Niagara Escarpment Hearing Office
Bureau des audiences sur l’escarpement du Niagara
ISSUE DATE: February 25, 2016
CASE NO.: 15-133
PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Appellant: Emile Saine
Respondent: Niagara Escarpment Commission
Subject of appeal: Refusal of a Development Permit Application to construct a single dwelling (including attached garage) with an on-site sewage system and accessway
Reference No.: N/R/2008-2009/281
Property Address/Description: Part Lot 2, Concession 2
Municipality: Town of Grimsby
Upper Tier: Region of Niagara
NEHO Case No.: 15-133
NEHO Case Name: Saine v. Ontario (Niagara Escarpment Commission)
Heard: January 19, 2016 and February 8, 2016 by telephone conference call
APPEARANCES:
Parties
Emile Saine
Counsel/Representative+
Gordon E. Petch
Parties
Niagara Escarpment Commission
Counsel/Representative+
Martin Kilian+
Participant
David Manuel
Counsel/Representative+
Self-represented
Presenter
Phil Thompson
Counsel/Representative+
Self-represented
ORDER DELIVERED BY MARLENE CASHIN
REASONS
Background
1John Ariens, on behalf of Emile Saine (the “Applicant”), submitted a development permit application to the Niagara Escarpment Commission (the “NEC”) on February 5, 2009, seeking permission to construct a single family dwelling and a driveway on a property consisting of approximately twenty acres, containing a ravine and a plateau. The property is located at Part Lot 2, Concession 2, Town of Grimsby, in the Region of Niagara. The Niagara Escarpment Plan land use designations applicable to the property are Escarpment Natural Area, and Escarpment Protection Area.
2During the period between the submission of the application in February 2009, and the fall of 2015, at least one revision was made to the application and several deferrals of an NEC decision were requested by the Applicant and granted by the NEC, in order for further discussions, comments from other agencies, and study to occur. This included the completion of an Environmental Impact Study in October 2014.
3On September 21, 2015, the NEC refused application N/R/2008-2009/281.
4On October 5, 2015, the Applicant appealed the decision of the NEC to refuse the application for a development permit under s. 25(8) of the Niagara Escarpment Planning and Development Act.
5A pre-hearing conference (“PHC”) regarding the appeal was held by telephone conference call (“TCC”) on January 19, 2016 and continued by TCC on February 8, 2016.
6On January 19, 2016, the Niagara Escarpment Hearing Office (the “NEHO”) granted participant status to David Manuel and presenter status to Phil Thompson.
7On February 8, 2016, the parties agreed to a schedule for the proceedings and the NEHO provided procedural directions and set dates for the hearing of the appeal.
Relevant Rules
8The relevant rules of the Environmental Review Tribunal (the “Tribunal”), which apply to the NEHO, are:
Role of a Participant
- A Participant in a Hearing may:
(a) be a witness at the Hearing;
(b) be questioned by the Parties;
(c) make oral and written submissions to the Tribunal at the commencement and at the end of the Hearing;
(d) upon request, receive a copy of documents exchanged by the Parties that are relevant to the Participant's interests; and
(e) attend site visits.
- A Participant in a Hearing may not:
(a) raise issues that have not already been raised by a Party;
(b) call witnesses;
(c) cross-examine witnesses;
(d) bring motions;
(e) participate in a mediation, unless permitted to do so by the Tribunal; and
(f) claim costs or be liable for costs.
Naming of a Presenter
The Tribunal may name persons to be Presenters in all or part of a proceeding on such conditions as the Tribunal considers appropriate. A Presenter to a proceeding is not a Party to the proceeding. In deciding whether to name a person as a Presenter, 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 or Participant’s would be. A person who may otherwise qualify as a Party or Participant may request Presenter status.
A Presenter in a Hearing may:
(a) be a witness and present his or her relevant evidence at a pre-arranged time, either during a Hearing's regular day-time session or at a special evening session;
(b) be questioned by the Parties;
(c) provide the Tribunal with a written statement as a supplement to oral testimony; and
(d) upon request, receive a copy of documents exchanged by the Parties
(e) that are relevant to the Presenter's interests.
- A Presenter in a Hearing may not:
(a) raise issues that have not already been raised by a Party;
(b) call witnesses;
(c) cross-examine witnesses;
(d) bring motions;
(e) make oral and written submissions to the Tribunal at the commencement and at the end of the Hearing;
(f) participate in a mediation, unless permitted to do so by the Tribunal;
(g) attend site visits unless permitted to do so by the Tribunal; and
(h) claim costs or be liable for costs.
Issue
9The main issue at the PHC was whether requests for participant and presenter status should be granted.
Discussion, Analysis and Findings
Requests for Status
10Two persons participating in the PHC on January 19, 2016 expressed interest in having status at the hearing.
11David Manuel requested participant status. He stated that he and his wife are adjacent neighbours to the subject property. He stated that their concerns are with the implications of the development on the future of the remainder of the “bench” area (which he described as “approximately bounded by the ravine east of Park Road and just west of Peninsula Ridge”) in its entirety, while acknowledging that the application focuses on a small area of the “bench”. He said that he and his wife are particularly concerned with the resulting impact on drainage and runoff in the area in relation to the proposed development permit. The parties did not object to Mr. Manuel’s request for participant status.
12Phil Thompson requested presenter status. Mr. Thompson stated that he is a homeowner who lives in the subdivision adjacent to the loop at the top of Golf Woods Drive and that drainage from the escarpment area near the subject property has been an ongoing issue over the last 10 to 12 years. He is primarily concerned with storm water management related to the proposed property development. The parties had no objection to Mr. Thompson’s presenter status request.
13The Hearing Officer finds that both Mr. Manuel’s and Mr. Thompson’s 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. They have a genuine interest in the subject matter of the proceeding, and they are likely to make a relevant contribution to the Hearing Officer’s understanding of the issues in the proceeding.
ORDER
14David Manuel is granted participant status in the appeal, and Phil Thompson is granted presenter status.
15The NEHO directs the following schedule related to the appeal:
January 25, 2016
Parties, participant and presenter to exchange all documents relevant to the proceeding and in their possession, control or power
March 8, 2016
Agreed Statement of Facts and Issues List to be completed and filed with the NEHO
April 8, 2016
Witness Statements and other documents to be relied on at the hearing to be exchanged by the parties, participant, and presenter and filed with the NEHO
May 24 to 26, 2016
Hearing of the appeal commencing at 10 a.m. at the Grimsby Museum, 6 Murray Street, Grimsby, Ontario
Requests for Presenter and Participant Status Granted
Procedural Directions Ordered
“Marlene Cashin”
MARLENE CASHIN
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