OMB Decision - PL130149-FEB-05-2015

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended Appellant: Robert Anderson Appellant: Adri & Tim Eastman Appellant: Rudy Huisman Appellant: Steve Johnson; and others Subject: By-law No. B2013-009 Municipality: Municipality of Trent Lakes OMB Case No.: PL130149 OMB File No.: PL130149 PROCEEDING COMMENCED UNDER subsection 17(36) of the Planning Act, R.S.O. 1990, c. P.13, as amended Appellant: Adri & Tim Eastman Appellant: Ryan & Rebecca Jory Appellant: Vince Virgilio Subject: Proposed Official Plan Amendment No. OPA 41 Municipality: Municipality of Trent Lakes OMB Case No.: PL130149 OMB File No.: PL130770 Heard: The hearing took place May 20 to June 5, July 25 and

August 18, 19, 2014, Bobcaygeon, Ontario. APPEARANCES: Parties

Counsel

Dewdney Mountain Farms Ltd. David S. White Municipality of Trent Lakes M. John Ewart and Courtney O’Dwyer

Ontario Municipal Board Commission des affaires municipales de l’Ontario

ISSUE DATE: February 5, 2015 CASE NO(S):

PL130149

2 PL130149 Adri and Tim Eastman Melissa and Steve Johnson

Rebecca and Ryan Jory

Janet and David Klein

Ruth Pillsworth

Rudy Huisman

Robert Anderson

Charles Simpson

Vince Virgilio Eric Gillespie and David Huang DECISION DELIVERED BY C. HEFFERON AND INTERIM ORDER OF THE BOARD

BACKGROUND

[1] Dewdney Mountain Farms Ltd. (“Applicant”) owns approximately 390 hectares

(“ha”) or 964 acres on Concession 15 in (the geographic township of) Harvey, County of

Peterborough, Part lots 28, 29, and 30 (“subject lands”). The subject lands, which are

municipally known as 2418 Ledge Road, are located approximately 14 km northeast of

Bobcaygeon.

[2] The north portion of the subject lands was severed from the south portion by way

of a decision rendered on December 12, 2012, by the Municipality of Trent Lakes

(“Municipality”). A subsequent decision of the Ontario Municipal Board (“Board”) dated

December 10, 2013 approving Zoning By-law No. 2013-072 fulfilled the main condition of

that earlier (December 12, 2012) decision of the Municipality. The Board’s December 10,

2013 decision granted provisional consent to the Applicant to create a severed lot of 215

ha and a retained lot of 175 ha on the subject lands.

3 PL130149 [3] A location map of the subject lands showing the retained and severed lots was

entered into the evidence as Exhibit 7C.

[4] The Applicant proposes to maintain the severed (or north) portion of the subject

lands, comprising approximately 215 ha as a private hunt camp and/or seasonal

recreational residence and to develop the retained (or south) portion, comprising

approximately 175 ha, as a limestone quarry (“proposed quarry”).

[5] In order to develop the proposed quarry, two discrete steps are required:

a. The first step is to obtain local land use permissions, which include

amendments to the Municipality of Trent Lakes Official Plan (“OP”) and the

Municipality of Trent Lakes (comprehensive) Zoning By-law No. 85-94 (“By-

law”). The Board was told that an amendment to the County of Peterborough

Official Plan (“COP”) is not required.

b. The second step is to obtain a Category 4, Class A quarry license pursuant to

the Aggregate Resources Act (“ARA”). The license is granted by the Minister

of Natural Resources and Forestry (“MNRF”).

[6] The proposed quarry lands are within an area designated for that purpose under

Schedule 1 of Ontario Regulation (“O/Reg.”) 244/77 made under the ARA. Although s.

8(1) of the ARA requires among other documents, a Site Plan of the proposed quarry

lands to be submitted to MNRF along with an application for a license to extract, the

Board was told that the Applicant had not yet submitted a license application.

Consequently, the reports and the Site Plan required to be submitted before a license to

establish a quarry remain in draft form. Only where an application for a license has been

made and persons request the MNRF to refer the objections to the Board under s. 11(5)

of the ARA will the Board have power to deal with matters concerning the proposed haul

routes and the impact of their use by, for example, a number of gravel trucks and the

noise and dust that result.

4 PL130149 [7] Official Plan Amendment No. 41 (“OPA 41”), which amends the OP was adopted

by the Municipality of Trent Lakes (“Municipality”) on January 15, 2013 and subsequently

approved by the County of Peterborough (“County”). OPA 41 changes the designation of

the proposed quarry lands from “Rural” and “Environment Protection” to “Aggregate

Resource Extraction”.

[8] Zoning By-law No. 2013-009 amends the By-law to change the zoning on the

proposed quarry lands from Rural (“RU”) and Hazard Land (“HL”) to Special District

(“SD”) 674 and SD 649 H to allow for a quarry and associated uses. The “H” in SD 649 H

indicates a Holding category.

MATTER BEFORE THE BOARD

[9] The Appellants, who are listed above, appealed the January 15, 2013 decisions of

the Municipality to adopt OPA 41 and to approve Zoning By-law No. 2013-009 to the

Board. The application for a license to extract under the ARA is not before the Board in

these proceedings.

PARTICIPANTS

[10] The Board granted participant status to a number of individuals as well as to two

incorporated community associations:

Pirates Glen Community Association represented by Edward Oakes, LLB

North Pigeon Lake Ratepayers Association represented by Ross Morton

Traditional Native Healing Community (unincorporated) represented by

Dan Whetung

Ray and Janet Shier

Marie Windover

5 PL130149

Erin Pillsworth

Adolph Noth

The Rev. Rodney Smith-Merkley

Nicolette Thomas

Lynn Penard

Doreen Lewis

Wayne Haagsma

Stephen Janes

Elaine Fritz

Robert W. Preston

Peter Kretz

Judy Kennedy

George Hewison

Robert Anderson

Elaine Bird

Colin Croxton

Carrie Hoskins

Patricia Warren

PARTICIPANTS’ EVIDENCE

[11] The participants, a remarkable number of whom sat through every single day of

the hearing along with another estimated 60 - 70 regular attendees, expressed their

concern about:

6 PL130149

Noise and dust being raised by the heavy trucks traveling to and from the

proposed quarry not only adversely affecting residents’ quiet enjoyment of

their properties and the value of these properties in the marketplace but also

adversely impacting the number and length of tourist visits to the area. The

Board was informed that the tourism industry is the major employer in the

Kawartha Lakes/Trent Lakes area outside Peterborough;

The health and safety of local automobile drivers being adversely impacted by

the great number of heavy trucks traveling to and from the proposed quarry. A

large number of the local automobile drivers are of an advanced age and/or

are uncomfortable in the midst of heavy, fast moving truck traffic;

The safety and response time of emergency vehicles (fire and ambulance)

being adversely affected by the sometimes slower moving heavy trucks;

Possible hazard to personal vehicles traveling westbound on County Road #36

resulting from the loaded trucks turning westbound at the foot of Quarry Road

to climb up the steep incline on County Road #36;

Possibility of significant nuisance to residents from the engine and gearbox

noise of the trucks as they negotiate both the steep incline on Quarry Road

where it intersects with County Road #36 and the sharp incline on Country

Road #36 as it climbs westerly towards Bobcaygeon;

The surface of the proposed haul route (County Road #36 and the roads

leading from the proposed quarry) being adversely affected from the large

number of heavy trucks traveling to and from the proposed quarry. The

expense of repairing this damage would not be covered by fees collected from

the existing and proposed pits and quarries but must be paid for from local

taxes;

7 PL130149

Possibility of adverse impact on the wildlife and the natural environment both

from the operation of the proposed quarry and from the resulting increase in

heavy truck traffic;

MNRF has demonstrated itself to have insufficient manpower to police existing

quarries let alone a large new quarry located a considerable distance from the

nearest MNRF office;

Concern that all of this pit and quarry activity in the area having a devastating

effect on the water quality of Nogies Creek. It was estimated there are already

some 40 - 50 licensed pits and quarries operating in the area. More are

planned, including some relatively near the Applicant’s proposed quarry;

Extent and exact location of the Dewdney Caves are not known. If the caves

extend under the proposed quarry, blasting could result in major, even

irreparable, damage to local water wells and ground water flowing towards

Nogies Creek;

Blasting and waste water run-off from quarry operations causing serious

damage to the fish sanctuary and muskellunge breeding area located within

200 m of the quarry boundary. The potential risk to water quality and the fish

sanctuary/fish breeding area has not been adequately assessed. Nor have risk

mitigation measures been adequately considered;

Waste water run-off from the quarry operations adversely impacting the water

quality of Nogies Creek. This would have a devastating impact on tourism as

the Nogies Creek system is a major tourist draw. The Board was told that

Nogies Creek is actually a substantial waterway with several lakes in its

course, including Bass Lake and Pigeon Lake. While several participants

8 PL130149

indicated that they take all their household water from Nogies Creek, two of

the participants indicated that they also draw their drinking water from it;

The Bobcaygeon area derives a significant portion of its tax revenues from

people who have chosen to retire to the area for its tranquility. The operation

of a quarry with its attendant noise, dust and large trucks could create

nuisance and safety issues, which could adversely impact quality of life;

There is a potential adverse impact on carefully developed, long established

snowmobile trails on the periphery of Ledge and Quarry Roads. Local tourist

operators depend on snowmobilers during the winter months;

There is the distinct possibility of the pproposed quarry adversely affecting not

only the Curve Lake First Nation’s cultural and social history but also its

traditional medicine practices.

[12] The Board notes that a number of these objections deal with matters that the

Board lacks the power to deal with since at the present time objections to the proposed

quarry and its impact have not been referred to the Board by MNRF under section 11(5)

of the ARA.

LOCATION

[13] The proposed quarry is located at the north end of Ledge Road approximately

4.26 km from the intersection of Quarry Road and County Road #36. Ledge Road, which

dead ends at its north end where the proposed quarry is located, joins Quarry Road

approximately 1.2 km north of the intersection of Quarry Road and County Road #36.

The surface of Quarry Road has been treated with (limestone) chips and bitumen for its

entire length. The surface of Ledge Road is, for the most part, loose gravel. For the 100

or so metres where it passes a residence, Ledge Road is regularly treated with a liquid

dust retardant.

9 PL130149 [14] For its first approximately 150 m, Quarry Road rises steeply from the point that it

intersects with County Road #36, and continues to rise (though less abruptly) for the next

approximately 250 m. For the following approximately 1.1 km, Quarry Road is

characterized by sudden rises and dips as it climbs towards its intersection with Ledge

Road.

[15] The Board was told that there are 18 year-round and seasonal residences located

on Quarry Road and Ledge Road. The lots range in area from approximately one ha to

more than 40 ha.

[16] Six of these 18 residences are located on Ledge Road. The home of Adri and Tim

Eastman, who are Appellants in these proceedings, is located approximately 2.2 km from

the south boundary of the proposed quarry. This is the closest year-round residence to

the proposed quarry.

[17] There are also an estimated 8 - 12 hunt camps in the general vicinity of the

proposed quarry. They are mainly accessed from Ledge and Quarry Roads although

some have access from Bass Lake Road, which is located on the western fringe of the

proposed quarry. The closest hunt camp is approximately 150 m distant from the

boundary of the proposed quarry.

[18] Zoning By-law No. 2013-072 defines the term “hunt camp”. Generally the by-law

provides that a hunt camp may not be utilized for permanent or seasonal recreational

purposes and restricts such structures to temporary human habitation during established

hunting seasons. For hunters who are not members of a First Nation, deer hunting and

moose hunting are each only legal for two weeks annually.

[19] Murray McGill, a professional geologist retained by the Applicant, explained in

cross-examination that a hunt camp is typically a basic, very rustic shelter intended to be

used mainly in the deer and/or moose hunting seasons. Some of these hunt camps may

be more elaborately furnished than others. While most are relatively primitive (with

10 PL130149 outdoor facilities and no running water) one or two were described as “comfortable”,

having indoor facilities, electricity (sometimes provided by on-site generators) and full

appliances.

[20] Approximately 700 m north of the north boundary of the proposed severed lands

is the main entrance to the Dewdney Mountain Caves. Although the actual extent of the

caves became a matter of dispute during the cross-examination of one of the

participants, the Board found on the evidence presented by qualified experts (and long

time local residents who claimed knowledge of the caves) that the full extent of these

caves has not been mapped either by local authorities or by the MNRF and is still

therefore largely unknown.

[21] The proposed quarry is located at the north edge of a large limestone deposit.

This deposit is approximately 1,200 ha in area. The limestone deposit is identified on

Schedule C of the MOP. Schedule C, which identifies “mineral aggregate resource

areas” in the Municipality, was entered into the evidence as Exhibit 39, Tab 15, page 5.

[22] Aerial photos entered into the evidence show the entire municipality to be heavily

forested. The Board was told that the subject lands have been used for logging for

decades and that Ledge Road, Quarry Road and County Road #36 have been used as

the haul route for these operations for much of that time.

[23] Near the intersection of Quarry Road and Tie’s Mountain Road (about one km

north of County Road #36) is located the Johnson Quarry which is owned by the

Emerald Group. This quarry has been in operation for a number of years but it has a

significantly smaller licensed extraction capacity than the proposed quarry. Tie’s

Mountain Road, Quarry Road and County Road #36 are designated as the haul route for

this smaller quarry.

11 PL130149 THE APPELLANTS’ POSITION

[24] 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.

THE APPLICANT’S POSITION

[25] The Applicant contends that both Provincial and local land use planning policies

support development of a quarry on the subject lands. The Applicant understands that if

it is granted the requested land use planning permissions, this is only the first step. It

must still apply to the MNRF for a quarry license and it will have to satisfy all MNRF

regulations pursuant to the ARA as well as the Ministry of the Environment (“MOE”)

guidelines before a quarry license will be issued.

THE MUNICIPALITY’S POSITION

[26] The Municipality supports the Applicant’s position.

EVIDENCE AND FINDINGS

[27] The Appellants received written submissions from a number of experts. Most of

these experts were not called to defend their submissions.

[28] Exhibits 7A - E, which is a draft of the proposed Site Plan that is required to be

submitted with an application for a license to extract, shows the boundary of the

proposed quarry. The boundary is defined with a solid purple line. A dotted line shows

the extent of the potential limestone resource. Murray McGill prepared the proposed Site

Plan, which is needed both for the requested OPA and for the ARA license to extract. Mr.

McGill, a professional geologist retained by the Applicant, was qualified to provide

12 PL130149 opinion evidence on geology and the preparation of Site Plans pursuant to the ARA.

[29] The proposed haul route and the impact of heavy gravel trucks using it,

particularly on the stretch from the proposed quarry to County Road #36, was a major

issue in the hearing. It was certainly the core issue for many of the Appellants, most of

whom maintain year round residences with addresses on either Ledge Road or Quarry

Road. They cited noise and dust raised by the gravel trucks as well as the safety hazard

constituted by gravel trucks on these local roads.

[30] From the proposed quarry, the proposed haul route runs approximately 3.1 km

south on Ledge Road, which was described as a loose surface gravel road. It was also

described as “hummocky” or hilly with a number of curves. This raised concerns in some

of the witnesses respecting view lines for motorists using the road. The proposed haul

route would continue for approximately 1.15 km on Quarry Road, which (as earlier noted)

has been surface-treated with stone chips and bitumen. County Road #36, the highway

portion of the proposed haul route, was described as a two-lane former Provincial

highway whose maintenance is now the responsibility of the County it passes through.

The Board was told by David White, counsel for the Applicant, that County Road #36 has

been a designated haul road “for years”. No objections were raised at this information.

[31] Local residents, those who do not live on either Ledge or Quarry Roads, and who

were recognized by the Board as participants to these proceedings were concerned in

part with safety and health issues raised by an increased number of heavy trucks using

County Road #36, particularly the stretch between Bobcaygeon and Lindsay.

[32] Colin Croxton, a Bobcaygeon resident who described himself as a retired Toronto

police officer with extensive experience with traffic accidents, explained in some detail

the dangers posed to automobiles and motorcyclists by large gravel trucks, particularly

those gravel trucks pulling (tri-axle) pup trailers. His testimony was supported by a

number of local residents who expressed their concern that when they are obliged to

drive to Lindsay (for example, to keep a hospital appointment) they regularly have to

share County Road #36 with loaded gravel trucks travelling at high speeds. Trucks from

13 PL130149 the proposed new quarry would in the opinion of Mr. Croxton greatly exacerbate an

already hazardous highway situation.

[33] A witness statement from Stephen H. Janes, P.Eng, a property owner in Trent

Lakes was entered into the evidence as Exhibit 45, Tab 5. Mr. Janes, who identified

himself as a professional engineer and registered professional planner, opposed the

proposed quarry. His evidence focused on the road improvements to the haul route as

recommended by D.M. Wills Associates Limited and how these improvements would be

managed in the context of the final site design. He expressed his concerns as a

professional planner that the interests of the local residents, particularly those living on

the proposed haul route, would be ignored when the final Development Agreement and

Haul Route Agreement are signed. He expressed similar apprehension respecting the

circumstances under which the “H” or Holding designation on the subject lands would be

removed.

Road Noise

[34] The Board qualified both Dr. Hugh Williamson, a professional acoustical engineer

retained by the Applicant and John Emiljanow, a professional acoustical engineer

retained by the Appellants to provide opinion evidence on acoustical engineering. The

Board finds on the evidence that as a result of revisions made to the Site Plan to

eliminate a proposed concrete batching plant and further discussions between Dr.

Williamson and the Appellants’ noise consultant, Mr. Emiljanow, the issue of impact of

noise resulting from the on-site operations of the quarry could be resolved. Dr.

Williamson’s two reports respecting mitigation of noise created on-site from the operation

of the quarries were entered into the evidence as Exhibits 74 and 90.

[35] 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.

14 PL130149 [36] Dr. Williamson’s draft acoustic impact assessment report dated July 18, 2014 for

the proposed haul route covering the approximately 4.26 km from the entrance of the

proposed quarry lands to Country Road # 36 was entered into the evidence as Exhibit

89.

[37] It was acknowledged by both of noise consultants that the current ambient one

hour equivalent sound level along the haul route is in the range of 30 – 35 dba. Dr.

Williamson explained that the term “dba” measures the impact of sound on a receptor.

[38] The Board was told that “45 dba” is generally considered by acoustic

professionals to be an acceptable one hour equivalent sound level in a rural area. The

projected noise increase, Dr. Williamson contended, should therefore be measured from

a base of 45 dba rather than the existing 30-35 dba. Mr. Emiljanow did not agree. Mr.

Emiljanow maintained that an increase of 10 + dba (as measured from the current 30 -

35 dba along Ledge Road to the generally accepted rural noise level of 45 dba) would be

classified using MOE Guidelines MPC 232 as “very significant” (Exhibit 89, table 9).

[39] From the testimony of the two experts, the Board concluded that noise levels of

30-35 dba are more commonly found in wilderness areas rather than on rural properties

metres from a municipal road that is maintained year-round, which is the case in the

subject area, and on which families live and presumably use power tools (chain saws,

garden tractors, power mowers, etc.) to maintain their properties. The Board prefers the

evidence of Dr. Williamson and finds that for the purposes of these proceedings, the

ambient one-hour equivalent sound levels along Ledge and Quarry Roads should be

considered to be 45 dba.

[40] The report concluded that there would be an increase in ambient noise levels for

the 18 receptors likely to be impacted by trucks using the haul route. Four of those

receptors would experience one hour equivalent sound levels greater than 50 dba after

mitigation measures had been applied. Dr. Williamson contended that with conventional

mitigation measures to reduce the impact on the most affected receptors, the sound level

along Ledge Road would not be unacceptable. Mr. Emiljanow did not agree.

15 PL130149 [41] Noise mitigation measures suggested by Dr. Williamson included moving the

travelled portion of Ledge Road further away from the front lot lines of the residences as

well as constructing earthen berms and/or acoustic barriers to further reduce the noise

levels at the closest façade of the most affected receptors. Exhibit 89, Table 9 indicates

that two of those four most affected receptors (numbers 2024 and 2008) front on Ledge

Road. Exhibit 89, Table 10 shows the two others front on Quarry Road (Numbers 1876

and 1819).

[42] Dr. Williamson explained that because the Municipality intends hunt camps to be

used a maximum four weeks per year, they are not classified as residences. He pointed

out, however, that he and Mr. Emiljanow agreed between themselves that they should be

treated as receptors in the present case.

[43] Dr. Williamson advised that unlike Ledge Road, Quarry Road is already a

designated haul route for the existing Johnson Quarry, although it was acknowledged

that the Johnson Quarry does not operate these past few years at its maximum licensed

capacity. Dr. Williamson also measured the projected one-hour equivalent sound levels

at seven of the affected receptors along Quarry Road and found that only two were

greater than 50 dba (as noted above). Five were between 45 and 50 dba.

[44] The Board was advised that there is no established set of (MOE) guidelines

dealing with noise impacts emanating from mineral aggregate haul routes. While

operators are required to use best efforts to minimize adverse impact from noise and

dust, no official guidelines have (as yet) been developed.

[45] Dr. Williamson suggested however that the MOE 1998 document titled, Noise

Guidelines for Landfill Sites, could provide some guidance for quarry haul routes. This

document was entered into the evidence as Exhibit 78. He indicated that in coming to his

conclusions respecting the potential impact of noise on the receptors along Ledge Road

and Quarry Road, he used the above MOE document. He also drew on the Ministry of

Transportation (“MTO”) Guide for Noise, which is used for highway noise assessment

16 PL130149 and mitigation as well as MOE Guideline NPC-300, the latter of which has a section

dealing with mitigation of transportation noise.

[46] Dr. Williamson explained that an estimated ten of the total 18 receptors along the

Ledge and Quarry Roads portion of the proposed haul route would be impacted by

increases in noise levels that would result from the quarry operating at its maximum

licensed capacity of 1.2 million tonnes per year.

[47] He testified that one or more of his suggested mitigation measures would reduce

noise impacts to below 50 dba at seven of the receptors and to 52.13 dba, 52.02 dba

and 53.21 dba respectively at the remaining three. The “Glossary of Terms and

Descriptors” in the MOE Guidelines states that increases above the ambient noise level

of between 2 dba and 5 dba are “detectable” but unlikely to cause any discomfort. This

would apply to seven of the receptors. On the evidence of Dr. Williamson, the Board

finds that the projected noise increase at these seven receptors is acceptable.

[48] The projected noise impacts at the remaining three receptors would be subject to

“moderate to significant” (5 dba to 10 dba) increases in noise levels. The Glossary says

that “moderate to significant” increases in noise levels at these three receptors “may be

adverse”. Again, the Board has taken note that the Guidelines require that these noise

levels are measured at the front façades of the receptors. On the evidence of Dr.

Williamson and Mr. Emiljanow, the Board finds that these increases above the ambient

noise levels, which tend to cluster in the upper middle of the “moderate to significant”

continuum, are not on balance unacceptable.

[49] Dr. Williamson further advised that there remains considerable work yet to do to

arrive at effective threshold numbers (that is, annual tonnages) specifying exactly when

additional noise mitigation measures would need to be implemented. He took the Board

to Exhibit 89, Table 8, which sets down the proposed threshold numbers to demonstrate

his point. Table 8 recommends annual threshold numbers, which when breached would

require additional sound mitigation measures for some or all of the ten most affected

receptors along the haul route. He suggested that if these threshold numbers were

17 PL130149 based on monthly rather than annual production numbers, the required mitigation

measures could be implemented more quickly and there would be less overall adverse

impact from noise affecting the receptors along the haul route. Mr. Emiljanow agreed

with this assessment. The Board accepted the un-contradicted evidence of Mr. McGill

that it takes several years before a quarry’s production can be ramped up to its full

licensed capacity and in many cases production never reaches its full capacity.

[50] Considerable technical discussion between and among the two acoustic experts

and the Board ensued during the hearing, much of which concerned the potential

adverse noise impact resulting from trucks using the haul route during the eight months

of the year when road building and quarry activity could be expected to be most intense.

However, there was no final agreement from the experts on how adverse noise impacts

might be mitigated to what Mr. Emiljanow testified were in his opinion “acceptable”

levels. Again, the Board notes that Mr. Emiljanow testified that he was of the view that

the impact of any projected increase in noise levels should be measured from 30-35 dba,

rather than from 45 dba, which the Board found on the evidence to be an acceptable

ambient noise level in a rural area such as the one in question.

[51] After consideration of all the evidence relating to the question of increased noise

impacts along Ledge Road and Quarry Road, the Board finds that a “moderate to

significant” increase in the one-hour equivalent sound level (that is, to between 50 dba

and just over 53 dba at the front façades) at three of the receptors is, on balance,

acceptable for this stretch of rural road, which sits on a well-identified limestone deposit.

[52] Schedule C of the OP identifies the location of the known limestone deposits in

the Municipality. In fairness to the people who built homes on Ledge Road, the Board in

arriving at these findings was not unaware that Schedule C was not incorporated into the

(Municipality’s) OP until 2005, which, in some cases, was several years after property

owners on Ledge Road and Quarry Road had built their homes. However, the 2005 OP

amendments are in force and are not before the Board. Provincial policy on the location

and potential impact of mineral aggregate operations is analysed below.

18 PL130149 TRANSPORTATION

[53] The submission of the Pirates Glen Community Association expressed general

apprehension about the futility of dealing with quarry applications on a piecemeal or ad

hoc basis. The submission also pointed to possibly irreparable damage should the

operations of the proposed quarry damage the water table. In addition, the submission

addressed the question of traffic safety for eastbound traffic coming over the brow of the

hill as the gravel trucks enter and leave the intersection of Quarry Road and County

Road #36. On behalf of the Association, its president, Edward Oakes, recommended

warning signs be installed at appropriate locations along the haul route.

[54] The Board qualified William Copeland, PEng, who was retained by the Applicant,

to provide opinion evidence on transportation engineering. The evidence of Mr.

Copeland discussed required improvements to the proposed local haul route along

Ledge and Quarry Roads. Mr. Copeland also recommended improvements to the

intersection of County Road #36 and Quarry Road to ensure the safety of the public

using these roads. Mr. Copeland’s reports were entered into the evidence as Exhibits 19

and 20. His reports were peer-reviewed by Stantec Consulting Ltd (“Stantec”). Stantec,

which had been retained by the Municipality, agreed with Mr. Copeland’s report. The

Stantec report was entered into the evidence as Exhibit 21.

[55] A report prepared by Frank Berry, PEng, was entered into the evidence by Ian

Gillespie, counsel for the Appellants, as Exhibit 45 Tab 1. Mr. Gillespie submitted Mr.

Berry’s report as a chapter in the Appellants’ document book (Exhibit 45). Exhibit 45

included under Tab 1, the report prepared by Frank Berry, PEng. As Mr. Gillespie did not

call Mr. Berry as a witness, his report could not be tested. As a consequence, the Board

will not have regard to Mr. Berry’s report. Mr. Berry was retained by the North Pigeon

Lake Ratepayers Association and Stephen Janes.

[56] After consideration of Mr. Copeland’s opinion evidence as well as the opinion

evidence of the acoustic experts Dr. Williamson and Mr. Emiljanow, as well as the

19 PL130149 recommendations of the Pirates Glen Community Association, the Board finds that while

the changes to Ledge Road and Quarry Road resulting from the operation of the

proposed quarry could result in a less tranquil living environment for some of the families

living along these roads, there was no evidence that these changes represent either a

health/safety hazard or will have an unacceptable adverse impact on these families’

overall use and enjoyment of their properties. The Board only expressions of

apprehension that it might. The Board would emphasize that apprehension is not the

same as evidence.

[57] The Board did not receive any fact-based evidence that the proposed quarry

would have an adverse impact on property values along Ledge and Quarry Roads (or

indeed in any part of the Municipality) as was suggested by not a few of the participants.

A note from Jo Pillon, who identified herself as a real estate sales representative from

Peterborough, was included under Tab 7 in Exhibit 45, the document book submitted by

Mr. Gillespie. At best, Ms. Pillon’s undated note, which was not on letterhead, raised

unsubstantiated apprehensions that property values on Ledge and Quarry Roads could

fall as a result of adverse impact from noise and dust of heavy trucks using the roads as

a haul route. As Ms. Pillon did not appear at the hearing, her evidence could not be

tested and the Board will not have regard for it.

Access Concerns

[58] One of the Appellants, Steve Johnson, testified that his family had received

permission from the County of Peterborough to construct an access off County Road #36

onto his property. His property occupies the southeast quadrant of Quarry Road and

County Road #36 between the ravine and Quarry Road. When counsel for the Applicant

disputed the legitimacy of this claim, Mr. Johnson produced a copy of the Entrance

Permit, which had been issued (to Doug Johnson) on 10/3/2013. A copy of the Permit

was entered into the evidence as Exhibit 71.

20 PL130149 [59] The Board was advised by Mr. White that Quarry Road and County Road #36

portions of the proposed haul route for the proposed quarry are already designated haul

routes for other operations, including logging on Dewdney Mountain Farms property and

limestone extraction from the Johnson Quarry. This statement was not disputed by

counsel for the Appellants. The final haul route, including access to County Road #36 is

a matter that has to be determined by MNRF at the ARA licensing application phase.

What is before the Board in these proceedings are simply applications to amend the OP

and the By-law. The Board did not hear any evidence from the County or a qualified

expert that would indicate that Mr. Johnson’s entrance permit issued by the County of

Peterborough would be compromised by construction of an eastbound lane if such is

required for the proposed quarry on County Road #36 (where it abuts Mr. Johnson’s

property).

Road Funding Concerns

[60] Four of the people who testified in opposition to the proposed quarry based their

opposition on road funding considerations. Ron Taylor (who identified himself as the

Director of Development Services, with responsibility for both land use planning and

highways for the City of Kawartha Lakes) was recognized as a participant. Mr. Taylor’s

written submission was entered into the evidence as Exhibit 64. Rudy Huisman, who

identified himself as the former Corporate Services Officer of the City of Kawartha Lakes,

was an Appellant. Mr. Huisman gave evidence to the hearing via Skype from Rocky

Mountain House (AB) where he indicated that currently works as Director of Corporate

Services in Clearwater County, AB. None of John Ewart, counsel for the Municipality, Mr.

White, counsel for the Applicant, Mr. Gillespie for the Appellants, or any of the

Participants objected to Mr. Huisman’s testifying by Skype. Accordingly, the Board

allowed Mr. Huisman to testify by Skype. Mr. Huisman’s written submission was entered

into the evidence as Exhibit 62. John Main, who is a resident of Bobcaygeon entered a

written submission into the evidence as Exhibit 63. Pat Warren is a counsellor with the

City of Kawartha Lakes and a resident of Bobcaygeon.

21 PL130149 [61] Counsellor Warren, who was recognized by the Board as a participant explained

that she attended the hearing as a private citizen, not as an elected official. Betty and

Bruce McTaggart, who were recognized as participants, also expressed concerns about

the danger posed by the proposed quarry to the road surface of County Road #36 and to

the Little Bob Channel Bridge.

[62] Each testified that they opposed the proposed quarry because the road allowance

as well as the existing and planned bridges along a large stretch of the highway portion

(County Road #36) of the proposed haul route is currently maintained at the expense of

the City of Kawartha Lakes. They testified the City of Kawartha Lakes will collect

insufficient revenue from the fees imposed on the quarry operator to repair the damage

that loaded gravel trucks could cause to the roadway.

[63] The Board noted that the City of Kawartha Lakes did not appeal the decision of

the Municipality and/or the County. Mr. Taylor explained that it had submitted an

objection but that the letter was sent to the wrong address and had been, he assumed,

incorrectly filed. Neither he nor Counsellor Warren was able to explain to the Board’s

satisfaction why the City of Kawartha Lakes did not then ask for party status at the

commencement of these proceedings.

[64] Messrs. Taylor, Huisman, Mains and Counsellor Warren each spoke to the

principal cause of road and bridge damage being loaded gravel trucks. None claimed to

be a professional engineer. Mr. Huisman’s submissions spoke to the “net negative”

financial implications of the proposed quarry for the municipalities involved. He stressed

the need for what he called a “comprehensive aggregate resource development plan” at

either the County or the Municipal level. The Board was told that no such plan currently

exists.

[65] Mr. Huisman suggested that should the Board favour the Applicant’s evidence

over the Appellants’, the Board Order should include a requirement for a new, more

equitable financial arrangement respecting highway maintenance in either the

22 PL130149 Development Agreement or the Haul Route Agreement prior to the “H” designation on

the proposed quarry lands being lifted. He did not request in his testimony that either

OPA 41 or Zoning By-law 2013-009 should be amended. His evidence, which included

the data he relied on, was not contradicted by counsel for the Applicant. After a careful

reading of the law on this question, the Board finds that pursuant to ARA O/Reg. 244/97,

sections 2, 3 and 4, licensing and tonnage fees are matters that have to be addressed by

the relevant Provincial authorities. Moreover, this Board does not have jurisdiction over

the amount of fees to be collected, to what authority or authorities they must be paid, or

for what purposes they may be used.

Tourism and Lifestyle Concerns

[66] Betty and Bruce McTaggart also expressed their concern that the quarry

operations could disrupt the tourism industry in the region and the lifestyle of the many

retired people in the area. Their written submission was entered into the evidence as

Exhibit 68.

[67] Wayne Haagsma, who was qualified by the Board as a participant, echoed the

tourism industry concern. Mr. Haagsma owns and operates the Pigeon Lake Resort and

is president of the Twin Mountains Snowmobile club, which organizes snowmobile tours.

He explained that his snowmobile tours, which attract tourists from across the Province

and the northeast USA, use a portion of the road allowance of Ledge Road and the lands

near the proposed quarry site.

[68] The Board’s analysis of the concerns respecting tourism and lifestyle raised by

certain of the participants to these proceedings is found in the section below dealing with

the land use planning evidence. No fact-based tourism evidence was entered by the

Appellants.

23 PL130149

Ecological Concerns

[69] The Board heard a number of presentations from local residents respecting the

potential threat posed to the biology of the sensitive ecosystem of Nogies Creek from the

proposed quarry. Erin Pillsworth, who is a student, prepared a particularly interesting

presentation on the section of Nogies Creek on which her family home has sat for what

the Board understands to be decades. Ms. Pillsworth’s presentation was entered to the

evidence as Exhibit 23.

[70] Rob West, who is employed by Oakridge Environmental Ltd., was retained by one

of the participants, Marie Windover. He was not called to testify by Mr. Gillespie. Mr.

West’s report was submitted as Exhibit 45, Tab 10. He raised concerns regarding the

protection of certain threatened species (including the whip-pour-will, the western chorus

frog, the common nighthawk, and the eastern hog-nosed snake) signs of which he

maintained had been detected in the vicinity of the proposed quarry.

[71] Mr. West also raised concerns about the deer-wintering habitat in the area.

However, he did not provide any fact-based evidence in his report that the proposed

quarry “would” or “will” further threaten these species rather, he said it “could” pose a risk

to them. A report prepared by Paul C. Heaven (Glenside Ecological Services Limited)

for Adri Eastman, one of the Appellants, raised some of the same concerns as Mr.

West’s report. Mr. Heaven was not called to testify at the hearing. Since Mr. West and

Mr. Heaven did not testify as expert witnesses at the hearing and their reports could not

be tested, the Board will not have regard for their submissions.

[72] The Board qualified J. Christopher Ellingwood, a biologist retained by the

Applicant to provide opinion evidence on biology. Mr. Ellingwood testified that he found

evidence of only one threatened species, the whip-poor-will, on the proposed quarry site.

Mr. Ellingwood’s reports with addenda were entered to the evidence as Exhibits 12, 13,

14A & B, 15 and 16. Reference was also made during the hearing to the Butternut tree,

24 PL130149 an endangered species under attack in Ontario by a form of canker disease. However,

Mr. Ellingwood found no evidence that the Butternut tree grows either on the proposed

quarry lands or on lands in the vicinity of the proposed quarry.

[73] Mr. Ellingwood pointed out that the whip-poor-will’s habitat on the subject lands

developed as a result of the extensive logging conducted by DM Ltd. (which is related to

Dewdney Mountain Farms Ltd.) over the past few years. He said that logging creates the

type of environment favoured by the whip-pour-will. This evidence was not contradicted.

[74] He also testified that the large deer population that winters on the subject lands

are “extremely unlikely” to be adversely impacted by the operations of the proposed

quarry. This evidence was not contradicted.

[75] Dr. Eric Sager, a member of the teaching faculties of both Fleming College and

Trent University, vigorously opposed Mr. Ellingwood’s evidence and conclusions. Dr.

Sager, who was qualified to provide opinion evidence on aquatic plant biology, testified

that he had spent considerable time as part of his teaching duties walking on and closely

examining lands near the proposed quarry for evidence of habitat used not only by

threatened species but also by other species not identified as being of “special concern”.

He said his research took place prior to the proposed quarry lands being acquired by the

Applicant. The Board notes that this was several years prior to this hearing. Dr. Sager’s

witness statement was entered into the evidence as Exhibit 45, Tab 8.

[76] While generally accepting that the proposed Site Plan prepared by Mr. McGill

(iterations of which were entered into the evidence as Exhibits 7A to 7E)

comprehensively addresses the habitat issues, Dr. Sager’s acceptance of this statement

was not without reservation. For example, he questioned the projected time lines of the

plans by Mr. Ellingwood for restoring the habitat of the whip-poor-will after the limestone

had been extracted from the proposed quarry lands. He said that while the whip-poor-will

will probably return to its (quarry lands) habitat, it could be 20 or more years before this

happens. On balance, the Board finds Mr. Ellingwood’s evidence on the whip-poor-will

25 PL130149 and species-at-risk that may be in the area to be more persuasive and accepts it over Dr.

Sager’s.

[77] Dr. Sager testified that one of his other concerns with the proposed quarry was

dust – particularly the fine particulate (generated in the extraction and crushing phases of

the operation) that might find its way into the aquatic plant system in Nogies Creek and

which could also settle on the leaves of plants in the area thereby, he opined, blocking

the plants’ access to sunlight. Dr. Sager testified that it was his opinion that the spill

control strategy outlined on the proposed Site Plan was deficient in this area. He also

expressed his concern about fine dust particles from the proposed haul route falling on

plants growing along Nogies Creek.

[78] Dr. Sager’s evaluation of the Dust Mitigation Report prepared by WSP Canada

Inc. was entered into the evidence as Exhibit 85. WSP’s Dust Mitigation Report,

prepared by Bernie A. Fuhrmann, was entered into the evidence as Exhibit 84. In the

WSP report (Exhibit 84), Mr. Fuhrmann, who was not called as a witness wrote in his

report that a dust study is not a requirement for a quarry application under Provincial

standards for licenses. Dust mitigation is accomplished via prescribed (Site Plan and

Haul Route) conditions that would accompany an approved quarry license.

[79] Dr. Sager’s concerns respecting the environment of Nogies Creek, particularly

with respect to spill mitigation and dust, were echoed by Ross Morton. Mr. Morton said

he owns a cottage property on Pigeon Lake, which is part of the Nogies Creek system

and that he represented the North Pigeon Lake Ratepayers Association. He explained

that he is a risk manager with worldwide experience advising Canadian and foreign

companies and governments about the development of large scale resource and other

projects. Mr. Morton was not qualified by the Board to give opinion evidence on any of

the issues raised in this hearing because he could not provide the Board with evidence

of his impartiality to give opinion evidence having regard to his ownership of cottage

property. He did not in any event request qualification as an expert witness.

26 PL130149 [80] In response to concerns expressed by both Dr. Sager and Mr. Morton respecting

dust and spill mitigation, Mr. McGill said he modified the draft site plan for the proposed

quarry during a period when the hearing was not in session to address their concerns

regarding both spill mitigation and dust. Mr. McGill testified that both spill mitigation and

dust control concerns have been adequately addressed in the proposed Site Plan, as

modified. The Board finds Mr. McGill’s opinion evidence, which is based on his extensive

experience in preparing Site Plans for quarries and gravel pits, to be preferable to the

evidence of either Mr. Morton or Dr. Sager. The Board notes however that although

neither Mr. Morton nor Dr. Sager are qualified to prepare Site Plans, the concerns they

expressed were useful to Mr. McGill in preparing modifications to the proposed Site Plan.

[81] The Board accepts that adverse impacts are possible, indeed likely, if adequate

control measures are not imposed on the operations of the proposed quarry. However,

after consideration of the evidence of the experts (Dr. Sager, Messrs. Ellingwood,

Fuhrmann and McGill), the Board finds that Mr. McGill’s modified Site Plan adequately

addresses the dust control and spill mitigation concerns raised by both Dr. Sager and Mr.

Morton and that the sensitive Nogies Creek ecosystem will be protected.

[82] The WSP dust mitigation report prepared by Mr. Fuhrmann also suggested

additional conditions to be included as notes on the proposed Site Plan. The report

recommended that appropriate off-site (that is, haul route) dust mitigation measures be

included in any Development Agreement or Haul Route Agreement. These dust

mitigation measures would include constructing hard surfaces where the haul route

passes residential areas. On the evidence, the Board finds these measures will be

adequate to control dust both from the on-site quarry operations as well as from heavy

trucks using the haul route.

[83] Photos of two Blanding’s turtles (a threatened species) taken at the home of one

of the participants, Elaine Fritz, were entered into the evidence as Exhibits 93 and 94.

The photos were taken several kilometres from the site. Ms. Fritz offered anecdotal

evidence that Blanding’s turtles can wander up to six kilometres from their nesting

27 PL130149 places. However, no qualified expert evidence supporting this contention was submitted.

Although Ms. Fritz and other members of the public expressed sincere apprehension, the

Board heard no qualified evidence that this threatened species has been found either on

or in the vicinity of the proposed quarry site.

[84] Speaking to this question, Mr. McGill explained that conditions to the proposed

Site Plan provides that workers in the quarry will be instructed exactly what to do to

ensure no harm comes to a Blanding’s turtle, a five-lined skink, an eastern hog-nosed

snake, or other at-risk species that happens on the site. Counsel for the Applicant

assured the Board that the Applicant, Paul Richie, has personally undertaken to ensure

that the workers will be directed to follow these directions scrupulously. Mr. White,

counsel for the Applicant, has undertaken to explain to his client the consequences of

non- adherence to the terms of a Site Plan.

[85] After consideration of all the evidence to this point, the Board prefers and accepts

the evidence of Messrs. Ellingwood and McGill, and finds that the location of the

proposed quarry poses no threat to the Blanding’s turtle, the whip-poor-will or to any

other at-risk species that may make its habitat in the vicinity of the proposed quarry.

Hydrogeology

[86] The Reverend Rodney Smith-Merkley, George Hewison, Ray Shier, Peter Kretz

and Judy Kennedy were recognized by the Board as participants. All spoke passionately

about the need to protect Nogies Creek from the threat posed by the proposed quarry,

particularly the possibility that the integrity of the quarry floor and the water table could

be compromised from the impact of blasting. The Reverend Smith-Merkley’s written

submission was entered to the evidence as Exhibit 25.

[87] In the final few days of the hearing, the three counsel for the parties jointly

informed the Board that after extensive consultation and negotiation, the Appellants had

accepted a blast impact analysis prepared for the Applicant in June 2011 by the Ottawa-

28 PL130149 based firm, Explotech. On consent of the three counsel, the Explotech report was not

entered into the evidence although it continued to form part of the applications to the

Municipality to amend the Official Plan and By-law to permit the proposed quarry.

[88] The Board qualified Stephen Ash, who is a professional engineer and a

professional geologist retained by the Applicant to provide opinion evidence on

hydrogeology. Mr. Ash testified that since the extraction operations would take place a

minimum of two metres above the water table, there is no danger to the water quality in

Nogies Creek. A report by Brian C. King (Oakridge Environmental Limited), which was

submitted (by Mr. Gillespie) as Exhibit 45, Tab 6, addressed a number of the same

hydrogeological concerns as Mr. Ash. Mr. King was retained by Marie Windover, one of

the participants. As he was not called to testify at the hearing, the Board did not have

regard to his report.

[89] The Board also qualified Dwight Smikle, a professional engineer and professional

geologist with Burnside Ltd. who was retained by the Appellants to provide opinion

evidence on hydrogeology. He testified that there is considerable danger that chemical

spills onto the identified extraction area could migrate into Nogies Creek via the karst

(caves and tiny corridors) that he maintained would riddle the subject limestone deposit.

Mr. Smikle’s written submission, in the form of a letter (on Burnside Ltd. letterhead) to

Appellants, David and Janet Klein, was entered into the evidence as Exhibit 87 and 45,

Tab 9.

[90] Mr. Smikle’s opinion evidence that karst exists on the site was put into question

during cross-examination by Mr. White. Mr. Smikle explained he while had never visited

the site or entered the caves, he had reviewed the core samples taken from the area

near the centre of the proposed quarry. At the 57-foot (approximately 17 m) level of one

of the core samples, (he testified that) he found what he called “clear evidence of karst”.

From this he concluded that karst must exist and that there is therefore the opportunity

for contaminated water from the quarry site to migrate into Nogies Creek.

29 PL130149 [91] Opposing the conclusion drawn by Mr. Smikle (that karst exists on the site of the

proposed quarry and poses a threat to Nogies Creek), Mr. McGill testified that he had not

only walked “every inch” of the proposed quarry lands several times but had actually

walked several metres into the mouth of the cave itself. He further testified that he felt

confident based on his examination that any extensive karst that might exist on the site

would run in an east/west direction, which would lead away from the proposed quarry

lands. The Board heard evidence that the northern boundary of the proposed quarry

lands are located some 700 m south of the entrance to the cave. Mr. McGill concluded

from the evidence and from his personal experience on the subject lands that it is highly

unlikely there is karst on the site of the proposed quarry. The Board prefers the evidence

of Mr. McGill and finds that there is no karst on the proposed quarry lands.

[92] After consideration of the opinion evidence of both of these experts as well as the

evidence of Mr. Ash, Dr. Sager, Mr. Morton, Ms. Pillsworth and the other Appellants and

participants who expressed their apprehension, the Board accepts the evidence of Mr.

McGill, which is grounded in his considerable experience examining the geology of the

proposed quarry lands, and finds that there is no danger to the ecosystem of Nogies

Creek resulting from seepage by chemical or other spills from the proposed quarry.

Cultural Heritage Concerns

[93] A number of the participants as well as some of the local residents who were not

recognized as participants, spoke to this matter. The Board found that the following

testimony captures the thrust of their concerns.

[94] Dan Whetung, advised that he is a native healer and historian. He testified that he

represents the concerns of the Curve Lake First Nation. He testified that the ecosystem

of the area surrounding Nogies Creek is critical to his work as a native healer. He

explained that the chemical characteristics of the limestone fossil rocks in the area have

particular significance for First Nations, and that removing these rocks would not only

offend his First Nation’s traditional practices but threaten the effectiveness of certain

30 PL130149 (medicinal) plants that grow best on the local exceptionally-hard (Bobcaygeon

Formation) limestone. Mr. Whetung’s submissions were entered to the evidence as

Exhibits 36, 37 and 45(11). Mr. Whetung did not provide evidence regarding traditional

practices other than healing. Nor did he provide any evidence why the continued use of

First Nation healing practices required plants grown on the proposed quarry lands, which

would necessitate rejection of the proposed quarry.

[95] Marie Windover testified that in her research of the pioneers in the area, she

discovered the important role played by Nogies Creek in the development of both the

logging and farming industries in the area. These industries, she testified, were critical to

the economy of the region and indeed to the economy of the Province. The notes

provided for her often riveting testimony were entered into the evidence as Exhibits 38

and 45(12).

[96] Glenna Burns advised that she is a retired high school history teacher who has

lived in the area for most of her life. Her fascinating testimony addressed the pioneer

roots of the Bobcaygeon region and the importance of the area to the Curve Lake First

Nation and to the development of the Province. She also spoke movingly of the

importance of tourism and the continued in-migration of retirees to the economy of the

region today. The proposed quarry, she contended, threatens all of these. Her written

submission was entered into the evidence as Exhibit 67.

[97] The Board’s analysis and findings on these natural and cultural heritage concerns

are found in the section on land use planning below.

Land Use Planning

[98] Although a land use planning report prepared by Mark Dorfman, a registered

professional planner was included in (Exhibit 45), which contains the Amended Witness

Statements prepared for the Appellants, Mr. Dorfman was not called to the stand by

counsel for the Appellants. Accordingly, his report could not be tested and the Board has

31 PL130149 not had regard to it. The Appellants did not provide any other land use planning

evidence from a qualified expert in the field.

[99] Counsel for the Appellants, Mr. Gillespie, appeared to base his land use planning

case largely on the inadequacy of the land use planning evidence provided by the

Applicant. He maintained at one point that since a blasting report was required under s.

5.10.5 of the OP but was not entered into the evidence in these proceedings, the

Applicant’s land use planners could not truthfully testify that they had considered the

blasting implications of the proposal in arriving at their land use planning opinion that the

proposal represented good planning. After some discussion with the other two counsel,

Mr. Gillespie withdrew this allegation.

[100] The Board qualified Gordon Russell, a registered professional planner retained by

the Applicant and Peter Josephs, a registered professional planner retained by the

Municipality, to provide opinion evidence on land use planning.

[101] Mr. Russell advised that the purpose of OPA 41, which is the requested

amendment to the OP, is to change the land use designation on the subject lands from

“Rural” to “Aggregate Resource Extraction”. This would permit the lands to be used for a

Category 4, Class A licensed quarry operation under the ARA. The proposed quarry is

intended to produce crushed limestone and dimensional stone products.

[102] Mr. Josephs advised that in the majority of cases where a quarry is proposed in

Ontario, in his experience a change in the existing land use designation is required. The

OP requirements to re-designate a parcel of land to permit a quarry in the Municipality

are, he explained, demanding.

[103] Section 5.10 of the (Municipality’s) OP provides policy direction for the Aggregate

Resource Extraction designation under the OP. Section 5.10.5 (q) lists the details of the

Site Plan and the reports required. The Site Plan must specify:

32 PL130149

Existing features and land uses on and within 120 m of the site

Operations and phasing

Progressive rehabilitation

Final rehabilitation

Cross-sections of the operation.

[104] In addition, the following reports are required:

A hydro-geological report to address the potential for adverse effects of the

mineral aggregate operation on groundwater and surface water resources and

their uses

An Environmental Impact Study in accordance with s. 5.1.10, which provides

for protection of the environment

A traffic impact study, to address the matters of s. 5.10.5 (m), which includes

details of the proposed haul route

A noise (acoustical) impact study

A dust control study

A blasting impact study (for a quarry operation)

A cultural heritage and archeological assessment as required by the

appropriate authority having jurisdiction, and

Any other reports or studies as deemed necessary by Council or any agency

having jurisdiction.

[105] Section 5.10.5 (q) of the OP goes on to provide that all site plans and reports

required must be prepared by qualified professionals and must address applicable

policies or procedures such as the PPS and the “ARA – Provincial Standards”. Messrs.

33 PL130149 Russell and Josephs testified that proposed Site Plan and the reports specified in

paragraph 102 were submitted to the Municipality by the Applicant as required by s.

5.10.5(q) of the OP and satisfied the requirements of this section before Council

considered the proposed amendments to the OP.

[106] Both Messrs. Josephs and Russell testified that s. 5.10.5 (q) of the OP requires

that a noise impact assessment report (along with the other reports listed above) be

submitted to the Municipality with the application for the requested amendment to the

OP. Mr. Josephs testified that acceptable noise levels and viable mitigation measures

are intended to be determined by MNRF when an application for an extraction license

pursuant to the ARA is submitted, rather than by the Municipality (of Trent Lakes) when

an amendment to the OP is applied for.

[107] While dust from the quarry operations and blasting impact are both often issues in

hearings involving limestone extraction, a blasting report filed with the Municipality was

not entered into the evidence in these proceedings. As noted above, a dust report

prepared by WSP Canada Inc. for the Applicant was entered into the evidence as Exhibit

84.

[108] The Board heard the un-contradicted evidence of the land use planners who had

studied the Site Plan and the reports submitted by the Applicant with its application to

amend the OP before the Board. As previously noted, the three counsel agreed that

blasting was not an issue in these proceedings. On the un-contradicted evidence of

Messrs. Russell and Josephs, the Board finds that neither the dust created by the normal

operations of the quarry nor the impact from blasting operations constitutes a hazard to

the natural environment or poses an unacceptable risk to the health and safety of the

residents in the municipality.

34 PL130149 Provincial Policy Statement 2014

[109] Provincial policy recognizes that pits and quarries are essential to Ontario not only

to maintain a healthy economy but also to maintain our chosen lifestyle, which requires

sand, gravel and stone for virtually all building and construction. Nevertheless,

Provincial policy requires that measures must be taken to “minimize” the adverse impact

of quarry operations on the residents and environment of this Province. Policy 2.5.2.2 of

the 2014 Provincial Policy Statement (“PPS”) provides, “Extraction shall be undertaken in

a manner which minimizes social, economic and environmental impacts.”

[110] It is important to note that the PPS is intended to be read in its entirety. Part III (of

the PPS) provides:

The PPS is more than a set of individual policies. It is to be read in its entirety and the relevant policies are to be applied to each situation. When more than one policy is relevant, a decision-maker should consider all of the relevant policies to understand how they all work together. The language of each policy, including the implementation and interpretation policies, will assist the decision-makers in understanding how the policies are to be implemented.

[111] This means that the decision-maker, in this case the Board, is required to balance

opposing interests against one another and determine where the public interest (and

good planning principles) lay. On the one hand are the concerns of the local residents

and the protection of the environment and on the other hand the demand for the high

quality limestone from this deposit for the economic and social benefits potentially

accruing to all Ontarians. The Board has to weigh all of these considerations in arriving

at its decision.

[112] PPS policy 2.5.2.4 provides that:

Mineral aggregate resources shall be protected from development or activities that would hinder the resource extraction.

[113] The Board accepts the opinion evidence of Messrs. Josephs and Russell that this

policy provides that the presence of a mineral aggregate resource means that access to

35 PL130149 and use of it will be protected. Other policies in the PPS provide that only if human health

and/or safety are threatened or if it can be shown that the natural heritage is put in

danger, would permission to develop a mineral aggregate extraction operation be

refused.

[114] The Board heard no fact-based evidence that the proposed quarry would

constitute a threat to public health or public safety. The Board heard from sources with

current local knowledge (Mr. Morton, Ms. Pillsworth and others) that the environment

could be adversely affected if the quarry operator did not scrupulously follow the

conditions set down in the ARA-mandated Site Plan. But even this evidence came in the

form of unsubstantiated apprehension from their reading of reports whose authors were

not called to appear at these proceedings. As such, there was insufficient reason for the

Board not to accept the qualified land use planning evidence of Messrs. Josephs and

Russell.

[115] Policy 2.6 of the PPS provides for the conservation of “significant built heritage

resources” and “significant cultural heritage landscapes”. An important word here is

“significant”. Section 6.0 of the PPS defines certain terms found in the policies of the

PPS. The definitions require that a significant (emphasis added) built heritage resource

or significant cultural heritage landscape has been the subject of an evaluation done by

either the Province or the local municipality. No evidence of any such evaluations was

submitted.

[116] Mr. Josephs testified that the Ministry of Tourism and Culture had reviewed the

proposal for adverse impact on the local archaeological and culture resources and found

none. This evidence was not contradicted. Messrs. Josephs and Russell advised that

neither the subject lands nor lands in the vicinity of the subject lands have been the

subject of either a Provincial evaluation or an evaluation completed by the Municipality.

This evidence was also not contradicted. Accordingly, the Board finds that Provincial

policy respecting both significant built heritage resources and significant cultural heritage

landscapes is not offended by the subject proposal.

36 PL130149 [117] Policy 3.1 of the 2014 PPS provides that:

Development shall be directed away from areas of natural or human-made hazards where there is an unacceptable risk to public health or safety or of property damage, and not create new or aggravate existing hazards.

[118] Messrs. Josephs and Russell advised that neither the subject lands nor lands in

the vicinity of the subject lands are classified as “hazardous sites” or “hazardous lands”.

The Board accepted their un-contradicted evidence. In fact, an evaluation of the proposal

completed by the Kawartha Regional Conservation Agency (“KRCA”) indicated that its

experts had no concerns that the proposed quarry would adversely impact the natural

heritage features of the area. The KRCA letter was submitted as Exhibit 66. Messrs.

Josephs and Russell also testified that the proposed quarry will not create a new hazard

that could adversely impact public health or safety or damage property in the area. The

Board accepts their un-contradicted evidence on this issue.

[119] The Board further accepts the un-contradicted land use planning opinion evidence

of Messrs. Josephs and Russell and finds that the proposed quarry will not adversely

impact the natural features of the area as set down in PPS policy 2.1, nor will it adversely

affect the quality and quantity of either the surface or ground water in the area or the

supply of drinking water as provided in policy 2.2. Nor, finally, will it adversely and

unacceptably impact human health and safety.

[120] Several of the objectors claimed that the proposed development specifically

contravenes PPS policy 2.5.2.2. This policy provides that:

Extraction shall be undertaken in a manner that minimizes social, economic and environmental impacts.

[121] Again, no impartial fact-based evidence given under oath was adduced to lend

credence to these claims. On the other hand, Messrs. Josephs and Russell, testified that

the proposed development satisfies this criterion. The Board accepted their evidence on

this issue.

37 PL130149 [122] A number of the participants raised concerns about possible adverse impacts on

their lifestyle as a result of the operations of the quarry. However, no fact-based

evidence was adduced exactly how this would result. Again, merely raising apprehension

does not constitute an evidentiary foundation on which the Board can base its decision.

[123] Although Mr. Haagsma raised an apprehension that the public’s winter use of

portions of the road allowance along Ledge Road as well as lands in the vicinity of the

proposed quarry for snowmobiles would be denied or severely restricted, the Board

heard no evidence that this would be the case or even could be the case.

[124] PPS policy 2.5.2.1 provides that “as much of the mineral aggregate resource (in

this case, limestone) as is realistically possible shall be made available as close to the

markets as possible”. This policy further provides that it does not matter that there are

other licensed quarries “locally or elsewhere”. The un-contradicted evidence the Board

heard was that the limestone in the proposed quarry is especially hard and that stone

from the area is particularly prized for this property. Provincial policy does not attach

great weight to the fact that there are already licensed quarries operating locally and

elsewhere, some even closer than the proposed quarry to the Greater Toronto Area,

where much of the limestone mined in Southern Ontario continues to be used. The

Board finds on the evidence therefore that the proposed quarry does not offend PPS

policy 2.5.2.1.

[125] Finally, on the un-contradicted opinion evidence of Messrs. Josephs and Russell,

the Board finds that the requested amendments to the OP and the By-law conform to the

policies set down in the COP and the Growth Plan. The Board also accepts the un-

contradicted evidence of Messrs. Josephs and Russell and finds that they are consistent

with the 2014 PPS and adhere to the principles of good planning.

38 PL130149 AUTHORITIES

[126] The Board received written submissions from the three legal counsel regarding

the James Dick Construction Limited/Rockfort Quarry decision (“James Dick”). The

Ontario Municipal Board issued its decision on this matter on November 12, 2010. The

Board decision refused the applications of James Dick Construction Limited for

amendments to the Town of Caledon Official Plan and Zoning By-law among other

reasons because the proposal was contrary to the provisions of the Town of Caledon

Official Plan and to direct the MNRF not to issue a license to extract below the water

table under the ARA.

[127] After consideration of the submissions of the three counsel and a careful reading

of the case itself, the Board has determined that the facts of James Dick are significantly

different from the facts in the subject appeal both because the policies of the in force

Town of Caledon Official Plan (respecting adoption of amendments to the Official Plan to

allow quarries) and those of the Municipality of Trent Lakes differ considerably.

[128] The Applicant in the subject Dewdney Mountain Farms Inc. case proposes

extensive mitigation measures on the haul route, which Dr. Williamson, the acoustic

expert retained by the Applicant, testified would reduce truck noise at the façade of the

most affected receptors to levels of between 5 and roughly 8 dba over what the Board

had found to be the generally-accepted rural ambient one hour equivalent noise level of

45 dba. As noted above, the Board found on balance that this increase was acceptable.

[129] The acoustic experts in James Dick calculated that even with the proposed

mitigation measures, noise levels could not be reduced below 62 dba at the façade of

the most affected receptors. This is up to 17 dba over the generally-accepted 45 dba

ambient one hour equivalent noise level in rural areas. The Panel in James Dick found

that this increase over the ambient noise levels was not acceptable in the circumstances

of that case.

39 PL130149 [130] Another important difference between the two cases is that in James Dick, the

water table would be penetrated and at the conclusion of extraction (estimated to be 50

years hence) two lakes would be formed. In the subject case, extraction is proposed to

take place a minimum of two metres above the water table and the water table would not

therefore be penetrated. In sum, the Board finds that the James Dick decision is of very

limited assistance in the subject appeal.

[131] Mr. Gillespie, counsel for the Appellants, also referenced the Ostrander Point

Wind Energy Project decision rendered by the Ontario Divisional Court on February 20,

2014. The Court had allowed an appeal of the July 3, 2013 decision of the Environmental

Review Tribunal (“ERT”), which had refused an application for a wind farm. The Court

determined that the ERT had erred in law by, among other matters, not separately

considering both “serious harm” and “irreversible harm” that would accrue to the

Blanding’s turtle, a threatened species under the Endangered Species Act, and by

basing its conclusion on harm without having evidence of both the existing Blanding’s

turtle population that would be affected and their mortality rate if the proposed wind

project were permitted. In the present (Trent Lakes) appeal, there is no fact-based

evidence of the population of Blanding’s turtles on the subject lands or on the

surrounding landscape. An appeal the Ostrander Point Wind Energy Project decision of

the Divisional Court to the Ontario Court of Appeal has been heard but the decision is (at

the time of issuance of this decision) pending.

[132] In the present appeals, the Board heard un-contradicted expert evidence that the

Blanding’s turtle has never been seen on or near the proposed quarry lands and that

harm to the Blanding’s turtle would not result from the construction and operation of the

proposed quarry. The Board found on the evidence of Mr. McGill that any other species-

at-risk seen on or near the proposed quarry lands will be adequately protected under the

conditions of the proposed Site Plan and will not suffer serious harm as a result of the

construction and operation of the proposed quarry. The Court also noted that the ERT

panel in its Ostrander Point decision had not taken into consideration the fact that a

decision on this matter (of the Blanding’s turtle) had earlier been made by the (MOE)

40 PL130149 Director in approving the requested Feed-In-Tariff, which matter is not relevant to the

present appeal before this Board. Accordingly, this Panel is of the opinion that the facts

of Ostrander Point Wind Energy Project are clearly distinguishable from the facts of the

subject case.

SECTION 2.1 OF THE PLANNING ACT

[133] While s. 2.1 of the Planning Act requires the Board to have regard to the decision

of the Municipal Council and any supporting material that it heard in arriving at its own

(Board) decision, it does not in any way fetter the Board in its decision-making process.

[134] The Board has had regard to the decision of the Municipality. In this instance, the

Board has considered the same evidence that was before Municipal Council when it

arrived at its decision to approve the applications to amend the MOP and By-law. The

Board has arrived at the same conclusion.

CONCLUSION

[135] The Board has carefully considered all of the evidence before it at the hearing and

finds that the requested amendments to the OP and the By-law conform to the general

intent and purpose of both the (Municipality’s) OP and the COP, that is, the County’s

Official Plan. They are, as well, consistent with Provincial policy and in accordance with

good planning principles. The Board has also considered its powers respecting the

appeals under the Planning Act and the MNRF’s powers under the ARA, and has

restricted the terms of the Board’s Orders accordingly.

CONTINGENT ORDER

[136] The Board orders that the appeals are allowed in part.

41 PL130149 [137] The Board orders that Official Plan Amendment No. 41, entered into the evidence

as Exhibit 39, Tab 3 and Zoning By-law No. 2013-009, as shown in Exhibit 55, are

approved contingent on the required Site Plan of the proposed quarry lands including

Conditions substantially in accordance with Mr. McGill’s evidence set out in the draft Site

Plan contained in Exhibits 7A – 7E receiving MNRF approval and a licence to extract

under Category 4, Class A of the ARA being issued.

[138] The Board further orders that a Final Order approving OPA 41 and Zoning By-law

2013 - 009 is withheld contingent on a Development Agreement acceptable to the

Municipality (of Trent Lakes) and executed by the Municipality and the Applicant,

Dewdney Mountain Farms Inc. as well as the Haul Route Agreement being signed by the

relevant parties and a copy of each being filed with the Board.

[139] The Board may be spoken to about the Orders and the Final Order.

“C. Hefferon”

C. HEFFERON MEMBER

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