Did you have a great summer?
Being up north offers so much nature, clean air and room to think, breathe and play.
We bet you didn’t take your retreat for granted this year, eh?
Cottages have been in huge demand this summer which means that now more than ever we have to protect your paradise.
The proposed Freymond Fowler Quarry just on the outskirts of Bancroft in close proximity of permanent residences, cottages, and businesses must be stopped to protect our clean air, delicate water systems, nature, traffic safety, quiet, tranquility and economic tourism…..not to mention the potential for flyrock.
Imagine the constant sound of gravel crushing or the beeps of one 24 000 pound diesel truck backing up.
Now imagine having potentially 100 trucks a DAY on highway 28 or 62. Not only would the gridlock on the bridge in the downtown Bancroft intersection be unbearable, the travel time to and from your cottage could be significantly increased and the collective noise pollution and damage to our roads would threaten your paradise.
This is why we are passionate about stopping the proposed quarry with our appeal.
This quarry would be located right in the middle of permanent residential and cottage country behind the cemetery across from Rona Lumber at Hwy 62 and Bay Lake Road. It would be right behind Freymond Lumber.
Did you know that The Leveque Bros., is an experienced, massive, fully operational quarry eight kilometres north of Bancroft with hundreds of years of product. Why put Bancroft at risk for supply we already have?
In the very near future LPAT (Local Planning Appeal Tribunal) will be re-scheduling a proceeding for the Case Management Conference (CMC) regarding the matter of objections received from Objectors vs Applicant Freymond Lumber Ltd. Appellants include many private citizens, just like us, who are objecting to a Class A license for the removal of aggregate. This will be done through zoom or another form of video conference.
At the same time LPAT will also be re-scheduling a proceeding of the above matter, for a Case Management Conference (CMC) for the following: Appellant, No Place for a Quarry vs Upper Tier of Hastings – on Proposed Official Plan Amendment No. 18 for the County of Hastings.
We will update you with information about the hearing and how you can make a difference.
We need your support! We cannot do this without you!
Costs for NO PLACE FOR A QUARRY to move forward with the appeal of the proposed Official Plan Amendment No. OPA 18 on behalf of all concerned local citizens, is an estimated $50,000 and A DONOR will match dollar for dollar 50% of the requirement to a maximum of $30,000.
A big thank you to all who have already pledged generously!
We have raised $9k in pledges and need to raise another $16k to pay for the preliminary hearing and the final hearing by September 30, 2020. Our private donor will match the rest.
We have retained GillespieLaw.ca, a top law firm in Toronto who specializes in environmental and municipal law.
This takes a village and we can do it!
Would you consider donating generously to Go Fund Me and reaching out to your relatives and friends who are visiting around Bancroft and enjoy all that this area has to offer?
Maybe you know someone who just bought their dream cottage in the area and doesn’t know about the proposed quarry or doesn’t know how to help.
Please share and talk about this.
Maybe you have a great fundraising idea!
Some citizens have been getting creative like holding a raffle to stay at their cottage or having friends donate to the cause in exchange for weekend escape at their cottage.
It’s still really beautiful here in the fall. Do you have a weekend available this fall to raffle off? It’s so easy and so worth it.
Would you consider reaching out to at least 3 additional people for help?
We have over 400 concerned citizens who have signed up on our list. If everyone contributed $40 we would have our $16,000. We understand that this is not feasible for many, and for many it is. No amount is too small or too big.
Again, thank you for your support, and please consider donating generously to saving your paradise Go Fund Me. A tax receipt is available by donating to Small Change Fund.
TIME SENSITIVE – LPAT APPEAL UPDATE
Thank YOU for taking the time to READ & COMPLETE this survey regarding the next steps.
We have NEW information to share AND require your survey feedback prior to JUNE 14, 2020:
1) LPAT (Local Planning Appeal Tribunal) is re-scheduling a proceeding for the Case Management Conference (CMC) for the matter of objections received from Objectors vs Applicant Freymond Lumber Ltd. Appellants include many private citizens who are objecting to a Class A licence for the removal of aggregate. Date to be determined due to coronavirus.
2) LPAT will also be re-scheduling a proceeding at the same time as the above matter, for a CMC for the following: Appellant, No Place for a Quarry vs Upper Tier of Hastings – on Proposed Official Plan Amendment No. 18 for the County of Hastings.
Freymond Lumber and Fowler Construction (50% of Fowler was sold to Capital Paying in 2014) wants to create a quarry on Bay Lake Road and Hwy 62, the border of Faraday Township & Town of Bancroft. NPFAQ are not against quarries. We are vehemently against the location of this quarry. Quarries are traditionally hidden and several kilometers from residential and recreational businesses for obvious reasons. This one is proposed to be centred within a concentrated area of cottages, residences, a world class wellness resort, and a family farm as close at 90 metres from the blast zone.
Blasting, drilling and crushing threatens our unique clean spring-fed lakes, pollutes our clean air with dust, affects wildlife for up to 2 kms, diminishes tourism, devalues your cottage or home, and could produce deadly fly rock.
If re-zoning is approved, 10 loads per hour will depart this quarry – that’s 20 trucks per hour; 10 in and 10 out. With Doug Ford’s new proposal, quarries may soon be allowed to operate any time of day or night without restrictions or accountability. There will be a significant increase in heavy trucks at the T-intersection in Bancroft at Hwy 62 & Hwy 28 which is already congested and will create further safety hazards.
READ YOUR GOVERNMENT OF ONTARIO ENVIRONMENTAL BILL OF RIGHTS – “the people of Ontario have as a common goal the protection, conservation and restoration of the natural environment for the benefit of present and future generations.”
Open Editorial Letter to Bancroft Times – June 2019 (text format)
Open Editorial Letter to Bancroft Times – June 2019 (Paper format, Part 1)
Open Editorial Letter to Bancroft Times – June 2019 (Paper format, Part 1)
UPDATED: as of July 16, 2019
July 17, 10:30am – LPAT Hearing held at Faraday Community Centre – Faraday is trying to have NPFAQ Appeal Dismissed.
June 18: The NPFAQ legal team presented the expert findings, reports on water, traffic, economic impact and noise pollution to show evidence that this is no place for a quarry. Hastings County Council voted 10-3 in favour of changing the Official Plan 18 from Rural to Industrial Extraction.
March 19: A delegation of citizens and the legal team from Donnelly Law Barristers & Solicitors hired by NPFAQ presented their concerns to the Hastings County Planning Council. In a vote of 12-2, the delegation succeeded in postponing the zoning change vote to June 18th.
HOW CAN YOU HELP?
Cost Commitments to Date:
Community Awareness Signs and Posters: $1225
Ramsey Planning: $2217
Noise Study: $9000
Traffic Safety: (T-intersection Bridge Street & Hwy 62S) $1500
Water Study: TBD
Tomlinson Economic Impact Study: $5000
Donnelly Law Legal Retainer: $5000 + $6200
Gillespie Legal Retainer: $5000
“Our family cottage when I was growing up was not too far from Bancroft.
I know how beautiful the area is and why everyone is so determined to see this landscape protected.”
~ David Donnelly, Donnelly Law Barristers & Solicitors
Help! We only have until end of June 2019 to fund all the expert opinions we need to show Hastings County that they have to demand more information to protect our freshwater supply, the environment, existing tourism businesses, and the many, many year round and seasonal residents safe from the next 50 years – the proposed lifetime of the Freymond/Fowler quarry. Donate to our GoFundMe page to help. If you require a tax receipt we’ve also set up SmallChangeFund donation site just for you.
Ontario Local Planning Appeal Tribunal Decisions (f/k/a Ontario Municipal Board)
Ontario Local Planning Appeal Tribunal
Panel: Gerald S. Swinkin, Member
Heard: March 21 and 22, 2018.
Decision: April 18, 2018.
OMB Case No.: PL130149
OMB File Nos.: PL130149, PL130770
2018 LNONLPAT 37
PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended Appellant: Robert Anderson Appellant: Adri and Tim Eastman Appellant: Rudy Huisman Appellant: Steve Johnson; and others Subject: By-law No. B2013-009 Municipality: Municipality of Trent Lakes PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended Appellant: Adri and Tim Eastman Appellant: Ryan and Rebecca Jory Appellant: Vince Virgilio Subject: Proposed Official Plan Amendment No. OPA 41 Municipality: Municipality of Trent Lakes
Adri and Tim Eastman and others: Eric Gillespie, counsel.
Dewdney Mountain Farms Ltd.: David S. White, counsel.
Municipality of Trent Lakes: John Ewart, counsel.
DECISION DELIVERED BY GERALD S. SWINKIN AND ORDER OF THE
The History Leading to This Hearing
1 Dewdney Mountain Farms Ltd. (the “Proponent”) is the owner of approximately 390 hectares (“ha”) of land in part of Lots 28, 29 and 30, Concession 15, in the geographic Township of Harvey, County of Peterborough. The lands are municipally known as 2418 Ledge Road, now in the Municipality of Trent Lakes (the “Municipality”) in the County of Peterborough.
2 A severance of the lands was approved. The northern portion comprising approximately 215 ha is apparently being used for hunt camp purposes. The southern portion comprising approximately 175 ha is intended to be used as a limestone quarry. This southern portion of the lands will be referred to in this Decision as “the Site”.
3 The Proponent made application to the Municipality for an official plan amendment and a zoning amendment to authorize and permit use of the Site for the extraction of aggregate, such use known as a quarry use.
4 The Municipality acted on the application of the Proponent and adopted Official Plan Amendment 41 (“OPA 41”) and enacted Zoning By-law B2013-009 (“the Zoning Amendment”) to permit the proposed quarry use on the Site.
5 The Zoning Amendment was the subject of ten appeals by individuals and/or couples who reside in the vicinity of the Site.
6 OPA 41 was subject to approval by the County of Peterborough (“the County”), as the delegated approval authority. The County issued a Notice of Decision to approve OPA 41.
7 The Notice of Decision issued by the County with respect to OPA 41 was appealed by three individuals and/or couples, all of whom were also appellants against the Zoning Amendment.
8 A hearing of these appeals was conducted by the Ontario Municipal Board (the “Board”) over apparently sixteen days in the summer of 2014 in front of Member Hefferon (“the Original Hearing”). Member Hefferon’s decision issued on February 5, 2015 (the “Original Decision”). The upshot of the decision was that he approved OPA 41 subject to the contingency that a Site Plan presented in the hearing as an exhibit, with conditions as set out in the exhibit, was to be approved by the Ministry of Natural Resources and Forestry (“MNRF”) and the associated Category 4, Class A license under the Aggregate Resources Act (“ARA”) to extract aggregate from the Site had been issued.
9 Member Hefferon then went on to establish a further contingency applicable to both OPA 41 and the Zoning Amendment. He declared that the final Order of the Board would not issue until a Development Agreement acceptable to the Municipality had been executed by the Municipality and the Proponent as well as a Haul Route Agreement being signed by “the relevant parties”.
10 These contingencies spawned practical problems for all parties involved. Member Hefferon failed to appreciate that the ARA will not permit the issuance of an aggregate extraction license unless and until the lands for which it is to be issued are actually zoned, by an in-force by-law, to permit aggregate extraction. Without the Board Order fully approving the zoning, the ARA license could not issue.
11 In addition to this conundrum, Member Hefferon misconstrued the evidence as to the status of the ARA application, failed to acknowledge receiving evidence from one of the Appellants’ expert witnesses in the area of ecological matters and apparently misunderstood the practice of the Municipality regarding Development Agreements.
12 In order to cure these matters, the Proponent launched a Section 43 Ontario Municipal Board Act (“OMBA”) review (“s. 43 Review”).
13 The s. 43 Review was conducted before Vice-Chair Stefanko and Member Conti. Appearing before that panel of the Board were the same counsel as appeared before this panel, for the same parties. In its disposition issued November 19, 2015, apparently on the consent of the parties, the various errors were rectified. In certain cases, this was by way of textual changes in the Original Decision.
14 As it related to OPA 41, the decision of the s. 43 Review panel removed the contingencies from OPA 41 and simply ordered that it was approved.
15 The s. 43 Review panel removed reference to the Development Agreement in the Order clause, but left intact the contingency regarding withholding approval of the Zoning Amendment until advised by the Municipality that a Haul Route Agreement has been executed by the relevant parties.
16 With respect to the missing evidence, the resolution was to have the two ecological experts, one called by the Proponent and the other by the Appellants, attend before a different panel of the Board to re-tender their evidence. This took place at the Board’s offices in Toronto on December 2, 2015 in front of Member Conti. Member Conti heard the evidence of the two witnesses and submissions and issued his decision on May 3, 2016. In essence, Member Conti effected a couple of text changes to the Original Decision to reflect the expert testimony that was and wasn’t heard, but he determined to leave the Original Decision otherwise intact.
The Application to Divisional Court
17 While the s. 43 Review process was underway, the Appellants commenced an application for leave to appeal to the Divisional Court (the “Court”) under the provisions of s. 96(1) of the OMBA on questions of law arising out of the Original Decision. As this panel understood it, the Appellants posed ten questions of law and the leave judge certified four of those questions.
18 Of the four questions, in its decision released on September 29, 2017 (Eastman, Johnson, Klein and Pillsworth v. Dewdney Mountain Farms Ltd., 2017 ONSC 5749; DC 1014/17), the Court declined to find an error of law in the first three posed questions but did find an error of law in the fourth. It is that determination which gives rise to the proceeding before this panel of the Local Planning Appeal Tribunal (“the Tribunal”) [the Board now having been continued as the Tribunal under the Local Planning Appeal Tribunal Act, 2017 as of April 3, 2018].
19 The fourth question was: Whether the OMB erred by proposing noise mitigation measures without evidence supporting their feasibility?
20 In dealing with this question, the Court provided four paragraphs in its reasons and it is from these four paragraphs that the Tribunal must find guidance as to how to deal with the matter remitted to it. As it is of prime significance both procedurally and substantively to what transpired before this panel, the entirety of paragraphs 53 to 56 of the Court decision are reproduced herein:
 The appellants submit that the OMB erred in law in adopting the respondent’s mitigation measures without regard for the accepted evidence that there was a possibility that access to private lands would be required to implement those measures.
 In response, Dewdney submits that as set out in the OMB Order of November 19, 2015, the order was contingent. The OMB’s order provided that the “zoning by-law amendment shall be withheld pending confirmation from the Municipality that a Haul Route Agreement has been executed by the relevant parties.” However, counsel to Dewdney acknowledged that the reference in the order to “relevant parties” would not ordinarily encompass private land owners.
 The appellants submit that the approval is therefore ineffective and in error because it fails to address this issue. It contemplates mitigation measures that may not be implemented without the private land owners’ consent, which is not provided for.
 We agree that this is an error in law and remit this one issue to the OMB for re-consideration.
The Organization of this Phase of the Hearing
21 It was the view of this panel of the Tribunal that there were two matters which necessarily required definition at the outset of the proceeding in order to ensure that everyone involved understood the rules regarding what was before the Tribunal and what was not. That was especially germane in terms of who would be permitted to be presented as a witness and the confines of that person’s testimony.
22 The first matter was the precise jurisdiction of this panel of the Tribunal in this proceeding. The other matter was some agreement on the order of evidence and submissions.
23 These matters gave rise to some spirited discussion among counsel and the Tribunal.
24 Mr. Gillespie had prepared a provisional agenda which he had apparently transmitted to Mr. White two days prior to the hearing commencement date. This provisional agenda was put before the Tribunal for discussion.
25 There was a practical issue which was driving the proposed flow of the witnesses. The key element of this phase of the hearing related to evidence which would come from acoustical engineers. The Proponent proposed to call David Hofbauer and it was anticipated that his testimony would take up a good part of the day. The Appellants proposed to call John Emeljanow. It was understood between the parties that each acoustical engineer was to hear the entirety of the other engineer’s evidence. The difficulty though was that Mr. Hofbauer was not able to be at the hearing on Thursday, its second day. This was proposed to be resolved between counsel by Mr. Hofbauer being called on Wednesday in the morning, the first day of the three days scheduled for the hearing, to be examined in chief and cross-examined. Mr. Emeljanow would then be called on Friday, the third day of the hearing. The notion was that the Board would not sit on the Thursday, the second day of the hearing.
26 Mr. Gillespie’s provisional agenda also disclosed an intention to call a land use planner, an expert in ecology and a civil engineer. In addition to these disclosures, it was evident that many local residents (some of whom were appellants and some of whom were not) were also to be called.
27 The Tribunal had serious concern about managing to hear the intended evidence within the time scheduled, especially with a day taken out. But, of greater importance, the Tribunal also was of the view that given the narrow scope of the remission from the Court, evidence regarding land use planning and ecological matters appeared to be beyond the judicial mandate directed to the Tribunal by the Court for the purpose of this proceeding.
28 The Tribunal was plain with counsel that a ruling on that matter would be made, and the Tribunal’s mind was thus exhibited as to its leanings in this exchange but at the urging of Mr. Gillespie, the Tribunal stood down any such final ruling until the acoustical engineering evidence had been heard in order to determine whether it logically led to relevant issues for this proceeding which should be tested from these other expert disciplines.
29 Mr. Hofbauer’s cross-examination was completed in the late afternoon. The original agenda proposal as to not sitting on the second day was re-visited and Mr. Gillespie advised that it was his intention to call a selection of the resident Appellant witnesses on the morning of the second day. Due to a scheduling conflict for one of them, he requested an indulgence in the start time of the hearing. He asked that the hearing commence at 9:30 a.m., and with the consent of the other counsel, this request was granted. Mr. Gillespie advised that his roster of resident witnesses consisted of five persons.
30 When the hearing commenced at 9:30 a.m. on Thursday, Mr. Gillespie rose to advise that he would be calling no further witnesses and that with the agreement of the other counsel, they were proposing that counsel move to submissions on the basis of the evidence which had been called to that point. No objection was taken by the other counsel. The Tribunal canvassed those persons in the room who were registered Participants but not represented by Mr. Gillespie and they all concurred in this turn of events and declined the opportunity to come forward with any evidence which they might have.
The Issue Mandated by the Court
31 As adverted to above, the Tribunal was of the view that the issue remitted to the Tribunal was a narrow one. The question which the Court saw fit to remit back to the Tribunal was whether there was evidence that the proposed noise mitigation measures were feasible.
32 What was apparent from the reasons in the Original Decision, the submissions of counsel in this proceeding and the evidence from Mr. Hofbauer is that the trucks which will access the quarry will run along Quarry Road and Ledge Road and that they will generate levels of noise which will exceed what are understood to be acceptable levels of noise in this rural area as it will be experienced at 8 of the 18 sensitive receptors along the route. That appeared to be an accepted fact as determined in the Original Hearing and as further acknowledged by Mr. Hofbauer in this proceeding (although it was advised through Mr. Hofbauer’s testimony in this proceeding that there was a new residence along the route which had not been accounted for in the prior study and there was a new consensus understanding between the experts to treat the hunt camps as sensitive receptors). Consequently, in order to comply with the policy in s. 22.214.171.124 of the Provincial Policy Statement, which declares that extraction shall be undertaken in a manner which minimizes social, economic and environmental impacts, and to comply with the applicable noise guideline documents published by the Ministry of the Environment, some form of mitigation would be required.
33 Although the reference to it is scant in the Original Decision, it appears that what was then contemplated in the way of mitigation was the emplacement of earth berms and noise walls atop them, to be strategically placed along Quarry Road and Ledge Road so as to attenuate the sound energy which would be experienced at the various sensitive receptors and bring that sound energy down below the recommended maxima.
34 The issue which arose from that proposal is that the evidence at the hearing conducted by Member Hefferon suggested that in order to implement such a feature, it may be necessary to enter upon the private property to be protected in order to create a portion of the berm. Mr. Gillespie advised the Tribunal in this proceeding that the owners of the affected properties are not prepared to grant the necessary consent for such entry and works. Therein lay the issue of feasibility.
35 At this point it is worth addressing what Mr. Gillespie identified as the pivotal issue. He indicated that issue to be the impact of the truck traffic associated with the quarry use and that the Appellants are of the view that they are entitled to legitimate protection which can and will be implemented. They should not have to take on faith that some means will be determined to shield their properties. They should have the benefit of a detailed plan so that all of the ramifications of the proposal can be assessed.
36 Mr. Gillespie referred the Tribunal to paragraph 35 of the Original Decision. It is worth reproducing here in full: “The parties agreed that the core issue in this hearing was the potential for adverse impact on the residential dwellings fronting on Ledge and Quarry Roads from the noise created by trucks using the portion of the proposed haul route on Ledge and Quarry Roads.”
37 This crystallization was prefigured earlier in the Original Decision at paragraph 24 when articulating what Member Hefferon understood to be the Appellants’ position: “The Appellants have a number of concerns but their core concern or issue is with the proposed haul route along Ledge and Quarry Roads. They contend that the increased noise, dust and heavy truck traffic will have an unacceptable adverse impact both on their property values and on their quality of life.”
38 The Tribunal, in this proceeding, appreciates that the haul route is inextricably tied to the quarry use and that the trucks which will access the quarry would not be on these roads but for the quarry use, and that the quarry could not function without a means of access for heavy trucks that haul aggregate. Therefore, it is entirely fair and reasonable to assess impacts not just from the Site but also with respect to the access to the Site.
The Mitigation Proposal as Reformulated
39 Mr. Hofbauer presented a new mitigation proposal to the Tribunal. This was apparently disclosed to the Appellants on or about March 5, 2018, however Mr. Emeljanow was out of the country and did not return until March 13th, at which time he would have been able to review it, which Mr. Gillespie suggests would not have been sufficient time for a proper review. The new proposal was reflected in a concept drawing which was introduced in evidence and explained by Mr. Hofbauer. The new scheme would create a noise attenuation barrier in the form of armourstone walls which would be located wholly within the road allowance. These would be supported by earth berming on Ledge Road. In order to have room to accommodate these works wholly within the road allowance, the road would have to be reconstructed away from the affected private properties and off-centre of its current location, which the Tribunal understands to presently be generally centred on the road allowance. For those properties on Quarry Road, due to the location of sensitive receptors on both sides of the road, and due to the resultant physical constraints which arise from that in terms of realigning the road, in lieu of earth berming, gabion works are suggested to provide the necessary support for the armourstone walls.
40 The armourstone walls would be constructed in layers or courses, each approximately 1 metre (“m”) in height. The table supplied by Mr. Hofbauer indicated various proposed heights to achieve the necessary mitigation at each particular required location. The heights run from a low of 2.5 m to a high of 4 m. Thus, at certain locations, the armourstone wall would be three layers or courses high and in others four.
41 The table prepared by Mr. Hofbauer presumed two key changes from the premises which were assumed in the report prepared by Dr. Hugh Williamson for the Original Hearing (Dr. Williamson was the Proponent’s acoustical engineering expert in the Original Hearing but has since retired and the Proponent retained Mr. Hofbauer of wsp for this proceeding). Mr. Hofbauer has proposed a lowering of the speed limit on the haul route from 50 kilometres per hour (“kph”) to 40 kph (and this appears from the report filed to be a lowering on Quarry Road only as it is suggested that the speed limit on Ledge Road is currently 40 kph). He also proposes that the annual production limit for the quarry be fixed at 900,000 tonnes. Based on his evidence, and submissions from Mr. White, the Tribunal learned that in the interval between the Original Decision and this proceeding, the Proponent has secured a license for the quarry from the MNRF which is being held back from issuance pending confirmation that the Site is finally zoned for aggregate extraction.
42 The pending license apparently authorizes an annual extraction limit of 1.2 million tonnes. In response to this recommendation by Mr. Hofbauer and to the Tribunal’s question as to how such a modification would be ensured, Mr. White advised that he understood it to be within the Proponent’s authority to request that reduction. Mr. White went on to advise that he was prepared to give an undertaking to the Tribunal to follow through with such a request.
43 This exchange led to further questions from the Tribunal. In response to the provisions in the ARA which contemplate consideration of the associated haul route as part of the consideration of the application, and the Tribunal’s question as to whether the approval by the MNRF imposed a condition which required any form of Haul Route Agreement, Mr. White advised that there was no such condition.
44 With respect to the reference to the execution of a Haul Route Agreement in the Order clause of the Original Decision, and again in response to a question posed by the Tribunal, Mr. White suggested that there was some form of draft of such an Agreement but he provided no guidance on its contents nor did he offer to tender a copy of the draft. The Board was advised that there were to be certain reconstruction works undertaken at the intersection of Quarry Road and County Road 36 at the instance of the County of Peterborough, which would be dealt with through an agreement between those parties.
45 The Tribunal here then comes to the position of the Municipality in this proceeding. When canvassing counsel on opening matters at the outset of the proceeding regarding the position of their clients for the purpose of this proceeding and their intentions with respect to calling witnesses, Mr. Ewart, on behalf of the Municipality, indicated that the issue for the Municipality was the design of the mitigation features. He said that he would be paying attention to the evidence and that his was a watching brief. He indicated that he would not be calling any witnesses. He acknowledged that a Haul Route Agreement would be required with the Municipality but the Tribunal was offered no particulars or evidence as to what would be encompassed by that Agreement.
46 Coming back to the testimony of Mr. Hofbauer, Mr. Hofbauer acknowledged that there would have to be breaks in the armourstone walls where driveways were located. He also said that where there are such breaks in the wall, it can be expected that a sound energy measurement as a result of the openings would be on the order of 1 decibel greater. It wasn’t at all clear that the table which he produced showing the resultant modelled noise impacts at the various affected sensitive receptors made allowance for this additional energy. Given that he was clear that he was not working from final road designs and the fixing of the driveway locations, the values on the table could only be theoretical.
47 In cross-examination on this point, Mr. Hofbauer essentially allowed the point which was being pursued by Mr. Gillespie, that the compliant post-mitigation sound level values shown on the table, if augmented by a further decibel would in every case exceed the recommended limit.
48 The concept of mitigation being advanced by Mr. Hofbauer was depicted on a concept drawing. It was a generic piece of work. It was not reflective of any particular section of the road, either in its present state or as it may be reconstructed and it was bereft of any detail of topography or built form on the abutting property.
49 In cross-examination, Mr. Hofbauer was not able to satisfactorily respond to Mr. Gillespie as to the adequacy of sight lines to ensure safe movements from the driveways which may result from 3 or 4 m high opaque walls set within the road allowance. He further acknowledged Mr. Gillespie’s point that at this stage, none of the affected property owners would know the precise features of the noise mitigation abutting their property and would therefore not be able to assess the impacts of those features on the use and enjoyment of their property.
50 In cross-examination, there were issues raised about how the presence of the walls may affect snow removal and that the concept drawing made no provision for the location of utility poles or the provision of drainage swales or other means of storm drainage, all of which would go to the feasibility of the proposal in addition to the matters referred to above regarding the level of noise protection and the safe movement of vehicles from the driveways.
The Appropriate Test to Meet the Standard of Feasibility
51 It was Mr. Gillespie’s position throughout the hearing that the question of feasibility required a clear and precise demonstration of the intended works as they are to be constructed in the field in order to be able to properly assess them for sufficiency and suitability. He insisted throughout the proceeding that the Tribunal could only make a just decision based upon evidence called in the proceeding. To rely on a concept drawing such as was presented in this proceeding alone left his clients without an ability to understand the works and how they may directly impact any one of the Appellants and therefore without the ability to truly and properly test their suitability for implementation. He suggested that reliance on the speculative evidence presented by the Proponent would result in a violation of the rules of natural justice and procedural fairness due to his clients.
52 Mr. White suggested to the Tribunal that the question before the Tribunal was the narrow question of whether the construction of mitigation works entirely within the road allowance was feasible and that the evidence presented by Mr. Hofbauer answered that question in the affirmative. In his view, the detailed design drawings are not typically required at the stage of determining the basic land use question. He suggested that those drawings would be worked out with the Municipality.
53 As it was apparent from the testimony of Mr. Hofbauer that there are many variables which must be taken into consideration in the final design of the reconstructed road and noise attenuation works and that there are material and direct impacts and implications on the abutting private lands that arise from the decisions which are made in that regard, the Tribunal shares the view urged by Mr. Gillespie that the Appellants are now in no better position to understand how those works may impact their own properties or whether they will even be sufficient to attenuate the truck noise to the recommended standards.
54 This conclusion is due to the fact there was an insufficient factual grounding laid by the Proponent in this proceeding to be satisfied that the intended mitigation objectives will actually be achieved at the given affected private properties and further, whether in implementing the noise mitigation works other consequential adverse impacts may ensue. The evidence was in the realm of the conceptual and not in any way anchored to actual circumstances and demonstrable outcomes. As such, there was insufficient evidence for the Tribunal to be assured of the feasibility of the proposed mitigation works.
55 The Tribunal explored with counsel whether there might be a further regulatory or administrative process that the Proponent would have to undergo where these questions would be more carefully reviewed and approved and where the Appellants may have some role to play and opportunity for further assessment and input. It seems that there is no such further process that will provide that guarantee. The ARA process is now effectively complete.
56 Mr. Ewart was candid that although the authorization of the execution of a Haul Route Agreement would have to come to the Council of the Municipality and there may be opportunity for deputation to Council, there is no statutory provision which entitles the Appellants to have a direct participation in the development of such an Agreement or provides them with any right of appeal from a decision which the Council may make.
57 This proceeding then is the forum where the Appellants can be heard and where the appropriateness of the land use proposal must be tested and established.
58 The evidence tendered by the Proponent in this proceeding falls well below the standard necessary to satisfy the Tribunal that the required noise mitigation works are feasible and capable of implementation so as to achieve the required noise attenuation objectives and also not creating ancillary undue impacts either as such impacts may relate to the functioning of the road itself or the use and enjoyment of the properties abutting thereon.
59 The Tribunal had no evidence of the willingness or preparedness of the Municipality to allow the reconstruction of either of these roads or the introduction of these significant noise mitigation features within the road allowance. The Municipality is the owner of the road allowances and is under no compulsion to subject those road allowances to features that it may not wish to have located within them that are not otherwise prescribed by law. On this front then as well, it is a matter of speculation whether the Municipality will agree to these works. Mr. Ewart did indicate that the concern or issue for the Municipality was the design of the noise mitigation works and that they were here to listen. The Tribunal did not have the benefit of any response from the Municipality.
60 Having come to the conclusion that there is insufficient evidence at the present time to be assured that there will be efficacious noise mitigation to the affected sensitive receptors on Ledge Road and Quarry Road, and that policy compliance requires such assurance, the Tribunal cannot, in the public interest, authorize the use of the Site for quarry purposes. The Zoning Amendment cannot be approved at this time.
61 The Tribunal canvassed counsel as to what they were seeking in order to accommodate their respective clients’ positions. Mr. White requested that the Appeals be dismissed but that the final Order be withheld until the Tribunal had been advised that the maximum annual tonnage for extraction on the license had been revised down to 900,000 tonnes.
62 Mr. Gillespie requested that the Appeals be allowed and that the Zoning Amendment be set aside.
63 The structure of s. 34(26) of the Planning Act does not leave the Tribunal with any significant measure of latitude in the circumstances now before the Tribunal. There is no modification to the Zoning Amendment which will address the issue before this panel. The reality is that the use permitted by the Zoning Amendment is premature in the absence of a concrete, feasible noise mitigation solution for the proposed haul route.
64 As such, the Tribunal will be allowing the Appeals and setting aside the Zoning Amendment. In doing so however, it is to be clearly stated that the mandate of this panel of the Tribunal in this proceeding was to focus strictly on the haul route noise mitigation issue. This panel has made no inquiry into the land use and related questions which were dealt with in the Original Hearing and about which a number of challenges based on error of law were rejected by the Court. Therefore, save with respect to the specific issue dealt with in this Decision and the resultant consequence as to the Order of the Tribunal, and as to the modifications effected by the s. 43 Review, the balance of the Original Decision must be treated as intact.
65 OPA 41 is not affected by this Decision and, as noted earlier in the Decision, based upon the earlier ruling out of the s. 43 Review, is in effect.
66 Therefore, to the extent that the Proponent is able to develop a feasible noise mitigation plan that the Municipality will agree to implement and which will satisfy the determined recommendations as to noise attenuation without creating consequential adverse impacts, nothing in this Decision should be taken to prejudice any fresh application for zoning amendment for the Site to permit its use as a quarry.
67 The Tribunal therefore allows the Appellants’ appeals and by its Order sets aside the Zoning Amendment.
GERALD S. SWINKIN
End of Document
Drain Bros. Excavating Ltd. v. Havelock-Belmont-Methuen (Township),  O.M.B.D. No. 616 Ontario Local Planning Appeal Tribunal Decisions (f/k/a Ontario Municipal Board) Ontario Municipal Board Panel: J.P. Atcheson, Member Decision: July 23, 2009. No. PL070944, O.M.B. File No. M070098