2

PL150564

Ontario Municipal Board
Commission des affaires municipales
de l’Ontario

ISSUE DATE:

May 30, 2016

CASE NO(S).:

PL150564

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O.
1990, c. P.13, as amended
Appellant:
Applicant:
Subject:
Variance from By-law No.:
Property Address/Description:
Municipality:
Municipal File No.:
OMB Case No.:
OMB File No.:
OMB Case Name:

Big Rideau Lake Association
Richard Earle
Minor Variance
2005-6
Pt. Lot 21, Conc. 2, Twp. Of Burgess
Township of Rideau Lakes
A-8-2015
PL150564
PL150564
Big Rideau Lake Association v. Rideau
Lakes (Township)

Heard:

April 28, 2016 in Delta, Ontario

 3

PL150564

APPEARANCES:
Parties

Counsel*/Representative

Richard Earle

Self-represented

Township of Rideau Lakes

A. E. Fleming*

Big Rideau Lake Association Inc.

P. D. Rasmussen*

DECISION OF THE BOARD DELIVERED BY M. C. DENHEZ AND ORDER OF THE
BOARD

1.

INTRODUCTION

[1]

This was a variance dispute about a proposed development on an undersized lot

facing Big Rideau Lake ("the lake"), in the Township of Rideau Lakes ("the Township").
The core issue was the extent of preliminary study required.
[2]

Richard Earle ("the applicant") owns two adjoining lots facing the lake. The first

(larger) lot was purchased in 2008. The second ("the subject property"), was purchased
in 2013. The latter lot of record had an old boathouse, but was otherwise vacant.
[3]

At all relevant points, that property is less than 30 metres (“m”) from the water.

The applicant proposed building a seasonal dwelling, specifically for the subject
property (there was no question of treating the two lots as a unit). It would require three
variances to the Township’s Zoning By-law No. 2005-6 (the “Zoning By-law”):
•

To allow an eight-metre water setback for the dwelling, whereas the
Zoning By-law called for at least 30 m.

•

To allow the septic system to have a 15 m water setback, whereas the Bylaw called for at least 30 m.

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•

PL150564

To permit a one-metre rear setback, whereas the By-law called for at least
7.5 m.

[4]

The applicant acknowledged that the 30 m water setback would normally

preclude residential development; but he and the Township said the Official Plan (“OP”)
made an exception for undersized lots of record. Municipal planning staff was
supportive, subject to conditions, notably a tertiary sewage treatment unit. The
Committee of Adjustment ("COA") agreed, and authorized the variances, subject to 12
conditions.
[5]

The Big Rideau Lake Association ("the Association"), an incorporated body of

owners on the lake, appealed the COA decision to the Ontario Municipal Board ("the
Board").
[6]

The Board hearing was in two parts. The case could not finish at its originally-

scheduled time, so it was continued – five months later. That changed the debate.
[7]

The Township's initial position had been that its OP did not require elaborate

environmental assessment, and that its environmental requirements had been met. By
five months later, the applicant had obtained a more detailed assessment anyway,
making the initial argument moot; but the debate continued on other grounds.
[8]

The Association was represented by one of its members, retired lawyer P. D.

Rasmussen, with the support of another member, retired planner Peter Hannah. Its
position was supplemented by environmental planner Martha Bradburn, of the Rideau
Valley Conservation Authority (“RVCA”), who testified under summons.
[9]

The Township defended the COA's decision, with the support of the Township's

planner and Manager of Development Services, Brittany Mulhern. The applicant’s
position was supported by planner Tracy Zander and environmental consultant Reginald
Genge.

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[10]

PL150564

The Board has carefully considered all the evidence, as well as the submissions

of both sides. The Board finds that the Association's concerns are understandable, but
manageable. In particular, although the Board agrees with most of the Association's
methodological observations, it finds that these can and should be addressed via (a)
modified and supplementary conditions to the variances, and (b) the Site Plan Control
process. In short, the Board authorizes the variances, subject to a substantially revised
roadmap. The details and reasons are set out below.
2. GEOGRAPHIC CONTEXT
[11]

Big Rideau Lake is part of the Rideau waterway, a UNESCO World Heritage Site.

[12]

The subject property faces the lake to the north. The Board was told that the

property measured some 10,450 square feet, or about a quarter of an acre. However, it
is unusually shaped, with a lakefront portion, plus an inland extension to the southwest,
which the parties called "the panhandle". That inland extension was separated from the
water by a smaller property to the west, belonging to someone else.
[13]

The subject property is subject to Site Plan Control.

[14]

The property has a significant slope. Indeed, at the back (south) side of the

property, this treed slope gets steeper on the land of another abutting neighbour. The
experts agreed that, because of this topography and vegetation, this neighbour was
unlikely to develop anywhere on this slope – or even within sight of the subject property.
The parties further agreed that the requested rear setback variance, for a setback of
one metre, was non-contentious.
[15]

The two water setbacks (for the building and septic system) were a different

matter. The boathouse, perhaps 60-70 years old, had an excavated boatslip, about 10
feet long, dredged out of the shoreline. A previous owner, a Mr. Lossing, had used the
property specifically for access to the lake, and for no other apparent purpose, except
boat storage and accessory parking.

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[16]

PL150564

The proposal was for a small seasonal dwelling, of about 850 square feet. The

Township's planner said the project complied with the By-law provisions for Floor Space
Index and lot coverage.
[17]

Positions evolved during the five-month hiatus. The original proposal was for the

dwelling to have a water setback of 8 m, and for the septic holding tank to have a water
setback of 15 m. Those were the minimum distances authorized by the COA, subject to
the conditions including the tertiary system.
[18]

However, by the time the hearing reconvened five months later, the Township

revised those figures:
•

The proposed dwelling setback was now increased to 12.8 m.

•

The conventional septic system (with holding tank) would be replaced by a
tertiary system, whose minimum proposed water setback was revised
from 15 m to 18 m (it would later change back to 15 m, as described
below).

[19]

After some debate, there was ultimately no dispute among the experts that the

methodology of measurement deserved particular attention:
•

Setbacks could not be computed by simply running a tape measure along
the surface topography, because the latter was both sloped and bumpy. It
was finally agreed that setbacks should be measured in a straight line, on
a horizontal plane. In the words of Mr. Rasmussen, they should be
measured at the base of the right-angled triangle, not the hypotenuse.
This was the normal method; the Zoning By-law specified, for example,
that water setback was calculated as "the horizontal distance between the
high water mark in the nearest building line". The applicant’s planner was
compelled to agree; so did the Township.

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PL150564

Water setbacks needed to be measured from the water. This would
notably include the dredged boatslip, which might have been overlooked
in previous calculations.

[20]

Pursuant to agreement by the experts on the above methodology, the Township

reverted to a figure of 15 m, as the minimum water setback for the septic system, as
previously authorized by the COA. The Township added that this minimum of 15 m also
corresponded to the minimum specified in the Ontario Building Code (“OBC”).
[21]

The COA's Condition No. 12 had also observed that the Zoning By-law imposed

a calculation of minimum building size – in this case, of 807 square feet. With the
concurrence of their experts, the parties agreed that this minimum building requirement
was superfluous in this instance. They further agreed on a supplementary variance to
waive this requirement.
[22]

On consideration of this additional request to waive minimum building size, the

Board found the above amendment to the original variance application to be minor.
Under s. 45(18.1.1) of the Planning Act (“the Act”), it did not require recirculation, and
the Board would consider the application as so amended.
[23]

As for the proposed modification in the water setback for the dwelling, to increase

the minimum setback from 8 m to 12.8 m, the Board again found the above amendment
to be minor, under s. 45(18.1.1), not requiring recirculation, and the Board would
consider the application as so amended.
3. APPLICABLE CRITERIA
[24]

For variances, the criteria (often called "the four tests") are set out at s. 45(1) of

the Act, namely that a variance from the applicable by-law may be authorized if it is
minor, desirable for the appropriate development or use of the property, and maintains
the general intent and purpose of both the Zoning By-law and of the OP.

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[25]

PL150564

Parenthetically, even if the rear setback variance of 1 m was non-contentious, as

was the proposed waiver of minimum building size, the Board has a residual
responsibility to verify that those two proposed variances meet the four tests. On review
of the supportive and undisputed expert evidence, the Board is satisfied that they do.
[26]

Section 3(5) of the Act also requires decisions to “be consistent with” the

Provincial Policy Statement 2014 (“PPS”). The latter defines UNESCO World Heritage
Sites as “significant” heritage resources which are subject to the following Provincial
policies:

[27]

2.6.1

Significant built heritage resources and significant cultural
heritage landscapes shall be conserved.

2.6.3

Planning authorities shall not permit development and site
alteration on adjacent lands to protected heritage property
except where the proposed development and site alteration
has been evaluated and it has been demonstrated that the
heritage attributes of the protected heritage property will be
conserved.

Finally, the Board’s statutory authority in this regard is not confined to authorizing

or denying the requested variances. Under s. 45(9) of the Act, the COA could stipulate
that its variance authorization was “subject to such terms and conditions as the
Committee considers advisable”. Under s. 45(18), the Board has the same authority to
stipulate such conditions as it considers advisable.
4. ANALYSIS
4.1 Introduction
[28]

As mentioned, the position of the Township changed during the five-month

hiatus, largely in response to the additional analysis conducted by the applicant’s
environmental expert. In practice, much of the Township’s original argument,
downplaying the requirements for this research, thereby became moot.

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[29]

PL150564

The Township had emphasized that there were over a hundred similar

undersized properties along this stretch of the World Heritage Site. The Board
concludes that the current debate is bound to be repeated. The Board would be remiss
in not warning that the Township’s initial interpretation of the OP’s relevant provisions
was unreliable. It did not represent a viable roadmap for the future. First, however, the
Board will revisit this OP, which covers a number of factors in detail.
4.2 The Existing OP Framework
[30]

The Board will focus on three overall “objectives” of the OP, pertaining to water

quality, heritage, and vistas. Near the opening of the OP, at Policy 1.3.2, there is an
extensive description of the “Basis of the Plan”, recognizing the Township's built and
natural elements:
The Township possesses approximately 500 kilometres of shoreline,
excluding the Rideau Waterway… The pleasure boating that took root
and spread along the Waterway over its history created a recreational
paradise for thousands of property owners and visitors to Rideau Lakes.
In recognition of its historic and recreational value the Rideau Waterway
has been designated as a Canadian Heritage River, thus further elevating
its natural significance…
The most significant natural feature of the Township is its water bodies.
These are a resource of paramount value for recreational and tourism
purposes and must be protected from environmental degradation…

[31]

[32]

This “basis” leads to OP “objectives”, notably the following at OP Policy 1.3.3:
1.3.3.3

To preserve and enhance water bodies and their
environs by encouraging development and
redevelopment which is environmentally-sensitive and
which maintains or improves water quality and the
shoreline environment.

1.3.3.9

To conserve and protect cultural heritage resources…

1.3.3.10

To have particular regard to the Rideau Canal Corridor
and all its component parts - its scenic elements, its
historic value - all its built and natural attributes.

1.3.3.11

To enhance the aesthetic qualities of the built and natural
environment.

Indeed, OP Policy 2.2.3.2.1 refers to a “30-metre minimum water setback”:

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PL150564

Development or site alteration such as filling, grading and excavating
shall occur a minimum distance of 30 metres from the normal high water
mark of any water body.

[33]

After referring to “environmentally-sensitive development” which “fits” the

immediate “natural, scenic and historic character”, the OP adds that, within the above
30-metre setback, there will be a waterfront “15-metre strip of substantially undisturbed
and naturally-vegetated area” :

[34]

2.6.1

…It shall be a policy of this Plan that development be
undertaken in a manner which is sympathetic and
complementary to the natural and built contextual
environment in which it is to occur. Development shall, to
the extent possible, be designed so as to maintain, fit
into and take advantage of the natural, scenic and
historic character of individual sites and their environs.
Some of the strategies to achieve this objective in the
context of site planning, lot design, road layout and
construction include:

2.6.1.3

Maintaining a minimum 15-metre strip of substantially
undisturbed and naturally-vegetated area abutting the
length of the shoreline on waterfront properties, subject
to limited allowance for water-related structures such as
docks, pump houses and boathouses. This strip will
contribute to protecting the riparian and littoral zones and
their associated habitat, prevent erosion, siltation and
nutrient migration, and assist in maintaining the natural
appearance of the shoreline area. The strip will form part
of the 30-metre minimum water setback required
pursuant to the Waterfront Development Policies section
of this Plan and is intended to ensure the protection of
the most environmentally-sensitive portion of the setback
area…

However, there are exceptions to the 30-metre water setback, notably in the case

of Environmental Impact ("EI") Assessments. For example, OP policy 2.2.3.2.3 says
that a lot of record can indeed be under 30 m, and still be buildable, if it complies with
the OP chapters on fish habitat and EI Assessments:
Development or site alteration may be permitted less than 30 m from the
water body in situations where existing lots… preclude the reasonable
possibility of achieving the (30 m) setback… Any proposal for
development or site alteration proposed to occur less than 30 m from the
water body shall be subject to the policies of the Fish Habitat and
Adjacent Lands and Environmental Impact Assessments sections of
this Plan. [Emphasis in original]

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[35]

OP Policy 2.21.7 elaborates on both the role and contents of these EI

Assessments:
2.21.7.1

Potential negative impacts on the identified natural
heritage feature or area will be examined through a
process of environmental impact assessment, conducted
on a case-by-case basis, prior to the approval of
development…

2.21.7.3

An environmental impact study shall:
1)

2.21.7.4

Define the nature and the boundaries of any
significant features, ecological functions, and
values on, or adjacent to the site.

2)

Describe and map the proposed development
activities, including building location, excavation,
site grading, landscaping, drainage works,
roadway construction, paving, sewage and water
servicing in relation to the various environmental
considerations.

3)

Predict the effects of the proposed development
on the various components of the environment
on and adjacent to the site, such as wildlife, fish,
vegetation, soil, surface water, ground water, air
and any other relevant factors, taking into
consideration effects during and after site
alteration.

4)

Evaluate the significance of all predicted
negative and positive effects on the various
environmental considerations.

5)

Itemize and recommend all measures that can
be taken to reduce or mitigate the predicted
negative impacts.

6)

Evaluate the cumulative effect that the project
(and any other known projects or activities) may
have following implementation of any mitigation
measures on the natural features and ecological
functions identified for protection.

7)

Conclude with a professional opinion on whether
negative effects on the natural features and
ecological functions will occur, the significance of
such impacts, and whether ongoing monitoring is
required.

The approval authority may use various planning
controls such as site-specific zoning provisions or site
plan control to ensure that development and site
alterations occur in accordance with the environmental
impact study recommendations.

PL150564

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[36]

PL150564

As specific as the above policy may appear, however, this same OP Policy 2.21.7

offers the alternative of a shortcut, called an "environmental screening checklist", which
may be used "in certain cases" (without clearly defining what those cases are):
2.21.7.1 (Contd.)…In certain cases, the requirements for an
environmental impact assessment may be satisfied
through the completion of an environmental screening
checklist submitted to the approval authority as part of a
planning application. The purpose of the checklist will be
to provide a screening of the likelihood of negative
impacts.
2.21.7.2

[37]

Subsequent to the review of the checklist by the approval
authority, an environmental impact study, prepared by a
qualified individual, may be required in order to assess
the potential negative impacts on the natural features
and ecological functions of the area in question. Such
environmental impact study shall be required prior to the
consideration of the planning application by the approval
authority.

Next, as for the other OP “objectives” pertaining to heritage and vistas, the OP

acknowledges the “historical” development of cottage country, in a “linear” fashion along
the waterway, and the “integration of buildings and structures into those landscapes”. OP
Policy 2.2 addresses “waterfront development” among those “spectacular vistas”:
2.2.1

Historically, the areas of the Township which abut or are adjacent
to the Rideau Waterway and the Township’s many lakes and
rivers have attracted tremendous interest as summer recreational
areas. Over the years, low density seasonal dwellings evolved in
a linear fashion as waterfront areas were discovered by residents
of nearby towns and various communities much farther away…
This is hardly surprising, given the beautiful shoreline areas of
Rideau Lakes with their fabulous aesthetic appeal and superb
leisure and recreational opportunities…

2.2.2

While the character of specific waterfront areas varies, some of
the key elements of this character are:
-

The unique and limited land use mix, overall low density
of development and distinct form and massing of
buildings;

-

The presence of spectacular vistas and alluring natural
landscapes, and the integration of buildings and
structures into those landscapes with minimal
disturbance…

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[38]

PL150564

Finally, it was undisputed that this project would be subject to Site Plan Control.

At policy 5.4, the OP provides further detail on the requirements:
5.4.2

It is the intention of the Township to use Site Plan Control as a
planning tool complementary to the Zoning By-law to ensure
that…
2)

Design details, such as accessory buildings and
structures, lighting, walkways…, grading, drainage,
landscaping materials, fencing, etc., are adequate for the
uses proposed, in terms of functional, safety and
aesthetic considerations;

3)

Development occurs with minimal impact on natural and
cultural heritage resources, particularly where proposed
in immediate proximity to water bodies…

4.3 The Township’s Initial Argument: Requirements Had Been Met
[39]

During the first part of the hearing, the Township said the question before the

Board was whether to allow development on this a lot of record – with variances
accordingly – or whether to "sterilize" the lot. In the Board’s view, the key question
pertaining to the intent of the OP was this: what was the amount of due diligence that
was expected, in deciding whether this non-conforming waterfront property was
buildable.
[40]

The Township's planner said the proposal was "the best possible situation for the

property." “Sterilization", she said, would not only be undesirable for this property: it
would set a problematic precedent for the Township, because there were over a
hundred properties on the lake with under 30 m of space.
[41]

The Association disputed the sterilization argument. It said that many of those

smaller properties – including one immediately west of the subject property – had been
manifestly intended solely as boat launches, and that it was absurd to assume that
every lot of record had been intended for residential development.
[42]

Whatever the merits of those arguments, they failed to address whether the

proper due diligence had been invested in the current proposal, notably the impacts on

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PL150564

water quality, as described in the OP. The Township's planner countered, however, that
the subject property was not covered by the cited environmental provisions of OP policy
2.21.7.1 – and that even if it were, those requirements had been satisfied anyway.
Those arguments are addressed in turn.
[43]

First, she said this lot was not covered by those OP environmental requirements,

because this lot had no "identified natural heritage features." She reached that
conclusion because the lot was not designated as a “natural heritage feature” on the OP
map. For that matter, she added, it had no wetland, or significant woodland.
[44]

The Board was not persuaded. OP Policies like 2.21.7.1 do not confine those

ecological requirements to "designated" features; the OP applies them to "identified"
natural features. The question is therefore whether the OP had "identified" this lakefront
accordingly.
[45]

The answer is clear. At policy 1.3.2, not only does the OP itself label the lake a

"significant natural feature"; in describing the "basis of the plan", it calls it (and similar
water bodies) the Township's most significant natural features:
The most significant natural feature of the Township is its water bodies.
These are a resource of paramount value…

[46]

For good measure, the OP adds, in the same section:
The Rideau Waterway has been designated as a Canadian Heritage
River, thus further elevating its natural significance.

[47]

With such overt OP language, specifically labeling the lakefront as a "natural

feature" of "paramount" importance, the Board was not persuaded that the lakefront had
failed to be "identified" as a natural heritage feature, e.g. for purposes of OP Policy
2.21.7.1.
[48]

The Township's planner went on however, to argue that, even if the lakefront

were a natural heritage feature, the Township had already met the procedural

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PL150564

requirements of OP policy 2.21.7.1 anyway. Though there had been no EI assessment,
there had been the alternative of an "environmental screening checklist", thereby
satisfying that OP requirement.
[49]

On closer examination, however, there were three problems with that argument.

[50]

First, the OP defined this checklist as a “checklist submitted to the approval

authority as part of a planning application.” No such checklist was submitted to the
Township with the application. Indeed, according to the Township's planner, the
Township presumed that the "checklist" was not something to be submitted to it with the
application, but rather something the Township would create and complete itself.
[51]

Next, no Township document explained what the checklist even was, let alone

what its contents were.
[52]

Finally, though the word "checklist" usually brings to mind a significant list of

questions to be answered that was not what the Township did here. In practice, the
Township's planner said that, unless the site was already designated as a natural
heritage feature on the OP map, the "checklist" comprised only two questions: was
there a significant wetland, and/or a significant woodland? If those two answers were
negative, she said the matter was then at an end, and no further environmental
requirements existed, at least under this interpretation of the OP.
[53]

The Board was unconvinced that the checklist, such as it was in this case,

constituted anything similar to the kind of due diligence anticipated in the OP.
[54]

That does not mean the Board was unsympathetic to the Township’s position,

and that of its planning staff. The amount of shoreline in this Township is prodigious. If
the Township were to treat every centimetre of its shoreline as a prospect for an
encyclopaedic EI assessment, then the consequences – just to review the resulting
paperwork – could be unnecessarily onerous for both the Township and its ratepayers.

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[55]

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The solution, however, is not to sidestep the OP with contrived shortcuts. If the

Township perceives the current OP methodology as unwieldy, then it should consider
drafting an Official Plan Amendment which provides more workable language, so as to
focus on situations which involve bona fide environmental concerns, and to provide
more expeditious analysis for situations which clearly do not. The Township might even
consider using that opportunity to further clarify its OP position on those numerous
undersized lots, before being confronted with more litigation like the current case.
However, the Board leaves those questions for the Township to decide.
4.4

The Subsequent Township Position, in Light of Further Assessment

[56]

As it turns out, the applicant used the five-month hiatus to commission Mr.

Genge’s professional study of prospective water quality.
[57]

Big Rideau Lake has been extensively studied for decades. Mr. Genge reviewed

data going back over 40 years, based on the lake's dilution capacity, its flushing
capacity, and its lake morphology. He concluded that the project, particularly with its
tertiary treatment system, represented no threat of any visible net decline in water
quality. "I can't come to any other conclusion." He attached his own series of
recommended conditions. The Township concluded that "the EI Assessment has been
done."
[58]

Ms. Bradburn of the RVCA did not dispute Mr. Genge’ findings. Mr. Hannah, for

the Association, agreed that Mr. Genge "has addressed the fish habitat issue”; he also
agreed that there was no likely impact on water quality. The Board finds no evidence to
the contrary.
4.5

Other Overt Considerations

[59]

Mr. Rasmussen argued that, although Mr. Genge’s report had disposed of the

question of water quality for trout, "it doesn't deal with any of the other matters". Mr.
Hannah added that "the onus is on the applicant to provide a lot more information."

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[60]

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For example, PPS Policy 2.6.3 explicitly called for an "evaluation" that heritage

attributes would be "conserved". Mr. Hannah also pointed to the OP emphasis on
vistas, and the resulting inference that those too deserved attention and consideration.
Similarly, under OP policy 2.21.7.2, an EI Assessment would normally address
supplementary matters other than water quality, notably a proper "map" of:
•
•
•
•
[61]

building location
grading
drainage
landscaping

Mr. Rasmussen asked the applicant's planner to confirm that this was more

information than appeared in Mr. Genge’s report. She agreed.
[62]

So does the Board. However, although there was clear OP direction that

applicants and officials must give visible and credible consideration to those other
factors, the question is the venue.
[63]

As alluded to, it is not uncommon, in variance matters, to attach conditions

stipulating that all prerequisites must be met. In this instance, however, the Board is
mindful that the OP goes on to repeat that most of those same factors are addressed in
the Site Plan stage. Indeed, OP policy 5.4.2. targeted those factors for the Site Plan
process, notably:
•
•
•
•
•
[64]

design
grading
drainage
landscaping
“impact on natural and cultural heritage resources”

The Board will not presume that the OP intended this process to be uselessly

duplicative or repetitive.
[65]

The Township argued that it had every intention of addressing those matters in

full, during the Site Plan process. That is not to suggest that the informational

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requirements would be any less rigorous; that would be contrary to the plain intent of
the OP, which attaches manifest weight to this information. Since bad faith is not
presumed, the Board has no ground to doubt the sincerity of the Township in that
regard.
[66]

For that reason, the Board considers it unnecessary to incorporate a plethora of

supplementary conditions to the variances, pertaining to information which is already
anticipated to be fully included and considered in the Site Plan process. The Board has
every expectation that the Township would abide by that commitment.
[67]

The same applies to vistas. Although there was once a school of thought which

supposed that aesthetics had no role in the Ontario planning system, that assumption
has been put aside – particularly when an OP makes such considerations obligatory.
Again, however, the Board considers it unnecessary to belabour that point, on the
premise that the Board fully expects that the Township would want to pursue that issue
in its Site Plan process anyway.
4.5 The 15-Metre Vegetated Setback
[68]

As mentioned, OP Policy 2.6.1.3 says that, as “part of the 30-metre minimum

water setback”, one should maintain “a minimum 15-metre strip of substantially
undisturbed and naturally-vegetated area abutting the length of the shoreline”. This
variance proposal, however, suggested a water setback of neither 30 m nor 15 m, but
12.8 m.
[69]

The Township argued that the Board could discount a literal application of the

OP’s reference to a 15 m strip, so long as it maintained the intent of the OP. Indeed, the
Township argued that the OP could not possibly intend a 15 m vegetated buffer; if it did,
it would have been impossible e.g. to build a deck there – whereas the Zoning By-law
(which was presumed to comply with the OP) clearly permitted same. By that
interpretation, the OP's explicit 15 m strip need not really be 15 m.

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Despite the eloquence of the argument, the Board was unconvinced. Granted,

the OP starts with an explicit setback of 30 m, but then allows exceptions for smaller
lots of record; but that is because the OP says so specifically. The OP specifies no
similar overt exception for the 15 m strip.
[71]

The Board remains mindful that the Zoning By-law does allow decks to encroach

on this strip; but that is not conclusive. Across Ontario, it is not uncommon for planning
documents to assimilate decks and patios to "hard" and "soft" landscaping, thus
permitting them in areas otherwise reserved for landscaping. The wall of a dwelling is a
different matter.
[72]

In short, although the Board was persuaded that the intent of the OP could still

be maintained with a water setback of 15 m, it found no similar authority at 12.8 m.
[73]

Given the resulting necessity of reorganizing the proposed lot layout, the Board is

dispensing with the COA's first condition, about following the specifications in the
application.
[74]

Finally, the above application of the 15 m strip is not to suggest that a new

building must be invisible. The OP calls for aesthetics and good design; it does not posit
that the visual character of the Waterway is a wilderness. On the contrary, the OP
clearly recognizes that this Waterway’s character is interwoven with its longstanding role
as cottage country.
5. ORDER
[75]

The Board disposes of this matter as follows:
1. The Board orders that the following variances to Zoning By-law 2005-6 of the
Township of Rideau Lakes are hereby authorized:
a)

to allow the dwelling to have a 15 metre water setback

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b)

to allow the septic system to have a 15 metre water setback

c)

to permit a one-metre rear setback

d)

to waive the requirement (807 square feet) for minimum building size

2. The above variances are subject to the following conditions:
a) That a Waterloo Biofilter sewage disposal system be installed, or tertiary
equivalent, including phosphorus treatment, the whole in accordance with
the Ontario Building Code. Should the applicant choose to install a
Waterloo Biofilter Area Bed System, the applicant will be required to
adhere to all requirements subject to the CEMC (99-08-236) approval,
including but not limited to, the maintenance program.
b) That notwithstanding the water setback authorized above, the Owner shall
construct the system at no less than 15 m from the water, plus such
additional space as far back from the water as possible, while complying
with the Ontario Building Code.
c) That the existing buffer of natural vegetation be maintained between the
structure and the rear lot line.
d) That existing vegetation within the 30 m setback shall be maintained,
except for that disturbed by the proposed development. The Owner shall
develop a shoreline naturalization buffer (no disturbance area) extending
15 m back from the high water mark. A moderate shoreline access path
through this area is permitted.
e) That the shoreline naturalization buffer shall be planted with native
species in accordance with an approved landscape plan. The Owner shall
prepare and submit to the Township a landscape plan, illustrating the re-

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vegetation of the naturalization buffer that shall be created within the first
15 m of the shoreline, and the landscape plan shall be incorporated into
the Site Plan approval.
f) That stormwater runoff be captured and directed away from the lake to an
area of infiltration.
g) That the Owner shall submit to the Township a grading and drainage plan
prepared by a Professional Engineer, and a site plan drawing illustrating
the dwelling location and septic system location, with setback distances to
the shoreline to the satisfaction of the Township, all of which shall be
incorporated into the Site Plan approval.
h) That all outdoor lighting be downward cast, and as minimal as required to
meet the required objectives.
i) That all materials used on the exterior of the structure be of a natural
material or a colour reflective of the surrounding environment.
j) That sediment and erosion control measures be implemented during all
stages of construction. This must include some form of silt fencing
between the areas of development and the lake. This fencing must remain
in place until all areas that were disrupted are fully stabilized (i.e. no bare
soils remain).
k) That all excavated material is to be disposed of away from the lake, and
all construction material shall be stored in a location well away from the
lake.
l) That future development not included in this application will be subject to
review and approval by the Township, RVCA and/or Parks Canada and
any other governing agency or regulations where applicable

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m) That the Site Plan Agreement, Site Plan, Landscaping Plan and Site
Grading and Drainage Plan shall be registered on title.
n) That immediately after installation of the septic field, the septic field shall
be covered with sod to avoid any erosion of topsoil into the lake in the
event of a heavy rainfall episode.
o) That any excavation materials during the construction stage shall not be
stored on-site but shall be removed at the time of excavation.
p) That access to the water should be in close proximity to the existing
boatslip.

“M. C. Denhez”
M. C. DENHEZ
MEMBER

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If there is an attachment referred to in this document
please visit www.elto.gov.on.ca to view the attachment in PDF format.
Ontario Municipal Board
A constituent tribunal of Environment and Land Tribunals Ontario
Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248