Niagara Escarpment Hearing Office

Bureau des audiences sur l’escarpement du Niagara

ISSUE DATE: May 10, 2016

CASE NO.: 14-041

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

Appellant: Bonnie Ledson

Respondent: Niagara Escarpment Commission

Subject of appeal: Approval of a Development Permit Application to construct an asphalt parking lot and to provide off-road parking for visitors to the Cheltenham Badlands and users of the Bruce Trail

Reference No.: P/P/ 2013-2014/231

Property Address/Description: Part Lot 34, Concession 3, WHS

Municipality: Town of Caledon

Upper Tier: Region of Peel

NEHO Case No.: 14-041

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

Heard: February 1 - 4, and February 26, 2016 in Caledon, Ontario

APPEARANCES:

Parties Bonnie Ledson

Counsel Ronald K. Webb

Parties Niagara Escarpment Commission

Counsel Sunny Zhai

Parties Ontario Heritage Trust and Bruce Trail Conservancy

Counsel William MacLarkey and Brooklyn Kirkham (Student-at-law)

Parties Region of Peel

Counsel Robert Maciver

Parties Theresa Nadeau

Counsel Self-represented

Participants Irene Reimanis-Aziz

Counsel Self-represented

Participants Marion Plaunt

Counsel Self-represented

Participants Sam Perri

Counsel Self-represented

Participants Ross Atkinson

Counsel Self-represented

REPORT DELIVERED BY MARLENE CASHIN AND HEATHER I. GIBBS

REASONS

Background

1On behalf of the Bruce Trail Conservancy, Beth Gilhespy submitted development permit application P/P/2013-2014/231 (“Development Permit Application”) to the Niagara Escarpment Commission (“NEC”) on February 14, 2014, seeking permission to construct a 1,670 square metre (“sq. m.”) asphalt parking lot to accommodate off-road parking for visitors to the Cheltenham Badlands site (or the “Badlands”) and the Bruce Trail. The proposed development is located in the Town of Caledon (“Town”), Region of Peel (“Region”), and is designated Escarpment Protection Area (“EPA”) under the Niagara Escarpment Plan (“NEP”). It is within the boundaries of an Area of Natural and Scientific Interest (“ANSI”), as recognized by the Ministry of Natural Resources and Forestry (“MNRF”). The site is owned by the Ontario Heritage Trust and is designated an Escarpment Access Park under the NEP’s Niagara Escarpment Parks and Open Space System.

2On May 30, 2014, the NEC approved the application subject to 15 conditions (“Conditional Approval”).

3On June 12, 2014, Bonnie Ledson (“Appellant”) appealed the Conditional Approval under s. 25(8) of the Niagara Escarpment Planning and Development Act (“NEPDA”) to the Niagara Escarpment Hearing Office (“NEHO”).

4The hearing of the appeal took place in Caledon on February 1 to 4, and February 26, 2016.

5The Ontario Heritage Trust (“OHT”) and the Bruce Trail Conservancy (“BTC”) provided joint submissions, and were both represented in the hearing by William MacLarkey and Brooklyn Kirkham (student-at-law). For the purposes of this report the organizations will be jointly referred to as the “OHT/BTC”, except where the reference is to only one of the organizations.

6At the outset of the hearing, the Hearing Officers heard submissions regarding a request for participant status from Marion Plaunt, who has been an area resident for 32 years and lives within a kilometre of the Cheltenham Badlands. The Appellant and Theresa Nadeau, who had been granted party status at an earlier stage in this proceeding, had no objection to Ms. Plaunt’s participation. The Region and the OHT/BTC objected to Ms. Plaunt’s participation, as they said that requests for status should have taken place during the pre-hearing conferences. They assert that, although she knew about the upcoming hearing for some time, she did not notify the NEHO, the parties or participants regarding her intention to participate. They also objected on the basis that Ms. Plaunt was a planner with the NEC for many years, and they believed she would seek to give evidence as an expert planner, without going through the process of requesting and being granted, such status. The NEC took the position that it did not object, as long as Ms. Plaunt would give fact evidence as an area resident, but not expert opinion evidence. Ms. Plaunt herself said that she would have difficulty separating her role as a resident from her role as a planner, since her training and experience helped form her opinions.

7The Hearing Officers granted Ms. Plaunt’s request for participant status on the basis that she met the criteria for participant status set out in Rule 66 of the Rules of Practice of the Environmental Review Tribunal, which also apply to the NEHO. The relevant rules are attached at Appendix 1 to this Report. Portions of Ms. Plaunt’s proposed written statement were struck, as the Hearing Officers were of the view that those sections consisted of opinion evidence, which may only be provided by an expert.

Relevant Legislation and Niagara Escarpment Plan Provisions

8The relevant legislation and NEP provisions are attached at Appendix 2 to this Report.

Issues

9The issue in this appeal is whether the NEC’s decision to issue the Conditional Approval should be confirmed. This issue involves analysis of the following sub-issues:

1. Whether the proposed development is a Permitted Use under the NEP.
2. Whether the proposed development is in accordance with the Development Criteria of the NEP.
3. Whether the proposed development is in accordance with the policies for the Niagara Escarpment Parks and Open Space System.

Discussion, Analysis and Findings

Introduction

10This property, known as the Cheltenham Badlands, is located on the south side of Olde Base Line Road (Regional Road No. 12), and has frontage on the east side of Creditview Road. The property constitutes an Escarpment Access park within the Niagara Escarpment Parks and Open Space System (“NEPOSS”) and is described in the NEP as follows:

This 36.6 hectare property in the Town of Caledon was purchased in 1999 and includes 1.39 kilometres of the Bruce Trail. Locally known as the Cheltenham (or Caledon) Badlands, the property is one of the best examples of "badland topography" in Ontario, making it a Provincially Significant Earth Science ANSI. Around the turn of the century, land clearing and livestock grazing caused the erosion of the underlying red shale, leaving a hummocky network of exposed trenched gullies on the lower slopes of the Niagara Escarpment. The resulting unique topography has drawn considerable public interest, drawing thousands of international and local visitors, including numerous high school and university students, to study geology and the process of erosion. Management of the property rests with the Bruce Trail Conservancy while the title is held by the Ontario Heritage Trust.

11While the NEP provides that plans be prepared for each park or open space in the NEPOSS, the Cheltenham Badlands does not yet have such a plan. A Cheltenham Badlands Management Planning Team (“CBMPT”) was established in approximately 2006. Its members consist of representatives from the OHT, BTC, the Region, Credit Valley Conservation (“CVC”), the NEC and Regional/ Municipal Councillors.

12NEC planner, Michael Baran, testified that he attended some of the CBMPT meetings. He stated that the primary objective of the CBMPT is the preparation of a Management Plan. Mr. Baran testified that the provision of a parking facility could have been dealt with as part of the Management Plan exercise (thus not requiring a Niagara Escarpment Development Permit), but due to the urgency of road safety concerns, it was agreed that the parking issue would be explored independently, and a working group was established with respect to the question of a parking lot.

13Mr. Baran stated that a number of high-level meetings were held between Region officials and representatives from the OHT, BTC, NEC and CVC. He testified that it was evident to members of the working group that roadside parking alone would not be sufficient to accommodate visitors (including the numerous school buses that transport visitors) or to resolve safety issues. A candidate site generally located at the Badlands property’s northeast corner was eventually agreed upon.

14There are two separate issues that have been discussed in this appeal: (1) safety issues arising from visitors to the Badlands parking and walking along Olde Base Line Road; and (2) preservation of the Badlands feature given the erosion caused to it by human activity. The Development Permit Application by the OHT/BTC is designed to address only the first problem. The Appellant and two of the participants allege that the solution chosen to address the first problem will make the second one worse. That is, building a parking lot near the Badlands will invite more cars and more people, resulting in more erosion to the site. They also allege that it will not resolve the safety concerns, since many more than 33 cars (the number of parking spots proposed for the site) are regularly attracted to the site.

15As a preliminary matter, the Hearing Officers find that the Development Permit Application should be considered in light of the impacts of the parking lot itself, not the overall erosion problem at the Badlands feature. This is because the overall erosion problem is not dependent on whether roadside parking or a parking lot option is employed. Indeed, the overall erosion problem has manifested itself already without the presence of a parking lot. The Hearing Officers note that the overall erosion problem is being addressed in another forum. This development permit application is confined to the proposed development of the parking lot. The legislative and planning regime for the NEP area requires that development may only take place with a development permit, issued by the NEC “in accordance with the Niagara Escarpment Plan” (NEPDA s. 25.(4)). On appeal, the Hearing Officers are to consider whether the NEC’s decision was correct; i.e., whether the proposed development is in accordance with the NEP. Therefore, in this case the Hearing Officers are to consider whether the NEC’s decision to issue a development permit for a parking lot is in accordance with the NEP, and not whether access to the Badlands by members of the public will result in erosion of the features, or how much or under what circumstances such access should be permitted.

16The problem of human-induced erosion at the Badlands property is a much larger question, requiring evidence far wider than that which this appeal elicited. Indeed, the CBMPT has been working on this larger question for several years. The Appellant and two of the participants argue that issues relating to the parking lot are more properly considered as part of the larger Management Plan, such as whether a parking lot should even be built, its location in relation to any future observation deck, and its size. While there may be good reasons to consider the proposals together, the decision is not for the Hearing Officers to make. BTC has decided to apply only for a parking lot at this time, and the Hearing Officers, therefore, are to consider whether this development proposal accords with the NEP.

Witnesses

Clarence Riepma

17Clarence Riepma was called by the Appellant and qualified by the Hearing Officers to give opinion evidence as an expert land use planner. In his opinion, the Conditional Approval for the proposed development does not represent good planning and should not be approved because: a parking lot is not a permitted use in the EPA of the NEP and not a permitted use in the Town of Caledon Official Plan (“Caledon OP”); a master plan for the Badlands should be completed so all options for the site are considered and; a more suitable site may be available in the southwestern corner of the property.

Donald Fraser

18Donald Fraser was called by the Appellant and qualified by the Hearing Officers to give opinion evidence as an expert ecologist. Mr. Fraser reviewed a report entitled “Summary of Impacts to Natural Heritage Features,” prepared by Aboud and Associates Inc. (“Aboud Report”) in support of the proposed development. Mr. Fraser testified that the primary objective of his review was to assess whether or not the Aboud report “adequately characterized and addressed the impacts to the natural features on the subject property in the context of the relevant Natural Heritage policies of the Provincial Policy Statement (PPS 2014) and the Niagara Escarpment Plan (2005)”. In summary, he testified:

1. a parking lot is not a compatible use within the EPA;

2. the proposed development within an ANSI does not meet the “no negative impact” test of the PPS;

3. the Aboud Report is not an Environmental Impact Study (“EIS”), and does not provide an adequate characterization of existing conditions and anticipated impacts to the ANSI, surrounding woodland and associated natural heritage functions; and

4. the Aboud Report does not address the relevant natural heritage policies and performance measures of the NEP, the Region of Peel Official Plan (“ROP”), and the Caledon OP.

Brian Popelier

19Brian Popelier was called by OHT/BTC and qualified by the Hearing Officers to give opinion evidence as a terrestrial ecologist. Mr. Popelier stated that in early 2013 he participated in an updated biological inventory in the area of the proposed parking lot on the Badlands property, initiated by the BTC to assess current ecological conditions in that area. Mr. Popelier performed 11 field surveys of the site. He testified that the information he gathered was shared with Aboud, the consulting firm retained by the Region to develop an Environmental Impact Report for the proposed parking lot. Mr. Popelier stated that, based on his field visits to the property and his assessment of habitat information obtained in background research, he believes that there is no habitat to support amphibian or reptile breeding areas, or Species at Risk (“SAR”) critical habitat, in the area of the proposed parking lot.

Michael Baran

20Mr. Baran was called by the NEC and qualified by the Hearing Officers to give opinion evidence as a land use planner. He wrote the NEC Staff Report recommending issuance of the Conditional Approval. Mr. Baran’s testimony included information about the Management Plan process, the selection of a Final Parking Area Design, and an analysis of the Development Permit Application. He testified that it remains his opinion that the proposed development is a permitted use in the EPA, addresses the applicable Development Criteria and NEPOSS policies of the NEP, and is consistent with the PPS. He stated that the Development Permit Application is supported by all relevant land use authorities and agencies, and that in his view the proposed development is in conformity with the NEP.

Theresa Nadeau

21Ms. Nadeau testified that she is a long-time resident of the area who is active in local grassroots and ratepayers initiatives and public engagement activities. She outlined her concerns with the process by which the parking lot received a conditional development permit. Ms. Nadeau urged that the hearing be stayed until the Management Plan process, currently underway, is completed. In her opening submissions she questioned whether the development permit process is the most appropriate one for dealing with problems related to the Badlands site. Ms. Nadeau cross-examined witnesses but did not call witnesses of her own. Many of her questions elicited evidence relating to the difference between the development permit process and other options such as the Management Plan process, and why one process should be chosen over the other.

Participants

22Participants Marion Plaunt, Ross Atkinson, and Irene Reimanis-Aziz, each testified and provided written submissions. Ms. Plaunt and Ms. Reimanis-Aziz supported the position of the Appellant, while Mr. Atkinson supported the position of the Applicant. Participant Sam Perri did not testify or make submissions.

Ross Atkinson

23Mr. Atkinson testified that he lives on Creditview Road, south of Olde Base Line Road and adjacent to the west side of the Badlands property. In his view, the process used to select the proposed site “utilized numerous technically qualified agencies and personnel and most importantly they were unbiased...” (emphasis in the original). Mr. Atkinson said that in his opinion, the Region and OHT have taken steps to make a safer environment for those living near or visiting the Badlands and Bruce Trail, and the parking lot will further improve safety. He stated that he does not believe it makes sense to wait for months or years for a final Master Plan to be completed, to make needed safety improvements.

24Mr. Atkinson said that in his observation the vast majority of users of the area are short-term visitors to the Badlands feature itself, with the other user group being hikers and nature enthusiasts who use the trails on the Badlands site, or to pass through the site. He said that he and his wife walk those trails almost every day, and that in their experience the second group is a very small user group. He said if public accessibility to the Badlands is important, the parking lot should be as close to it as possible since a greater number of users can therefore be served. Mr. Atkinson also noted that the property is an Access Park under the NEPOSS and stated that although most of the area residents, including his family, would prefer not to have a parking lot in the park area, sometimes concessions have to be made.

Irene Reimanis-Aziz

25Ms. Reimanis-Aziz testified that Olde Base Line Road is the most direct route for first responders from Fire Station 305 to climb the Niagara Escarpment during emergencies, and is a commuter route used by thousands of residents. She said that since the year 2000, interest in the Badlands site steadily increased and that for 14 years visitors parked on the shoulders of the road. She testified, “often, traffic came to a complete standstill…and jockeyed for road side parking…it became obvious that this dangerous two lane road could not control the pedestrian traffic.”

26Ms. Reimanis-Aziz submitted that a March 2010 Traffic Report, based on a traffic study conducted by Peel Region in March 2009, was flawed. She submitted that “Peel Region cannot claim that an additional traffic study conducted in the fall of 2015 can be used for a permit approved in 2014, based on misleading and faulty data”.

27Ms. Reimanis-Aziz also submitted there has been a lack of public consultation regarding the Badlands property, from the time it was purchased in 2000. She also testified that in May of 2015, a fence was erected at the Badlands site, temporarily closing the site to visitors and, she said, eliminating the road safety problem entirely both for residents and visitors.

Marion Plaunt

28Ms. Plaunt testified that her primary concern is public safety on Olde Base Line Road for visitors wanting to view the Badlands, and that the site be responsibly managed for the long term. She believes that the proposed parking lot will not address all of the issues related to public access to the Badlands. She stated that some of the other issues to be considered are: general trail and visual access, erosion, stormwater management, site education or interpretation, picnic facilities, washrooms and general management such as garbage collection. Ms. Plaunt said that, based on her experience as a resident observing traffic in the area, the proposed parking lot will be inadequate, visitors will continue to park on Olde Base Line and Creditview Roads, and a secondary parking lot will need to be provided in order to reduce pedestrian and vehicle conflicts. She also stated that she believes it is premature to approve the proposed parking lot in advance of the development of a Management Plan that is currently underway. Ms. Plaunt testified that she believes the Management Plan is the appropriate vehicle to address all the issues in a comprehensive manner. However, she said, parking facilities are not currently part of the Management Plan process. Ms. Plaunt also submitted that incremental decisions made in isolation of other site issues are not consistent with the intent of the NEP.

Issue No. 1: Whether the proposed development is a Permitted Use under the NEP

29As noted above, the location proposed for the parking lot is designated as Escarpment Protection Area under the NEP. Section 1.4 of the NEP sets out the Objectives, Criteria for Designation, and Permitted Uses for EPAs.

30The Appellant submits that the proposed development does not constitute a Permitted Use under the NEP. However, of the 37 permitted uses set out in the NEP, the NEC and OHT/BTC submit that the development would fit within the description of at least three permitted uses: “Bruce Trail access”, “accessory use”, and “transportation facility”.

Bruce Trail Access

31Part 1.4 Permitted Use number 19, refers to the “Bruce Trail corridor” and “Access Points for Bruce Trail users” as follows:

Permitted Uses

Subject to Part 2, Development Criteria, the following uses may be permitted:

19. The Bruce Trail corridor including the pedestrian footpath and, where necessary, bridges, boardwalks and other trail-related constructions and unserviced Overnight Rest Areas and Access Points for Bruce Trail users.

32The Bruce Trail corridor is defined in the definitions section of the NEP as:

Bruce Trail Corridor - property managed and/or acquired in whole or in part under Part 3 of the Niagara Escarpment Plan or by other means for the purpose of securing the Bruce Trail and facilitating the establishment of Overnight Rest Areas and Bruce Trail Access Points.

33A Bruce Trail Access Point is defined in the same section as:

Bruce Trail Access Points - property managed and/or acquired in whole or in part for the purpose of providing public access to the Bruce Trail (e.g. parking areas).

34In Mr. Baran’s opinion, the proposed development aligns with Bruce Trail access as a Permitted Use under the NEP because the property is managed by the BTC and contains the main route of the Bruce Trail. He states as well, “the Application proposes a parking area in order to facilitate public access to the Bruce Trail and the established Escarpment Access Park”.

35The BTC/OHT submits that the definition of a Bruce Trail Access Point under the NEP specifically includes “parking areas”, and therefore the proposed development must be a Permitted Use under the NEP as part of a Bruce Trail Access Point.

36The Appellant however, relies on Mr. Riepma’s testimony to argue that the true nature of the proposed parking lot is not for Bruce Trail access, but for access to the Badlands site. She points to the fact that many more people stop along the road at this location to visit the Badlands, than to hike the Bruce Trail.

37The Appellant submits as well that, although the parking lot may be a “Bruce Trail access point”, nonetheless the proposed parking lot is too large to be a Permitted Use. She says that in Mr. Riepma’s view a parking lot for access to the Bruce Trail is of necessity much smaller than the proposed parking lot. The Appellant urges that Mr. Riepma’s opinion be accepted because of “a lifetime of practical experience” related to use of the Bruce Trail and its parking areas.

38Ms. Reimanis-Aziz commented that the Region’s March 2010 Traffic Report, which formed part of the decision-making for the size of the proposed parking lot, is not reliable as it underestimated the number of cars that park on Olde Base Line Road. She stated that it did not capture “peak visitor” days, and believes from her experience that the demand for parking for the Badlands will far outstrip the proposed spots. The OHT/BTC submits that the parking lot is designed to accommodate average use rather than the maximum peak use and that such an approach represents good planning.

39The Hearing Officers note that the evidence regarding the number of parking spots required for visitors to hike the Bruce Trail is anecdotal, and in the form of unsupported estimates from several witnesses and participants. Mr. Baran testified that the size of the proposed parking lot was determined by the Working Group to be large enough to relieve the safety hazard caused by roadside parking, and yet will respect the NEP’s Development Criteria.

40The number of car parking spots specified in the Conditional Approval is 33, as well as two bus parking spaces. Nothing in the NEP specifically restricts the number of parking spots in a parking lot for Bruce Trail access. The only restriction on size is for “secondary access points” (described more fully below in the discussion of Issue 2), which is restricted to a maximum of 20 parking spots. There is no evidence that a 33-car parking lot is out of the ordinary or overly large, for Bruce Trail primary access parking.

41The Badlands site is located in the Bruce Trail corridor, and the area is part of the NEPOSS under part 3 of the NEP. The purpose of NEPOSS is to allow for visitors to the Niagara Escarpment. “Bruce Trail access” does not mean only for hiking purposes. It is reasonable to read this as meaning access to geologically interesting points such as the Badlands site, along the trail. In addition, as noted in Mr. Baran’s evidence, the Badlands site is managed by the BTC, whose main purpose is the conservation of the Bruce Trail.

42The Hearing Officers are convinced by the evidence that the proposed development will provide access to the Bruce Trail. Whether that access is the primary or secondary purpose of the parking lot, is not determinative of whether or not the parking lot is a Permitted Use under the NEP.

Conclusion on Issue 1

43The Hearing Officers find that the parking lot is a Permitted Use as Bruce Trail access. The Hearing Officers note that, although they have received limited evidence and submissions on whether or not the parking lot is an “accessory use” or a “transportation facility” under the NEP, a proposed development need only fall within one Permitted Use. Therefore, no analysis or findings are necessary with respect to these other possible Permitted Uses.

Issue No. 2: Whether the development proposal is in accordance with the Development Criteria of the NEP.

44Part 2 of the NEP provides that Permitted Uses may be allowed, subject to Development Criteria. The following Development Criteria are relevant to this application: General Criteria 2.2.1; Steep Slopes and Ravines 2.5; Wildlife Habitat 2.8; Areas of Natural and Scientific Interest 2.14; Transportation and Utilities 2.15; and the Bruce Trail 2.16. They are cited in full in Appendix 2 to this Report.

General Development Criteria 2.2.1

45General Development Criteria 2.2.1 provides:

1. Permitted uses may be allowed provided that:

a) The long term capacity of the site can support the use without a substantial negative impact on Escarpment environmental features such as contours, water quality, water quantity, natural vegetation, soil, wildlife, population, visual attractiveness and cultural heritage features.

b) The cumulative impact of development will not have serious detrimental effects on the Escarpment environment (e.g. water quality, vegetation, soil, wildlife, and landscape).

c) The site is not considered hazardous to life or property due to unstable soil conditions or possible flooding.

d) Development meets applicable federal, provincial and municipal requirements including health and servicing requirements.

46Mr. Baran testified that the proposal complies with Development Criteria 2.2.1(a) and (b) because, in his opinion, the “lands have the carrying capacity to support the proposed development and that any cumulative impact would be minimal, such that no significant environmental or visual impacts would result.” Mr. Baran’s opinion is based on a review of the studies submitted (including the Aboud Report/BTC Natural Areas Assessment, Stormwater Management Report, and Geotechnical Investigation), comments provided by the MNRF, the Town, CVC, and the Region, in addition to his own site observations and assessment. All of the commenting agencies were satisfied in this regard. Mr. Baran testified that the Town and the Region rely on the environmental advice of CVC, which undertook the delineation of the constraint areas to facilitate further planning and design of the parking area.

47Mr. Baran stated that the development is consistent with “municipal requirements” mentioned in Development Criterion 2.2.1(d), because the Caledon OP provides that lands within its Environmental Policy Area, such as these, are not subject to municipal zoning. Section 5.7.3.1.3 of the Caledon OP provides:

Where EPA lands occur within the Niagara Escarpment Development Control Area, and are, therefore, not subject to municipal zoning, the Town shall implement the provisions of the EPA designation through the Development Control process, as appropriate.

48The NEC made no additional legal submissions.

49The Appellant submits that Development Criteria 2.2.1(a) and (b) have not been met. Specifically, that the long-term capacity of the site cannot support the proposal without a substantial negative impact on Escarpment environmental features, and the cumulative impact of development will have a serious detrimental effect on the Badlands feature.

50The Appellant submits that impacts of the parking lot development cannot be evaluated without a full EIS. The Appellant relies on Mr. Fraser’s evidence to assert that the work done by the BTC and the Aboud Report do not constitute an EIS, which is required to assess the long-term capacity of the site. In addition, Mr. Fraser testified that no herpetofaunal or other SAR surveys were conducted, and therefore the site was not properly assessed for significant wildlife habitat. The Appellant relies on Mr. Riepma’s evidence to assert that an EIS is required in this area, which is an ANSI, by the ROP, the Caledon OP, and the PPS.

51In addition, the Appellant submits 2.2.1(d) is not satisfied because there is no EIS. Mr. Riepma’s expert opinion is that the ROP requires (under s. 2.3.2.25) that an EIS be prepared for the parking lot. Similarly, the Caledon OP (in s. 5.7.3.7) requires an EIS, because the parking lot is new development adjacent to an Environmental Policy Area. Section 3.2.4.6 of the Caledon OP states “all development proposals within, containing and adjacent to EPA shall be required to conduct appropriate environmental studies/investigations up to and including an EIS and MP in accordance with the provisions of section 5.7 etc.”

52Further, the Appellant submits that the Caledon OP requires at s. 5.7.3.7.2(f) that the “necessary scope and content of the required EIS and MP shall be determined jointly by the Town and all other relevant agencies…”, but that the scope and content of the required EIS and MP have not been determined in this case.

53The Appellant relies on Mr. Fraser’s opinion evidence, that in the absence of reptile or amphibian surveys in the BTC field investigations, one cannot conclude that the site of the proposed parking lot is not significant wildlife habitat as recognized by the PPS, or that the subject property has been properly assessed for SAR. Given that there is no comprehensive EIS, submits the Appellant, it cannot be determined what impacts there will be, and whether or not the requirements of the PPS and the NEP and Caledon OP have been complied with.

54The Appellant submits that the NEC should not have relied on the inadequate environmental study that was done. In particular, the Aboud Report only spoke to impacts from the proposed parking lot, without having done a study of the Badlands property to determine its capacity for absorbing impacts, and no study was conducted for the presence of SAR. The Appellant suggests that the Hearing Officers should draw an adverse inference from the fact that the author of the Aboud Report was not called as a witness.

55Ms. Reimanis-Aziz stated that there has been a dramatic erosion of the Badlands since 2000, leading to the conclusion that the ‘capacity of the site’ is limited. She testified that visitor demand regularly exceeds 33 cars, and not just on Thanksgiving weekend or when people come to see the fall colours. Ms. Reimanis-Aziz testified that “fifteen years of unrestricted foot traffic on the Badlands feature” has led to permanent, measurable erosion, resulting in a substantial negative impact on Escarpment environmental features such as contours.

56The BTC/OHT submits that the proposed parking lot satisfies the NEP’s Development Criteria, whether one considers only the impact of the parking lot itself, or the wider impact of visitors to the Badlands.

57The BTC/OHT submits that the facts establish:

• both parties agree a parking lot is needed to address the unsafe roadside parking;

• it is uncontested that the proposed parking lot for 33 cars is the largest parking lot the property can sustain from an impacts standpoint;

• it is uncontested that the proposed parking lot will be safe; and

• the evidence establishes that the parking lot will accommodate the demand for parking, and solve the safety issue, the “vast majority” of the time.

58The BTC/OHT submits that a detailed EIS is not required under the NEP. It relies on the opinion evidence of Mr. Popelier, that the proposed parking lot would not have any impacts on the surrounding area given its small size and the proposed mitigation measures. His opinion is that the parking lot development would not diminish the function of the surrounding area as a wildlife corridor and foraging habitat for any species using it. Mr. Popelier conducted 11 formal studies in the subject lands, over the course of two complete ecological surveys.

59The Hearing Officers find that the proposed development, a parking lot for 33 cars and accommodation for two buses, satisfies the NEP’s General Development Criteria 2.2.1 for the following reasons.

60Despite the opinions of Mr. Riepma and Mr. Fraser that no formal EIS has been conducted, nothing in the NEP requires an EIS, or an “alternatives analysis”, as submitted by the Appellant. Rather, the NEP states that parks or open space areas without a Management Plan are subject to the land use policy designations and Development Criteria of the NEP (see Part 3.1.6.3).

61The NEC must be satisfied that the proposal is in accordance with environmental requirements in the NEP. The evidence is that the NEC relies on the satisfaction of consulted agencies, in order to determine that sufficient environmental studies have been undertaken. In this case, all the agencies (the Town, the Region, CVC, and the MNRF) were satisfied with the extent of the environmental studies undertaken. In addition, the commenting agencies were the same ones that the Appellant argues required a complete EIS: the Region, the Town, and CVC. The evidence, which includes the input from the consulted agencies, establishes that General Development Criteria 2.2.1 have been met.

Development Criterion 2.5 – Steep slopes and Ravines

62With respect to new development affecting steep slopes and ravines, Mr. Baran testified that the parking lot will require some fill but the shape and size were designed to reduce as much as possible any encroachment on steep slopes. Mr. Baran explained that:

The entrance to the parking lot also coincides with a location having the least grade differential between the road and the development site, thus minimizing the volume of imported fill...The volume of imported fill has not been confirmed, although staff does not anticipate a significant volume, based on the plans and cross-sections.

63While the Appellant and the participants expressed concern that more fill would be required than what was estimated in the NEP Staff Report, nonetheless, no evidence was filed to suggest that the parking lot as designed would contravene this Development Criterion. The Appellant’s witness, Mr. Fraser, conceded that “engineering and landscaping designs have been recommended to minimize impacts with respect to filling, grading and stormwater, and appear to be appropriate mitigation given the location and design of the parking lot”.

64The Hearing Officers therefore find that the development satisfies Development Criterion 2.5.

Development Criterion 2.8 – Wildlife and Habitat

65The Appellant submits that, because no studies have been done to identify SAR in the project area, the development cannot be found to satisfy Development Criterion 2.8. which provides:

1. New development will not be permitted in identified habitat of endangered (regulated) plant or animal species.

2. Development shall be designed so as to:

a) Minimize the impacts upon wildlife habitat, in particular, habitats of endangered (not regulated), rare, special concern, and threatened plant or animal species, as identified by on-site evaluation;

b) Maintain wildlife corridors and linkages with adjacent areas; and

c) Enhance wildlife habitat wherever possible.

66Mr. Baran considers that Development Criterion 2.8 has been satisfied based on the Aboud Report, and the satisfaction of the commenting agencies. The site on which the parking lot is proposed is described in Mr. Baran’s witness statement as:

The specific site is located near the northeast corner of the property and is mostly wooded (mid successional; primarily White Ash, White Elm, with Hawthorn and Apple overstorey, and a sub-canopy/understorey consisting of limited Sugar Maple saplings, Common Buckthorn and common meadow herbs). The site gradually slopes away from the road in a southeast direction. The Bruce Trail more or less defines the south and east limits of the site. The minor slope transitions to a steeper slope just beyond the trail.

67For the following reasons, the Hearing Officers find that there is sufficient evidence to conclude that there is no SAR habitat on the proposed parking lot site, and that there will be no negative impact to habitat functions.

68First, the Hearing Officers note that no commenting agencies expressed concerns with the studies that had been conducted, or their results. In particular, the MNRF was satisfied there would be no impacts to species of concern or to the ANSI, and the Town and Region both deferred to CVC for a determination that the proposed development will not have a significant impact on natural heritage features. The CVC was extensively involved as a member of the CBMPT, and had no objection to the development permit, subject to a permit pursuant to the Conservation Authorities Act, a requirement which was subsequently added to the Conditional Approval as Condition No. 15.

69Furthermore, the Hearing Officers are not restricted to considering the information that was before the NEC when it made its decision. In this case, the Hearing Officers were presented with further studies conducted by Mr. Popelier on behalf of the OHT/BTC. Mr. Popelier conducted an assessment of the project site and opined that it does not contain habitat for SAR, and that this property functions as a wildlife corridor and a linkage to adjacent areas, functions that will not be impacted by the parking lot. Mr. Fraser, on the other hand, did not have specific knowledge of the project site, and did not provide evidence of harm to wildlife habitat. For this reason, the Hearing Officers accept Mr. Popelier’s expert evidence that the parking lot site does not contain habitat for SAR. Based on this evidence, the Hearing Officers find that Development Criterion 2.8 is satisfied.

Development Criterion 2.14 – Areas of Natural and Scientific Interest

70Development Criterion 2.14 applies to Areas of Natural and Scientific Interest (“ANSIs”). The entire property belonging to OHT is categorized as a Provincially Significant Earth Sciences ANSI, specifically due to the Badlands erosion landform. Development Criterion 2.14.3 provides:

3. In Provincially Significant Earth Science ANSIs development will be considered, provided that:

a) Development does not significantly alter the natural topography or geological features of the Earth Science ANSI; and

b) Methods are employed to minimize the impact of the use on the values for which the site has been identified.

71The MNRF has confirmed in an email dated May 30, 2014 that the badlands feature is the reason for the property’s designation as an ANSI. Mr. Baran’s evidence is that the parking lot will be approximately 200 m east of the badlands feature. In his Staff Report, Mr. Baran noted that the MNRF did not identify any concern in regard to the Earth Science ANSI and noted that the proposed parking lot is not situated within the areas for which the ANSI was identified, and that grades for the area would remain relatively unchanged. Mr. Baran testified that Part 2.14.3 is satisfied, since the parking facility would not significantly alter the natural topography, or the features associated with the ANSI.

72The Hearing Officers find the evidence of Mr. Popelier, who conducted numerous site-specific field surveys, also supports a finding that the parking lot is located and designed “to avoid steep slopes, wetlands, erosion prone soils and ecologically sensitive areas such as sensitive plant and animal habitats and sensitive areas within Areas of Natural and Scientific Interest”, in accordance with Development Criterion 2.14.

73The Appellants have not challenged the 200m setback, or the conclusion that it is sufficient to ensure the parking lot itself does not alter or otherwise have any impact on the Earth Sciences ANSI feature. As noted above, the dispute is over whether the parking lot will attract visitors who will harm the feature when they visit it. Given the Hearing Officers’ determination that the development proposal before it in this appeal is the parking lot portion of the property, it also finds that the proposal is consistent with Development Criterion 2.14.

Development Criterion 2.15 – Transportation and Utilities

74Development Criterion 2.15 provides that new transportation facilities shall be designed and located to minimize the impact on the Escarpment environment and be consistent with the objectives of the NEP, and that such facilities should avoid Escarpment Natural Areas and agricultural areas, especially prime agricultural and specialty crop areas.

75There is some debate as to whether the proposed parking lot should be considered a “transportation facility”. Assuming, without deciding, that it is, the Hearing Officers find that the development accords with Development Criterion 2.15. The proposed location of the parking lot is in the EPA, and is not located in prime agricultural or specialty crop areas. The EPA land use designation is less restrictive than Escarpment Natural Area, which contains the most sensitive and significant Escarpment features.

Development Criterion 2.16 - Bruce Trail

76Development Criterion 2.16 applies to the Bruce Trail. In his Staff Report, Mr. Baran also considered that the NEP prefers that Bruce Trail Access Points be located within NEPOSS parks, and outside the Escarpment Natural Area. The proposed development complies with this preference. He also considered that there are no specific design standards in the NEP for Bruce Trail Access Points, other than the Criterion under Part 2.16.12 for Secondary Access Points, which he referred to as a guide. Development Criterion 2.16.12 stipulates that a Secondary Access Point should be located at least 50 m (164 ft) from a residence and not exceed 20 parking spaces. The proposed lot is larger than that allowed for a Secondary Access Point, but there is no such limit on parking areas within the NEPOSS. In this case, the closest residence to the proposed parking facility would be at least 50 m (164 ft) from the proposed entrance at its closest point.

77The Hearing Officers, therefore, conclude that Development Criterion 2.16 is satisfied.

Conclusion on Issue 2

78Based on the foregoing analysis and findings, the Hearing Officers find that the development proposal satisfies the relevant Development Criteria set out in 2.2.1, 2.5, 2.8, 2.14, 2.15 and 2.16 of the NEP.

Issue No. 3: Whether the proposed development is in accordance with the policies for a Niagara Escarpment Parks and Open Space System (NEPOSS)

79Part 3 of the NEP sets out policies for a NEPOSS as a framework for the establishment and coordination of a system of publicly owned lands on the Escarpment as well as the Bruce Trail. A minority of NEPOSS lands in the NEP area have management plans. As noted above, the Cheltenham Badlands area does not yet have a management plan, although a planning team is developing one.

80Many of Ms. Ledson’s objections and the objections of two of the participants to the proposed development, are founded in the view that the parking lot will not solve the larger problem faced by this NEPOSS, that of erosion damage due to overuse by visitors, which relates specifically to many of the objectives listed in full in Appendix 2.

81However, the CBMPT is tasked with addressing this larger issue. One of the steps taken to address this larger problem has been to fence off access to the site. This is independent of the parking lot proposal, which the Hearing Officers are addressing as a separate proposal in this appeal proceeding. The parking lot proposal is designed to address the safety issues presented by public parking on Olde Base Line Road.

82The proposed development is a Bruce Trail access point, as well as an access point to the NEPOSS. The Hearing Officers find that the development is in accordance with the Objectives of the NEPOSS, which include providing for adequate public access to the Niagara Escarpment, supporting tourism by providing opportunities on public land for discovery and enjoyment by Ontario's residents and visitors, and to provide a common understanding and appreciation of the Niagara Escarpment. The Hearing Officers agree with the unchallenged view of Mr. Baran in this regard, that the proposed parking facility would satisfy those Objectives.

DECISION

83Ms. Plaunt’s request for participant status is granted.

84In light of the findings that the proposed parking lot is a Permitted Use, and is consistent with the Development Criteria and NEPOSS policies, the Hearing Officers conclude that the decision of the NEC dated May 30, 2014, to grant a Conditional Approval for Development Permit Application P/P/2013-2014/231, is correct and should not be changed. The NEC’s decision is therefore confirmed pursuant to s. 25(12) of the NEPDA. The appeal is dismissed.

Request for Participant Status Granted

Appeal Dismissed

NEC Decision Confirmed

“Marlene Cashin”

MARLENE CASHIN

HEARING OFFICER

“Heather I. Gibbs”

HEATHER I. GIBBS

HEARING OFFICER

Appendix 1 - Relevant Rules

Appendix 2 - Relevant Legislation and Niagara Escarpment Plan Provisions

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