Niagara Escarpment Hearing Office
Bureau des audiences sur l’escarpement du Niagara
ISSUE DATE: August 23, 2016
CASE NO.: 16-061
PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Appellant: Ivan Pozega (File No. 16-061)
Appellant: Milka Rovisan-Pozega (File No. 16-062)
Applicant: Ian and Caroline Baird
Respondent: Niagara Escarpment Commission
Subject of appeal: Approval of a Development Permit Application to demolish an existing detached garage and construct a detached garage with storage loft
Reference No.: H/R/2015-2016/237
Property Address/Description: Part Lot 15, Concession 6, NS
Municipality: Town of Milton
Upper Tier: Region of Halton
NEHO Case No.: 16-061
NEHO Case Name: Pozega v. Ontario (Niagara Escarpment Commission)
Heard: August 9, 2016 by telephone conference call
APPEARANCES:
| Parties | Representative |
|---|---|
| Ivan Pozega and Milka Rovisan-Pozega | Self-represented |
| Niagara Escarpment Commission | Michael Baran |
| Ian and Caroline Baird | Self-represented |
Presenter | --- | --- Aman Hans | Self-represented
ORDER DELIVERED BY MARLENE CASHIN AND BRUCE KRUSHELNICKI
REASONS
Background
1Ian Baird and Caroline Baird (“Applicants”) submitted a development permit application to the Niagara Escarpment Commission (“NEC”) on November 14, 2015, seeking permission to demolish an existing 1 storey detached garage and construct a 1.5 storey detached garage with storage loft, on an existing 13.09 acre lot. The property is located at Part Lot 15, Concession 6 N.S. in the Town of Milton, Region of Halton. The Niagara Escarpment Plan land use designation applicable to the property is Escarpment Rural.
2On April 29, 2016, the NEC approved application H/R/2015-2016/237, subject to conditions attached to the NEC Staff Planning Report dated April 28, 2016.
3On May 13, 2016, Ivan Pozega and Milka Rovisan-Pozega (“Appellants”) appealed the decision of the NEC to approve the application for a development permit under s. 25(8) of the Niagara Escarpment Planning and Development Act.
4A pre-hearing conference (“PHC”) regarding the appeal was held by telephone conference call (“TCC”) on August 9, 2016.
5On August 9, 2016, on consent of the parties, the Niagara Escarpment Hearing Office (“NEHO”) panel granted presenter status to Aman Hans. On consent of the parties, a request for a site visit was also granted.
6The parties also agreed to a schedule for the proceedings, and the NEHO Hearing panel provided procedural directions and set dates regarding the hearing of the appeal.
Relevant Rules
7The relevant rules of the Environmental Review Tribunal (the “Tribunal”), which apply to the NEHO, are:
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.
Site Visits and Inspections
- The Tribunal may make one or more site visits or inspections to better understand the evidence given at the Hearing, and may issue directions for the procedures to be followed during the site visit or inspection, in accordance with the Tribunal’s Practice Direction for Site Visits. The Tribunal shall make the site visit in the presence of any Parties and Participants or their representatives interested in attending and in the presence of any Presenters granted permission by the Tribunal to attend.
Issues
8The issues at the PHC were:
- whether a request for presenter status should be granted; and
- whether a request for a site visit should be granted.
Discussion, Analysis and Findings
Issue 1 – Request for Status
9One person participating in the PHC on August 9, 2016 expressed interest in having status at the hearing.
10Mr. Hans requested presenter status. He stated that he and other family members, including his parents, are neighbours to the subject property. He said that their main concern is the potential visual impact of the proposed development. The parties did not object to Mr. Hans’ request for presenter status.
11The Hearing Panel finds that Mr. Hans’ interest in the appeal satisfies the considerations set out in the Tribunal’s Rules, in that his interests may be directly and substantially affected by the hearing or its result. He also has a genuine interest in the subject matter of the proceeding, and is likely to make a relevant contribution to the Hearing Panel’s understanding of the issues in the proceeding.
Issue 2 – Request for Site Visit
12The Applicants requested that the Hearing Panel conduct a site visit of the subject property, pursuant to Rule 186 of the Tribunal’s Rules.
13The parties did not object to the request for a site visit, and the Hearing panel finds that a site visit will assist in a better understanding of the evidence to be given at the Hearing. The Applicants will use tape or some other type of marking on the ground to illustrate the dimensions and location of the proposed garage, and markers will be placed in one or more of the trees directly adjacent to where the proposed garage is to be located, in order to indicate its height.
ORDER
14Aman Hans is granted presenter status in the appeal and should he wish, may attend the site visit.
15The request for a site visit is granted.
16The NEHO directs the following schedule related to the appeal:
August 30, 2016 Parties to provide all documents relevant to the proceeding and in their possession, control or power to the other parties.
August 30, 2016 Parties and presenter to exchange with one another, and file with the NEHO, all witness statements and other documents to be relied on at the hearing.
September 13, 2016 Site visit commencing at 9:30 a.m. on the subject property at 7711 Appleby Line, Milton, Ontario
September 13, 2016 Hearing of the appeal commencing at 10 a.m. (or immediately following the site visit) at the Council Chambers of the Town of Milton, 150 Mary Street, Milton, Ontario
Request for Presenter Status Granted
Request for Site Visit Granted
Procedural Directions Ordered
“Marlene Cashin” MARLENE CASHIN HEARING OFFICER
“Bruce Krushelnicki” BRUCE KRUSHELNICKI 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