Interest on expropriation damages awarded for time before land actually expropriated

The Ontario Divisional Court has dismissed an appeal from an Ontario Municipal Board ("OMB") decision that awarded interest to a landowner under the Expropriations Act for a period prior to the actual expropriation.  In this case, a local school board expropriated land for a school site.  The landowner had registered a subdivision plan on the lands in question and, in February, 2005, wrote to the school board to advise that, failing an agreement to sell the property to the school board, the landowner would be proceeding with the development of residential lots on the land.

Rather than attempting to negotiate an agreement (reportedly because of a change of control over the landowner company and uncertainty as to the identity of the controlling interest), the school board registered an expropriation plan on June 1, 2006.

The market value of the land taken was determined by the OMB to be a little over $2 million.  On the issue of interest payable on that amount under the Act, the OMB ruled that interest could accrue from a date preceding the date of expropriation.  The OMB determined that the productive use of the land actually ceased in December, 1999 when a "district plan" that governed land use in the area received draft approval.  That plan stated that the land in question was to be used as a school site.  The interest payable by the school board for the period between 1999 and 2006 amounted to between $600,000 and $700,000.

The Divisional Court upheld the OMB's ruling that interest was payable from the date of loss of the use of the expropriated asset and that, in this case, that date was December, 1999.  As the Divisional Court notes:

In my view, the board member applied the correct test by seeking to determine the earliest date at which the potential for expropriation prevented the use of the lands, either because the Municipality would not permit further development or because it would not have been prudent for Erbsville to spend money for that purpose.  In the present case, the distinction between these two potential triggering events is inconsequential.  The board member found that both events occurred on the date that Plan 30T-97017 received draft approval.  As I will explain, I believe that finding was reasonable.

Read the decision at: Erbsville Road Development Inc. v. Waterloo Region District School Board.

OMB awards costs to Municipality where landowner's claim for expropriation compensation denied

The Ontario Municipal Board ("OMB") has awarded costs to the County of Simcoe in a case where a landowner unsuccessfully claimed compensation for injurious affection.  The OMB's decision is recounted in my blog post from June, 2015 - OMB dismisses claim for injurious affection where no taking - on merits and on basis of limitation period.

The OMB has discretion under Section 32(2) of the Expropriations Act to award costs in favour of the expropriating authority.  In this case, the County of Simcoe had incurred a discounted amount of $165,176.55 consisting of legal and appraisal costs.  The County's claim for costs was made on the grounds that, "if the Claimant had conducted itself in a reasonable and prudent manner, it would never have brought this claim and that the way in which the Claimant governed itself throughout this claim unjustifiably increased costs which otherwise could have been avoided."  The OMB's reasons also disclose that the County had actually made an offer to the landowner of $15,000 to settle after the landowner retained counsel for the matter.

The County claimed "party and party" or "partial indemnity" costs in the amount of $113,922.48.  The OMB decided that the landowner's conduct in refusing the settlement offer was unreasonable and, therefore, that it should be responsible for some of the costs of the County incurred in defending the claim.  The OMB awarded $86,943.20 to the County.

Read the decision at: Willies Car & Van Wash Limited v. Simcoe (County).

OMB dismisses claim for injurious affection where no taking - on merits and on basis of limitation period

The Ontario Municipal Board ("OMB") recently dismissed an injurious claim by a car wash business that saw a significant drop in business after a local road was realigned.  The claimant alleged that the realignment of County Road 10 led to a significant drop in traffic passing by the car wash, resulting in a reduction in the number of vehicles using the wash.  The claim was for injurious affection in a situation where the statutory authority, the County of Simcoe, did not actually expropriate any of the car wash lands.

In a case of injurious affection where there is no taking, the claim must meet the following requirements:

1)   The damage must result from the action taken under statutory authority (the statutory rule);

2)   The action would give rise to liability but for that statutory authority (the actionable rule); and

3)   The damage must result from the construction and not the use of the work (the construction and not the use rule).

Here, the car wash business was unable to establish that the losses it alleged it had incurred were the result of the construction of the realigned road.  As the OMB explained:

"The Claimant has not been able to prove on the balance of probabilities that the losses it alleges it incurred were the result of the re-routing of County Road 10 and the Board finds that the decline in the number of car washes was on the balance of probability, more likely caused by other factors such as general economic decline resulting in reduced consumer spending.  Furthermore, regular users of HW 89 who had been customers of the car wash prior to the re-routing of County Road 10 would have been required to travel only a short additional distance on HW 89 to continue to use the car wash according to the evidence."

and,

"The Claimant must establish on the balance of probabilities that the re-routing of County Road 10 was the cause of its alleged losses and it has not done so in this case.  Revenues were up in the year following the re-routing and the evidence suggested that the later downturn may have been caused by weather related factors as well as the downturn in the automobile industry including the elimination of the third shift at the Honda plant in the period 2007- 2008. The Claimant has failed to establish any causal connection between the Respondent’s works and any loss it has alleged."

In the end, the OMB ruled that the claim related to the use of the realigned road and not the construction of the realigned road.  On that basis, the injurious affection claim would fail.

However, the actual basis for the dismissal of the claim was the expiry of the applicable limitation period.  Injurious affection claims are subject to a one-year limitation period under Section 22(1) of the Expropriations Act:

Subject to subsection (2), a claim for compensation for injurious affection shall be made by the person suffering the damage or loss in writing with particulars of the claim within one year after the damage was sustained or after it became known to the person, and, if not so made, the right to compensation is forever barred.

The evidence before the OMB showed that the actual construction of the realigned road was completed on or about December 27, 2006 and made official on January 23, 2007.  The OMB agreed with the County that if the Claimant had suffered business losses from the construction, it knew or ought to have known of those losses occurring on a monthly basis from January, 2007 to February, 2008 (its fiscal year end).  The OMB concluded:

"The claim for compensation ought to have been initiated not later than January, 2009, to comply with the Act as it is required to serve its claim within one year of when the loss is sustained.  It is not reasonable to delay a claim until after the full amount of the loss is calculated as is being advanced by the Claimant.  The Claimant is also required to act diligently to inform itself of any loss giving rise to a claim.  In this case while the losses ought to have been known at the latest by February 28, 2008, the claim was not served until July 31, 2009, some 30 months after the road was stopped up and closed and the claim was not filed with the Board until September 30, 2009.  Furthermore, no previous notice of the claim was given to the Respondent."

Read the decision at: Willies Car & Van Wash Limited v County of Simcoe.

Empty barn not enough to trigger MDS to prevent neighbours' severance

Landowners had applied to their municipality to sever a 0.84 acre parcel from their existing 30-acre lot.  County planning staff determined that the proposed severance complied with MDS requirements and that the County had no objection to the proposal.  However, a neighbour did object to the severance, suggesting that the new lot would breach MDS provisions because it would come too close to his 1860-era barn.  Although the barn was vacant, the neighbour was considering returning the barn to livestock use.  He asked that the proposed severed parcel be moved to a different location on the applicants' property.

The municipality went ahead and approved the severance, so the neighbour appealed to the Ontario Municipal Board ("OMB").  The only issue on the appeal was the application of MDS to the severance, and the OMB ruled that MDS did not apply.  Although the OMB took issue with some aspects of the municipality's methodology for considering required setbacks, the OMB concluded that the neighbour's barn did not correspond to the definition of a "livestock facility" within the governing Provincial documents.  MDS had no application in this case.

As the OMB noted:

The fundamental problem with this appeal, however, pertains to the barn itself, and whether it even constitutes a "livestock facility", as understood in the Provincial documents. The Board was not persuaded for the following reasons.

The Provincial documents are unequivocal: to qualify as a "livestock facility", it is not enough for a building to be "structurally sound"; it must also be "reasonably capable of housing livestock." The two criteria are not synonymous. Although the neighbour insisted that the structure would not actually fall over, he offered essentially no evidence it could meet any other expectations.

Indeed, the Board was not shown how the existing structure could be much more than a "shade shelter" (which is specifically excluded from consideration as a "livestock facility"). Although there was no "comprehensive building analysis", it did not take a comprehensive analysis to discern that the structure had no insulation, electricity, ventilation, stalls, hay storage, manure storage, or livestock equipment. It also had planks visibly missing from its siding in various places. None of the observations by the CBO were contradicted. The structure is a shell, and not even one that is impervious to the elements.

Whether or not the structure was considered appropriate for livestock by 1860 standards, the Province would not have published its detailed instructions for "determining when a barn is a livestock facility", if such a primitive structure could qualify. The Board is satisfied that if this structure were subjected to even the most elementary agricultural standards today, substantial remodeling would be essential.

That is where the neighbour encounters a second problem. The Guidelines specify that MDS II also applies to "remodeled livestock facilities.”

The CBO apparently concluded that no remodeling under MDS II would be feasible – not because the barn was too close to the proposed severed parcel, but rather because it was too close to Ms. [S]'s existing dwelling across the road. The Board heard no evidence to contradict that position.

Therefore, notwithstanding the eloquence of the [O] brothers and their expert, the Board was not shown how the barn could now trigger the MDS process – or that it ever could.

Read the decision at: O’Brien v Laronde.

OMB declines to award landowner pre-expropriation costs where expropriation did not proceed

The City of Hamilton moved successfully for the dismissal of expropriation-related Notices of Arbitration and Statements of Claim on the basis that the Ontario Municipal Board (OMB) had no jurisdiction to hear the matters; no expropriations had taken place.

The proposed expropriations related to construction in Hamilton for the 2015 Pan American Games, and the landowner claimants had retained counsel to advise them with respect to the land acquisition process.  The City and the landowners then entered into negotiations, and when offers were refused by the landowners, a notice of application for approval to expropriate was served.  However, not longer after that notice was sent the City decided that it did not require the properties in question, though it was still open to purchasing the properties for the amounts previously offered.

By that time, the landowners had incurred legal costs and forwarded to the City a Bill of Costs.  They then served Notices of Arbitration and Statements of Claim to commence a claim to the OMB for consequential damages arising from the City's abandonment of the expropriation.

The City asked the OMB to throw the claims out, which the OMB did.  The OMB confirmed that pre-expropriation costs are compensable when there is an expropriation, but found that costs are not generally compensable under the Expropriations Act where there is no expropriation.  The OMB decided that this was not a circumstance in which it could exercise its discretionary powers to find that the term "expropriation" applies to the overall process for the taking of land (as had been argued by the landowners) and not just to an expropriation commenced by way of a formal Notice of Expropriation.

The OMB concluded:

In the absence of a formal registered expropriation, an expropriating authority should not be bound to compensate for damages or costs in a case where there is a potential for an expropriation. Furthermore, in the absence of a taking of land, negotiations for the purchase of the lands does not, and should not, attract a claim for costs, merely because the potential buyer has the power, if fully exercised, to expropriate.

Landowners in Ontario should question whether to engage in any negotiations whatsoever with an expropriating authority prior to receiving a Notice of Expropriation without an agreement in place requiring the authority to pay the landowner's legal costs of the negotiations.

Read the decision at: Marsdin v. Hamilton (City).

Municipal Board upholds County decision to refuse surplus farm dwelling severances

Better Farming has a report on an Ontario Municipal Board (OMB) decision backing Perth County's policy against severances of surplus farm dwellings (click here).  Two Perth municipalities - the Municipality of West Perth and the Township of Perth South - had appealed County council's refusal to amend the Perth Official Plan to allow severances under certain conditions.  The OMB dismissed the appeal, finding that the County's policy was not unreasonable:

The Board finds that the SSFDs [severance of surplus farm dwellings] are permitted in many of the surrounding agricultural focused municipalities through their official plans. However, in the case of the County of Perth, the upper tier municipality with a single county-wide official plan covering all the lower tier municipalities, the Board finds that the refusal to approve an OPA to permit the SSFDs is not unreasonable. The PPS [Provincial Policy Statement] makes the SSFDs permissive, it also allows the municipality to go beyond the minimum requirements in the PPS. Therefore, it is the County’s prerogative to implement a strict prohibition on the SSFDs. The Board finds this acceptable because it is permitted to do so and their position does not conflict with other PPS policies. In fact, the PPS recognizes the importance of agriculture and strongly discourages lot creation on agricultural lands and directs settlement activities to designated settlement areas. The Board finds that the COP [County of Perth Official Plan] does just that, when looking at the County as a whole, there are sufficiently designated settlement areas and the policies of the PPS are being maintained. The Board notes that it is Mr. Hanly’s evidence that an individual can still apply for a site specific OPA [official plan amendment] for a SSFD.

Read the OMB decision at: County of Perth.

Court says injurious affection claim to be decided by OMB, not in a class action

In 2003, the City of Toronto began a major expansion of its public transit system, and the City and the Toronto Transit Commission (“TTC”) planned a project to replace the existing streetcar line on St. Clair Ave. West with a light rail transit system.  The St. Clair Project involved reconstructing the existing streetcar tracks on St. Clair West from Yonge Street to the Gunns Road loop in the form of a dedicated streetcar right-of-way that separates the centre two lanes from the roadway.   Construction of an enhanced streetscape, the upgrading of water and natural gas mains, and the burial of hydro wires along St. Clair West were undertaken concurrently with the TTC’s work on the St. Clair Project.

Curactive is a corporation that for 30 years has carried on business as a hair salon in the City of Toronto at 1063 St. Clair Avenue West.   Curactive is a putative representative plaintiff for a wide range of commercial enterprises including restaurants and retail and service business that carry on business on St. Clair Avenue West from Bathurst St. to Old Weston Rd. 

 

In a proposed class action claim, Curactive pleaded that:

• the project was not properly supervised, and it was mismanaged and uncoordinated. The contracting and subcontracting process was badly mishandled. There was confusion and there were costs overruns and substantial delays and ongoing disruptions of access to and from the affected community. 
• the concerns of the local business community were ignored with hostility, deflection, dismissive arrogance, misrepresentation, and callous indifference at both the City and the TTC.
• the TTC negligently or gross negligently constructed the St. Clair Ave. West project.
• the City is liable for damages in public abuse of authority and gross negligence, or alternatively negligence.
• the City deliberately seized upon the delays in the St. Clair project as a means to harm the existing businesses on St. Clair and as a means to have them replaced by new upper scale businesses that would attract more tax revenues for the City, which was desperate for revenues. This means was also allegedly used as a part of the City’s “war on cars,” where factions on City Council sought to discourage vehicle use in the City.
• the City covertly and unlawfully adopted an internal policy of “blockbusting” to intentionally cause harm to affected business along St. Clair Ave. West.

Justice Paul Perell of the Ontario Superior Court of Justice dismissed Curactive's action, finding that it was a claim for injurious affection falling within the exclusive jurisdiction of the Ontario Municipal Board (OMB).  The Expropriations Act provides for compensation for injurious affection and the sole venue for determining that compensation is the OMB.  Curactive argued that its proposed class action should be permitted to proceed because the Expropriations Act and the OMB do not ordinarily provide for class claims to be made.  Justice Perell ruled that the Class Proceedings Act, which governs class actions in Ontario, could not confer substantive jurisdiction to the Court over an issue within the exclusive jurisdiction of another tribunal - the Act is procedural only.

 

Read the decision at: Curactive Organic Skin Care Ltd. v. Ontario.

Ontario Court of Appeal overturns Antrim Truck Stop expropriation compensation decision

In February, 2010, I wrote about a much anticipated decision of the Ontario Divisional Court on appeal from the Ontario Municipal Board: Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation).  The facts of the original OMB case were as follows:

• Antrim owned a truck stop in the Hamlet of Antrim on Highway 17, formerly part of the Trans-Canada Highway;
• In September, 2004, a new section of Highway 417 was finished and re-routed the former Trans-Canada Highway (away from the truck stop);
• The Antrim property comprised 13.66 acres and included 947 feet fronting on Highway 17;
• Antrim alleged that the closure of Highway 17 substantially interfered with its use and enjoyment of its property and made a claim for injurious affection - the change in the Highway basically put Antrim out of business (Antrim took steps to mitigate its loss and relocated);
• The business had been generating gross annual revenues of more than $15 million and had employed about 100 people;
• The claim for injurious affection was for over $8.2 million, including the cost of relocation and construction of new business premises;
• The OMB awarded Antrim $393,000 - the MTO appealed the decision - Antrim cross-appealed seeking the additional $7.6 million or so it had originally claimed.

No lands were taken from Antrim.  The Divisional Court agreed with the decision of the OMB and upheld the award of compensation on the basis that the diversion of the highway constituted an actionable nuisance in the form of interference with access. 

 

The Ontario Court of Appeal disagreed with both the OMB and the Divisional Court.  In its June, 2011 decision, the Court found errors in the Divisional Court's analysis of the tort of nuisance.  The Court of Appeal said that the OMB was required to consider two elements of the test for nuisance: was the interference with Antrim's property (access) substantial and, if so, was the interference unreasonable?  The Court of Appeal agreed with the OMB's finding (upheld by the Divisional Court) that the interference was substantial.  However, it found that the interference was also reasonable.  In its view, the Divisional Court had failed to analyze this issue.  The Court of Appeal concluded:

When the board’s factual findings are properly applied to the various elements of the reasonableness analysis, I would conclude, based on the observations made above, that the interference caused by the MTO’s conduct was not unreasonable. As the board reasonably concluded, the interference amounted to a “serious impairment in nuisance”. However, the interference was such that it fell within the boundaries of what the reasonable property owner in the area should be expected to tolerate and was the result of a project that served the public interest – more, was actually essential to public safety. Simply put, the highway was built to save lives. In the light of the substantial weight to be given to this factor in the circumstances, it is difficult to see how this change in the access to the Antrim property, particularly given the fact that it actually brought the Antrim truck stop in line with the access typical of Ontario truck stops, can be viewed as unreasonable.

In failing to properly carry out the reasonableness analysis, the board failed to give effect to the fundamental purpose of the law of nuisance: balancing the competing rights of property owners to use their land as they wish.

On this basis, the Court of Appeal found there was no nuisance and, therefore, no basis for an award of compensation.  Based on agreement between the parties, the Court awarded the MTO its costs of the appeal in the amount of $20,000 and its costs of the unsuccessful cross-appeal by Antrim (seeking higher compensation) in the amount of $20,000.

Read the decision at: Antrim Truck Centre Ltd. v. Ontario (Transportation).

OMB denies application to sever former aggregate pit land zoned agricultural

James Graham wished to create and sever from an existing 50 acre parcel of land a new estate residential lot comprising 1.24 hectares (3 acres).  Council for the Municipality of Middlesex Centre refused his Official Plan Amendment and Zoning By-law Amendment applications in that regard and the Committee of Adjustment denied his severance request. Those decisions were appealed by Mr. Graham to the Ontario Municipal Board (OMB).

The Graham family has owned 50 acres of land on the west side of Komoka Road and south of Glendon Drive in the Municipality since the mid seventies. Up until 1991 these lands were licensed to permit aggregate extraction operations below the water table. This operation resulted in creating an existing land use comprised of a series of large ponds interspersed between fragmented parcels of land. In total, approximately 16.2 hectares (40 acres) of the site consists of open water and the remaining 4.03 hectares (10 acres) of land adjacent to Komoka Road is used for residential purposes having on it a single detached dwelling.

The Applicant, Graham, testified that in or about 1991 the entire parcel was conveyed to his children. He and his wife then moved from the location. However, they wished to return to the area and create a new lot upon which to build a home. In order to effect their objective, the OMB was asked to approve an Official Plan Amendment (“OPA”).  The issue to be determined in the hearing was whether the proposal is consistent with the 2005 Provincial Policy Statement (“PPS”) and whether it conforms to the Middlesex County Official Plan (“County OP”) and the Middlesex Centre Official Plan (“Centre OP”).

The OMB found that the proposed amendment was inconsistent with the Ontario Provincial Policy Statement and the relevant Official Plans.  The Applicant argued that, since the aggregates on the property had been depleted, the land should now be available for expanded residential purposes.  However, the Board member ruled:

The land has been used for permitted agricultural uses for decades. The depletion of aggregate on the property should not, in my opinion, give rise to uses which are not permitted. ... Even if the subject property is considered unique in some respects, that uniqueness does not transcend, in any manner whatsoever, the specific policy prohibitions identified throughout these reasons. These prohibitions are unequivocal in their language and, in my view, decidedly clear in their purpose and direction. Based on all the foregoing therefore, the OPA and ZBA are not approved and Provisional Consent is not granted. Accordingly, the appeals are dismissed.

Read the decision at: Graham v. Middlesex Centre.

OMB agrees to reduce minimum setbacks for residence - finds residence an "agricultural use" under Official Plan

Greyda Plains Poultry Ltd. appealed the March 2, 2010 decision of the Committee of Adjustment of the Township of Enniskillen refusing its application for two minor variances. The first minor variance was from the top-of-bank setback provisions and the second was from the minimum distance separation provisions of the Township of Enniskillen Zoning By-law 17 of 2009.  Greyda Plains Poultry Ltd. (“Greyda”) has proposed to develop approximately 38 ha. (94 acres) as a working farm with a farm house and storage barn. The subject lands are located at the southeast corner of the intersection of Oil Heritage Road and LaSalle Line, in the Township of Enniskillen. Greyda currently farms approximately 80 ha. in the vicinity.

Section 5.2(a) of Township of Enniskillen Zoning By-law 17 of 2009 (“By-law”) provides for a 15-metre minimum setback from the top-of-bank of a watercourse.  Greyda proposes a 6-metre setback.  Section 3.17.1 of the By-law requires a minimum distance separation of 627 metres between any manure storage facility and any residence. Greyda proposes a separation distance of 420 metres. Section 3.17.1 also requires a minimum separation distance of 533 metres between a hog operation and a residence. Greyda proposes a separation distance of 373 metres.  The minimum separation distances in the By-law mirror those in the MDS Implementation Guidelines published by the Ministry of Agriculture, Food and Rural Affairs.

With respect to the MDS setback, the OMB found the proposed residence is an “agricultural use” under the provisions of the Township Official Plan since the Greyda operations clearly qualify as a family farm. It found too that a family farm is a 24/7 operation requiring on-site living accommodations.

After consideration of all the evidence, the OMB found that the proposed Greyda farm residence conforms to the general intent and purpose of both the Township of Enniskillen Official Plan and By-law as well as the County of Lambton Official Plan. It also found that the proposed farm residence is desirable for the appropriate development of the subject lands and that the proposed minor variance from both the top-of-bank as well as the minimum distance separation provisions in the By-law is minor in nature. No evidence was advanced by the municipality that there would be any adverse impact on any neighbouring lands as a result of the proposed development.

Read the decision at: Greyda Plains Poultry Ltd.

Residential Development on Simcoe County farms allowed to proceed

The Ontario Municipal Board (OMB) has allowed appeals by two landowners in the community of Colgan in Simcoe County that will permit development of farm land for over 600 detached dwellings plus a 170 bed retirement home.  Concern had been expressed by neighbours about increased traffic and the effect the development would have on farming activities on adjacent lands.  The OMB described the issues on the appeals as follows:

• The development of the two subdivisions on agricultural lands is contrary to the policies in the Provincial Policy Statement and local and county Official Plans that protect agricultural lands.
• The development of two subdivisions lack the required community plan because a secondary plan has not been approved for Colgan.
• The amount of development proposed exceeds the limits in the local growth management plan and the county Official Plan.
• The lack of servicing for water and waste water means that the proposed development is premature.
• The land uses abutting the Caldwell residence are incompatible as far as the proposed bungalow townhouses and the Commercial use and should be replaced with detached lots.
• The land use interface between the Manors of Colgan and McMann is inadequately buffered and should be replaced with a road.
• Mr. Milotic’s demand for a common boundary fence should be agreed to by Wayland Farms.

The OMB found in favour of the appellants on all of the issues, more or less.  It noted with respect to concerns about agricultural operations that, "The right to farm legislation protects Mrs. McMann's farm operation and normal farm practices are protected.  Mrs. McMann has weakened her argument for further protection by severing a residential lot from her own property."  The OMB agreed that a common boundary fence may be appropriate in one location, but suggested that it is open to the neighbour to request a fence view under the Line Fences Act and have the dispute settled in that manner.

Read the decision at: Wayland Farms v. Township of Adjala-Tosorontio.

OMB rules in favour of hog barn expansion beyond MDS II formula

Frans and Hannie VanderZanden (Applicants) own and operate a 26.5 ha (65.5 ac.) farm on the west side of Palmyra Road, in the Community of Orford. The property contains one large livestock barn and three smaller barns with an existing capacity of 2,400 feeder hogs. They planned to expand their operation by building a new 32 m (105 ft.) x 29.5 m (97 ft.) addition to the south side of the existing large finishing barn. The new addition would add capacity for an additional 900 hogs.  The MDS II formula requires a minimum setback from the nearest lot lines. The proposed addition will only be 16 m (52 ft.) from the nearest lot line as opposed to the required which is the same setback of the existing barn to which the addition is proposed. Therefore, the proposed expansion of the livestock facility would require a reduction in the setback to the nearest lot line from 30 m (98 ft.) to 16 m (52 ft.).  VanderZanden applied successfully to the Municipality of Chatham-Kent for a minor variance.

Bobbi Plumridge (Appellant) is a 20 year resident of the area, living  approximately 1 kilometre from the Subject Property, and opposed the application.  She says that when she purchased her home in 1990, the Subject Property consisted of 3 modest sized barns and a manure lagoon and the newer larger barn next to the grey drain did not yet exist. A new barn with 10,000 sq. ft. was added between 1994-1995. Since then, there have been several incidences over the years with manure not being properly contained, including spills from underground into the grey drain and also into Lake Erie. According to Ms Plumridge, a previous application to expand the operation at the Subject Property was refused because of manure spills and accidents. She is concerned not only about the above ground spills but also the underground spills that occur. Ms Plumridge contends that the proposal calls for too many hogs/pigs for this land base and that currently 78% of the manure needs to be trucked off site.

The municipality and the applicants were represented by the same lawyer at the hearing.  Both sides presented evidence and, following the hearing, the OMB ruled in favour of the municipality's decision to allow the barn expansion in spite of the MDS II setback requirement:

Therefore, the Board agrees with and adopts the planning evidence and opinions of Mr. Brown. The Board finds that the proposed variance is desirable because it helps to conserve farmland by expanding on an existing site instead of utilizing a whole other new site. The use here is an existing and permitted use in the OP; therefore it maintains the intent and purpose of the OP. The proposed variance maintains the existing setback and thereby maintains the general intent of the ZBL which is to minimize land-use conflicts caused by odours and the like. The proposed extension/expansion maintains an existing condition, and as such it will not be located any closer to the lot line than what already exists. The variance is minor because the neighbouring land use is passive farming and there are no significant impacts resulting from the shortened setback.

The Board is satisfied in this instance, that the proposed variance to facilitate the expansion of the existing hog operation meets the tests in subsection 45 (1) of the Planning Act, is in the public interest, and represents good planning. The Board notes that expansion of the existing facility includes utilizing the existing/proposed setback was also endorsed by Mr. Faber, who prepared the nutrient management study approved by OMAFRA.

Read the decision at: Plumridge v. Municipality of Chatham-Kent.

Ontario Government undertaking review of 2005 Provincial Policy Statement on land use planning

Review of the Provincial Policy Statement, 2005

Description of Policy:

The Province is undertaking a review of the Provincial Policy Statement, 2005 (PPS) to determine the need for revisions. The PPS sets out the Ontario government’s policy direction for land use planning and development and is the integrated, consolidated statement of all provincial ministries’ policies concerning land use.

The PPS is issued under the authority of Section 3 of the Planning Act and came into effect on March 1, 2005. The PPS plays a key role in Ontario’s land use planning system by providing policy direction on matters of provincial interest. It is the basis of the Province’s policy-led planning system and provides the foundation necessary to regulate the development and use of land. The PPS applies province-wide and provides the policy basis upon which provincial plans such as the Growth Plan for the Greater Golden Horseshoe and the Greenbelt Plan are built.

The Planning Act requires that decisions on planning matters made by municipalities, the Province, the Ontario Municipal Board and other decision-makers “shall be consistent with" the PPS. This includes, for example, when municipalities develop their official plans and zoning by-laws. This standard ensures that the policies in the PPS are applied as an essential part of the land use planning decision-making process.

The PPS recognizes the complex inter-relationships among economic, environmental, cultural and social factors in land use planning, and embodies good planning principles.

The PPS includes the following major policy areas:

Building Strong Communities

The PPS provides policy direction to help build strong communities in Ontario through, for example:

the effective management and use of land to meet current and future needs

the protection of employment areas and other policies to promote economic development and competitiveness

the provision of a range of housing types (including affordable housing) and densities to meet the needs of current and future residents

the availability of appropriate infrastructure, e.g., transportation systems, and sewer and water services, to accommodate projected needs

the promotion of energy efficiency and minimizing negative impacts to air quality.  

Wise Use and Management of Resources

The PPS protects Ontario’s natural heritage (e.g., wetlands and woodlands), water, agricultural, mineral, petroleum, mineral aggregate, cultural heritage and archaeological resources. The protection of these important resources helps to ensure Ontario’s long-term prosperity, environmental health and social well-being.

Protecting Public Health and Safety

The PPS protects people, property and community resources by directing development away from natural or human-made hazards (e.g., flood plains or contaminated lands).

The input the province receives through consultation is an important part of the PPS review. The government is interested in hearing from you on the following questions:

What policies of the current PPS are working effectively?

Are there policies that need clarification or refinement?

Are there policies that are no longer needed?

Are there new policy areas or issues that the Province needs to provide land use planning direction on?

Is additional support material needed to help implement the PPS?

Do you have any other comments about the PPS?

Purpose of Policy:

The purpose of this Policy Proposal Notice is to inform the public that the Province is:

reviewing the PPS for the purpose of determining the need for revisions, in accordance with subsection 3 (10) of the Planning Act; and,

seeking comments on the questions identified above.

This is just one opportunity for you to participate in the PPS review and help improve Ontario’s land use planning system.

Other Information:

The following information is available on the Ministry of Municipal Affairs and Housing web site:

Provincial Policy Statement Five Year Review: http://ontario.ca/pps.

Public Consultation:

This proposal has been posted for a 111 day public review and comment period starting May 12, 2010. If you have any questions, or would like to submit your comments, please do so by August 31, 2010 to the individual listed under "Contact".

On-line submission of comments on this proposal is not permitted.

All comments received prior to August 31, 2010 will be considered as part of the decision-making process by the Ministry of Municipal Affairs and Housing if they are submitted in writing and reference EBR Registry number 010-9766.

Please Note: All comments and submissions received will become part of the public record. You will not receive a formal response to your comment, however, relevant comments received as part of the public participation process for this proposal will be considered by the decision maker for this proposal.

Other Public Consultation Opportunities:

In addition to this EBR posting, the Ministry has developed a PPS review e-consultation web site at http://ontario.ca/pps. This web site provides further information about the review and provides the public an opportunity to comment.

Comments can be submitted electronically to: PPSReview@ontario.ca and via the Provincial Policy Statement Five Year Review page: http://ontario.ca/pps.

To submit written comments, please forward your response to:

PPS Review
Ministry of Municipal Affairs and Housing
Provincial Planning Policy Branch
777 Bay St., 14th Floor
Toronto, ON M5G 2E5
Tel: (416) 585-6014 or 1-877-711-8208
Fax: (416) 585-6870

This is just one opportunity for you to participate in the PPS review and help improve Ontario’s land use planning system. Please check the ministry website for regular updates on other opportunities for you to participate: http://ontario.ca/mah.

Recovering court costs as compensation for expropriation - OMB decision

With the Smith v. Alliance Pipeline case heading to hearing before the Supreme Court of Canada this October, I was surprised to hear that the Ontario Municipal Board, similar to the Pipeline Arbitration Committee under the National Energy Board Act, had itself made a decision in 2008 awarding court costs to landowners as part of the expropriation compensation process.  Farmland owned by Dale and Mary McKean was expropriated by the Ministry of Transportation (MTO), but not before the Superior Court of Justice had to decide exactly what land was available to be expropriated.  There was an issue as to whether certain portions of the farm were actually public roads that had never been opened.  If the lands were public roads, then no expropriation (and no compensation) was necessary.

The MTO was successful in the court case, and costs were awarded against the McKeans in the amount of $1,550.  The McKeans themselves had expended approximately $55,000 in legal costs.  Before the OMB, they sought to recover those costs under Section 32 of the Expropriations Act as costs incurred for the purpose of resolving their compensation claim related to the expropriation.  The OMB ruled in their favour:

The Board finds that if s. 32(1) is given its proper interpretation, the McKeans are entitled to compensation by the MTO for costs associated with the Court Proceedings. The Board finds that the McKeans actually incurred costs in association with the Court Proceedings and that these proceedings were for the purposes of determining compensation payable for the expropriation and injurious affection. But for the proceedings before the Court, the MTO could not have determined what lands would be expropriated or to what extent, and therefore what compensation would be payable to the McKeans.

As far as I know, this decision was not appealed and was not cited by the Federal Court of Appeal in its decision in the Smith v. Alliance Pipeline case.  While the facts of the two cases are not entirely the same, they are similar.  However, the main distinction between the cases is that in Smith the court costs were pursued as damages, while in McKean the court costs were pursued as costs under the Expropriations Act.  It seems less likely that court costs could be recoverable under the costs provision of the NEB Act since it provides only for costs incurred "in asserting that person's claim for compensation".

Read the decision at: McLean v. Ministry of Transportation.  Thanks to Lindsay Lake at my firm for bringing this decision to my attention.

OMB upholds Huron County decision to allow storage of "processed organic non-agricultural source material" at farm

The Ontario Municipal Board (OMB) has dismissed an appeal of a zoning decision by the Municipality of Huron East which allowed for the storage of "processed organic material" in existing farm buildings on a farm property.  The material to be stored by Ontario Greenways Inc. near Monkton, Ontario is a "biosolid" from the Cargill Better Beef meat processing plant and contains beef tissue residues.  The "biosolid" would then be spread on land as a fertilizer.

Neighbours of the proposed operation appealed the Municipality's approval of the zoning changes required on the basis that the proposed use is not an agriculturally related use but a waste transfer facility that is not consistent with the Provincial Policy Statement (PPS), does not conform to the County of Huron and Municipality of Huron East Official Plans and does not represent good planning.  Besides concerns about non-agricultural aspects of the project, neighbours were worried about the odour problem that would be created.  Neighbours' residences are located as close as 440 metres from the proposed storage site.

In the end, the OMB found that the proposed use was related to agriculture and consistent with the PPS that encourages waste products to be diverted away from landfill sites and encourages agricultural uses.  As far as odour concerns go, the OMB said that the project would require a Certificate of Approval (CofA) from the Ministry of the Environment (MOE) and that odour could be addressed in that process. 

Of note, the OMB did say the following about the Municipality's approach to the zoning change:

The Board notes that the Municipality's rush to make a decision in case of comments made to the MOE and the finalizing of the rezoning gave the Appellants the feeling that their concners about odour and other environmental impacts were not given adequate consideration.

Perhaps this is a slap on the wrist for the Municipality.

Read the decision at: Rastorfer et al. v. Municipality of Huron East.

OMB refuses farm severance application

The Ontario Municipal Board (OMB) has overturned a municipal decision to allow a severance from a farm parcel in the Municipality of West Nipissing.  Consent for the severance had been granted subject to five conditions:

1. That a copy of the new survey be filed with the municipality;

2. Confirmation that all taxes are paid up to date;

3. That all conditions be met on or before October 29, 2010, being one year from the date of the giving of notice or the consent shall be deemed not to have been given as per Section 53(20) of the Planning Act, R.S.O. as amended;

4. That a Transfer/Deed of the land be submitted to the Secretary-Treasurer for issuance of a certificate of consent; and

5. That a notice be placed on the title of both the severed and retained lands that no further severances will be permitted.

Another area farmer appealed the severance consent to the OMB.  The Planning Act in Ontario requires that municipal planning decisions such as the severance be in conformity with the Provincial Policy Statement (PPS).  The PPS provides that prime agricultural areas (Class 1, 2 and 3 soils) shall be protected for long-term use for agriculture.  The OMB concluded:

This is a farming area with agricultural capability that would be fragmented with the creation of another residential lot.  The proposed consent would clearly contravene the policies in the PPS.

Read the Board's decision at: Parsons v. Bourgeois.

OMB refuses severance of farm land in Sarnia area

In a decision issued January 5, 2010, the Ontario Municipal Board has dismissed an appeal of the County of Lambton's refusal of an Official Plan Amendment. The amendment would have allowed Dario and Janet Maola to create three non-farm residential lots out of their 10.8 acre property within the City of Sarnia. The current land use designation for the property in the City of Sarnia Official Plan was Rural. OMB Member S. J. Stefanko accepted the submissions of the County of Lambton in finding that the proposed amendment to allow agricultural lands to be severed for residential lots would not be consistent with the 2005 Provincial Policy Statement (agricultural areas shall be "protected by directing non-related development to areas where it will not constrain [agricultural] uses") and would not conform with either the County or the City Official Plan.

The decision can be viewed at: https://www.omb.gov.on.ca/e-decisions/pl090330-jan-05-2010.pdf