Nielsen v. Ontario (Niagara Escarpment Commission), 2016 CanLII 42860

Niagara Escarpment Hearing Office

Bureau des audiences sur l’escarpement du Niagara

ISSUE DATE: July 8, 2016

CASE NO.: 16-043

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

Appellant: Johnnie Nielsen

Applicant: Tabitha McDow

Respondent: Niagara Escarpment Commission

Subject of appeal: Approval of a Development Permit Application to convert the upper floor of an existing barn to a commercial rental facility

Reference No.: P/C/2015-2016/162

Property Address/Description: Part Lot 8, Concession 3 EHS

Municipality: Town of Caledon

Upper Tier: Region of Peel

NEHO Case No.: 16-043

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

Heard: In writing

APPEARANCES:

Parties	Representative
Johnnie Nielsen	Self-represented
Tabitha McDow	Donald W. McDow

ORDER DELIVERED BY KAREN KRAFT SLOAN AND HEATHER MCLEOD-KILMURRAY

REASONS

Background

1The Niagara Escarpment Commission (“NEC”) conditionally approved an application for a Development Permit that would allow Tabitha McDow (the “Applicant”) to convert the upper floor of an existing 760 square metre (“sq m”) (8,184 sq. feet (“sq. ft.”) barn to a commercial rental facility. The facility would be primarily used for weekend weddings, annually from May 1 to mid-October on the existing 59.95 acre lot.

2Johnnie Nielsen (the “Appellant”), an adjacent property owner, submitted an appeal on February 29, 2016. The Appellant is opposed to the proposed development due to concerns that events held in the facility might lead to disturbances related to noise and unacceptable behavior of patrons; increased garbage and littering on his property and the country side; negative impacts on his property values; and his inability to enjoy the view and the peace and quiet that he currently enjoys. The Appellant added that these are not disruptions that are supposed to occur in a biosphere-protected area.

3On April 27, 2016, the NEHO received a notice of motion to dismiss the appeal from the Applicant’s agent, Donald McDow, requesting that the Hearing Officers exercise their powers under s. 25 (8.1) of the Niagara Escarpment Planning and Development Act (“NEPDA”) to refuse to conduct a hearing on the ground that the appeal fails to disclose a planning justification. The NEHO informed the parties that they had until May 18, 2016 to file written submissions on whether the Hearing Officers should refuse to conduct a hearing. The Appellant filed responding motion materials on May 5, 2016 and Mr. McDow submitted a reply to the Appellant’s response on May 11, 2016. On May 18, 2016, the NEC filed a letter with the NEHO, to confirm that the NEC would not comment on the Applicant’s motion to dismiss the appeal.

4The proposed facility is located at Part Lot 8, Concession 3 EHS (“subject property”), in the Town of Caledon (“Town”), and the subject property is designated Escarpment Natural Area (“ENA”) and Escarpment Rural Area (“ERA”) in the Niagara Escarpment Plan (“NEP”). The part of the subject property where the existing barn is located is designated ERA.

5In July 1998, a related Development Permit was issued by the NEC to allow the demolition of a residence, and the construction of an addition to an existing dwelling and detached garage on the subject property. A second related Development Permit was issued on July 29, 2015, to permit the construction of a staircase attached to the existing barn and three raised decks. Construction with respect to the July 2015 Development Permit and the July 1998 Development Permit has been completed.

6No new construction is required, as the current proposal would make use of the existing barn by renting the upper floor, and all food and beverage, including water, would be brought to the site. Portable toilets are proposed, which would mean that no on-site sewage is needed, and the Applicant would ensure that appropriate licensing is acquired through the Liquor Control Board of Ontario. Parking would be located on an existing cleared area (covered with grass) covering approximately 1,170 sq m (12,600 sq. ft.), which would accommodate between 40-50 vehicles and overflow parking is proposed in other locations on the property. The number of guests allowed on the property would be capped at 175 people not including catering staff and Disc Jockey (“DJ”) staff.

7A January 12, 2016 NEC Staff Report (“NEC Staff Report”) recommended refusal of the Development Permit application on the grounds that it failed to comply with Objective 3 of Part 1.5 of the NEP, which is “to encourage agriculture and forestry and to provide for compatible rural land uses”. Additionally, the NEC Staff Report considered the proposal under a number of permitted uses but staff was of the opinion that it could not fulfill the permitted use provisions in Part 1.5 of the NEP and therefore was not a permitted use. The permitted uses considered by NEC are: small-scale commercial uses accessory to agriculture; small-scale commercial use and industrial development servicing agriculture and the rural community; recreational uses; and home occupations, cottage industries and home industries.

8While the NEC Staff Report identified the possibility that the proposal could be considered an on-farm diversified use, as defined in the Provincial Policy Statement, 2014 (“PPS”), it was the opinion of staff that the NEP “does not support this type of proposed land use activity”. The NEC Staff Report noted that s. 4.12 of the PPS states that “provincial plans shall be read in conjunction with this Provincial Policy Statement and take precedence over policies of the PPS to the extent of any conflict”. Therefore, the NEC Staff Report asserted that the “NEP policies on permitted land use take precedent over the potential or perceived conflict with permitted uses under the on-farm diversified uses category of the PPS”.

9The proposal was circulated to Credit Valley Conservation Authority (“CVCA”), Ministry of Natural Resources and Forestry (“MNRF”), the Region of Peel (“Region”) and the Town, and there were no objections.

10At a January 21, 2016 meeting of the NEC, the Development Permit application was approved in principle on the grounds that the proposal conformed with the purpose of the NEPDA, the objectives of the NEP, the objectives of the ERA designation, and the General Development Criteria of s. 2.2 of the NEP, and that it qualifies as a NEP Home Business.

11A February 9, 2016 NEC Staff Report set out conditions of approval of the Development Permit. On February 18, 2016, the NEC approved a revised list of conditions and on February 19, 2016, the NEC issued a notice of decision regarding the approval of the Development Permit application and the revised conditions.

Relevant Legislation and Rules

12Niagara Escarpment Planning and Development Act

25(8) Where the delegate receives one or more notices of appeal under subsection (5.1) the Minister shall appoint an officer for the purpose of conducting a hearing at which representations may be made respecting the decision.

25(8.1) Despite subsections (8) and (10), an officer appointed under subsection (8) may refuse to conduct or to continue a hearing if,

(a) in the opinion of the officer, the appeal does not disclose a planning justification for the appeal, is not in the public interest, is without merit, is frivolous or vexatious, or is made only for the purpose of delay;

(b) the notice of appeal did not specify the reasons for the appeal; or

(c) the person who appealed the decision has not responded to a request by the officer for further information within the time specified by the officer.

25(8.2) Before refusing under subsection (8.1) to conduct or to continue a hearing, the officer shall notify the person who appealed the decision and give the person an opportunity to make representations thereon.

Rules of Practice of the Environmental Review Tribunal (“Rules”)

Motions for Dismissal of Appeals of Development Permits under the Niagara Escarpment Planning and Development Act

113. A Party bringing a motion to dismiss an appeal of a development permit shall specify the basis for the motion, which may include that:

(a) the appeal does not disclose a planning justification for the appeal, is not in the public interest, is without merit, is frivolous or vexatious or is made only for the purpose of delay;

(b) the notice of appeal did not specify the reasons for the appeal;

(c) the person who appealed the decision has not responded to a request by the Tribunal for further information within the time specified by the Tribunal; or

(d) the proceeding relates to matters that are outside the jurisdiction of the Tribunal.

Issue

13The issue is whether the appeal should be dismissed because it fails to disclose a planning justification under s. 25(8.1)(a) of the NEPDA.

Discussion, Analysis and Findings

Applicant’s Submissions

14The Applicant’s notice of motion to dismiss the appeal references s. 25(8.1)(a) of the NEPDA and the Rule 113 of the Tribunal’s Rules for motions to dismiss an appeal under the NEPDA.

15The Applicant states that the Appellant’s appeal letter discloses the following issues: noise pollution, litter, property values, and view. The Applicant’s ground for dismissing the appeal is that the appeal does not disclose a planning justification. The Applicant asserts that the Development Permit application has a planning justification but that the appeal of the NEC’s decision regarding the Development Permit application does not.

16The Applicant submits that the proposed use is not likely to cause noise pollution, as noise can be addressed by adherence to the Town’s Noise By-law No. 86-110 (“By-law No. 86-110”), which prohibits loud activities such as: “hooting and hollering and amplified sound between the hours of 11 p.m. and 7 a.m.” The Applicant further submits that Development Permit Conditions 7, 11, and 12, which address noise issues, “would eliminate any opportunity for loud partying, hooting and hollering long into the night”. The Applicant contends that the location of the barn in a “gentle valley” and its distance from residences on other properties would “insulate” neighbouring lands from excessive noise.

17The Applicant submits that litter would not be an issue as the Applicant’s business plan requires caterers and event planners to remove all garbage at the end of the day, and that no take-out foods that have wrappers and packaging would be permitted for use during wedding hall rentals.

18The Applicant dismisses the Appellant’s contention that his property values would be negatively affected, as the Applicant submits the rural landscape character of the proposed use of the existing barn would not change, that Condition 6 of the Development Permit limits the proposed use to only weekends between May 1 and October 31, and that “incompatible land use compromising the normal use and enjoyment of neighbouring lands is limited”.

19With respect to negative impacts on views, the Applicant submits that the barn is located out of the line of sight of the Appellant’s current residence, as it is approximately 687.5 m from the barn behind a valley slope and that parking, which would occur on weekends only, will be to the rear of the barn. The Applicant provides visual evidence by way of a landscape photograph and a digital air image to demonstrate the configuration of the two properties. Additionally, the Applicant states that her personal residence is also on the subject property, and that she does not want the proposed use to create negative impacts “on their lands or their own neighbourhood”.

20With respect to the land use planning justification for the Development Permit application, the Applicant reviews relevant planning policies such as: the NEP, the PPS, the Official Plan (“OP”) of the Town and the Greenbelt Plan, and it is the Applicant’s submission that “no significant policy non-conformities” could be identified. In support of this, the Applicant contends that the Region, the CVCA, the MNRF and the Town had no objections.

21The Applicant submits that the Appellant has not provided sufficient planning justification to support his appeal, as the “issues of noise, litter, property values and view have either been dealt with by conditions or have no basis under relevant land uses policies.” Further, the Applicant submits that “clear planning justifications have been provided” to support the Development Permit application and that the proposal “has met the necessary test of commenting agencies in good faith”.

22In her reply, the Applicant submits that the NEC Commissioner “decided that the merits of the application outweighed the recommendations from the Staff Report”, and that during the NEC meeting, the application was discussed in relation to the PPS and the Planning for Health and Growth in the Greater Golden Horseshoe 2015 – 2041 Study (the “Crombie Report”). The Applicant states that the application adhered to the objectives of the “on farm” diversified policy of the PPS, and that it reflected the spirit of the Crombie Report as stated in Recommendation 33, which emphasizes the need to support “on farm” diversified uses.

23The Applicant notes that the Appellant relies solely upon the NEC Staff Report submitted to the NEC in his submissions regarding the motion to dismiss the appeal. The Applicant further submits that the Appellant “failed to bring forward any new planning policies or relevant facts establishing deficiencies” in the original Development Permit application or in the decision of the NEC to approve the conditional Development Permit. Thus the Applicant submits that the Hearing Officers should dismiss the appeal at this stage.

Appellant’s Submissions

24In responding to the motion to dismiss the appeal, the Appellant provided the NEC Staff Report, which recommended that the Development Permit application not be approved. The NEC Staff Report provides an overview of the Development Permit application and subject property, as well as a planning analysis of the Development Permit application that has been summarized elsewhere in this Decision. The NEC Staff Report concludes by stating:

The proposal is not supported by the policies of the NEP. The proposed land use is not related to agricultural production and does not serve the local agricultural and rural community. Additionally, the scale of the proposal is larger than is permitted under the home business criteria of the NEP. Other considerations to note are the proposed hours of operation and the corresponding increase in traffic and noise to a quiet rural area. This poses a potential land use conflict with the surrounding rural area.

25The Staff Report states that the proposed use is not a permitted use in the ERA designation and does not comply with Objective 3 of Part 1.5 of the NEP.

26In his original appeal letter of February 29, 2016, the Appellant stated that his appeal was founded on his concerns that the permitted development would cause noise and litter, and would have potential effects on wildlife, property values, and scenic views. He also stated that “this kind of disruption should not occur in an area that is supposed “to be a biosphere protected area”.

Discussion, Analysis and Findings

27Under s. 25(8.1)(a) of the NEPDA, a Hearing Officer may refuse to conduct a hearing if “in the opinion of the Hearing Officer, the appeal does not disclose a planning justification for the appeal, is not in the public interest, is without merit, is frivolous or vexatious, or is made only for the purposes of delay”.

28Dodds v. Niagara Escarpment Commission, [2005] O.E.R.T.D. No. 55 (“Dodds”) noted at para. 16 that:

Section 25(8.1) was added to the NEPDA in 1999 and has been employed from time to time by hearing officers in order to screen out unmeritorious appeals. It provides a mechanism to save time and resources required for unnecessary hearings while ensuring that appellants have the opportunity to make representations before a decision is made that terminate an appeal at a preliminary stage.

29However, at para. 19, Dodds offers a caution:

The Hearing Officer, in making a determination under section 25(8.1), must not, in striving for expedience and cost efficiency, collaterally dismiss a meritorious matter prior to a hearing. It would not do justice to an Appellant if his or her meritorious appeal were dismissed in error because the bar for summary dismissals had been set too low in the name of expedience. Therefore, in cases such as this one, where a party to the hearing has made a request for review under section 25(8.1), the Hearing Officer finds that the onus is properly on the party requesting the dismissal to show that the appellant has failed to disclose a planning justification for the appeal.

30Section 25(5.1) of NEPDA specifies that notices of decisions on development permit applications must include notices stating that “the recipient of the decision may, within 14 days after the mailing of a decision, appeal the decision by giving the delegate a written notice of appeal that specifies the reasons for the appeal”.

31The Appellant submitted a notice of appeal on the day that he received the notice of decision for the Development Permit, and the notice of appeal set out three reasons for objecting to the proposed development, one of which concerns disturbances related to noise.

32Pursuant to s. 25(8.1)(a) of the NEPDA, the Applicant has identified the lack of a planning justification as the ground for dismissing the appeal. Though the Applicant submits that sufficient planning justification was provided for the Development Permit application and that the commenting agencies found no conflict between the application and their policies, the question to be decided at this stage is not whether the Applicant’s application for the Development Permit has a planning justification, but rather whether the Appellant’s appeal has a planning justification. With regard to the latter, the Applicant submits that the Appellant “has not provided sufficient planning justification to support his appeal”, as the issues raised by the Applicant are either addressed by the Development Permit Conditions or “have no basis under relevant land use policies”.

33A planning justification must be considered within the specific context of the NEPDA. For example, the “Purpose” section, s. 2 of the NEPDA, states that the purpose of the Act is “to provide for the maintenance of the Niagara Escarpment and land in its vicinity substantially as a continuous natural environment, and to ensure only such development occurs as is compatible with that natural environment”.

34Additionally, s. 25(4) of the NEPDA allows the NEC to grant a Development Permit in accordance with the NEP. Assessing whether an application accords with the NEP includes a consideration of the permitted use provisions in Part 1 of the NEP and the development criteria provisions in Part 2. Therefore, assessing whether an appeal has a planning justification includes determining whether the appeal raises any issues that pertain to whether the proposed development accords with the NEP.

35Further, a plain reading of s. 25(8.1)(a) of the NEPDA shows that the issue to be considered by the Hearing Officers at this preliminary stage of the proceeding is whether the appeal “discloses” a planning justification. As per Dodds, at para. 32, a dispute over the interpretation and application of the NEP is more appropriately dealt with at a full hearing.

36The NEC Staff Report, which the Appellant relies on as grounds of appeal, expresses the following opinion:

This proposal fails to comply with Objective 3 of Part 1.5 of the NEP. This objective states:

“To encourage agriculture and forestry and to provide for compatible rural land uses.”

The proposed rental barn does not encourage or support agricultural or forestry practices, and is not a compatible rural land use. While the applicant has taken measures to reduce the environmental impacts by proposing the use of imported water and portable washrooms, there is the potential for land use conflicts with neighboring properties stemming from the increased intensification of traffic and noise during the weekend and late into the evenings that is inherent with the inclusion of an event facility such as the one proposed.

37The NEC Staff Report also contains a reference to noise in its conclusion: “Other considerations to note are the proposed hours of operation and the corresponding increase in traffic and noise to a quiet rural area. This poses a potential land use conflict with the surrounding rural area”.

38While the Appellant’s appeal letter identifies noise as a reason for his objection to the proposal, the Applicant does not argue that “noise” is not a legitimate planning matter within the context of the NEPDA and the NEP. Instead, the Applicant submits that noise would not be an issue for the proposed Development Permit, as noise resulting from the rental of the barn for weddings and other events would be addressed through adherence to By-law No. 86-110 of the Town and the noise provisions contained in the Development Permit Conditions. Additionally, the Applicant argues that the natural features of the site and distance of the barn from surrounding properties would mitigate excessive noise impacts on neighbours. These submissions therefore do not address the Applicant’s contention that the appeal fails to disclose a planning justification pursuant to s. 25(8.1)(a) of the NEPDA, but rather speak to the merits of the proposed Development Permit.

39The Applicant submits in her Reply that the Appellant relied solely on the NEC Staff Report and that the Appellant did not bring forward any new planning policy or relevant facts establishing deficiencies in the Applicant’s original Development Permit application or in the NEC decision to grant the Development Permit or its conditions. While it is accurate that the Appellant relied solely on the NEC Staff Report in his response to the motion, the focus of the Hearing Officers’ deliberations on the motion to dismiss the appeal is the content of the Appellant’s appeal. The Appellant can rely on the NEC Staff Report and, to the extent that the report raises issues regarding whether the application accords with the NEP, this will be sufficient in terms of disclosing a planning justification for the appeal. Though new material can be brought forward in appeals under the NEPDA, there is no requirement for the Appellant to bring forward new grounds or new evidence beyond what was considered by the NEC.

40As noted in Dodds, the onus is on the party requesting dismissal at a preliminary stage to make the case that no planning justification for the appeal has been disclosed by the Appellant.

41After carefully reviewing the parties’ submissions, the Hearing Officers find that the Applicant has not satisfied the burden under s. 25(8.1)(a) of showing that the appeal has no planning justification. While the NEC made no submissions on the motion to dismiss the appeal, the Hearing Officers note that the NEC Staff Report articulated several concerns with respect to the Development Permit application. These concerns directly relate to the question of whether the development accords with the NEP. In this case, the Appellant’s concerns relate to, and specifically rely on, matters raised in the NEC Staff Report. For example, the noise concerns identified in the Appellant’s appeal letter constitute a planning justification within the context of the NEPDA and the NEP because Objective 3 of Part 1.5 of the NEP requires consideration of “compatible rural land uses.” Noise concerns, among other things, can be considered at the main hearing to the extent that they relate to land use compatibility under the NEP.

42In light of the above, the Hearing Officers conclude that the Applicants have failed to show that this appeal does not disclose a planning justification. The Hearing Officers decline to exercise their discretion to refuse to conduct a hearing under s. 25(8.1)(a) of the NEPDA. The Applicant’s motion is dismissed and the matter should proceed to a hearing where evidence regarding the planning merits can be properly tested.

ORDER

43The Motion to dismiss the appeal without a hearing is dismissed.

Motion Dismissed

“Karen Kraft Sloan”

KAREN KRAFT SLOAN

HEARING OFFICER

“Heather McLeod-Kilmurray”

HEATHER MCLEOD-KILMURRAY

HEARING OFFICER

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Niagara Escarpment Hearing Office

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