Gulak v. Ontario (Niagara Escarpment Commission), 2015 CanLII 32509

Niagara Escarpment Hearing Office

Bureau des audiences sur l’escarpement du Niagara

ISSUE DATE: June 1, 2015

CASE NO.: 15-013

PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended

Appellant: Ben Gulak (File No. 15-013)

Appellant: Sylvie Gulak (File No. 15-015)

Appellant: Iva Nonis (File No. 15-016)

Applicant: Nikita Walker (Stonehill Farm (Halton) Inc.)

Respondent: Niagara Escarpment Commission

Subject of appeal: Approval of a Development Permit Application to demolish an existing horse stable and construct a new stable for storage of horses, hay and manure and detached four car garage

Reference No.: H/A/2014-2015/75

Property Address/Description: Part Lot 11 & 12, Concession 6

Municipality: Town of Milton

Upper Tier: Region of Halton

NEHO Case No.: 15-013

NEHO Case Name: Gulak v. Ontario (Niagara Escarpment Commission)

Heard: May 13, 2015 by telephone conference call

APPEARANCES:

Parties

Representative

Ben Gulak, Sylvie Gulak, Ken Gulak and John Farquharson

Self-represented

Iva Nonis

Diane Benson

Nikita Walker (Stonehill Farm (Halton) Inc.)

Chris Casey

Niagara Escarpment Commission

Sean Stewart

ORDER DELIVERED BY MARLENE CASHIN AND HUGH S. WILKINS

REASONS

Background

1On June 27, 2014, Nikita Walker (Stonehill Farm (Halton) Inc.) (the “Applicant”) submitted Development Permit application H/A/2014-2015/075 to the Niagara Escarpment Commission (“NEC”), to demolish an existing one storey, 120.77 square meter (“sq. m.”) horse stable and to construct a new 1.5 storey, 595.32 sq. m. horse stable with a maximum height of 6.93 metres (“m.”), and a one storey, 133.78 sq. m. four-car garage with a maximum height of 5.68 m. on a 19.82 hectare lot located at Part Lot 11 and 12, Concession 6, in the Town of Milton, Region of Halton. On February 13, 2015, the NEC granted conditional approval of the application.

2On February 27, 2015, pursuant to s. 25(8) of the Niagara Escarpment Planning and Development Act, Ben Gulak, Sylvie Gulak and Iva Nonis (the “Appellants”) appealed the conditional approval. In their appeals, the Appellants each provided the same basic reasons for appeal. These included, but were not limited to, the impacts of potential odours and environmental concerns, such as water contamination, related to increased manure storage and spreading on the Applicant’s property.

3On May 13, 2015, the Niagara Escarpment Hearing Office (“NEHO”) held a pre-hearing conference (“PHC”) by telephone conference call (“TCC”). At the PHC, the Hearing Officers granted party status to Ken Gulak and John Farquharson and adjourned the PHC. These are the reasons for the granting of status and the adjournment.

ISSUES

4The main issues are:

1. Whether to grant party status to Ken Gulak; and

2. Whether to grant party status to John Farquharson.

Relevant Rules

5The relevant rules of the Environmental Review Tribunal (the “Tribunal”), which apply to the NEHO, are:

63. 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.

64. A Party to the proceeding before the Tribunal may:

(a) bring motions;

(b) be a witness at the Hearing;

(c) be questioned by the Parties;

(d) call witnesses at the Hearing;

(e) cross-examine witnesses;

(f) make submissions to the Tribunal, including final argument;

(g) receive copies of all documents exchanged or filed by the Parties;

(h) participate in a mediation;

(i) attend site visits; and

(j) claim costs or be liable to pay costs where permitted by law.

105. In deciding whether or not to grant a request for an adjournment, the Tribunal may consider:

(a) the interests of the Parties in a full and fair Hearing;

(b) the interests of others potentially affected by the matters before the Tribunal who, after notification of the Hearing, may have arranged their affairs in the expectation of observing or participating in the Hearing;

(c) the integrity of the Tribunal’s process;

(d) the circumstances giving rise to the need for an adjournment;

(e) the timeliness of the request for the adjournment;

(f) the position of the other Parties on the adjournment request;

(g) whether an adjournment will cause or contribute to any existing or potential risk of environmental harm;

(h) the consequences of an adjournment, including expenses to other Parties;

(i) the effect of an adjournment on Participants and Presenters;

(j) the public interest in the delivery of the Tribunal’s services in a just, timely and cost effective manner; and

(k) whether the proceeding before the Tribunal is an appeal of a renewable energy approval under section 142.1 of the Environmental Protection Act.

Discussion, Analysis and Findings

Issue 1: Whether to grant party status to Ken Gulak

5Mr. K. Gulak, in requesting party status, stated that he is a neighbour who owns property that adjoins that of the Applicant and that he may be directly affected by odours and changes in groundwater quality caused by the development. The Appellants supported adding him as a party, and neither the Applicant nor the NEC opposed him being granted party status.

6Given that Mr. K. Gulak states that he is the owner of an adjoining property, and may be directly and substantially affected by the development, the Hearing Panel found that Mr. K. Gulak has a genuine interest in the appeal and may make a relevant contribution to the NEHO’s understanding of the issues in the proceeding per Rule 63. The Hearing Panel granted Mr. K. Gulak party status.

Issue 2: Whether to grant party status to John Farquharson

7Mr. Farquharson stated that he wished to be granted party status since he is a neighbour whose property borders the Applicant’s property to the north, and he may potentially be impacted by the proposed development by odours and by horses entering his property. The Appellants supported granting party status to Mr. Farquharson and the NEC had no objection to party status being granted to him.

8The Applicant opposed granting party status to Mr. Farquharson, arguing that he will not be directly affected by the appeal, and questioning the relevancy of his contribution.

9Given that Mr. Farquharson owns property directly north of the proposed development and may be directly affected by odours and activities at the site, the Hearing Panel found that Mr. Farquharson has an interest that may be directly and substantially affected by the hearing, has a genuine interest and is likely to make a relevant contribution to the proceedings per Rule 63. The Hearing Panel granted Mr. Farquharson party status.

Other Procedural Issues

10On the Hearing Officers’ suggestion, the parties, with the exception of Mr. Farquharson, agreed to meet independently of the NEHO to discuss possible ways to resolve the appeal. The Hearing Officers found that as a result of these settlement efforts, it may prove that a hearing is not required. The Hearing Officers ordered that an adjournment of the PHC, in accordance with Rule 105, was appropriate as there was nothing to be gained by scheduling hearing dates and dates for the exchange of documents and witness statements, or by addressing other procedural issues at that time. The Hearing Officers adjourned the PHC to a TCC to be held on May 28, 2015 at 10 a.m. at which time the parties were to provide the Hearing Officers with a status update.

ORDER

11Ken Gulak and John Farquharson are each granted party status.

12The PHC is adjourned to a follow-up TCC to be held at 10 a.m. on May 28, 2015.

Party Status Granted

Pre-hearing Conference Adjourned

“Marlene Cashin”

MARLENE CASHIN

HEARING OFFICER

“Hugh S. Wilkins”

HUGH S. WILKINS

HEARING OFFICER

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

A constituent tribunal of Environment and Land Tribunals Ontario

Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248