Niagara Escarpment Hearing Office
Bureau des audiences sur l’escarpement du Niagara
ISSUE DATE:
March 06, 2019
CASE NO.:
18-056
PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Appellants:
See Appendix 1 – Appellant List
Applicants:
Doug and Erin Grace
Respondent:
Niagara Escarpment Commission
Subject of appeal:
Approval of a Development Permit Application to demolish the existing 2 storey chalet and construct a 2 storey with walkout, single dwelling, and construct a driveway
Reference No.:
G/R/2016-2017/9173
Property Address/Description:
Lot 15, Plan 94
Municipality:
Town of the Blue Mountains
Upper Tier:
County of Grey
NEHO Case No.:
18-056
NEHO Case Name:
Torrie v. Ontario (Niagara Escarpment Commission)
Heard:
February 7, 2019 by telephone conference call
APPEARANCES:
Parties
Counsel/Representative^+^
Tiana Koffler Boyman and Mark Boyman
Self-represented
Judi Frost and Ian Brown
Self-represented
Megan McIlroy and Steven Young
Megan McIlroy^+^
Niagara Escarpment Commission
Judy Rhodes-Munk^+^
Doug Grace
Denise Baker and Victor Wong
Paul Richards
Self-represented
Participant
Greg Brown
Self-represented
ORDER DELIVERED BY MARLENE CASHIN
REASONS
Background
1On October 16, 2018, the Niagara Escarpment Commission (“NEC”) issued a Notice of Decision conditionally approving an application by Doug and Erin Grace (“Applicants”) to demolish an existing two-storey chalet and replace it with a two-storey with walkout, 498 square metre (“sq m”) single dwelling, with a maximum height to peak of 9.34 metres (“m”) on the walkout side, and to construct a driveway, located at Unit #15 within Grey County Vacant Land Condominium Plan 94, Town of the Blue Mountains, in the County of Grey (“Proposed Development”).
2Pursuant to s. 25(5)1 of the Niagara Escarpment Planning and Development Act (“NEPDA”), the NEC sent the Notice of Decision to numerous recipients, specifying that they had until midnight on October 30, 2018 to appeal the NEC’s decision. The Notice of Decision was directed to: “Applicant/Agent/Owner; Assessed owners of land within 120 m of the subject property; Consulted Agencies; Parties who requested Notice or are considered to have an interest in the Decision”.
By letter dated October 22, 2018, Desiree Torrie filed a notice of appeal of the decision. Five other appeals were received within the time period allotted for the filing of appeals. Attached at Appendix 1 is a list of the Appellants.
3The Niagara Escarpment Hearing Office (“NEHO”) acknowledged receipt of the correspondence from Ms. Torrie, but informed Ms. Torrie that it was unable to accept her appeal, as, pursuant to the NEPDA the NEHO does not have the jurisdiction to process an appeal from persons who are: not on the NEC’s list of assessed owners within 120 m of the subject property; not persons whom the NEC considers may have an interest in the decision; or not persons who have requested to receive a notice of decision. The NEHO invited written submissions on the NEHO’s jurisdiction to receive the appeal filed by Ms. Torrie, and received submissions from Ms. Torrie and counsel for the Applicants. By an Order dated January 11, 2019, Ms. Torrie’s appeal was dismissed, and her file was closed.
4On February 7, 2019, a Pre-Hearing Conference (“PHC”) was conducted by telephone conference call. Two additional parties and one participant were granted status in the appeal. The PHC was then adjourned until March 12, 2019 to allow the parties to take part in a meeting designed to facilitate settlement discussions, or narrowing of the issues to be heard in the appeal. These are the Hearing Officer’s reasons for those decisions.
Issue
5The issues at the PHC are:
whether the requests for party status should be granted; and
whether a request for presenter status should be granted.
Relevant Rules
6The relevant rules of the Environmental Review Tribunal (“ERT Rules”), which apply to the NEHO in this matter, are:
Naming of a Party
- The following persons are Parties for the purpose of the Rules:
(a) persons specified as Parties by or under the statute under which the proceeding arises;
(b) persons otherwise entitled by law to be Parties to the proceeding; and
(c) persons who request Party status and are so specified by the Tribunal as Parties for all or part of the proceeding, and on such conditions as the Tribunal considers appropriate.
- In deciding whether to name a person as a Party to the proceeding, the Tribunal may consider relevant matters including whether:
(a) a person's interests may be directly and substantially affected by the Hearing or its result;
(b) a person has a genuine interest, whether public or private, in the subject matter of the proceeding; and
(c) a person is likely to make a relevant contribution to the Tribunal's understanding of the issues in the proceeding.
Naming of a Participant
- The Tribunal may name persons to be Participants in all or part of a proceeding on such conditions as the Tribunal considers appropriate. A Participant to a proceeding is not a Party to the proceeding. In deciding whether to name a person as a Participant, the Tribunal may consider whether the person’s connection to the subject matter of the proceeding or issues in dispute is more remote than a Party’s would be. A person who may otherwise qualify as a Party may request Participant status.
Discussion, Analysis and Findings
7Three individuals participating in the PHC on February 7, 2019 expressed interest in having status at the hearing. Ms. Torrie, referenced above, attended the PHC as an observer, but did not seek status.
8Mark Boyman, husband of Appellant Tiana Koffler Boyman, requested party status. Mr. Boyman and Ms. Koffler Boyman are the immediate neighbours to the north of the proposed development. Mr. Boyman stated that he shares his wife’s concerns about the proposal, those being: storm water run-off; tree removal; ambient light from the proposed new development affecting his family’s enjoyment of the night sky; and the proposed development exceeding limitations outlined in the agreement plan between the Condominium Corporation and the Town of Blue Mountains. In response to questioning from the Applicants’ counsel, Mr. Boyman clarified that he will be working with his wife to call and cross-examine witnesses and will not duplicate steps or call his own separate witnesses in the hearing of the appeals. The parties did not object to Mr. Boyman’s request for party status.
9Paul Richards, owner of a nearby property, also requested party status. He stated that he shared the concerns of the other neighbours who had appealed the NEC decision. He said that he would have appealed the decision as well, but that miscommunications had not allowed him to do so within the allotted time for submitting an appeal.
10The Applicant opposed the granting of party status to Mr. Richards, and submitted that his participation would unduly lengthen the proceeding and duplicate the roles played by the Appellants in the matter. In response, Mr. Richards told the Hearing Officer that he would work closely with the other parties so as not to duplicate efforts or positions in the appeals. He said that he did not intend to call any witnesses but was requesting party status in order to participate in questioning of the witnesses at the hearing.
11The Hearing Panel finds that both Mr. Boyman’s and Mr. Richards’ interests in the appeal satisfy the considerations set out in the Tribunal’s Rules, in that their interests may be directly and substantially affected by the hearing or its result. Both Mr. Boyman and Mr. Richards also have a genuine interest in the subject matter of the proceeding, and they are likely to make a relevant contribution to the Hearing Panel’s understanding of the issues in the proceeding.
12Greg Brown requested status as a participant. He explained that he is the Past President of Condominium Plan 94, has been involved with the Condominium project since 1986, and is very familiar with the intent of the process. He said that he believes that being granted participant status would assist the Hearing Officer and provide clarity in the proceeding.
13There were no objections to Mr. Brown being granted status as a participant. The Hearing Officer finds that although Mr. Brown’s interest may not be directly and substantially affected by the Hearing or its result, and more remote than a party’s would be, he is likely to make a relevant contribution to the Hearing Officer’s understanding of the issues in the proceeding.
ORDER
14Mark Boyman and Paul Richards are granted party status, and Greg Brown is granted participant status in the proceeding. The PHC is adjourned until March 12, 2019. If a settlement has not occurred by that time, the parties will provide the Hearing Officer with an agreed proposed schedule for the exchange of documents and for the hearing of the appeal.
Requests for Party Status Granted
Request for Participant Status Granted
“Marlene Cashin”
MARLENE CASHIN
HEARING OFFICER
Appendix 1 – Appellants List
If there is an attachment referred to in this document,
please visit www.elto.gov.on.ca to view the attachment in PDF format.
Niagara Escarpment Hearing Office
Environmental Review Tribunal
A constituent tribunal of Tribunals Ontario - Environment and Land Division
Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
Appendix 1
Appellants List
Appellant Name
File No.
Desiree Torrie
18-056 (File closed)
Tiana Koffler Boyman
18-057
Judi Frost
18-058
Ian Brown
18-059
Steven Young
18-060
Megan McIlroy
18-061