Niagara Escarpment Hearing Office
Bureau des audiences sur l’escarpement du Niagara
ISSUE DATE: June 22, 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 28, 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 |
REPORT 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 (the “Conditional Approval”).
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 (the “Appeals”). 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 (the Added Parties”) and adjourned the PHC to allow time for settlement discussions to take place.
4On May 28, 2015, the PHC was resumed by TCC at which time the NEC updated the Hearing Officers on the status of the settlement discussions, stating that there was no prospect that parties would come to any agreement or settlement. During the TCC, the Hearing Officers refused requests for an adjournment of the PHC brought by several of the Appellants and Added Parties and orally ordered dates for disclosure, the exchange of witness statements and relevant documents, and the hearing.
5On June 3 and 4, 2015, after further discussions with the Applicant and others, the Appellants and Added Parties withdrew from the proceedings.
6This decision provides the Hearing Officers’ reasons for the denial of the adjournment and the confirmation of the decision of the NEC and cancellation of the hearing.
Issues
7The issues are:
- Whether to grant an adjournment of the PHC; and
- Whether the decision of the NEC is confirmed and the hearing cancelled.
Relevant Rules
8The relevant rules of the Environmental Review Tribunal (the “Tribunal”), which apply to the NEHO, are:
- 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.
- If the Appellant withdraws his or her appeal of a development permit, or fails to appear at the Hearing, the decision of the Niagara Escarpment Commission is automatically confirmed pursuant to section 25(10.2) of the Niagara Escarpment Planning and Development Act.
Discussion, Analysis and Findings
Issue 1: Whether to grant an adjournment of the PHC
9The Hearing Officers heard submissions from the Parties regarding a request made by Mr. B. Gulak, Ms. Gulak, and Mr. K. Gulak to adjourn the PHC to allow the Appellants and Added Parties more time to gather information and prepare for the hearing.
10Mr. B. Gulak stated that he needed more time to gather additional information in preparation for the hearing. He suggested that three to four weeks would be adequate for preparation.
11Ms. Gulak also stated that more information was required in order for the Appellants and Added Parties to properly prepare for the hearing. She also estimated that an adjournment of three to four weeks would be adequate. She stated that she was still hopeful that some kind of agreement could be reached in the matter, and that the additional time requested would allow for further discussion amongst the Parties.
12Mr. K. Gulak said that he supported the three to four week time estimates of Mr. B. Gulak and Ms. Gulak as an appropriate length for a potential adjournment.
13Ms. Benson, on behalf of Ms. Nonis, said that she was in agreement with Mr. B. Gulak’s position on the need for more information and a postponement. She estimated that an adjournment of three to four weeks would be needed.
14Mr. Farquharson said that he had reviewed the steps to be taken in preparing for a NEHO hearing, and thought that an additional four weeks would be needed before procedural deadlines were ordered.
15Mr. Stewart for the NEC did not object to a three to four week adjournment, but said that he did not feel there would be any settlement reached, or a need for further discussions to that end.
16Mr. Casey, for the Applicant, stated that the Conditional Approval for the development was granted in February and the appeals were filed soon after. He submitted that the parties have had sufficient time to gather information and prepare for a hearing. He further submitted that it is not fair to the Applicant, whom he stated has participated in settlement discussions in good faith and is waiting to proceed with the development, to have the matter adjourned again.
17Taking into account the criteria set out in Rule 105, including the circumstances giving rise to the request for an adjournment and the positions of the Parties, the Hearing Officers denied the adjournment request. The Hearing Officers found that given the lack of success in settlement discussions to date, an adjournment of the Appeals was not appropriate, as there was nothing to be gained by delaying the scheduling of hearing dates, dates for the exchange of documents, witness statements, or other procedural issues. The Hearing Officers noted that moving ahead with the scheduling of dates would allow the Parties ample time to refine their cases before the hearing of the matter, which was scheduled for over three months later.
Issue #2: Whether the decision of the NEC is confirmed and the hearing is cancelled
18Rule 205 states that “if the Appellant withdraws his or her appeal of a development permit, or fails to appear at the Hearing, the decision of the Niagara Escarpment Commission is automatically confirmed”. As each of the Appellants has withdrawn his or her appeal, the Tribunal finds that Rule 205 applies in the present circumstances. Since no appellant remains, the decision of the Niagara Escarpment Commission is automatically confirmed, and the proceeding is dismissed.
19The request for an adjournment is denied, the decision of the Niagara Escarpment Commission is confirmed, and the hearing and other related procedural steps are cancelled.
Adjournment Request Denied
NEC Decision Confirmed
Hearing and Related Procedural Steps Cancelled
“Marlene Cashin”
MARLENE CASHIN
HEARING OFFICER
“Hugh S. Wilkins”
HUGH S. WILKINS
HEARING OFFICER
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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