Niagara Escarpment Hearing Office
Bureau des audiences sur l’escarpement du Niagara
ISSUE DATE: October 25, 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 | Counsel/Representative+ |
|---|---|
| Johnnie Nielsen | Simon Fung and Harold Watson |
| Tabitha McDow | Aynsley Anderson |
| Niagara Escarpment Commission | Sean Stewart+ and Debbie Ramsay+ |
ORDER DELIVERED BY LAURIE M. BRUCE AND MARLENE CASHIN
REASONS
Background
1This Order deals with an adjournment request, as Tabitha McDow (“Applicant”) has indicated she will be applying for a Niagara Escarpment Plan Amendment that is related to this appeal.
2On February 19, 2016, the Niagara Escarpment Commission (“NEC”) conditionally approved an application for a Development Permit that would allow the Applicant to convert the upper floor of an existing 760 square metre (“sq m”) (8,184 square 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.
3Johnnie Nielsen (“Appellant”), an adjacent property owner, submitted an appeal to the Niagara Escarpment Hearing Office (“NEHO”) under s. 25(8) of the Niagara Escarpment Planning and Development Act, on February 29, 2016.
4Further information on this appeal may be found in the NEHO Order dated July 8, 2016.
5A pre-hearing conference (“PHC”) by telephone conference call (“TCC”) was held on September 14, 2016.
6During the PHC, the parties agreed on, and the Hearing Officer confirmed by letter to the parties dated September 15, 2016, a schedule for disclosure and filing of documents upon which the parties intend to rely at the hearing scheduled for October 17, 2016.
7The Applicant subsequently requested an adjournment of proceedings, and that the dates associated with the hearing be vacated. The Hearing Panel granted both requests.
Relevant Rules
8The relevant Rules of Practice of the Environmental Review Tribunal (“Rules”) that apply to the NEHO in this circumstance 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.
- A member who presides at a Pre-Hearing Conference may make such orders as he or she considers necessary or advisable with respect to the conduct of the proceeding.
Issue
9The issue is whether the request for an adjournment of the hearing of the appeal should be granted and whether the dates for the current hearing and related procedural dates should be vacated.
Discussion, Analysis and Findings
10On September 19, 2016, the NEHO was informed by letter from counsel for the Applicant that her client intends to make an application to amend the Niagara Escarpment Plan (“NEP”) to recognize the proposed use as a permitted use within the Escarpment Rural Area.
11The Applicant requested an adjournment of proceedings and all parties consented in writing to adjourning the current appeal in order to allow the NEP amendment application and normal processing to take place. The parties agreed that an adjournment of approximately six months to one year would allow for the NEP amendment process to take place.
12Consistent with Rule 144, the Hearing Panel notes that it may make any order that is necessary or advisable when conducting a proceeding, and that Rule 105 may be used to guide the Hearing Panel when deciding whether or not to grant a request for an adjournment.
13The Hearing Officers are satisfied that the NEP amendment application is closely related to the current appeal and that an adjournment of approximately six months to one year is reasonable. As such, the date set for the commencement of the hearing and other associated dates are no longer appropriate.
ORDER
14The PHC in this matter is adjourned. A status update TCC is scheduled for Wednesday, March 1, 2017 at 10 a.m. The NEHO Case Coordinator will forward details for the TCC to the parties.
15The hearing scheduled to commence on October 17, 2016 has been cancelled, and all other dates related to the appeal, as set out in the NEHO letter dated September 15, 2016, are vacated.
Hearing Adjourned
Status Update Telephone Conference Call Scheduled
“Laurie Bruce”
LAURIE M. BRUCE
HEARING OFFICER
“Marlene Cashin”
MARLENE CASHIN
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