Ontario Land Tribunal  
Tribunal ontarien de l’aménagement  
du territoire  
ISSUE DATE: September 12, 2022  
CASE NO(S).:  
OLT-22-002969  
(Formerly) PL180898  
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O.  
990, c. P.13, as amended  
1
Applicant and Appellant:  
Subject:  
Langmaid’s Island Corporation  
Request to amend the Official Plan - Failure of  
the Township of Lake of Bays to adopt the  
requested amendment  
Existing Designation:  
Proposed Designation:  
Purpose:  
Waterfront (and identified as ‘Muskoka  
Heritage Area’)  
Waterfront (and identified as ‘Muskoka  
Heritage Area’)  
To clarify and refine policy relating to the  
Langmaid’s Island Muskoka Heritage Area, to  
establish site specific policy for the  
development of 36 lots for residential uses  
and to provide for the protection of  
conservation blocks  
Property Address/Description:  
Big Langmaid’s Island & Little Langmaid’s  
Island  
Municipality:  
Approval Authority File No.:  
OLT Case No.:  
Township of Lake of Bays  
OPA 01/18 LOB  
OLT-22-002969  
Legacy Case No.:  
OLT Lead Case No.:  
Legacy Lead Case No.:  
OLT Case Name:  
PL180898  
OLT-22-002969  
PL180898  
Langmaid’s Island Corporation v. Lake of  
Bays (Township)  
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O.  
990, c. P.13, as amended  
1
Applicant and Appellant:  
Langmaid’s Island Corporation  
2
OLT-22-002969  
Subject:  
Application to amend Development Permit  
By-law No. 04-180 - Neglect of the Township  
of the Lake of Bays to make a decision  
Waterfront Residential (with ‘Heritage Site’  
overlay)  
Existing Zoning:  
Proposed Zoning:  
Waterfront Residential with an Exception  
(WR-E__), Waterfront Environmental  
Protection with an Exception (WEP) and  
Waterfront Environmental Protection (WEP)  
To establish site specific development  
provisions for the proposed 36 lots for  
residential uses and to provide for the  
protection of conservation blocks  
Big Langmaid’s Island & Little Langmaid’s  
Island  
Purpose:  
Property Address/Description:  
Municipality:  
Municipality File No.:  
OLT Case No.:  
Township of Lake of Bays  
Z 01/18 LOB  
OLT-22-002970  
Legacy Case No.:  
OLT Lead Case No.:  
Legacy Lead Case No.:  
PL180899  
OLT-22-002969  
PL180898  
PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O.  
990, c. P.13, as amended  
1
Applicant and Appellant:  
Subject:  
Langmaid’s Island Corporation  
Proposed Plan of Subdivision - Failure of the  
District of Muskoka to make a decision  
To permit a development of 36 lots for  
residential uses with site specific  
development provisions and to provide for  
the protection of conservation blocks  
Big Langmaid’s Island & Little Langmaid’s  
Island  
Purpose:  
Property Address/Description:  
Municipality:  
Town of Huntsville and Township of Lake of  
Bays  
Municipality File No.:  
OLT Case No.:  
S2018-1  
OLT-22-002976  
Legacy Case No.:  
OLT Lead Case No.:  
Legacy Lead Case No.:  
PL180916  
OLT-22-002969  
PL180898  
3
OLT-22-002969  
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O.  
990, c. P.13, as amended  
1
Applicant and Appellant:  
Subject:  
Langmaid’s Island Corporation  
Application to amend Zoning By-law No.  
2
008-66P - Neglect of the Town of Huntsville  
to make a decision  
Shoreline Commercial One  
Site Specific (To be determined)  
To permit a waterfront landing to access  
Langmaid Island  
Existing Zoning:  
Proposed Zoning:  
Purpose:  
Property Address/Description:  
Municipality:  
4215 South Portage Road  
Town of Huntsville  
Municipality File No.:  
OLT Case No.:  
Z/12/2018/HTE  
OLT-22-002974  
Legacy Case No.:  
PL180912  
OLT Lead Case No.:  
Legacy Lead Case No.:  
OLT-22-002969  
PL180898  
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O.  
990, c. P.13, as amended  
1
Applicant and Appellant:  
Subject:  
Langmaid’s Island Corporation  
Application to amend Zoning By-law No.  
2
008-66P - Neglect of the Town of Huntsville  
to make a decision  
Residential (R1) Zone  
Site Specific (To be determined)  
To permit a waterfront landing to access  
Langmaid Island  
Existing Zoning:  
Proposed Zoning:  
Purpose:  
Property Address/Description:  
Municipality:  
Municipality File No.:  
OLT Case No.:  
3933 South Portage Road  
Town of Huntsville  
Z/11/2018/HTE  
OLT-22-002972  
Legacy Case No.:  
PL180911  
OLT Lead Case No.:  
Legacy Lead Case No.:  
OLT-22-002969  
PL180898  
Heard:  
February 1 to March 1, 2021 by video hearing  
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OLT-22-002969  
APPEARANCES:  
Parties  
Counsel  
Langmaid’s Island Corporation  
M. Melling  
A. Margaritis  
G. O’Brien (student-at-law)  
Township of Lake of Bays  
Town of Huntsville  
J. Ewart  
J. Ewart  
The Lake of Bays Association  
H. Elston  
M. Hodgson  
C. Emmett  
The Lake of Bays Heritage Foundation H. Elston  
M. Hodgson  
C. Emmett  
Kelly Zytaruk  
Self-represented  
DECISION DELIVERED BY G.C.P. BISHOP AND PARTIAL ORDER OF THE  
TRIBUNAL  
[
1] The Tribunal convened a Phase 1 hearing of the merits in this matter.  
Langmaid’s Island Corporation (the “Applicant”) has appealed:  
a.  
in the Township of Lake of Bays (“Lake of Bays”) – an Official Plan  
Amendment (“OPA”) pursuant to s. 22 (7), with the District of Muskoka  
(“Muskoka”) as approval authority, and a Development Permit By-law  
Amendment pursuant to s. 34 (11) of the Planning Act (“the Act”);  
b.  
c.  
in the District of Muskoka as approval authority, a draft Plan of Subdivision  
(“PofS”) pursuant to s. 51 (34) of the Act; and  
in the Town of Huntsville (“Town”) – two Zoning By-law Amendments  
pursuant to s. 34 (11) of the Act.  
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OLT-22-002969  
[
2]  
The proposal would permit the development of a 32-lot draft PofS on Langmaid’s  
Island (the “Island”) in Lake of Bays. The proposed development includes water access;  
four conservation blocks and two water access points from the mainland located in the  
Town at 4215 South Portage Road (the Beauview Cottage Resort property”) and  
3
933 South Portage Road (the “3933 property). The use of the dwellings would be  
seasonal. Muskoka is the approval authority for both the draft PofS and the proposed  
OPA, submitted to Lake of Bays.  
[
3]  
There are six parties of record in this matter, and all are represented in these  
proceedings, with the exception of Kelly Kztaruk, who is self represented. There are a  
number of interested participants who provided participant statements. A  
comprehensive participant statement book is found at Exhibit 63.  
KEY ISSUES  
[
4]  
The Procedural Order had a defined Issues List that was agreed upon by the  
parties. During the five-week hearing, it became evident that the key issues are best  
described as does the proposed development:  
a.  
respect the general intent of the relevant Provincial, Muskoka, Town, and  
Lake of Bays statutory planning documents and are the various  
background reports of sufficient detail to ensure the proposed  
development is appropriate for the Island;  
b.  
c.  
respect and protect the cultural heritage values of interest found on the  
Island is the proposal suitable development for the Island;  
respect the natural heritage features of the Island and appropriate in an  
area that has currently undisturbed natural heritage and hydrological  
features;  
d.  
have sufficient engineering capacity to accommodate a dwelling and  
septic system; respect flood prone lands and steep slopes thereby not  
representing an over development of the Island; and  
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OLT-22-002969  
e.  
provide sufficient operational requirements in the Town that are  
appropriate to service the seasonal residents.  
THE WITNESSES AND STATEMENTS  
[
5]  
The following witnesses provide witness statement (WS) and provided expert  
evidence during this proceeding. The Tribunal will make reference to both oral and  
written testimony in this decision.  
[
6]  
For the Applicant:  
a.  
Stefan Szczerbak (WS Exhibit 2, Tab 6A and Reply Witness Statement  
RWS”) Tab 6B) regarding land use planning focused on the proposed  
(
Zoning By-law Amendments for the mainland properties, contemplated for  
waterfront landings; and James C Dyment and Debra Walker (Joint WS  
Exhibit 2, Tab 7A and Joint RWS Tab 7B) as a panel with respect to land  
use planning, more focused on the elements of the proposed development  
of the Island;  
b.  
c.  
Dan Currie (WS Exhibit 2, Tab 2A and RWS Tab 2B) with respect to  
cultural heritage and cultural heritage planning;  
Bill Van Ryn with respect to engineering matters relating to municipal  
services for land development focusing on site servicing and water  
systems (WS Exhibit 2, Tab 1A and RWS Tab 1B);  
d.  
e.  
f.  
Gord Nielson (WS Exhibit 2, Tab 3A) with respect to boating impact and  
navigation matters;  
Al Shaw (WS Exhibit 2, Tab 4A and RWS Tab 4B) with respect to ecology  
and aquatic biology; and  
Michael Hannay (WS Exhibit 2, Tab 5A) regarding visual impact.  
[7] For Lake of Bays  Melissa Markham (WS Exhibit 8  a report to Lake of Bays  
Council) with respect to land use planning.  
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OLT-22-002969  
[
8] For the Town  Kirstin Maxwell (WS Exhibit 7  report to the Town Planning  
Committee) with respect to land use planning.  
[
9] For the Lake of Bays Heritage Foundation (“Foundation”) and the Lake of Bays  
Association (“LOBA”):  
a.  
Stephen Fahner (WS Exhibit 13 and an updated WS Exhibit 57) with  
respect to land use planning and appropriate weight will be given as an  
avid boater in the District;  
b.  
c.  
Derek Coleman (WS Exhibit 9 and RWS Exhibit 11) with respect to  
ecology and environmental planning; and  
two area residents with interest in the proposed development being: Judith  
Mills (WS Exhibit 10) President of the Foundation and Board of Directors  
and Mary Ann Peden (WS Exhibit 12)  President of the LOBA. Both  
provided lay testimony to the Tribunal.  
[
10] For Kelly Zytaruk:  
a.  
b.  
Jennifer Ellard-Alexis (WS, part of Exhibit 15) Sustainable Development  
Specialist; and  
Rick Esselment (WS, part of Exhibit 15) with respect to site servicing.  
[
11] A comprehensive Participant Statement Book was submitted on behalf of the  
Participants by LOBA and the Foundation (Exhibit 63).  
RULING ON JENNIFER ELLARD-ALEXIS’S EVIDENCE AND TESTIMONY AS AN  
EXPERT  
[
12] During the course of the hearing and before Ms. Ellard-Alexis testified, the  
Tribunal was informed that Ms. Ellard-Alexis was posting screen shots of the hearing  
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OLT-22-002969  
event and commenting on the progress and presentation of documents and evidence in  
contravention of Rule 22.5 of the Tribunal’s Rules of Practice and Procedure (“Rules”).  
The Tribunal also found the contents of those Facebook posts problematic. The  
Facebook posts were recorded as Exhibit 60. Paragraphs [13] through [24] of this  
Decision is the oral ruling from the Tribunal finding that Ms. Ellard-Alexis will be limited  
to give advocate evidence on behalf of her client.  
[
13] Shortly after the commencement of this hearing, Ms. Ellard-Alexis posted  
photographs of the hearing event on Facebook with comments included, contrary to  
Rule 22.5 of the Rules. This section of the Rules deals with Photographic, Audio or  
Video Recording of a Tribunal hearing event.  
[
14] While the Tribunal may accept her ignorance of the Rules on the posting of the  
photographs on Facebook, it is the content of those postings that is most disturbing to  
the Tribunal.  
[
15] On November 30, 2020, Ms. Ellard-Alexis signed an Acknowledgement of  
Expert’s Duty, in accordance with Rule 7.5 of the Rules, to provide opinion evidence  
that is fair, objective and non-partisan.  
[
16] On February 4, 2021, on Facebook, Ms. Ellard-Alexis quotes:  
Langmaid's Tribunal continues questions arising about successional  
forests and biodiversity. Praying to god that means my report got some  
traction!! In my opinion Langmaid's a island was appropriately identified  
as a key biodiversity area and should not never become a subdivision.  
Thank God we have some progressive laws and policies on the books –  
now we need to get the system to recognize that.  
[
17] The Tribunal sees this as a statement of both self importance and self promotion  
as evidenced by the number of hashtags added to the statement itself. All in the face of  
a signed Acknowledgement of Expert’s Duty to this Tribunal to deliver unbiased opinion  
evidence. She is praying that her report has got some traction when she has never  
been in the stand to present her evidence nor has been cross-examined.  
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OLT-22-002969  
[
[
18] Later the same day, she posts:  
It's a public and opposing party (Lake of Bays Association) has just  
dropped what I think will be a conservation bomb on the proceeding.  
19] This is in reference to the full Ministry of Natural Resources and Forestry  
MNRF”) report that was found in the archives of MNRF Office in Peterborough.  
(
[
20] This again shows total lack of self control, judgement and the ability to give  
independent and unbiased opinion evidence to this Tribunal.  
[
21] The Tribunal also received an updated Curriculum Vitae (“CV”) of Ms. Ellard-  
Alexis from her representative with a file date of February 1, 2021. The top of this  
updated CV has Ms. Ellard-Alexis’s name on the top, followed immediately by the words  
Change Maker, Team Player, Capacity Builder and Advocate.  
[
22] The Tribunal does suggest to Ms. Ellard-Alexis the word “Advocate” be removed  
from her CV, as this alone is grounds for dismissal by this Tribunal to allow this witness  
to be elevated to the level of delivering unbiased opinion evidence.  
[
23] The Tribunal will not accept Ms. Ellard-Alexis as an expert in this hearing but as  
an advocate to her client.  
[
24] The Tribunal will allow Ms. Ellard-Alexis to give evidence at this hearing but the  
evidence-in-chief will be limited to the same amount of time set aside in the hearing  
work plan for the lay witnesses, being 1.5 hours in-chief.  
SITE AND AREA CONTEXT  
[
25] The lands subject to this application is found on two islands which are located in  
Lake of Bays. The total area of the two islands is approximately 53.79 hectares (“ha”) in  
1
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OLT-22-002969  
size and have approximately 6,180 metres (“m”) of waterfront frontage. The Applicant  
owns both islands, the larger island being approximately 50.74 ha and the smaller is  
3
ha in size. It is the Tribunal’s understanding that, by raising the water level of Lake of  
Bays, through the placement of a controlled dam system, flooding has occurred to  
create the artificial water boundary between the two islands. As mentioned earlier, the  
Tribunal will refer to both islands as the “Island” throughout this Decision, being the  
limits of the proposed development. The Applicant also owns a third small island known  
as Seagull Island and is located to the north of the large island, between it and the  
mainland. Seagull Island has no existing structures, nor are proposed in this  
application.  
[
26] The central portion of the Island was previously developed with three cottages, a  
generator building and a boat house. All buildings are in disrepair and have been  
abandoned and heavily vandalized. The Island is predominantly treed with mixed forest  
with a variable thickness of overburden. There are areas of exposed bedrock and a  
ridge with peaks that runs along the middle of the large island with all surface water  
draining to the lake. The main Island has typical Muskoka Landscape with to hills 50 m  
high in the central and eastern portion of the Island with the hill in the western portion  
being approximately 25 m high.  
[
27] Included as part of this proceeding are lands located in the Town. The first is the  
933 property that has historically been used to provide access to the Island and the  
3
Beauview Cottage Resort property has been secured to provide additional boat access  
and parking for the proposed draft PofS.  
[
28] The surrounding land uses include:  
North - within the Town permanent and seasonal waterfront residential  
dwellings and accessory buildings;  
South - within Lake of Bays permanent and seasonal waterfront residential  
dwellings an accessory uses;  
1
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OLT-22-002969  
East - within the Town and Lake of Bays, the closest property is Roothog  
Island; and  
West - within the Town and Lake of Bays permanent and seasonal  
waterfront dwellings and accessory uses.  
AGREED UPON STATEMENT OF FACTS  
[
29] The expert witnesses did meet as required by the Procedural Order and  
prepared a number of Agreed Upon Statement of Facts (“ASOF”) by discipline in an  
effort to further clarify and scope issues. These ASOF were of assistance to the  
Tribunal and the final versions are as follows:  
a.  
b.  
c.  
of the Land Use Planners (Exhibit 4);  
of the Ecologists (Exhibit 5); and  
of the experts related to servicing of the proposed development.  
(Exhibit 6).  
PLANNING INSTRUMENTS  
[
30] The Planning Instruments before the Tribunal in these proceedings are found in  
Exhibit 73 and are:  
a.  
b.  
an OPA to Lake of Bays Official Plan (“Lake of Bays OP”) that serves to  
correct the Island description, reflect the findings of the Environmental  
Impact Study (“EIS”), provide additional policy, regulatory and character  
guidelines to assist in the development process on the Island;  
an amendment to Lake of Bays Development Permit By-law No. 04-180  
(“Lake of Bays DPBA”) placing the Island lands into a site-specific  
Waterfront Residential (WR) designation and providing for a series of  
specific regulations to implement the proposed development;  
1
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OLT-22-002969  
c.  
an amendment to the Town’s Zoning By-law No. 2008-66P (“Town ZBA  
1) for the 3933 property placing these lands into a Residential One (SR1)  
#
Zone with a site-specific Exception Number to permit 10 docking slips and  
a restriction of the cumulative width of all shoreline structures and amenity  
areas;  
d.  
e.  
an amendment to the Town’s Zoning By-law No. 2008-66P (“Town ZBA  
#
2) for the Beauview Cottage Resort property placing these lands into a  
Shoreline Commercial One (CS1) Zone with a site-specific Exception  
Number to permit waterfront landing as an additional permitted use; and  
a proposed draft PofS which provides for 32 waterfront residential lots and  
four conservation blocks on the Island and also includes the mainland  
parking blocks in the Town. The proposed draft PofS will be subject to  
Phase 2 of the hearing and Muskoka is the approval authority for PofS.  
The draft PoS will be heard in Phase 2 of the hearing following a decision  
of this Tribunal on the other matters and Planning Instruments now before  
it and considered in this Decision.  
BACKGROUND  
[
31] Suffice it to say this matter has an extensive history. A brief review is as follows:  
a.  
b.  
prior to submitting applications, the planner for the Applicant met with  
Lake of Bays, the Town and the Muskoka staff; consulted with the LOBA,  
the Muskoka Conservatory and held a stakeholders’ workshop with  
interested members of the community. A public open house was held in  
December 2017;  
applications were made to Lake of Bays to amend the Lake of Bays OP  
and the Lake of Bays Development Permit By-law along with an  
application for draft PofS to Muskoka in January 2017. All of these  
applications were deemed complete in February 2018;  
1
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OLT-22-002969  
c.  
d.  
applications to the Town were submitted in February 2018 and deemed  
complete in March 2018;  
a complete series of background reports were submitted including a  
Planning Justification Report; EIS; Functional Servicing Report; Stage 1 –  
2
Archaeological Assessment; a Heritage Impact Assessment (“HIA”); and  
a Boating Impact Assessment (“BIA”). The requisite reports including the  
HIA and BIA were peer reviewed;  
e.  
f.  
subsequent to internal and peer reviews of background reports, technical  
reports were updated and resubmitted to Lake of Bays, the Town,  
Muskoka, and the peer reviewers in August 2018;  
further submissions were made to Lake of Bays, the Town and Muskoka  
in October and November 2018 in response to Lake of Bays staff and peer  
reviewers’ comments;  
g.  
as of October 29, 2018, all of the consultants retained by Lake of Bays  
and Muskoka “had completed their peer reviews and indicated that they  
had no objections to the applications proceeding to approval, subject to  
conditions that could be imposed on the Draft Plan approval or by  
Development Permit By-law Amendment regulations”;  
h.  
Town staff recommended that both ZBAsapplications be denied in  
November 20, 2018 and Lake of Bays staff made a similar  
recommendation with respect to the amendment to the Lake of Bays OP  
and Lake of Bays DPBA on November 13, 2018, but dated November 20,  
2
018; and, due to the appeals to the Tribunal, councils for the Town and  
Lake of Bays did not make decisions on their respective applications;  
council for the respective approval authorities failed to make decisions  
within the prescribed timeframes. Appeals on all of the Planning  
Instruments were made to the Tribunal in November of 2018 in three  
separate notices of appeal. On November 13, 2018, the appeal was  
submitted for Lake of Bays OPA and DPBA applications; on November 19,  
i.  
2
018, the appeal was submitted for the Town ZBA applications; and on  
1
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OLT-22-002969  
November 22, 2018, the appeal was submitted for Muskoka draft PofS  
application.  
LAND USE PLANNING POLICY  
[
32] Many of the issues in the Issues List are related to the statutory planning  
documents of the Province, Muskoka, the Town, and Lake of Bays. All planning  
witnesses provided either oral or written evidence in their review, analysis, and opinion  
in respect of relevant planning documents, proposed Planning Instruments and the  
proposed development. The Tribunal will review this evidence in keeping with the  
Issues in the Issues List and the Key Issues identified earlier in this Decision. Much of  
the land use planning evidence presented on behalf of the Applicant, with respect to  
relevant statutory planning documents is presented as a panel made up of Mr. Dyment  
and Ms. Walker (the “planners”).  
The Planning Act  
[
33] The planners for the Applicant provided a detailed summary of how the proposal  
has appropriate regard for s. 2 of the Act. Opinion evidence noted the relevant  
subsections including: natural features and their functions are identified and the  
necessary mitigation measures incorporated; no features of significant cultural,  
historical, archeological or scientific interest were identified on the Island; there is  
confirmation that private sewage and water services can be appropriately  
accommodated; there are significant and recurring financial and economic benefits that  
accrue to Lake of Bays and Muskoka; all municipal authorities have been involved in a  
complete and iterative planning process; there has been an extensive planning process,  
the proposed development standards go well beyond the standard requirements of the  
Lake of Bays Development Permit By-law and a large portion of the Island will remain  
forested and in a natural state. In conclusion, it is opined that the proposed  
development has appropriate regard for the Act.  
1
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OLT-22-002969  
[
[
34] Neither Mmes. Markham and Maxwell nor Mr. Fahner spoke to s. 2 of the Act.  
35] The Tribunal accepts the uncontested evidence of Applicants planners and finds  
the proposed development has appropriate regard for s. 2 of the Act.  
Provincial Policy Statement 2020  
[
36] The planners for the Applicant described how the Provincial Policy Statement  
PPS”) provides overarching policy on land use planning in Ontario, with a general goal  
(
to enhance the quality of life of those living in the Province. Evidence of the planners is  
articulated through a detailed analysis in the WS, where they spoke to all of the relevant  
sections of the PPS. Many of the themes of the PPS follow the direction found in s. 2 of  
the Act. The Tribunal notes that much of the PPS discussion relates to the issues with  
respect to the Island where the majority of the hearing is focused, but many of the  
principles of the analysis can be applied to both the Town ZBAs.  
[
37] The planners (including Messrs. Hanney, Currie, and Szczerbak in respect of  
their discipline) provided evidence to the Tribunal on behalf of the Applicant are of the  
opinion that all of the proposed Planning Instruments are consistent with the PPS.  
Reasons that the proposed seasonal residential lots and waterfront landings and access  
are consistent with the PPS include:  
a.  
are capable of being serviced privately and water access makes use of  
existing municipal infrastructure resulting in minimal servicing cost to the  
municipality. Necessary hydro and communication facilities can be made  
available to the Island;  
b.  
will be located only on lands that are suitable for residential development  
and will not intrude into environmentally sensitive areas and the features  
with the highest ecological value will be maintained. Close to 90% of the  
Island will not be developed and maintained in a natural state. All these  
considerations are identified in a detailed comprehensive EIS (s. 1.1.1);  
1
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OLT-22-002969  
c.  
an important economic driver in Muskoka is recreational development and  
the economic benefits have been established. An appropriate balance has  
been met between economic growth while ensuring the natural  
environment has been protected; development will make use of existing  
cultural and natural assets to create a desirable seasonal recreational  
development. It represents controlled growth in a waterfront community  
and leverages the recreational assets historically offered in Muskoka and  
the Town (s. 1.1.4);  
d.  
all of subject lands would be considered “Rural Landswithin the context  
of the PPS. In evidence it is demonstrated that this means recreational  
dwelling units is a permitted use. In the ASOF, it is noted both the Island  
and the waterfront landings are “Rural Lands” by definition as they are  
outside of a settlement and prime agricultural areas. Should development  
be deemed appropriate through an analysis of the PPS, new recreational  
dwelling lots and landings are permitted uses in the applicable Waterfront  
designation. The use of ‘promoted’ in the PPS strongly supports all  
proposed uses in a way which is compatible with the landscape that is  
typical for a waterfront community in Lake of Bays and the Town. The  
lotting pattern provides for what exists and is permitted in the Waterfront  
designation to ensure they can be properly serviced and have access to  
the mainland (s. 1.1.5);  
e.  
f.  
the Applicant has taken a coordinated approach to ensure all the various  
jurisdictions involved were informed, comments considered to ensure the  
Planning Instruments are properly integrated into existing documents,  
consistent, and comprehensive (s. 1.2.1);  
much of the evidence heard at the hearing related to natural heritage  
which will be discussed in greater detail later in this Decision. The  
planners did speak to their opinion with respect to consistency as follows.  
Natural heritage features and areasare identified, and appropriate  
mitigation measures are recommended in the EIS to ensure any impact is  
minimized or avoided. Clearance was received from the MNRF on the EIS  
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recommendations to address species at risk and the peer reviewer  
determined the EIS and subsequent information provide as acceptable.  
The proposed Planning Instruments are designed along with the  
Construction Mitigation Plan to protect fish habitat. The EIS evaluated  
both the Island and adjacent lands concluding no negative impacts on  
natural features and their ecological functions (s. 2.1);  
g.  
the Functional Servicing Report (“FSR”) made recommendations to  
ensure the protection of lake water quality and provides for a  
comprehensive Construction Mitigation Plan. The proposal as  
implemented by the Planning Instruments, has a minimum lot area of  
0
1
.8 ha which is twice the area required in the Township OP on a Category  
lake (s. 2.2);  
h.  
i.  
a HIA and Stage 1 2 Archeological Assessment were completed in  
support of the proposed development. The planners deferred to the  
authors of these studies, but in their review found them to be consistent  
with the PPS (s. 2.6);  
the Applicant has completed a more detailed analysis and evaluation than  
has been previously undertaken for similar applications in an effort to  
demonstrate where development can or cannot occur. The proposed  
Planning Instruments serve to update the Lake of Bays OP with the more  
accurate and current information made available in these detailed studies  
(s. 4.6); and  
j.  
the Lake of Bays OP is more restrictive than the PPS. The Lake of Bays  
OP does contemplate the development of Muskoka Heritage Areas  
(“MHA”). Criteria to be met are established both in a general way and  
specifically to the Island. The Applicant conforms to the Lake of Bays OP  
by completing the requisite impact assessment (s. 4.9).  
[
38] Mr. Fahner on behalf of the Foundation and the LOBA provided evidence with  
respect to the PPS. He took a much more specific analysis of the proposed  
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development, speaking to s. 1.1.5, s. 2.6 5 and s. 4.6 of the PPS in relationship to  
development in “Rural Areas”.  
[
39] He is of the opinion that the proposed instruments are not consistent with the  
PPS for the following reasons:  
a.  
there is a recognition that in “Rural Areas”, resource-based recreational  
uses are permitted and recreational opportunities should be promoted but  
only in a form “that is compatible with the rural landscape’. His evidence  
questioned the compatibility of the proposed development with the rural  
landscape on and surrounding the Island. One must take into account that  
the extremely low density of development that exists today on this very  
large Island and the Special Heritage Areastatus of the property. He  
maintained the position that Special Heritage Areais part of the rural  
landscape and should be maintained as such;  
b.  
the PPS states that significant cultural heritage landscapes shall be  
conserved subject to an evaluation that demonstrates the heritage  
attributes of the Island will be preserved. He opined that the proposed  
draft PofS and the implementing Planning Instruments do not adequately  
preserve the significant cultural heritage landscape, nor the many of the  
heritage attributes on the Island; and  
c.  
the official plan of a given municipality is the most important vehicle for the  
implementation of the PPS and must be kept up-to-date to reflect current  
Provincial policy. The Lake of Bays OP was updated in 2016 containing  
many polices related to the preservation of heritage areas in general and  
specifically to the Island.  
[
40] Ms. Markham is the planner for Lake of Bays, completed a comprehensive  
review and evaluation of the proposed development with respect to the policy  
framework of the PPS. She is of the opinion that the in-force Lake of Bays OP is  
consistent with the PPS. Therefore, the proposed development is not consistent with the  
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PPS. Her opinion is based on three themes: environmental impact, compatibility with  
the existing surrounding heritage area of which the Island is part thereof and its  
character/visual impact is not in keeping with the policies of the Lake of Bays OP (to be  
discussed later in this Decision) and therefore is not consistent with the PPS.  
[
41] Ms. Maxwell, the planner for the Town notes that the two properties in the Town  
are considered as ‘Rural Lands’ and development that is compatible to the rural  
landscape are to be promoted. In her opinion, the proposed waterfront landing and  
parking area is not compatible with the rural landscape of the area. Since the proposal  
does not conform to the Town’s Official Plan (“Town OP”), it is her opinion that the  
proposed development is not consistent with the intent of the PPS.  
[
42] The Tribunal notes specifically that in the planners ASOF is determined that: “if  
development is deemed appropriatethrough analysis of the PPS, new recreational  
dwelling lots and landings are permitted land uses in the applicable Waterfront  
designation”.  
[
43] The Tribunal prefers the evidence of the planners for the Applicant and finds that  
the proposed development and Planning Instruments have appropriate regard to s. 2 of  
the Act and are consistent with the PPS.  
MUNICIPAL POLICY  
District of Muskoka Official Plan 2014  
[
44] The Muskoka OP 2014 (consolidation October 3, 2014) sets the general direction  
for physical development and growth in Muskoka by providing land use designations  
along with environmental and infrastructure policies to ensure long-term sustainability  
and to achieve desired growth in the District. The Muskoka OP 2014 was in-force at the  
time the applications were deemed complete. Hence, the Planning Instruments and the  
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applications were evaluated within the context of these in-force policies in keeping with  
the Clergy principle.  
[
45] The policies of the Muskoka OP 2014 were consistent with the PPS in-force at  
that time and the proposed Planning Instruments and development are evaluated earlier  
in this Decision against the PPS 2020. Hence, many of the themes of the witnesses’  
evidence with respect to conformity to the Muskoka OP 2014 are similar. The Tribunal  
in its review will attempt not to be repetitive.  
[
46] The planners for the Applicant are of the opinion that the proposed OPA, the  
Lake of Bays DPBA and both Town ZBAs conform to the Muskoka OP 2014 and gave  
detailed evidence to demonstrate how they came to this conclusion. Reasons that the  
proposed seasonal residential lots and waterfront landings and access are in conformity  
with the Muskoka OP 2014 include:  
a.  
promotes residential growth in a Waterfront designation that is compatible  
with the existing character and context, protects the natural features as  
lands of environmental significance are identified and appropriate buffers  
established. A total of 24% of the Island is to be protected through  
conservation easements. Thereby respecting the quality of the landscape  
and natural environment by maintaining a large portion of the land base as  
forests ensuring growth is consistent with the area’s growth strategy;  
access to the mainland is provided by two waterfront landings in the Town  
and are shown as blocks on the draft PofS. These blocks would be subject  
to easements in favour of lots within the draft PofS;  
b.  
c.  
the lots and building plans have been evaluated by various professionals  
engaged in the application process and municipal staff to ensure ‘the  
suitability of lot(s) for development in areas of Natural Constraint. It was  
found private servicing solutions will provide a higher level of treatment;  
water will be provided from the lake; access is established; appropriate  
setbacks are found in the Lake of Bays DPBA; construction can be  
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adequately mitigated; significant habitat has been identified protected; and  
a further Development Permit for the development of each lot would be a  
condition of the draft PofS.  
d.  
significant study was completed by a variety of expert consultants to  
ensure that the Significant Heritage Areas defined in the Muskoka OP  
2
014 are properly identified and respected. The proposed development  
proposes to re-designate 16.0 ha to Waterfront Environmental Protection  
designation;  
e.  
f.  
areas of significant biotic interest have been identified with accurate  
mapping of fish habitat in consultation with the MNRF. Impact is kept to a  
minimum by ensuring waterfront amenity areas are well-removed from  
identified fish habitat; and  
Muskoka, when considering an appropriate designation, determined that a  
Waterfront residential designation with restrictions was appropriate for the  
Island, rather than a Significant Heritage Area that is found in the Lake of  
Bays OP.  
[
47] Mr. Fahner took a more nuanced review of the Muskoka OP 2014 to base his  
opinion with respect to the proposed development. He is of the opinion that the  
proposed development does not conform to the Muskoka OP 2014 OP for the following  
reasons:  
a.  
it is an important policy objective that the quality of the landscape is  
important and should be protected. The proposed development does not  
define adequately views and viewing points and all the views are not being  
enhanced (s. C. 4 and C. 7);  
b.  
the proposed development is not compatible with the immediate  
community area. The Island is part of an area that has numerous and  
different bays. The Island being part of this ‘bay and island’ community  
has little development, hence this character must be taken into account as  
a heritage area and is part of Lake of Bays community. (s. C. 9);  
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c.  
due to the shallowness of the water and the density of the proposed  
development, there is not adequate access to the Island properties. The  
uses in the Town are not compatible in scale and intensity of use with the  
existing residential uses on the bay hence the proposed access is not  
proper (s. C. 10);  
d.  
e.  
he is not aware of another similar PofS being developed in Muskoka and  
the background material prepared by the Applicant is inadequate with  
respect to demonstrating the impact on Heritage Areas (s. C. 13);  
an important policy statement is that Heritage Areas should be maintained  
and protected in their current state. Although this is not a mandatory  
statement, the proposed development will not protect nor maintain the  
character and beauty of the Heritage Areas (s. F. 2b); and  
f.  
does not preserve nor improve the scenic views or vistas of the significant  
waterfront landscape of this part of Lake of Bays; is not a compatible use  
and there has not been adequate regard for the viewing potential of the  
Island, especially when considering the impact of dwellings and docks and  
boat houses on the shoreline. The Muskoka OP 2014 defers to the local  
official plan for the protection of heritage resources and the Lake of Bays  
OP does provide this additional level of protection and as such, these  
resources have not been adequately addressed (s. F. 4, F. 77, F. 97,  
F. 114 and F. 115).  
[
48] Ms. Markham in her evidence supported Mr. Fahner’s reasons why the proposed  
development is not in conformity with the Muskoka OP 2014. Ms. Markham made  
special reference to:  
a.  
the negative impact on the environment and scenic values that have been  
identified on the Island’s Heritage Area, negative environmental impact of  
the proposed development on a currently undisturbed area, and the  
impact as a result of the introduction of shoreline structures, buildings, and  
septic facilities on a largely undisturbed Island;  
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b.  
the Island was identified by Muskoka as a Significant Heritage Area and  
the Muskoka OP 2014 states “that the areas possessing or encompassing  
such values shall generally be protected from incompatible uses or  
activities”. The Island’s recognition is based on the values and criteria  
which include habitat diversity, biotic quality and lack of disturbance, fish  
and wildlife concentrations and scenic landscapes. The proposed  
development does not protect the Island from incompatible uses or  
activities;  
c.  
where environmental or heritage areas have been approved and  
inventoried for protection in the local official plan, special consideration  
should be incorporated into implementation documents to adequately  
protect the heritage resource. They should be recognized in special  
zoning categories within implementing municipal zoning or development  
permit by-laws; and  
d.  
in conformity with the Muskoka OP 2014, the Lake of Bays OP has  
designated the Island as “Langmaid’s Island Muskoka Heritage Area”  
recognizing the importance of the Island and the need to ensure its  
protection.  
[
49] Ms. Maxwell spoke to the section within the Muskoka OP 2014 that relates to  
new uses or interests in land will be compatible with other legally existing land uses in  
the vicinity” and the “type and character of the community or area in which the use is  
being proposed”. She is of the opinion that the Applicant has not met the intent of the  
Muskoka OP 2014 based on its use, compatibility and character which are detailed in  
the review of evidence with respect to the Town OP.  
[
50] The Tribunal prefers the evidence of the planners for the Applicant but has some  
reservations with respect to the impact of the waterfront landings in the Town and their  
compatibility with respect to provide sufficient operational requirements, most notably  
vehicular traffic and sufficient parking that the proposed development will generate.  
This theme is found throughout the decision and findings of the Tribunal.  
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District of Muskoka Updated Official Plan – 2019 (“Muskoka OP 2019”)  
[
51] Issue 4 of the Issue List relates to the proposed development and its conformity  
with the policies of the updated Muskoka OP 2019, which was not in-force when the  
application was deemed complete. The planners for the Applicant took some  
considerable effort to evaluate the proposed development against these new policies.  
The Tribunal is of the view that the Applicant must have regard to these updated official  
plan policies. Upon completing their review, the planners saw no change to their opinion  
and recommendation with respect to the Planning Instruments.  
[
52] The planners policy evaluation considered the following with respect of the  
Muskoka OP 2019: the overarching Natural Heritage objectives; Natural Heritage  
features within Muskoka; significant wildlife habitat; EIS requirements, consideration of  
cumulative impacts; land securement; requirements of planning authorities; general  
development policies; standard protection policies; objectives related to the  
conservation of cultural heritage resources; the protection of ecological features and  
functions; and general policies related to permitted uses within the Waterfront Area  
designation.  
[
53] The planners took the Tribunal through how the Planning Instruments had  
appropriate regard for all relevant policies and how the studies required by Lake of Bays  
and the Town demonstrated the Planning Instruments have had complete regard for the  
policies found in the Muskoka OP 2019.  
[
54] The Tribunal heard little evidence from either Lake of Bays, the Town, or the  
Foundation witnesses with respect to Muskoka OP 2019.  
[
55] The Tribunal accepts the uncontested evidence of the planners for the Applicant  
and finds that the Planning Instruments have appropriate regard to Muskoka OP 2019.  
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Township of Lake of Bays Official Plan  
[
56] The Lake of Bays OP consolidated on July 5, 2016 was in effect at the time the  
applications were deemed complete. The Island is designated “Waterfront” and permits  
residential uses; waterfront commercial uses; open space; or conservation and related  
accessory uses. The Island is identified as a “Muskoka Heritage Area” in the Lake of  
Bays OP.  
[
57] Ms. Markham provided testimony with respect to her opinion of how the  
proposed development cannot be considered to be in conformity with the Lake of Bays  
OP. Her reasons are as follows.  
a.  
b.  
substantial development will be discouraged on the Island in order to  
retain its natural and undisturbed area and retain its important values.  
Therefore, the creation of new lots on the Island or substantial  
development will be discouraged in order to retain the Island has a natural  
undisturbed area and retain its important values (s. D. 98);  
any further development on the Island beyond the existing development  
site requires an independent assessment to determine, identify, locate and  
evaluate the values and to ensure any development can occur in a  
location and manner which will preserve these values. The Applicant did  
submit an EIS and HIA, an effort to demonstrate that the values of the  
Island would be preserved but in her opinion, these studies were  
insufficient to demonstrate that the Island will be maintained in a natural  
and undisturbed manner. The proposed development does not maintain  
the Islands natural and undisturbed area and the Lake of Bays has been  
provided no justification as to why the Applicant could not preserve the  
whole Island in its natural state (s. D. 99);  
c.  
the preservation of the values related to the landscape and shoreline  
which has little existing disturbance along with the preservation of the  
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scenic value of the hills on the Island have not been appropriately  
addressed;  
d.  
the creation of 32 waterfront residential lots on the Island does not support  
the existing landscape nor shoreline which show little recent disturbance.  
The proposed development will result in removal of significant vegetation  
and trees resulting in a substantially modified landscape. It will also  
require a septic system and allow for accessory structures along with the  
main dwelling unit;  
e.  
there is another island in Lake of Bays that is developed by a PofS that  
makes use of a special policy areato ensure it appropriate within the  
context of the natural environment where an appropriate shoreline yard  
setback was established, and no cutting of vegetation was permitted. In  
the case of potential development on the Island, there are no common  
corridors for construction or access that could limit the impact of the  
proposed development. Therefore, each individual lot will require  
waterfront access and the clearing area for the dwelling unit, accessory  
buildings, and the septic system; and  
f.  
two significant hills have been included for preservation but the third has  
been divided into several residential lots.  
[
58] It is Ms. Markham’s opinion that the proposed development and supporting  
Planning Instruments do not adequately protect and preserve the values identified by  
the Islands Muskoka Heritage Area designation therefore, the Planning Instruments do  
not conform to the policies of the Lake of Bays OP.  
[
59] Ms. Markham went on to testify that any development on islands located in Lake  
of Bays must conform to s. H. 46 which includes the consideration of whether the Island  
is suitable for the proposed development. In determining suitability of development,  
character and compatibility must be thoroughly evaluated.  
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Compatibility  
[
60] Ms. Markham in her evidence stated that an important consideration of the Lake  
of Bays OP is that waterfront landings are compatible with surrounding properties. The  
proposed development is that of shoreline lots on the Island with only water access.  
Water access to the Island will be permitted where: adequate private or commercial  
docking and parking facilities are secured on the mainland to the satisfaction of the  
Lake of Bays. Mainland parking and docking facilities for water access properties  
including islands may be provided through commercial marinas, private individual  
access points serving a maximum of three properties, or waterfront landings serving  
four or more properties. In this matter, parking is being provided in a different  
municipality, but the Lake of Bays OP states that adequate private or commercial  
docking and parking facilities are to be secured on the mainland to the satisfaction of  
Lake of Bays.  
[
61] Ms. Markham spoke to the Lake of Bays OP policies related to waterfront  
landings and access that would be suitable for consideration in Lake of Bays. These  
policies include consideration of: adequate frontage and area to accommodate the  
facility; sufficient docking and parking facilities; adequate access to and from landing  
points by both water and land that is suitable; the landing and access point will not have  
a negative impact on natural heritage areas or is located in a area affected by a  
development constraint; is compatible with abutting properties; is set back in  
accordance with the policy and has as appropriate stormwater management and  
construction mitigation.  
[
62] Ms. Markham noted that it is important to this proposed development that there  
are no resulting issues as they relate to parking or incompatibility with the surrounding  
uses on the mainland. The Applicant proposes to use the mainland docking and landing  
facilities solely for the use of docks, parking and loading for septic pump out purposes.  
The proposed instruments do not account for the use of these facilities for support  
services. All commercial traffic at the waterfront landings must be required to be  
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accessed from other Lake of Bays public access points. Therefore, it is her opinion that  
there is insufficient docking provided to serve the proposed residential uses.  
[
63] Ms. Markham’s position is that the mainland landing facilities are not designed in  
a manner that is compatible with the abutting properties as follows:  
a.  
b.  
3933 property - this property is currently vacant and not zoned to permit a  
waterfront landing. The proposed development would include parking for  
2
0 vehicles, garbage and recycling area for residents, small storage  
sheds, and docks to accommodate mooring of 10 boats; and  
the Beauview Cottage Resort property - will provide parking for a minimum  
of 104 parking spaces, garbage, and recycling area for residents a dock  
dedicated to a shuttle boat and a second dock for temporary mooring of  
up to 6 boats.  
[
64] The proposed development suggests a reduced parking standard, nor does it  
have sufficient buffers to adjacent neighboring lots. Access to the Island will be largely  
by automobile to the landings. The Applicant has not submitted sufficient parking  
justification to support a reduction in the parking standards. It is her opinion that the  
addition of a parking area, docking and garbage facilities, and the required parking  
spaces for water access lots on the Island will not be compatible with the surrounding  
waterfront residential use.  
[
65] Ms. Markham recognized that a BIA was prepared, and peer reviewed on behalf  
of Lake of Bays. It concluded that the influences of additional traffic in all areas of  
potential congestion have been appropriately considered in determining how to  
accommodate a combination of mainland waterfront landings and shuttle facilities along  
with the development of other appropriate mitigation measures. It was noted by the peer  
reviewer that the Narrows would be somewhat more congested than estimated and the  
public is concerned that the shuttle should not use the Narrows to access the Island.  
Lake of Bays does not have the authority to enforce the operation of the shuttle service.  
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Character/Visual Impact  
[
66] Ms. Markham described how the Lake of Bays OP identifies a desired outcome  
for growth and development. It strikes a balance between growth and environmental  
protection by “encouraging growth that enhances economic opportunity while respecting  
the character in heritage of the Township of Lake of Bays”. In the Lake of Bays OP,  
there are objectives to conserve the rich landscape, preserve the natural panorama and  
setting of the land and lake, conserve the waterfront as a valuable resource and  
accommodate development which respects the basic character and traditional mix of  
uses. Character is established over time and is determined such consideration as  
physical setting and landscape characteristics, historic development patterns, cultural  
heritage, architecture and design, intensity of use, level of services and infrastructure  
along with open space, natural areas and recreation areas and facilities.  
[
67] Ms. Markham recognizes that the character of rural and waterfront designations  
is not static overtime but adapts to new circumstances. She is of the view that the  
proposed development does not maintain “the essence and fundamental features of the  
designation”. As the area grows, only development which is compatible with and  
complements this character should be fostered.  
[
68] In conclusion, Ms. Markham is of the opinion that the proposed development is  
not a good planning and is not appropriate for the Island. When evaluated against the  
Lake of Bays OP, it does not retain the Island as a natural and undisturbed area, is not  
compatible with the identified values of the Island, does not propose access that is  
compatible with the surrounding properties, and does not preserve the character of the  
area.  
[
69] Mr. Fahner’s evidence closely followed that of Ms. Markham. He emphasized the  
objectives and policies of the Lake of Bays OP which refer to:  
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a.  
b.  
preserving the landscape of lakes, maintaining the natural anesthetic  
qualities of the area, preserving the cultural heritage including landmarks  
and landscapes and the preservation of natural settings of the lakes;  
both the basis and principles of the policies of the Lake of Bays OP are  
heavily oriented to the environment, when development and the  
environment conflict, the environment is primary in the Township's  
evaluation of proposed developments;  
c.  
character is exceedingly important especially within the context of the  
Waterfront designation. The historical development pattern around most of  
the shoreline on the mainland is a ring of development in the form of  
single detached residences. This is not happened on the Island and has  
remained that way for many years. The Lake of Bays OP (s. C. 8) states  
that areas with relatively undeveloped land should be preserved for  
conservation. In his opinion, the Island meets this description;  
an open space strategy for the Island with a dedicated parkland would  
protect the scenic areas, as well as a historic site and special landmark.  
He noted that issues around maintenance and liability must be  
considered;  
d.  
e.  
environmental protection policies are found in Section D of the Lake of  
Bays OP identify that “the conservation of the natural environment will  
take precedence over development when the two are in conflict and  
mitigation measures are unable to protect environmentally sensitive or  
significant natural heritage features and functions”. It is his opinion that the  
protection of the natural shoreline in scenic locations are not being  
adequately addressed in the proposed development;  
f.  
many policies related to Natural Heritage are related to the proposed  
development. He questioned whether the studies prepared by the  
Applicant were sufficient to identify natural heritage areas and determine  
the impact of the proposed development on the natural heritage areas;  
and  
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g.  
with respect to “Langmaid’s Island Muskoka Heritage Area” specific  
policies, it is his evidence that substantial development will be  
discouraged, and an impact assessment will need to be completed for any  
future limited development. A 32-lot PofS along with accessory uses,  
boathouses, and docks are not what is contemplated in this policy.  
[
70] Mr. Fahner is of the same opinion as Ms. Markham and the proposed  
development is not good planning and is not appropriate for the Island.  
[
71] The planners for the Applicant followed the Issues on the Issues List when  
evaluating how the proposed development meets the policies of the Lake of Bays OP.  
Their detailed evidence describing how the proposed development and Planning  
Instruments conform to Township OP policy includes the following:  
a.  
respects and suitably protects the heritage values identified in the Lake of  
Bays OP. A comprehensive HIA was completed in support of the  
application and provided input into the Planning Instruments. All of the  
recommended mitigation measures from the HIA have been included as  
part of in the recommended Planning Instruments. A complete evaluation  
of these measures is found in Exhibit 2, Tab 7 (Issue 5);  
b.  
c.  
an important policy found in the OPA states that “Development shall be  
designed and constructed in accordance with Character Guidelines  
approved by the Township of Lake of Bays. Suggested Character  
Guidelines were submitted to address issues from the peer reviewer and  
comments from the community.(Issue 6);  
the OPA establishes a set of foundational policies on which the  
subsequent implementing Planning Instruments will follow. Policy  
includes: each lot has waterfront access in an area that is outside of fish  
habitat or significant wildlife habitat; care in accessing the lots for  
construction and long term maintenance purposes will minimize the impact  
on the shoreline’s vegetative buffer; each lot has at least a 90 m frontage  
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OLT-22-002969  
and a minimum area of 0.8 ha; there is an adequate building envelope;  
there is a suitable location for the required septic system on each lot  
without the requirement for major alteration; individual cottages are  
designed to minimize visual impact of the development from the lake; and  
adequate provision has been made for mainland access to the lots  
(Issue 7);  
d.  
there is a requirement for a Development Permit for each individual lot.  
This process ensures that Lake of Bays will have the opportunity to ensure  
that the current policies of the Lake of Bays OP with respect to matters  
such as flood-prone lands and steep slopes are addressed appropriately.  
Each lot must have an adequate building envelope and septic system that  
may be installed without the requirement for major site alteration (Issue 8);  
the proposed development is not considered as over-development.  
Specific policies are in place to ensure that the physical and  
e.  
environmental constraints are appropriately considered in the PofS in  
keeping with the Lake of Bays Development Permit By-law and required  
Development Permit processes. A variety of comprehensive studies have  
been prepared that demonstrate the environmental features and their  
functions are protected throughout the development process. These  
studies were peer reviewed to ensure that the level of development is  
appropriate for the Island (Issue 9);  
f.  
development is appropriately controlled to respect and reinforce the  
sensitivities of the environmental features on the Island. The EIS provides  
the most current detailed assessment of these features, and that work was  
the subject of an independently peer reviewed. The EIS was undertaken  
and completed in accordance with Muskoka OP 2014 and Lake of Bays  
OP policies. Great care was taken to ensure that the development of lands  
adjacent to the environmental features identified in the EIS is done in a  
manner that will not adversely affect those features or their natural  
functions (Issue 10);  
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g.  
more specific policies have been incorporated into the Lake of Bays DPBA  
to ensure that the visual, natural heritage, hydrological features and  
functions of the Island are not inappropriately impacted. Proposed policies  
include visual impact for Character Guidelines; ensuring development  
minimizes visual impact. A development permit is required for each lot to  
implement these policies, and natural heritage and hydrological features  
are being included in those areas subject to conservation easements. It is  
the plannersopinion that the proposed OPA will be more restrictive than  
standard Waterfront designation requirements found in Section D of the  
Lake of Bays OP (Issue 11);  
h.  
proposed policies are designed to ensure that the visual impact is  
minimized through the number of lots proposed, protection of conservation  
blocks, the maintenance and restoration of vegetation, and the proposed  
conceptual lot layout. It is the plannersopinion that the proposed  
development will have less impact on the natural features and functions of  
the adjacent lands, water quality of the lake and have less visual impact  
compared to the existing pattern of shoreline development in the  
surrounding area (Issue 12);  
i.  
j.  
adequate provision has been made for mainland access to the lots to a  
sufficient policy level. Enforcement as necessary and the boat shuttle  
operation is more appropriately addressed in a subdivision agreement  
(Issue 13);  
appropriate ownership and management arrangements for the blocks  
identified for conservation are established in order to preserve these lands  
in perpetuity. Additions to existing policy require these blocks will be  
subject of a conservation easement in favor of a registered Land Trust to  
ensure ongoing conservation and prohibition of public access (Issue 15).  
[
72] The planners opined that good planning must be supported by good science.  
The Applicant has completed exhaustive environmental assessment work that  
concluded that Muskoka criteria, for designating the lands as a natural heritage area,  
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have been met. That conclusion was peer reviewed and supported by the peer  
reviewer. The current natural heritage area designation comes from an apparent  
previous landowners expressed wishes to maintain the property in a natural condition  
and that the Foundation would have the first right of refusal on the land should they be  
made available for purchase.  
[
73] Therefore, the planners for the Applicant have concluded “based on all the  
extensive study that is been done by the consulting team”, it is their opinion that the  
proposed OPA conforms to the Lake of Bays OP, represents good planning and is  
appropriate for the development of the Island.  
[
74] The Tribunal prefers the evidence of the planners for the Applicant and finds that  
the Planning Instruments and proposed development conform to the Lake of Bays OP.  
There are previous reports produced about the Island such as the 1993 Daniel F.  
Brunton and the 1994 Reid and Bergsma Reports which provided the basis and  
foundation of classifying the Island as regionally significant candidate as an Area of  
Natural and Scientific Interest (“ANSI”) and the evaluation as a natural heritage area.  
These will be further discussed later in this Decision.  
Town of Huntsville Official Plan  
[
75] The Town OP as consolidated in 2015 was in-force when the applications were  
deemed complete. The two proposed landings are designated “Waterfront” which  
permits such uses as residential, waterfront commercial, open space, and conservation.  
Waterfront landings may also be permitted that provided that a series of tests are  
satisfied through a zoning by-law amendment that satisfy the applicable criteria.  
[
76] The proposed development and Planning Instruments would accommodate the  
following:  
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OLT-22-002969  
a.  
with respect to the use of the Beauview Cottage Resort property, the  
Town OP promotes the preservation of quality tourist commercial land  
uses essential to the long-term health of the Town’s tourism industry.  
Rezoning of commercial properties along the water is generally not  
supported. The Applicant is proposing to construct a parking lot adjacent  
to South Portage Road and west of the tourist commercial buildings. A  
docking facility will accommodate a boat shuttle service from the mainland  
to the Island with a second dock to accommodate up to six temporary  
boats along the shoreline. The Applicant has indicated the resort use will  
continue and the proposed facilities will not hinder the resort's viability;  
and  
b.  
with respect to the 3933 property, the Applicant proposes that a waterfront  
landing would be the primary use. There would be parking provided for up  
to 20 vehicles with a dock that would accommodate moorings for  
1
0 boats. There are no additional structures proposed on this lot.  
[
77] Ms. Maxwell spoke to the Town OP policies as they relate to 3933 property and  
the Beauview Cottage Resort property as follows:  
a.  
the Town OP contains a number of tests for new waterfront landings,  
which require they are designed to be compatible with the abutting  
properties and have generous yards maintained in a way to provide  
screening and buffering of neighbouring residential properties. With  
respect to 3933 property, the conceptual site plan does not illustrate  
sufficient room to accommodate the parking spaces or appropriate room  
for turning vehicles. There is not sufficient space to maintain the required  
vegetated buffer abutting the residential uses on either side. The proposed  
docking structure is in excess of zoning by-law standards with respect to  
shoreline activity and dock width;  
b.  
the Town OP also speaks to the character and development principles in  
the waterfront. The character of an area will be maintained by retaining a  
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OLT-22-002969  
traditional mix of land uses, an overall low-density form of development,  
and preservation of the natural environment, vegetation, and natural  
shorelines. These are important considerations the Applicant must assess  
in determining the impact of a proposal with respect to the character of the  
area. The scale of the proposed waterfront landings and associated  
increase in intensity of use in these locations. The planner is of the opinion  
that the proposed development is not in keeping with the residential  
character of the area; and  
c.  
the Town OP provides details and provisions with respect to shoreline  
activity areas. The extent of shoreline development of the proposal is  
significant and is not in consistent with development in the bay. The very  
nature of shoreline structures and activity means no buffering can be  
provided and proposed setbacks are not large enough to provide suitable  
transition.  
[
78] Mr. Fahner’s evidence is consistent with respect to compatibility and  
maintenance of the character of immediate waterfront residential areas. The waterfront  
landings are out of scale with the surroundings, may not have sufficient provision for  
stormwater retention and may not be sufficient for the demand, especially during the  
high demand times. He noted that construction materials may not be barged from either  
of the waterfront landings sites due to water depth and a municipal landing located  
between these properties cannot be used for barging, as it has been recently prohibited  
in a recent by-law passed by the Town.  
[
79] The planner noted waterfront landings may only be permitted provided that a  
series of criteria are met including being adequate in area and frontage, sufficient  
docking and parking facilities are available, is suitable for the use, will not have a  
negative impact on environmentally sensitive areas, designed in a manner that is  
compatible with abutting properties, a minimum of a 20 m setbacks from the shoreline  
and a natural vegetative buffer is maintained within the setback area, stormwater  
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OLT-22-002969  
management and construction mitigation is addressed, and generous yards shall be  
maintained to provide for screening and buffering of neighboring residential properties.  
[
80] Both Ms. Maxwell and Mr. Fahner do not support either Town ZBA #1 or Town  
ZBA #2 as neither conform to the intent of the Town OP.  
[
81] Mr. Szczerbak, a planner tor the Applicant, in his evidence spoke to the Town  
OP. It is his opinion that the Lake of Bays OP does not apply to the Landings or the  
Landings applications. He did evaluate the Town ZBA #1 and Town ZBA #2 and the  
development of a new waterfront landing against relevant Town OP policies. He made  
specific reference to the following relevant policies.  
a.  
b.  
the landings are designated “Waterfront” which permits landing uses;  
there is considerable policy direction with respect to the creation of new  
mainland access points “waterfront landings”. The Applicant has taken into  
account all of the policy “tests” with respect to the development of a new  
waterfront landing in the Town;  
c.  
d.  
e.  
the proposed landings will not have an impact on any environmental  
sensitive area, habitat, or heritage feature;  
the proposed landings have maintained a balance between the natural  
shoreline and built form along the waterfront;  
the Planning Instruments contain appropriate limits for new shoreline  
structures to ensure the development does not impact the environment  
and visual features when viewing the property from the water; and  
existing policies within the Town OP contemplate the creation of  
waterfront landings subject to a series of tests. The Applicant has  
demonstrated, through a variety of technical studies, that proposed  
waterfront landings to not impact the visual, natural heritage, and functions  
of the adjacent land and the shoreline.  
f.  
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[
82] Mr. Szczerbak opined that the Town ZBA #1 and Town ZBA #2 conforms with  
the Town OP and meets all of the required policy tests.  
[
83] The Tribunal prefers the evidence of Mr. Szczerbak and finds that the Planning  
Instruments and proposed development conform to the Town OP. That being said, the  
Tribunal does have some reservations with respect to the impact of the waterfront  
landings in the Town and their compatibility with respect to providing sufficient  
operational requirements, most notably parking and vehicular traffic at the Beauview  
Cottage Resort property and the maintenance of a 20 m shoreline buffer at the  
3
933 property.  
IMPLEMENTING BY-LAWS  
[
84] The Tribunal has before it, three implementing by-laws that make use of two  
different planning regimes. The Town makes use of a traditional zoning by-law while  
Lake of Bays use a development permit by-law system. The Tribunal heard evidence  
from the various planning witnesses with respect to these three Planning Instruments.  
Town of Huntsville Zoning By-law Amendments  
[
85] The planners in their ASOF agreed that a new waterfront landing use is not  
permitted in either the SR1 or the CS1 zone. Therefore, a site-specific zoning  
amendment is required to establish this use.  
[
86] Both Town ZBA and Amended Zoning By-law No. 2008-66P state as follows:  
a.  
Town ZBA #1 amends the property known as 3933 South Portage Road  
from a Shoreline Residential One (SR1) to a Shoreline Residential One  
(SR1) zone with an exception that allows for a waterfront landing to be a  
permitted use along with applicable accessory structure(s), a maximum of  
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1
0 docking slips and sets a maximum cumulative width of all shoreline  
structures and amenity areas; and  
b.  
Town ZBA #2 amends the property known as the Beauview Cottage  
Resort from a Shoreline Commercial One (CS1) zone with an exception  
that allows for a waterfront landing to be a permitted use along with  
applicable accessory structure(s).  
[
87] The planners for the Applicant have concluded and are of the opinion that the  
proposed Town ZBA #1 and Town ZBA #2 are appropriate in keeping with the  
requirements of the Town OP and are proper in their construct to serve the proposed  
development.  
[
88] Ms. Maxwell and Mr. Fahner provided evidence that the waterfront landings on  
both properties are too extensive for the proposed use. Issues related to parking  
especially at peak times, and the safety of pedestrians either walking along or crossing  
the roads to access the waterfront. It is their view that the size of the two waterfront  
landings is not sufficient to account for the number of habitable buildings that are  
proposed for each lot on the Island. This may result in traffic and parking sufficiency  
issues. The depth of water at the proposed waterfront landings may not be sufficient for  
either barges and public landings, which may result in constraints to access to the  
Island and put pressure on public landings in the area.  
Lake of Bays Development Permit By-law Amendments  
[
89] The planners in their ASOF noted that a development permit by-law differs from  
a traditional zoning by-law in a number of ways. In addition to permitted uses, it permits  
discretionary uses and allows variations from standards, provided certain conditions are  
met. It also regulates removal of vegetation and alteration of the landscape. The  
Development Permit By-law applies to lands falling within the waterfront designation as  
set out in the Lake of Bays OP.  
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OLT-22-002969  
[
90] The Island is currently zoned/designated “Waterfront Residential Development  
Permit Area” in the Lake of Bays Development Permit By-law No. 2004-180.  
[
91] The proposed Lake of Bays DPBA would further amend the Lake of Bays  
Development Permit By-law for the Island from “Waterfront Residential (WR)”  
Development Permit area to “Waterfront Residential with Exception (WR-XXXX)”  
Development Permit area and to the “Waterfront Environmental Protection (WEP)”  
Development Permit area to the “Waterfront Environmental Protection with Exception  
(WR-XXXX)” Development Permit area. The exception establishes minimum lot area  
and minimum water frontages for new lots, minimum shoreline yard setbacks, maximum  
lot coverage, maximum shoreline activity area frontage, minimum shoreline buffers, the  
minimum off street parking requirement for a waterfront landing shall be two parking  
spaces for each property served, plus one visitor parking space for every three  
properties served, a maximum of 32 lots are permitted, a development permit will be  
required for each lot, a maximum of three sleeping cabins shall be permitted on a lot  
subject to conditions, and establishes certain regulations with respect to conservation  
easements.  
[
92] Ms. Markham in her testimony presented considerable evidence with respect to  
the waterfront landings on the mainland as it relates to the Lake of Bays DPBA. She as  
of the opinion that the proposed waterfront landings are not compatible with the  
surrounding properties. Shoreline lots with only water access including islands will be  
permitted only when there are adequate private or commercial docking and parking  
facilities secured on the mainland to the satisfaction of the Lake of Bays.  
[
93] Ms. Markham noted that sufficient docking and parking facilities may not be  
provided to sufficiently serve the proposed residential and resort commercial use. She  
questioned whether there is sufficient parking provided and properly secured in the  
interest of the potential property owners in the proposed development. She also  
questioned how building materials, construction equipment and maintenance vehicles  
can access the Island by barge. The proposed waterfront landings for the proposed  
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OLT-22-002969  
development may not be appropriate for heavy commercial traffic as the water is quite  
shallow and there is limited ability to maneuver vehicles. Therefore, the Applicant has  
not provided sufficient docking facilities to serve the residential use.  
[
94] Ms. Markham noted there are up to 124 parking spaces to be located on the two  
waterfront landing properties. Although she agrees that current planning practices are  
moving away from requiring large parking areas and towards a reduced parking  
standard, these changes are generally found where there is a greater reliance on non-  
automobile forms of transportation. The proposed development is located in a resource  
based recreational area that is dependent only on the automobile for access. There was  
no parking justification report submitted by the Applicant to support a reduction in  
parking standards. Only when such a study is completed and reviewed demonstrating  
that a reduction in parking may be considered, the waterfront landings must be  
designed to accommodate the number of parking spaces required by the Lake of Bays.  
[
95] The planners for the Applicant undertook an exhaustive analysis of how the Lake  
of Bays DPBA conforms to the requisite planning policies of the Muskoka OP and the  
Lake of Bays OP. Key considerations of the analysis of the Lake of Bays DPBA include:  
a.  
b.  
c.  
when one considers how the proposed development permit by-law is  
constructed along with the required setbacks and vegetative buffers,  
approximately 90% of the Island would remain undeveloped;  
the proposed development seeks to permit to waterfront landings on the  
mainland. The Lake of Bays Development Permit By-law does not apply to  
these lands. Water access is permitted;  
imposes significant setbacks and limits alteration to vegetation along the  
shoreline;  
d.  
e.  
a further Development Permit is required for each individual lot;  
serves to protect significant habitat, important identified features and  
values, respects the identified cultural and natural heritage values,  
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OLT-22-002969  
important significant sites or values and natural landscape features have  
been identified and accommodated;  
f.  
protects from development and tree removal of lands along the shoreline  
where Type 1 fish habitat and a potential trout spawning shore currently  
exist. Establishes appropriate setbacks from identified fish habitat;  
implements the findings of the EIS and strikes an appropriate balance  
between the economic benefits of encouraging responsible growth and  
natural heritage protection. Areas identified through the EIS and HIA are  
restricted to appropriately control the scale, density, and setbacks of  
development;  
g.  
h.  
Lake of Bays anticipates growth in the Waterfront designation and  
describes in more detail how growth will occur. The standards for growth  
and development in a waterfront designation are implemented in the Lake  
of Bays Development Permit By-law and are considered fully in the  
proposed development;  
i.  
all required background and technical studies were submitted, peer  
reviewed and found sufficient to ensure that the proposed development  
and the impact thereof has been properly reviewed, considered, and  
provided for in the Lake of Bays DPBA;  
j.  
the proposed DPBA generally has greater standards then required by the  
Lake of Bays Development Permit By-law. The proposed development  
can be serviced by private water and septic services;  
k.  
the proposed buildings and structures will be constructed in keeping with  
the proposed Character Guidelines that ensure exterior and wall finishes  
generally implements the design principles established in the  
Development Permit By-law; and  
l.  
with respect to building construction, no roads are proposed on the Island  
to minimize vegetation and tree removal, hydroelectric services are  
provided for underwater or underground to each lot and stormwater  
management will be accommodated as part as the recommended  
Construction Mitigation Plans indicate.  
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OLT-22-002969  
[
96] In conclusion, the planners opined that all principles of the Muskoka OP, Lake of  
Bays OP and Development Permit By-law have been collectively considered in all of the  
proposed submissions, technical reports and are reflective of the recommendations  
being implemented in the proposed Planning Instruments.  
[
97] The Tribunal prefers the evidence of the planners for the Applicant with respect  
to the construct of the Lake of Bays DPBA and how it serves to implement the proposed  
development on the Island.  
TESTIMONY ON BEHALF OF THE LAKE OF BAYS HERITAGE FOUNDATION AND  
LAKE OF BAYS ASSOCIATION  
[
98] The Tribunal had the benefit of hearing testimony from two lay witnesses,  
Mmes. Peden and Mills, along with receiving a comprehensive Participant Statement  
Book submitted on behalf of the participants by LOBA and the Foundation. Their  
evidence demonstrates the importance to the residents of the area, whether seasonal or  
permanent residents, have to Lake of Bays and its environs. All written material and  
oral evidence have been considered in this Tribunal's Decision.  
[
99] Ms. Peden is the President of the LOBA, which is a non-for-profit organization  
that represents the interests of seasonal and permanent residences on Lake of Bays  
and the surrounding area. It has a membership of 1,175 families. LOBA has participated  
in the development of land use planning policy in Muskoka and Lake of Bays since the  
1
960s. It is principally interested in identifying, evaluating, and responding to land use  
and waterfront development issues on Lake of Bays and its shoreline. Her testimony  
includes the following:  
a.  
the Island is an iconic part of Lake of Bays landscape and is virtually the  
only undeveloped island on the lake and represents a classic Muskoka  
shoreline and landform;  
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OLT-22-002969  
b.  
the proposed development does not satisfy the intent of its Heritage Area  
designation. The Heritage Areas are identified with the goal of protecting  
features as development occurs in Muskoka and need to be recognized in  
advance of development pressures is that they are protected into the  
future. There are very limited Heritage Areas remaining on a lake, making  
it essential to maintain those that are available;  
c.  
d.  
the diversity, quality, and undisturbed nature of the Island, when taken in  
its entirety, are unique and these natural heritage values will be lost with  
the development of a 32-lot subdivision;  
the greater Lake of Bays community has expressed its opposition to the  
proposed development with many written and oral submissions received  
before or during the statutory public meeting. Community issues with  
respect to boating included increased boat traffic, the proposed marine  
shuttle service and the safety hazard it may present to anyone swimming  
or boating in the narrows especially at peak times, the negative impact of  
increased boat traffic on the shoreline and wildlife habitat along the  
shoreline, increased soil erosion as a result of increased boat traffic, and  
damage caused by huge waves to the shoreline, moored boats, and  
docks;  
e.  
on the mainland there is expressed issues with respect to the increased  
car traffic on South Portage Road and potential safety hazards. There is  
significant pedestrian traffic during all seasons as residents’ access either  
the water or their residences. The proposed total parking of 124 spaces  
being provided is not sufficient. In short, the uses proposed for the  
waterfront landings are not compatible with the surrounding community  
and will negatively impact the Beauview Cottage Resort property as a  
viable commercial resort; and  
f.  
issues related to the placement and maintenance of septic systems on the  
Island has identified in the FSR.  
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OLT-22-002969  
[
100] In conclusion, Ms. Peden testified that when the proposed development is  
considered and analyzed as a whole, it represents a density and intensity of  
development that negatively impacts the natural heritage values of the Island, presents  
public safety and environmental issues and is not compatible with the surrounding  
community.  
[
101] Ms. Mills is the President of the Foundation, which is a registered charity and  
Land Trust. It is focused on preserving the heritage of Lake of Bays region, was  
founded in 1985 and presently has 865 members. Its mission is to engage the  
community in the preservation of the area's natural and community heritage for the  
enjoyment of present and future generations. It presently stewards three properties  
comprised of 128.3 ha. and 5.3 kilometres of shoreline. The foundation had many  
meetings with the representatives of the Applicant in an effort to find consensus on an  
appropriate proposal. Her testimony includes the following:  
a.  
b.  
the Island is the second largest island on Lake of Bays, a MHA and in her  
view qualifies as a Cultural Heritage Landscape;  
there is a long history of the previous owner’s wish that the Island be  
preserved in a natural state. The Foundation was given first right of refusal  
on the purchase of the Island, but did not have sufficient time to raise the  
required funds. This resulted in the property being sold to the current  
owner;  
c.  
during the community consultation, the Foundation proposed that  
significantly fewer lots be developed on the Island. At that time, it was  
proposed that there be 36 waterfront residential lots and conservation land  
to be identified as Open Space zone;  
d.  
e.  
has concerns that the proposed structure for the land set aside for  
conservation would not conform with the Canada Land Trust standards;  
and  
agrees with the opinion of the planner for Lake of Bays that the proposed  
development does not conform with the policies of the Township OP.  
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OLT-22-002969  
[
102] Ms. Mills stated that the reason the Foundation became a party to this matter is  
to ensure adherence to the relevant planning policy with respect to the Island that is  
found in the Lake of Bays OP. She also advised the Tribunal that should some  
development be deemed meeting the Lake of Bays OP policy, and the proposed land  
conservation be structured under the Ontario Conservation Land Act and meets the  
Canada Land Trust Standards, the Foundation would be willing to partner as a Land  
Trust in preserving the conserved portions of the Island.  
ENVIRONMENTAL IMPACT AND NATURAL HERITAGE  
[
103] The Tribunal heard considerable expert evidence from two qualified witnesses,  
Dr. Coleman on behalf of the Foundation and Mr. Shaw on behalf of the Applicant with  
respect to the environmental and natural heritage features mainly for the Island. It also  
had the benefit of testimony from Ms. Ellard-Alexis, who has considerable experience in  
the discipline of sustainable development on behalf of Mr. Zytaruk. Ms. Ellard-Alexis  
was not accepted as an expert in this proceeding but as an advocate for her client.  
[
104] Mr. Shaw provided an extensive background assessment for the Tribunal to  
describe how he came to his conclusions and opinion. He noted there were three EIS  
documents completed by RiverStone Environmental Solutions (“RiverStone”), a  
consulting firm that specializes in the assessment of natural features and functions and  
the impacts of land use change. Mr. Shaw completed a comprehensive EIS for the  
Island which included many field studies (in excess of 90 hours) to document the  
Island’s natural features and prepared a wide-ranging written report. Similar EIS studies  
were completed for the 3933 property and the Beauview Cottage Resort property. The  
peer review firm also visited the landings and the Island as part of their review of the  
EIS.  
[
105] Mr. Shaw advised the Tribunal from the outset that the EIS demonstrated there  
are natural features on the Island that require protection under the applicable legislation,  
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OLT-22-002969  
as well as the Muskoka OP, the Lake of Bays OP, and the Town OP, which include  
habitat of species at risk (barn swallows in abandoned boat house), fish habitat (three  
areas related to aquatic vegetation, complex habitat features and potential for lake trout  
spawning habitat), and a candidate significant wildlife habitat (rock barren and cliff  
habitats). The EIS concluded that identified natural heritage features can be protected  
while allowing the proposed development of the waterfront lots to occur. A number of  
recommendations were provided to avoid and protect these features and functions, as  
well as lake water quality.  
[
106] With respect to the 3933 property, the EIS concluded the natural features  
identified can be provided while allowing for the development of the lot as a mainland  
parking and boat docking location. A series of recommendations are provided to protect  
these features and functions, as well as the water quality of the lake.  
[
107] With respect to the Beauview Cottage Resort property, it is by noted by Mr. Shaw  
that the property is developed with several old cabins, open space areas to provide  
required parking and a grassed lake frontage. The EIS concluded that the natural  
features identified on the property can be protected while allowing it to be developed as  
a mainland parking area and boat docking location.  
[
108] Mr. Shaw testified that Muskoka requested the three EISs be peer reviewed to  
ensure conformity to current practices, the adequacies of studies completed and the  
proper assessment of impacts. Also, the EISs were provided to the MNRF to comment  
on the adequacy of the study and conformity with the Endangered Species Act. All peer  
reviews and agency comments were finalized, and it was determined that these studies  
were complete, and all issues were satisfied. Therefore, they had no objections to the  
proposal proceeding for approval subject to conditions that could be imposed on a draft  
PofS or by the DPBA regulations.  
[
109] Mr. Shaw proffered considerable and compelling evidence with respect to all of  
the relevant issues found in the Issues List. His review both orally and in his WS is  
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extremely detailed and complete. He is of the opinion that the environmental and natural  
heritage considerations of the proposed development meet all the requirements of the  
requisite Provincial, Muskoka, Lake of Bays, and Town statutory planning documents  
for reasons which include:  
a.  
b.  
c.  
the identification of ecological systems, natural areas, features, and  
functions was undertaken by RiverStone through the completion of an EIS  
to ensure their protection. The EIS methodology followed provincial  
standards where applicable and addressed areas of provincial interest.  
Mitigation measures were also recommended to ensure the natural  
features and functions on the Island and the mainland properties will be  
protected;  
a natural features and areas review, which included Type 1 fish habitat  
assessment, was completed for the entire Island and both mainland  
parcels and identified portions of the shoreline where this habitat exists.  
Habitat of identified species at risk and candidate significant wildlife  
habitat have been thoroughly reviewed and subsequently identified and  
protected. Measures have been applied to ensure proper mitigation of any  
impacts;  
all components of the natural heritage system on the Island are proposed  
to be protected and buffered. Docking envelopes for each proposed lot are  
designed to ensure they are outside of Type 1 fish habitat. The proposed  
development includes a 23-m set back from the entire shoreline of the  
Island. The vast majority of the shoreline area on the Island will be  
maintained in its natural state and form with only limited tree removal to  
provide access;  
d.  
e.  
the Construction Mitigation Plan which serves to implement the EIS  
ensures protection of the identified Type 1 fish habitat through a series of  
conditions found either in the PofS or the DPBA;  
the RiverStone EIS and the follow up reports considered adjacent lands  
with the assessment of species at risk, significant wildlife habitat, and fish  
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habitat. Mitigation measures were included to prevent the proposed  
development from impacting any of the features identified. The proposed  
development protects these features and functions in an effort to conserve  
their health, integrity, and biodiversity;  
f.  
Muskoka has specific policies with respect to best management practices  
in relation to water quality. These practices establish a set of triggers  
related to high phosphorus concentrations. The EIS for the Island  
implements the best management practices;  
g.  
h.  
i.  
all Island and mainland parcels include an assessment of other sensitive  
features and functions that should be protected;  
there are no provincially significant wetland or, areas of natural of scientific  
interests identified through the EIS on the Island or the mainland parcels;  
a detailed review illustrated that the Island characteristics did not meet the  
criteria for being included as a natural heritage area as defined by the  
Muskoka OP;  
j.  
all areas requiring protection that are identified in the EIS are included in  
the proposed Planning Instruments and will be subject to a conservation  
easement to ensure ongoing conservation and prohibiting public access;  
all general development policies for both the Island and the mainland  
parcels such as shoreline and septic system setbacks have been  
incorporated in the proposed development to ensure proper  
implementation. Each lot on the Island will be required to obtain a  
Development Permit which includes a comprehensive list of requirements;  
the OPA respects development constraints such as flood prone lands and  
steep slopes, does not permit over-development when considering  
environmental constraints, respects the sensitivities of the environmental  
features, does not permit development that will unacceptably impact  
natural heritage features of the Island, Lake of Bays or adjacent  
properties;  
k.  
l.  
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m.  
n.  
there are no conflicts between development and the natural environment.  
All natural features requiring protection are identified in the RiverStone  
EIS and will be protected through the Planning Instruments;  
the EIS identified features and functions which require protection that are  
different than those attributed to the Island through the MHA program. It is  
Mr. Shaw’s evidence that the RiverStone EIS considered a more up-to-  
date accurate identification of these features which are identified and  
protected through the Planning Instruments;  
o.  
p.  
the EIS recommended mitigation measures to ensure any potential impact  
of the proposed development on natural features and their functions can  
be appropriately avoided or minimized; and  
through the EIS, associated with additional studies, there was an  
evaluation of historical studies, peer reviews, and the MNRF review. The  
Island was re-evaluated based on current standards and, in his oral  
evidence, he provided an analysis of significance as recommended by the  
Natural Heritage Evaluation completed in 1994.  
[
110] In conclusion, Mr. Shaw Is of the opinion that the Planning Instruments have  
appropriate regard for s. 2 of the Act, are consistent with the PPS, conforms to the  
Muskoka OP 2014, has appropriate regard to Muskoka OP 2019, conform to the Town  
OP and Lake of Bays OP. The RiverStone EIS is comprehensive and a complete review  
and analysis of the proposed development, meets the requirements of Provincial  
regulations and guidelines. The Applicant has incorporated the recommendations into  
the Planning Instruments presented at this Hearing.  
[
111] Dr. Coleman provided expert evidence to the Tribunal with respect to  
environmental impact and natural heritage on behalf of the Foundation and the LOBA.  
His evidence is based upon a series of reports that he reviewed which are within his  
area of expertise being ecology and environmental planning. He did advise the Tribunal  
that he did not have the benefit of visiting the Island and relied entirely on the reports,  
planning documents, and letters filed by local residents who are most knowledgeable of  
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the local environment. His evidence is entirely directed towards the issues related to the  
Island.  
[
112] Dr. Coleman reviewed the proposed development against the PPS, Muskoka OP  
014, and the Lake of Bays OP, and Lake of Bays Development Permit By-law. He took  
2
three areas as general directions from his review as they relate to the proposed  
development and Planning Instruments, being:  
a.  
b.  
the Island is identified for various reasons as a significant natural area with  
identified values;  
the various documents he reviewed recognize that significant character  
and contain policies that limit any development on the Island.  
Conservation is to be given priority over development; and  
development beyond the current use of a single cottage and associated  
structures requires that first, the entire Island to be protected and if not, a  
demonstration that the Island values are protected.  
c.  
[
113] Dr. Coleman testified that the Island has previously been reviewed a number of  
times with respect to its environmental significance. Once a site is identified as a  
candidate site, there is further evaluation and confirmation to determine whether it is of  
Provincial or local significance. This confirmation process appears not to have occurred  
for the Island, so in his opinion, it does not receive direct protection under the PPS.  
[
114] By making use of a variety of sources, Dr. Coleman concluded that the Island is  
unusual in terms of its size, natural conditions and lack of development. He went on to  
state that the identification of the Island as a MHA is warranted given the descriptions  
available to him and the scarcity of undisturbed shoreline in Lake of Bays. He  
completed a detailed review of the RiverStone EIS and the various site-specific  
inventories that were intended to provide direction to the proposed development. The  
inventories reviewed include terrain drainage in soils; ecological communities; wildlife;  
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fish and fish habitat; habitat of endangered and threatened species; significant wildlife  
habitat; and MHA.  
[
115] Upon completing this review, Dr. Coleman is of the opinion that the information  
and surveys are not sufficiently robust and detailed to allow him to assess value of the  
various inventories and the implications of potential impacts. As a result, his first major  
concern with respect to the RiverStone EIS is that it does not contain a complete  
analysis of the environmental constraints necessary to satisfy the policies of the various  
relevant planning policies.  
[
116] Dr. Coleman went on to review the proposed development against relevant  
studies in detail and identified the following observations and issues:  
a.  
b.  
there is no documentation that the preservation of the entire Island is not  
feasible;  
there is no presentation of the extent of the proposed development in  
determining the impact on the environment and the proposed  
development and environmental constraints, as described, is also  
incomplete. To be completely accurate, each lot should be tested in detail  
as each will have a large influence on the footprint of development and the  
resulting impacts;  
c.  
d.  
e.  
f.  
he produced evidence to illustrate the extent of disturbance which in his  
opinion shows the fragmentation of the Island resources;  
in order to support the conclusions of the EIS, the Development Permit  
By-law should be amended to require greater setbacks;  
there is an inconsistent and variable treatment of access through the  
Shoreline Protection Zone within the various documents;  
it is his opinion that the proposed controls on how to implement the  
proposal are weak; and  
g.  
the areas to be preserved through conservation easements are  
fragmented. Therefore, are several problems with this approach in respect  
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of implementing the long-term protection of the Islands values.  
Dr. Coleman is not aware any examples of the use of conservation  
easements in development role in the manner suggested by the Applicant.  
[
117] In conclusion, Dr. Coleman opined that there are four reasons why the Planning  
Instruments should be refused and returned for further refinement, as outlined in his  
evidence and witness statement. The four reasons are:  
a.  
b.  
the inventories of the features in values of the Island are not sufficient to  
determine environmental impacts;  
relevant policies require an assessment impact on the values for which the  
Island was determined to be important and protected. These values are  
not properly addressed in either the RiverStone EIS or the Planning  
Justification Report prepared on behalf of the Applicant;  
the various documents do not provide a description of the proposed  
development to sufficiently analyze potential impacts. More detail study is  
necessary on a lot-by-lot basis. Therefore, the proposal is not consistent  
with the PPS and does not conform to the Muskoka OP 2014 or the Lake  
of Bays OP; and  
c.  
d.  
the proposed Planning Instruments are unlikely to be effective in  
protecting natural values. He provided a development concept that does  
meet the planning policies and will be effective in protecting the  
environment.  
[
[
118] Mr. Fahner, in his evidence, is of a similar view to that of Dr. Coleman.  
119] Ms. Ellard-Alexis is a Sustainable Development Specialist and provided  
advocacy evidence (reasons noted earlier in the decision) for Mr. Zytaruk. Although  
sustainability is not a specific issue on the Issues List, the Tribunal is pleased to have  
the benefit of her expertise with respect to this consideration of any proposed  
development. Sustainability principles are found in the relevant planning documents.  
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The Tribunal will consider the weight it will give to this evidence with respect to the  
advocacy perspective that this witness brings to the proceedings.  
[
120] Ms. Ellard-Alexis completed an extensive review of the proposed development  
against the PPS, the Federal Sustainable Development Act, 2008 and the principles of  
sustainable development. She provided testimony through her witness statement and at  
the hearing, with respect to an ecosystem based analysis, her views of significant  
wildlife habitat, the presence of species at risk, presented a series of aerial inventories  
with respect to various bird species, deer wintering areas, old growth forest, socio-  
economic considerations, the appropriate mix of housing, public safety, water quality,  
and climate impacts as it relates to the proposed development and requisite Planning  
Instruments.  
[
121] Ms. Ellard-Alexis’ conclusions included:  
a.  
there is a direct ecological impact of the proposed development on a  
variety of terrestrial species. There is insufficient inventory for the habitat  
requirements of eight confirmed species. Such an inventory would ensure  
a key local biodiversity area is supported by appropriate inventories being  
completed for the Island;  
b.  
c.  
additional human activity presents a risk of additional nutrient loading in  
Lake of Bays;  
the proposed development is not in alignment with the housing and  
development priorities articulated by all levels of government. It would  
further gentrify the area and enhance the demand on an already saturated  
service market;  
d.  
there is a lack of alignment with the sustainable principles of the Federal  
Sustainable Development Act, the PPS, the Muskoka OP 2014 and the  
Lake of Bays OP; and  
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e.  
there is an absence of evidence in any of the documentation with respect  
to the economic multipliers that would support the cost associated with the  
proposed development.  
[
122] Ms. Ellard-Alexis does not recommend the proposed development or the  
requisite Planning Instruments required to implement it for the Island.  
[
123] During the course of the hearing, full copies of two reports were presented and  
placed into evidence. The first is the 1993 Daniel F. Brunton Report which is “A Review  
and Assessment of Significant Natural Areas in Site District SE-8”. This report included  
a multitude of sites across the Region, including Langmaids Island. Although Mr. Shaw  
did not have the final and full report, he was in possession of the excerpt from this  
report indicating that the subject property is considered a candidate ANSI. This report  
was followed by a 1994 report authored by Reid and Bergsma titled “Muskoka Heritage  
Areas Program” and also reviewed the specific criteria to consider this Island as a  
candidate ANSI.  
[
124] Although never acted upon by the MNRF, Lake of Bays did act on the  
recommendations and identified the subject property as a “Muskoka Heritage Area”  
together with policy considerations and thus the requirement of a wholesome and up-to-  
date EIS. The argument put forward to contradict Mr. Shaw's report is the list of criteria  
that was met in a very limited review of the Island. It is obvious from the Reid and  
Bergsma Report that the major sources of information come from a desktop exercise  
reviewing various pieces of data that have been collected over a number of years prior  
to the completion of this report. The Tribunal finds that this report, along with the Daniel  
F. Brunton Report carry little weight in concluding that the subject property may be  
considered a regionally significant ANSI, given the limited time spent investigating the  
Island and, just as important, length of time that has passed.  
[
125] Dr. Coleman considered the EIS not robust enough and should be sent back for  
further detailed and refined work. Although this may be true to better assist him for his  
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peer review of the report, the Tribunal disagrees with his findings. The amount of detail  
is sufficient for all reporting agencies and the peer reviewer where they visited the  
Island to better critique the EIS, its contents and recommendations.  
[
126] The Tribunal considered all of the expert evidence, the lay and advocacy  
testimony and prefers the evidence of Mr. Shaw with respect to environmental impact  
and natural heritage with the exception of a concern of the fragmentation of the  
conservation easements. This will be discussed further in the Tribunal’s finding and  
recommendations.  
CULTURAL HERITAGE, LANDSCAPE ARCHITECTURE AND VISUAL IMPACT  
Cultural Heritage and Landscape Architecture  
[
127] Mr. Currie provided expert evidence on behalf of the Applicant with respect to  
both cultural heritage and landscape architecture. He provided the Tribunal with  
considerable detail regarding both subjects and is qualified as an expert in both  
disciplines.  
[
128] Mr. Currie prepared a comprehensive HIA with the express purpose of evaluating  
the Island in accordance with Ontario Regulation 9/06 made under the Ontario Heritage  
Act. This Act provides the legislative criteria for determining cultural heritage value or  
interest, identifying potential impacts of the proposed development on any of the cultural  
heritage resources that may be present, and provide mitigation recommendations where  
necessary.  
[
129] Mr. Currie noted that the HIA confirms the heritage attributes of the Island and  
determines that the Island qualifies as a cultural heritage landscape in keeping with the  
definition in the PPS. However, the landscape is not an early, rare, or unique example  
of seasonal development patterns. The Island has cultural heritage value for its  
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contextual value, scenic qualities and is a representative of the pattern of waterfront  
residential and recreational development integrated with the natural landscape.  
[
130] Mr. Currie went on to testify that conclusions in the HIA state that the proposed  
development on the Island can be supported provided each lot reflects the established  
pattern of seasonal recreational development that is characteristic of the lake. He went  
on to state that buildings should be integrated within the natural setting of the Island to  
take advantage of the topography, natural features, and views to the lake. There are a  
number of recommendations in the HIA intended to ensure the proposed development  
will achieve this result. The HIA was the subject of a peer review. The Lake of Bays  
Heritage Advisory Committee considered the proposed development and recommended  
that any development on the Island maintain the character of the area including the  
natural features and scenic quality.  
[
131] Mr. Currie noted that the comments of the peer review and the Heritage Advisory  
Committee which have been considered by the Applicant and reflected in the Planning  
Instruments and the design of the proposed dwelling units.  
[
132] Mr. Currie testified that the Planning Instruments implement the  
recommendations of the HIA and ensure that the features of the natural environment  
that contribute to the scenic quality of the Island are retained and conserved. New  
development is integrated into the natural environment, maintains the character of the  
Island, and conserves its heritage attributes. The planner noted that the HIA identifies  
the Island as a significant cultural landscape and the HIA concluded that the proposed  
development can preserve the heritage attributes of the Island provided the  
recommendations of the HIA are implemented which has been done. Therefore, it is his  
opinion that with respect to cultural heritage and landscape architecture, the proposed  
Planning Instruments:  
a.  
b.  
have appropriate regard to the Planning Act;  
are consistent with the PPS;  
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c.  
d.  
conform to the Muskoka OP 2014 and has appropriate regard for the  
Muskoka OP 2019; and  
Conforms to the Lake of Bays OP.  
[
133] Neither Muskoka, Lake of Bays, or the Foundation provided specific expert  
evidence related to cultural heritage and landscape architecture. The planners’  
evidence of Mr. Fahner, Ms. Markham, and Ms. Maxwell is discussed earlier in this  
Decision is the extent of the evidence heard from these parties.  
[
134] The limited evidence that was heard attempted to isolate the Island by leveraging  
the existing development in a purely local context with no consideration of the broader  
context. It is incumbent on the Tribunal to take into consideration the existing  
development pattern on the mainland that directly faces and is clearly visible to the  
Island. One of the arguments that the Tribunal heard was that some of this existing  
development is visible and close to the water’s edge, due to the proximity of South  
Portage Road to the rear of these existing, developed lots. The Tribunal does not find  
this as a reason to ignore what exists.  
[
135] The intensity, density and visibility of the existing development on the mainland  
has a direct affect in the proper assessment of the intensity, density and visibility of the  
development proposed on the Island. It is not the number of proposed lots that bears  
any weight or significance, it is how the proposed development fits into its natural  
environment with proper protection of the cultural heritage and landscape features.  
[
136] The Tribunal prefers the evidence of Mr. Currie with respect to cultural heritage  
and landscape architecture.  
Visual Impact  
[
137] Mr. Hanney provided expert evidence to the Tribunal with respect to visual  
impact. He directed the technical preparation of the Islands Visual Impact Assessment  
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(“VIA”), which is found as an attachment to his WS. The VIA is a comprehensive  
document that includes an analysis of the policy framework, an explanation of the  
methodology used, a series of simulated views, analysis and interpretation of the  
simulated views, and a complete evaluation of the various views.  
[
138] Mr. Hanney testified that the VIA assessment of the Island concluded that there  
will be very limited potential for adverse visual impact from the proposed development.  
He is in agreement with the potential mitigating measures contained in the Islands  
Character Guidelines prepared by MHBC (August 2018) in support of the application.  
These guidelines serve to provide a further level of additional protection that are  
appropriate to the scenic resources of Lake of Bays. He also is of the opinion that the  
proposed development will not unacceptably impact visual features of Lake of Bays or  
the adjacent shoreline properties.  
[
139] Mr. Hanney testified that the proposed development and the resulting Planning  
Instruments, have considered all of the relevant Provincial, Muskoka, and Lake of Bays  
planning policy to ensure there is limited potential for negative visual impacts. Any tree  
cutting that may result from implementation of the Planning Instruments, are tested  
within the VIA from the perspective of potential visual impacts. It is his opinion that the  
proposed development has been found to meet the design principles of the VIA.  
[
140] In conclusion, Mr. Hanney is of the opinion that VIA for the Island demonstrates  
that there is very limited potential for negative visual impacts resulting from the  
development. Therefore, the character of the area and the Islands visual landmark in  
Muskoka will be maintained.  
[
141] Dr. Coleman with the assistance of Mr. Fahner, undertook a review and careful  
analysis of the VIA prepared by Mr. Hanney. With respect to the simulations presented  
in the VIA, they have an issue with the size of envelopes shown. Dr. Coleman testified  
there are issues related to alterations to the Island’s environment and the vegetation  
view, being:  
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a.  
b.  
that the actual height of the roof peak can be several metres higher than  
presented in the simulation;  
did not include various alterations that are described and committed to in  
the FIR. Therefore, the analysis is incomplete in terms of the extent of  
alterations that will occur;  
c.  
the colour, species and sizes of the vegetation simulated is very dense  
and not representative of the Island. His review demonstrated that the  
trees in the VIA appear to be too tall and tree widths would be out of scale  
to a similar degree. There is no evidence of tree removal or thinning for  
shoreline activity areas nor have they been adjusted for the effect of  
season on foliage;  
d.  
e.  
the importance of FireSmart requirements is not allowed for in the  
simulations. They will be required clearing around all of the structures and  
those related to construction and a requirement for additional zones of  
thinning and pruning of up to 100 m; and  
The stimulation did not include many other elements that contribute to  
visual impact of the proposal and its perception such as boats and  
watercraft, docks, swim rafts, staircases to buildings and steep slopes,  
etc.  
[
142] Dr. Coleman concluded that the factors he pointed out will significantly increase  
the visual impact of the proposal and are not accounted for in the VIA. Therefore, the  
VIA should not be relied upon to assess the proposed development and its conformity to  
relevant policies related to the Island as they do not show the totality of the visual  
impact.  
[
143] Neither Muskoka nor Lake of Bays provided specific expert evidence related to  
visual impact at the hearing. The plannersevidence of Mmes. Markham and Maxwell is  
discussed earlier in this Decision and is the extent of the evidence heard from these  
parties.  
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[
144] The Tribunal prefers the evidence of Mr. Hanney with respect to visual impact  
and will be further discussed in the Tribunal findings. One issue and argument with  
respect to cultural landscape that will also be dealt with in the Tribunal findings later in  
this Decision. This is similar to the issue of fragmentation of the conservation  
easements mentioned in paragraph [126].  
ENGINEERING AND SITE SERVICING  
[
145] The Tribunal heard testimony from two witnesses with respect to engineering and  
site servicing: Mr. Van Ryn on behalf of the Applicant and Mr. Esselment on behalf of  
Mr. Zytaruk. The Tribunal notes that in the ASOF of these two witnesses, all issues  
appear to have been appropriately addressed in the FSR and incorporated into the  
Planning Instruments. A series of construction mitigation and stormwater management  
requirements for 3933 property and the Beauview Cottage Resort property are  
addressed in the FSR.  
[
146] Mr. Van Ryn in his evidence described the extent of the review and analysis and  
how the FSR provided a series of important conclusions and recommendations that  
include:  
a.  
each of the proposed 32 lots are large enough to accommodate an  
appropriate building envelope and can be serviced with private water  
supply and sewage treatment systems, comply with the PPS and the  
Ontario Building Code and meet good engineering practice. The private  
systems can be constructed outside of environmental features and their  
buffers;  
b.  
communal private systems were initially considered for the proposed  
development but rejected in favor of individual private tertiary sewage  
treatment systems because of the additional tree loss and ground  
disturbance that would result. There will be no negative impacts to the  
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health and safety of residents or the natural environment, as leaching  
beds will be located 30 m from the waters edge, systems will produce  
good quality effluent and high-quality leaching beds will be provided and  
the retaining soil will result in an estimated 40-year capacity for the  
sequestering phosphorus;  
c.  
stormwater management and construction mitigation for the Island was  
addressed in the FSR. The proposed controlled access corridors, docks,  
boathouses for each proposed lot have been identified to provide a  
balance between limited tree removal, ground disturbance and minimizing  
visual impacts from the waterfront;  
d.  
e.  
mitigation and erosion control will be provided for during construction to  
contain sediment; and  
the proposed development for the mainland landings do not require  
separate water and sewage systems. Parking areas will be serviced with  
grass and gravel to promote infiltration and improved water quality.  
[
147] In response to Mr. Zytaruk’s issues, Mr. Van Ryn’s testimony confirmed that:  
a.  
he reviewed the proposed development and the conclusions of his FSR  
against policies found in the Muskoka OP 2019. He is of the opinion that  
the FSR addresses issues of servicing that relate to climate change and  
has had appropriate regard for this policy document;  
b.  
c.  
d.  
he confirmed that a site evaluation and a terrain analysis were completed,  
which demonstrated that the proposed development conforms to the Lake  
of Bays OP;  
the proposed sewage treatment disposal systems fully comply with the  
siting and setback requirements of the Muskoka OP 2019 nor do they  
pose any health risks; and  
Lake of Bays requires high quality sewage treatment systems, requires  
the completion of annual inspections to monitor the operation of the  
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treatment and when accumulated soils need to be pumped out, it is done  
by a licensed sewage hauler contractor.  
[
148] In conclusion, Mr. Van Ryn is of the opinion that the proposed development of  
both the Island and the landings are consistent with the PPS, conform to all relevant  
municipal planning and regulatory documents, include appropriate mitigation measures  
to comply with all applicable design criteria, and represent good engineering practices.  
[
149] Mr. Esselment provided testimony on behalf of Mr. Zytaruk. He is well  
experienced in health unit matters but it is not qualified to give expert evidence with  
respect to engineering or site servicing. In the ASOF, he either confirmed or had no  
opinion with respect to Mr. Van Ryn’s evidence.  
[
150] Mr. Esselment’s whole focus was on duplication or redundancy of the retention of  
phosphorous. The retention of phosphorous is controllable through the use of horizon  
Bsoils, which is found naturally on the subject property. The effectiveness of the use  
this soil can be determined and used in either a natural state or imported to the subject  
site. Mr. Esselment argued that the dependence and reliance on a new technology is a  
concern and should not be used as the only tool to retain phosphorous and that the  
soils capacity should be the first critical step. It is his view that the proposed system,  
although will assist in removing phosphorous, could fail and not function properly and  
the default should be focused on the proper quantity of soils as the first line of defence  
with the new technology becoming the redundant safety valve.  
[
151] The Tribunal accepts Mr. Van Ryn’s uncontested expert evidence in its entirety.  
This is an issue that can be resolved through the conditions of draft PofS as the tools  
are available to meet all the requirements from a functional perspective.  
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BOATING IMPACT ASSESSMENT  
[
152] Mr. Nielson on behalf of the Applicant, provided evidence to the Tribunal with  
respect to the boating impact of the proposed development. Two BIA reports were  
completed by his firm in support of the proposed development, the associated shuttle  
service and waterfront landings. The purpose of the studies was to consider potential  
increases in boat traffic that may be associated with the proposed development. The  
initial BIA was prepared and completed in January 2018. A second addendum BIA  
(Exhibit 22) was prepared and completed in June 2018. The Addendum spoke to issues  
and comments from the municipal peer review, and provided baseline boating  
information for busier boating days in the summer of 2018.  
[
153] Mr. Nielson noted that there is presently a significant amount of boat traffic on the  
lake, which by its nature negatively impacts the enjoyment of cottaging and boating  
while contributing to increased concerns regarding boating safety. The Lake of Bays is a  
relatively large lake but has certain areas where boat traffic is considerable. The lake  
has a number of communities on its periphery, cottage lots on the mainland fronting  
lake, many water access only island-based cottages that require boat access, extensive  
existing backshore development and public access to the lake.  
[
154] Mr. Nielson in his evidence, advised that the BIA included the collection of  
information on existing boat traffic within two areas of potentially more congested waters  
that are in the vicinity of the Island, namely Little Whiskey Bay and the Narrows  
between the Island and the mainland. The surveys were completed on good weather  
days during the peak of boating season which provide a reasonable approximation of  
worse caseconditions.  
[
155] Mr. Nielson described the conclusions of these studies showed that the volume  
of traffic observed in Little Whiskey Bay was low but due to its small size, there were  
frequent situations where it is deemed over capacityparticularly within the afternoon  
on weekends. Boat traffic with the Narrows was lower than within Little Whiskey Bay but  
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the observers noted somewhat more frequent over capacity situations particularly in the  
afternoon on weekends. Over the course of three days of observations, they did not  
witness any conditions they deemed to be particularly unsafe, or no circumstances of  
potential for collisions, as boats generally decrease their speeds when traveling through  
these areas. He advised the Tribunal that over capacity situations are a normal  
occurrence in many lake settings, particularly in areas of small size but these situations  
are not inherently dangerous as boaters tend to act in an appropriate manner and make  
the necessary adjustments in speed or direction to mitigate against any risk of collision.  
[
156] Mr. Nielson went on to provide testimony regarding predicted future boat traffic.  
Assumptions made by the BIA included 32 new lots on the Island along with a shuttle  
servicing up to 22 cottage properties, four transit slips for short term parking to  
accommodate the shuttle service and the 3933 property servicing up to 10 cottage  
properties. The BIA concluded that when all sources of predicted new boat traffic are  
added together, the resulting implications on existing capacity utilization is relatively  
small.  
[
157] Mr. Nielson spoke to the comments in the participant statements to the critique of  
his firm’s BIA. In his view, the neighbouring resident’s analysis greatly exaggerates the  
potential of boating-related conflicts. In an effort to rationalize these differences, the  
municipal peer reviewer took an alternative approach to Mr. Nielson’s capacity  
projections. The conclusion of the peer review is that the additional analysis  
“demonstrates results that are not dramatically different from the Milchalski Nielson  
Associates Limited's…the MNAL approach is well-founded overall and the results are  
plausible”.  
[
158] Mr. Nielson noted a series of recommendations were made in the BIA to mitigate  
against the impacts of the predicted increased boat traffic on a full build out of the  
proposed lots on the Island. These recommendations include training of operators of the  
shuttle service, how the shuttle should access the Island, improved signage to properly  
identify the landings, monitoring and logging of boating activity, installing large  
6
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permanent and prominent signs on the shoreline of the Island, the placement of safety  
buoys at each approach to the narrows and in the marina area.  
[
159] Mr. Nielson in his testimony spoke to how his conclusions related to the Issues in  
the Issues List and Planning Instruments before the Tribunal.  
a.  
with respect to the Muskoka OP 2014, the BIA demonstrates that traffic  
increases resulting from the proposed development will be quite modest  
and the impacts of this additional traffic can be mitigated. Appropriate  
consideration is given to narrow water body issues within the area  
identified as the Narrows to ensure conformity to policy;  
b.  
c.  
the boat shuttle operations will be monitored and enforced. The proposed  
draft PofS has a number of conditions to ensure this happens;  
with respect to the Lake of Bays OP, the BIA recognizes that there are  
narrow waterbody issues in relation to the Narrows and recommends a  
number of mitigation measures. These measures fully address the narrow  
waterbody issues and help address existing issues with respect of  
sightlines and the associated potential for boating-related accidents or  
incidents within the Narrows; and  
d.  
with respect to the Planning Instruments related to the Town, there is a  
provision for private waterfront landings that service more than one  
property as proposed for the Island, access to and from the facility both by  
water and land is suitable, conditions of the draft PofS specifically  
addresses boat traffic and parking, and the BIA demonstrates the  
feasibility of water access, most notably on matters relating to boating  
congestion and safety, as they can be appropriately addressed.  
[
160] Mr. Fahner spoke to the BIA in his evidence. He is of the opinion that the findings  
of the BIA and peer review cannot be relied upon. He is not a qualified expert preparing  
BIAs nor the evaluation thereof, although recognized as a boater and the Tribunal notes  
his apprehension on the findings of the BIA.  
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[
161] The Tribunal accepts Mr. Nielson's expert evidence in its entirety. The findings of  
his report will be incorporated in the conditions of draft PofS.  
THE TRIBUNAL FINDINGS  
[
162] As with most lengthy hearings, the flow of the event becomes an iterative  
process. As evidence was presented, through the parties in opposition to the proposed  
development, adjustments were made to the planning instruments to accommodate  
those concerns. Although in some instances, these adjustments seemed minor and  
immaterial, one amendment was important to assist the Tribunal in assessing the  
various reports and recommendations.  
[
163] This relates to the proposed amendment to the Lake of Bays Development  
Permit By-law, under s. 2(i) e) Maximum Shoreline Activity Area Frontage. The  
original proposal allowed “Selective removal, trimming and limbing and pruning of trees  
for the purpose of views...” This section now reads “Selective trimming, limbing and  
pruning of trees for the purpose of views...”  
[
164] Prior to this amendment, augmented with the testimony of Dr. Coleman, the  
Tribunal struggled with parts of the VIA prepared by Mr. Hannay. The whole focus of  
Mr. Hannay’s visual evidence was to mimic the existing tree cover, including specie  
type, and place a proposed dwelling into this natural environment. The exercise was to  
illustrate, through computer modeling, the visual impact the proposed dwelling may  
have when viewed from the water. Although the Tribunal accepts Mr. Hannay’s  
evidence on the functional aspect of the program with respect to elevations and tree  
cover, the Tribunal was concerned that the modeling did not properly reflect the  
potential removal of trees within the shoreline activity area. The Tribunal fully  
understands that this activity area may not always be directly in front of the proposed  
dwelling and may be skewed or angled towards the shoreline, thus changing the  
direction of view to and from the dwelling. The Tribunal was concerned that the visual  
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impact study may not have properly reflected these potential modifications within the  
shoreline activity area, given the wording in the original proposed implementing by-law.  
With the proposed amendment to the Development Permit By-law, the Tribunal finds the  
results of the VIA acceptable.  
[
165] There was ongoing discussion about whether the preservation of the views was  
either from or to the Island. There is no doubt that all of the Appellants in this case are  
concerned with views to the Island. The main concern, throughout this hearing, is to  
preserve as much as the natural environment as possible.  
[
166] Dr. Coleman opined that further way to preserve the views to the Island is to  
protect the rear yards of the proposed lots and restrict the removal of trees in this area.  
With the rear yard setback being 10 m, it was his opinion that this would greatly  
enhance the views to the Island. On this issue, the Tribunal agrees. The preservation of  
this linear strip of treeline will strengthen the continuity and connectivity of this tree line  
between the two designated open space blocks, further enhance and conserve the  
cultural landscape and ecology. This directly relates to Dr. Colman’s concern over the  
fragmentation of the conservation easements.  
[
167] Although the Tribunal does not see this as an issue with respect of the 3 ha  
Island, this issue relates to the large island where is the substantial part of the  
development is proposed. The large island is long and narrow with essentially three  
bubbles of wider landmass. There are two higher peaks of approximately 50 m in  
height, located in two separate areas on the center and most eastern bubbles. These  
two peaks are protected through the proposed creation of two open space blocks, being  
Blocks “A” and “B”, on the most current version of the draft PofS. Located between  
these two peaks is a series of six proposed lots where, by definition, their rear lot lines  
abut each other. With the protection of the rear 10 m of these six lots, this would  
preserve and enhance this connectivity between the two peaks located within the two  
open space areas.  
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[
168] The Tribunal does not see the necessity of a special zone. This restriction can be  
inserted in the proposed amendment to the Development Permit By-law under the  
Development Permit Area Provisions” where the “Standard” will include the 10 m rear  
yard of the proposed lots with the removal of trees is for safety reasons, subject to the  
recommendations of a qualified ecologist. The Tribunal recognizes the need for the  
potential removal of specific trees for both the safety and security of buildings and their  
inhabitants.  
[
169] Lastly, Dr. Coleman criticized Mr. Hannay’s modelling when considering the  
potential of clearing and setback that may be required in relation to the FireSmart  
guidelines. His peer review of the tree inventory and conclusions of Mr. Shaw was, for  
the Tribunal, shocking. The Tribunal could not reconcile the massive difference in  
opinion when dealing with Dr. Colman’s application of FireSmart guidelines. In short, the  
Tribunal concludes that a visit to the Island may have put this in better perspective. The  
Tribunal relies on Mr. Shaw’s evaluation, conclusions and recommendations and the  
peer reviewer that attended on site and commented on the study.  
[
170] With respect to Mr. Fahner, the Tribunal found that his position was shaken in  
cross-examination. The Tribunal found that he was flustered at times and his position on  
the subject matter was not consistent and his objectivity, as an expert in his field,  
sometimes came into question. Many times, Mr. Fahner used other cases as examples  
to bolster his opinion on this appeal, but none of those examples were brought into  
evidence to be tested by the parties and the Tribunal. As an example, during his cross-  
examination of the subject property located at 3933 South Portage Road, he changed  
his opinion a number of times. He also opined that the parking requirement for a water  
access property needs to be greater than the three parking spaces and required visitor  
spaces, as contemplated in Lake of Bays comprehensive zoning by-law. It is his opinion  
that even the most restrictive by-law, for parking requirements is insufficient.  
[
171] Although the Tribunal agrees with the Applicants experts, with respect to the  
proposed zoning by-law amendments on the two waterfront landings, the evidence and  
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recommendations from Mmes. Maxwell and Markham and Mr. Fahner require  
consideration in the ultimate design and areas designated for parking at the site plan  
and draft PofS stage.  
[
172] The parking envelope for property at 3933 South Portage Road is constrained.  
The illustration that was provided to the Tribunal showed the clearing for the proposed  
parking encroaching into the 20 m waterfront setback. The Tribunal agrees with the  
three planners that the extent of the parking area remain outside this setback and the  
Applicant has built this into the revised ZBAs. There is an indication that a road  
widening may also be required, resulting in restricting the depth of the available parking  
area even further. Although the proposed amendment to Zoning By-law No. 2008-66P  
states “a maximum of ten (10) docking slips shall be permitted”, a final design is  
required to determine the number of Island properties this property will ultimately  
sustain.  
[
173] The Tribunal is satisfied with the contents of the ZBAs for the property at  
215 South Portage Road. Further work is required at the draft PofS stage to flush out  
4
the final design of the parking and the flow of the traffic. There was concern from the  
three planners with the potential for “tandem parking”, whereby two vehicles could be  
stacked in a line by increasing the length of the parking stall. The Tribunal agrees with  
the planners on this issue with one exception. If the tandem parking is dedicated and  
tied to a specific subdivision lot on the Island, the Tribunal sees merit in reducing the  
overall footprint. The Tribunal offers this as direction for the ultimate design as part of  
Phase 2 of this appeal and relates to both waterfront landing properties.  
[
174] The Tribunal also agrees with the three planners with respect to the potential of  
over capacity for parking at the two waterfront landings and finds that a proper  
assessment is required as part of the conditions of draft PofS and will be further  
discussed later in this Decision.  
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[
175] The Tribunal finds that the consulting team for the Applicant completed a  
comprehensive planning and technical review of this application and gave clear,  
consistent and compelling evidence of how the proposed development met all of the  
public agenciespolicy and technical tests. This review was supported by in-depth peer  
reviews where necessary and input by various government agencies who were careful  
and considered in their advice to Lake of Bays and the Town. All municipal authorities  
have been involved in a complete and iterative planning process. In a word the process  
was extensive. The conclusion of this extensive review and process is a proposed  
development where standards go well beyond the typical requirements of the Lake of  
Bays’ Development Permit By-law and a large portion of the Island will remain forested  
and in a natural state.  
[
176] The evidence heard with respect to the PPS demonstrated that both seasonal  
residential lots and waterfront access are permitted uses and the proposed Planning  
Instruments are consistent with it. Many reasons were provided in testimony by the  
Applicants consulting team. Those important to the Tribunals findings include:  
a.  
b.  
being capable of private water and sewage disposal services;  
residential development is only located on areas that are suitable for such  
a use and will not intrude into environmental sensitive areas or the  
features with the highest ecological value. Hence, these features will be  
maintained;  
c.  
d.  
all of the areas subject to this hearing are considered ‘Rural Lands’ within  
the context of the PPS; and  
the Applicant has taken a coordinated approach to ensure all of the  
various jurisdictions involved were informed, comments considered, and  
these comments properly integrated into the Planning Instruments; the  
natural heritage features of the Island were identified and protected and  
clearance from the MNRF was obtained as required.  
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[
177] The Tribunal agrees that the proposal is appropriate with respect to the policies  
found in the PPS. Therefore, new recreational dwelling lots on the Island and the  
waterfront landings on the mainland are considered permitted uses in the applicable  
Waterfront designation. Provincial policy albeit at a higher level, does carry weight in the  
Tribunals consideration of this matter.  
[
178] The Tribunal concurs with the opinion that the in-force official plan at the district  
level is Muskoka OP 2014, which promotes residential growth in a Waterfront  
designation that is compatible with existing character and context, protects the natural  
features, identifies lands of environmental significant and establishes appropriate  
buffers. All of these policy tests are evaluated in detail by the Applicants consulting  
team as follows: appropriate access is provided to the Island; proposed lots and building  
plans have been evaluated by qualified professionals to ensure suitability of the lot(s)  
for areas of Natural Constraint; significant study was completed by the Applicant to  
ensure the Significant Heritage Areas are properly defined and respected; and areas of  
significant biotic interest have been identified with accurate mapping of fish habitat to  
ensure impact is kept to a minimum. Therefore, the Tribunal finds that the proposed  
Planning Instruments and development conform to Muskoka OP 2014.  
[
179] The Tribunal accepts the uncontested evidence of the planners for the Applicant,  
that the Planning Instruments have appropriate regard to Muskoka OP 2019.  
[
180] With respect to the Lake of Bays OP, the Tribunal agrees with the Applicant's  
consulting team that the proposed Planning Instruments strike an appropriate balance  
between the environment and what could be considered limited growth. Considerable  
effort has been made to conserve the rich landscape of the Island, recognize the  
character, and features of the rural and waterfront designations and conserve both the  
waterfront and the vast majority of the natural features of the Island. This demonstrates  
the commitment of the Applicant to respect the character and traditional mix of uses of  
Lake of Bays.  
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[
181] The Tribunal finds that the proposed Planning Instruments and development  
have met all of the tests and therefore conform to the Lake of Bays OP for reasons  
including:  
a.  
the OPA establishes a set of foundational policies on which the  
subsequent implementing Planning Instruments will follow. Access to  
individual lots is in areas that are outside of fish habitat or significant  
wildlife habitat and ensures long term access to the Island lots for both  
construction and recreational use while minimizing the impact on the  
shorelines vegetative buffer. The proposed standards in the Lake of Bays  
DPBA exceed those that are normally required for lot frontage and area.  
These policy directions ensure that there is a suitable location for the  
required septic system on each lot and individual cottages are designed to  
minimize visual impact of development from the lake;  
b.  
c.  
respect and suitably protect the natural heritage values and have Included  
appropriate mitigating measures;  
have provided a comprehensive series of suggested Character Guidelines  
that could be used as a basis for further design and construction of  
buildings;  
d.  
e.  
the proposed development is not considered as over-development of the  
Island as specific policies are in place to ensure that the physical and  
environmental constraints are appropriately considered in the PofS;  
the proposed Planning Instruments provide sufficient control to ensure the  
protection of the natural features of the Island. The EIS prepared for the  
Applicant provides the most current detailed assessment of the  
environmental features and that assessment was the subject of a  
comprehensive peer review. Great care is taken to ensure that the  
development of any land adjacent to the environmental features identified  
in the EIS is done in a manner that will not adversely affect those features  
or their natural functions. Therefore, impact of the proposed development  
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is minimized by a reduced number of lots, protection of conservation  
blocks, and then maintenance and restoration of vegetation;  
the Applicant has made appropriate provision for suitable mainland access  
to the lots at an appropriate policy level. Enforcement as necessary will be  
established in the conditions of draft PofS; and  
f.  
g.  
the Applicant is prepared to determine appropriate ownership and  
management arrangements for the blocks identify for conservation to  
ensure they are preserved in perpetuity.  
[
182] With respect to the Town OP, the Tribunal accepts the evidence of the  
Applicants planners and agrees that:  
a.  
b.  
the proposed waterfront landings conform to the Town OP as the  
waterfront designation permits landing uses;  
the Applicant has taken into account all of the policy “tests” with respect to  
the development of new waterfront landings in the Town. The various  
technical studies prepared on behalf of the Applicant have demonstrated  
that the proposed waterfront landings do not impact the visual, natural  
heritage, and functions of the adjacent land and shoreline;  
c.  
d.  
the proposed landings have maintained a balance between the natural  
shoreline and the built form along the waterfront; and  
the proposed planning instruments contain appropriate limits for new  
shoreline structures to ensure that any development does not impact the  
natural and visual features when viewing the property from the water.  
[
183] The Tribunal finds that the Town ZBA #1 and the Town ZBA #2 conform to the  
Town OP. That being said, the Tribunal does have some reservations with respect to  
the impact of the waterfront landings in the Town and their compatibility with respect to  
providing sufficient operational requirements most notably parking and amount of  
vehicular traffic activity that the proposed development will generate.  
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[
184] Therefore, the Tribunal directs that as a condition of draft PofS, Muskoka and the  
Applicant should determine the appropriate phasing of development on the Island along  
with the appropriate technical studies that will be required to fulfill this condition. The  
Tribunal heard that an appropriate phasing plan could include the development of  
2
0 lots on the Island as Phase 1. A Phase 2 that would allow for the development of the  
remaining lots would be conditional on the Applicant submitting to the satisfaction of the  
approval authority with necessary technical studies to ensure that adequate parking,  
vehicular access, and boating volumes are maintained at an appropriate level. This  
condition and the requirements to satisfy the Tribunal may be considered as part of the  
Phase 2 of this hearing as required.  
[
185] The Tribunal is impressed with the extent of study on the Island and the  
considerable and compelling evidence proffered by Mr. Shaw with respect to  
environmental impact and natural heritage of the proposed. In evidence, Mr. Shaw  
advised the Tribunal that he spent in excess of 90 hours on the Island comprehensively  
mapping and evaluating natural heritage features and determining the appropriate  
mitigation of these features. It is important to note that Palmer Environmental Consulting  
Group Inc., also attended the Island as part of their peer review process.  
[
186] With the exception of the proposed amendment to the 10 m rear yards, the  
Tribunal accepts his opinion that the environmental and natural heritage considerations  
of the proposed development and Planning Instruments meet all the requirements of the  
requisite Provincial, Muskoka, Lake of Bays, and the Town’s statutory planning  
documents for the reasons he presented at the hearing and are articulated within the  
body of this Decision.  
[
187] The Tribunal agrees with the evidence of Mr. Currie with respect to cultural  
heritage and landscape architecture. A comprehensive HIA was prepared with the  
express purpose of evaluating the Island in accordance with Ontario Regulation 9/06  
made under the Ontario Heritage Act. He was clear in his evidence that the Island  
qualifies as a cultural heritage landscape but is not an early, rare, or unique example of  
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seasonal development patterns. It is his conclusion that the proposed development on  
the Island can be supported, provided each lot reflects the established pattern of  
seasonal recreational development that is characteristic of the lake.  
[
188] The Tribunal concurs with the expert evidence of Mr. Hanney with respect to  
visual impact of the proposed development. A comprehensive VIA was prepared to  
analyze the proposed policy framework. Conclusions of the study are that the proposed  
development and Planning Instruments have considered all of the relevant Provincial,  
Muskoka, and Lake of Bays planning policy to ensure there is limited potential for  
negative visual impacts. As a result, the proposed development will not unacceptably  
impact visual features of the Lake of Bays or adjacent shoreline properties. The  
conservation of the 10 m rear yards will only lessen the visual impact and the removal of  
vegetation.  
[
189] The Tribunal accepts in its entirety the uncontested expert evidence of Mr. Van  
Ryn. A detailed FSR was completed on behalf of the Applicant, and it is noted that in  
the ASOF submitted by the expert witnesses stated that all issues appear to have been  
appropriately addressed in the FSR and incorporated into the Planning Instruments.  
Each of the proposed 32 lots are large enough to accommodate an appropriate building  
envelope, can be serviced with private water supply and sewage treatment systems,  
there is no negative impact to the health and safety of residents or the natural  
environment, stormwater management and construction mitigation for the Island is  
addressed in the FSR, mitigation and erosion control will be provided for during  
construction to contain settlement and the proposed development for the mainland  
landings do not require separate set of water and sewage systems and parking areas  
will be serviced with grass and gravel to promote infiltration and improved water quality.  
[
190] The Tribunal accepts in its entirety the expert evidence of Mr. Nielson. The  
Applicant prepared an extensive BIA which concluded that traffic increases resulting  
from the proposed development will be modest and any impact of this additional traffic  
can be appropriately mitigated and the boat shuttle operations will be monitored and  
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enforced through conditions in the draft PofS. There is a recognition of the narrow water  
body and recommends a number of mitigating measures. There is a provision in the  
existing Town’s planning documents that provide for waterfront landings that service  
more than one property similar to what is being proposed for the Island. In his opinion,  
both water and land access are suitable for the proposed development and found in the  
Planning Instruments.  
[
191] The Tribunal was impressed with the testimony and commitment to their  
community of Mmes. Mills and Peden and Mr. Zytaruk, and the many participants  
written contribution writing. Their representation of their community in this proceeding  
was indeed fulsome and articulately presented. Therefore, the Tribunal has gone into  
considerable detail in an effort to clearly articulate the reasons for its Decision and  
Order.  
[
192] It is unfortunate that the Foundation was unable to succeed in acquiring the  
Island as it was given first right of refusal in its purchase. That being said, one must  
recognize that is the Tribunals legislative responsibility to evaluate the matters before it  
against the statutory public policy of the Province, Muskoka, Lake of Bays and the  
Town. The Planning Instruments and the proposed development has been evaluated  
completely and exhaustively reviewed with the benefit of the testimony of many experts  
during the course of this proceeding.  
[
193] The Tribunal hopes that the Applicant and the Foundation will continue to work  
together to determine an appropriate legal mechanism for the Foundation to become  
the long-term stewards of the conservation areas defined on the Island. There is no  
doubt in the Tribunals mind that the Foundation would steward these areas in the best  
interest of the residents, both of the Island and the larger community.  
[
194] Phase 2 of this proceeding is to determine the suitability of the draft PofS and the  
conditions assigned thereto. This Decision gives considerable direction to that  
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subsequent phase and must be considered by both the Applicant and the applicable  
municipal jurisdiction in the construct of these documents.  
[
195] In conclusion, the Tribunal finds that the proposed Planning Instruments and  
development meet all the requisite planning policies of the Province, Muskoka, Lake of  
Bays, and the Town and represents good planning.  
ORDER  
[
196] Accordingly, the Tribunal Orders that:  
a.  
b.  
the appeal is allowed in part, and the Official Plan for the Township of  
Lake of Bays is amended as set out in Tab 1 of Schedule “A”, appended  
to this Decision;  
the appeal against By-law No. 04-180 (known as the Development Permit  
By-law) of the Township of Lake of Bays, as amended, is allowed in part  
as set out in Tab 2 of Schedule “A”, appended to this Decision, but the  
final Order is withheld until a further amendment is incorporated into the  
proposed instrument to reflect the limited tree removal in the 10 metres  
rear yards of the proposed subdivision lots, as described in the findings of  
this Decision. If any issue arises between the parties as to the wording of  
this section, the Tribunal may be spoken to;  
c.  
d.  
the appeal against By-law No. 2008-66P of the Town of Huntsville, as  
amended, for the property known as Part of Lot 24, Concession 1,  
Geographic Township of Brunel, Town of Huntsville is allowed in part as  
set out in Tab 3 of Schedule “A”, appended to this Decision;  
the appeal against By-law No. 2008-66P of the Town of Huntsville, as  
amended, for the property known as Part of Lot 21, Concession 1,  
Geographic Township of Brunel, Town of Huntsville is allowed in part as  
set out in Tab 4 of Schedule “A”, appended to this Decision; and  
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e.  
the Tribunal authorizes the Clerks of the respective municipalities to  
administratively assign by-law numbers to the 3 of the 4 aforementioned  
Planning Instruments where Final Orders have been issued.  
[
197] Phase 2 of this matter will proceed in keeping with the directions and orders  
found in this Decision. The Tribunal requests of the parties to contact the Case  
Coordinator to set up a Case Management Conference to complete the necessary  
details for the scheduling of Phase 2.  
[
198] The Member will remain seized in the event any matters arise which are related  
to the implementation of this Order, the Tribunal may be spoken to.  
G.C.P. Bishop”  
G.C.P. BISHOP  
ALTERNATE CHAIR  
Ontario Land Tribunal  
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248  
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning  
Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as  
the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the  
former Ontario Municipal Board is deemed to be a reference to the Tribunal.  
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