had merit and recommended that LPASC provide professional services to support the home owners. Over a three-month period, the Centre’s planning and legal staff worked with the client through the different stages of the conflict resolution and appeals process. Initially, LPASC prepared the client for preliminary discussions with the municipality and the developer to determine if the matter could be resolved without the need of a hearing. Unable to secure an early resolution, LPASC helped the client prepare an appeal submission and then, later, provided a planning opinion and represented the client at a hearing of the Local Planning Appeal Tribunal (LPAT).
LPASC based its case on three areas of concern:
First, the septic systems of the proposed four lots had the potential to leach into the groundwater that filled the private wells of the neighbours. The neighbouring wells were only a few metres from the proposed new septic systems and, given the slope of the site, the septic beds had the potential to drain directly onto the neighbouring properties.
The municipality’s planner had recommended that council defer the application until the submission of a hydrogeological report determined if there would be any negative impact on the neighbours’ wells. The requirement to provide the report was removed and the application was approved by Council.
A second issue was the impact on the municipality’s agricultural land. The proposed severances took place in an area designated “Agricultural Area” under the prevailing Official Plan (in this case the County’s), and it was identified as “prime agricultural area” in the provincially issued Agricultural Systems Maps.
Land severances in prime agricultural areas are not permitted under the OP and the Provincial Policy Statement (PPS). Approving severances in prime agricultural areas is inconsistent with the PPS.
The third issue was the feasibility of the proposed lots. The proponent originally intended to provide separate driveways for each lot onto the county highway. However, due to traffic and road safety concerns, the county advised that only one access point would be permitted.
This meant that a new internal road would have to be created to access the proposed lots, occupying a significant part of the developable area of the site. This site is already constrained by a hydro easement that traverses the property. Adding an internal road could compromise the ability of the existing lots to support the proposed development.
LPASC’s planning opinion was that the site layout should have been addressed before approving the severances to ensure that the newly created lots were feasible and had reliable access.
After the appeal was filed, the municipality received legal advice with respect to the application and the appeal.
At the LPAT hearing, the municipality’s lawyer explained that, after reviewing the policy framework in more detail, the municipality now agreed with the appellant’s argument that the application, in its current form, was not consistent with the Provincial Policy Statement policies on the protection of agricultural land.
In light of LPASC’s case and the municipality’s explanation, the applicant asked the Tribunal for an adjournment of the hearing to allow him time to prepare a possible defence. The municipality supported the request for adjournment because they were about to conduct an official plan update and wanted to evaluate the application against the updated official plan once that process was finalized. However, LPASC lawyers argued, in part, that an adjournment would delay the resolution of the appeal beyond 6 months, which is contrary to the regulations for timelines under the LPAT Act. It was also argued that LPAT’s Rules of Practice and Procedure typically did not support a late request for an adjournment. The Tribunal sided with LPASC and did not grant the request for the adjournment of the hearing. As a result, the applicant decided to withdraw his application.
Important elements of the case
- The appellant provided comments on the original application and were involved in the municipal land use planning decision process from the beginning.
- The appeal had land use planning merits that, when brought to light, carried the day.
- The outcome did not need the full hearing in the end, illustrating just one of many ways the desired land use planning outcome can be achieved.