Pozega v. Ontario (Niagara Escarpment Commission), 2016 CanLII 82404

Niagara Escarpment Hearing Office

Bureau des audiences sur l’escarpement du Niagara

ISSUE DATE: November 24, 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)

Applicants: 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: September 13, 2016 in Milton, Ontario

APPEARANCES:

Parties

Representative

Ivan Pozega and Milka Rovisan-Pozega

Milka Rovisan-Pozega

Niagara Escarpment Commission

Michael Baran

Ian and Caroline Baird

Ian Baird

Presenter

Aman Hans

Self-represented

REPORT 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 single 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, NS in the Town of Milton, Region of Halton. The Niagara Escarpment Plan (“NEP”) land use designation applicable to the property is Escarpment Rural Area (“ERA”).

2On April 29, 2016, the NEC approved application H/R/2015-2016/237 for a development permit, subject to conditions (“Conditional Approval”) initially 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 issue the Conditional Approval under s. 25(8) of the Niagara Escarpment Planning and Development Act (“NEPDA”).

4A pre-hearing conference regarding the appeals was held by telephone conference call on August 9, 2016, when on consent of the parties, the Niagara Escarpment Hearing Office (“NEHO”) Hearing Panel granted presenter status to Aman Hans. On consent of the parties, a request for a site visit was also granted. The parties agreed to a schedule for the proceedings, and the NEHO Hearing Panel provided procedural directions and set dates regarding the hearing of the appeals.

5More information on the appeals may be found in the NEHO Order dated August 23, 2016.

6A site visit was held at Part Lot 15, Concession 6, NS in the Town of Milton, on September 13, 2016, and the hearing of the appeals was held directly following the site visit, at the Town Council Chambers in Milton.

Relevant Legislation and Niagara Escarpment Plan Provisions

7The relevant legislation and NEP provisions are attached as Appendix 1 to this Report.

Issue

8The issue in the appeals 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 in accordance with the Objectives of the ERA Designation in the NEP;

2. whether the proposed development is a Permitted Use under the NEP; and

3. whether the proposed development is in accordance with the Development Criteria of the NEP.

Discussion

Evidence and Submissions

Appellants

9Ms. Rovisan-Pozega (“Ms. Pozega”) testified on behalf of herself and her husband, Ivan Pozega. They live across the road from the Applicants’ property. The Appellants submit that the proposed development does not comply with NEP s. 1.5 and 2.2.1(a) because their view will be negatively affected by the location and positioning of the garage on the Applicants’ property, as approved in the Conditional Approval.

10Specifically, Ms. Pozega testified as to her understanding of NEP s. 1.5, which states in part, that the first two Objectives of the ERA designation in the NEP are “to maintain scenic values of lands in the vicinity of the Escarpment”, and “to maintain the open landscape character by encouraging the conservation of the traditional cultural landscape and cultural heritage features”.

11Ms. Pozega submitted that the proposed development will not maintain scenic values nor maintain the open landscape character, and that the proposed development, by disturbing the view that she and her husband currently enjoy, violates the first two ERA Objectives.

12Ms. Pozega also asked the Hearing Panel to consider s. 2.2.1(a) of the NEP, which sets out the circumstances under which permitted uses may be allowed, and refers to uses that do not cause a “substantial negative impact on... visual attractiveness and cultural heritage features”.

13Ms. Pozega submitted that she believes that the proposed development will have a substantial negative impact on Escarpment environmental features, specifically in relation to visual attractiveness.

14Ms. Pozega testified that if she and her husband could plant more trees to obscure the view of the proposed development across the road, they would do so. However, she said, a septic bed is located on the front of their lawn, so it is impossible to plant there. She testified that she was shocked to find that the garage has to be so large and so close to the road despite the approximately 14 acres available to the Applicants to build the garage. She stated that she does not understand why the garage could not be turned around so the narrow side is turned to the road and placed further back on the property, perhaps approximately 150 feet from the road. She said that, as proposed, the development will be as close to her residence as is possible.

NEC

15Michael Baran, Planner with the NEC, testified on the NEC’s behalf. Mr. Baran provided an overview of the NEC Staff Report dated April 28, 2016 (“Staff Report”) which he authored, and of the NEC’s Notice of Decision dated April 29, 2016, which stated that the development permit application had been conditionally approved, and which set out the 16 conditions of the Conditional Approval.

16Mr. Baran testified that it remains his opinion that the proposed development is a permitted use in the ERA, and addresses the applicable Development Criteria and policies of the NEP.

17He stated that the development permit application was supported by all relevant land use authorities and agencies, and that in his view, the proposed development is in conformity with the NEP.

18Mr. Baran also testified specifically in response to the Appellants’ assertion that the proposed development does not comply with s. 1.5 and s. 2.2 of the NEP.

19Regarding the evidence of the Appellants as to the Objectives of the ERA designation to maintain scenic values of lands in the vicinity of the Escarpment and to maintain the open landscape, Mr. Baran testified that in applying the provisions of the NEP, visual impact is assessed from the public viewshed, not from private properties, and that landowners do not “own” their views.

20Regarding the relevant Development Criteria, Mr. Baran testified that in his opinion the proposed development will not have a “substantial negative impact on Escarpment...visual attractiveness and cultural heritage features”. He stated that the views of the subject property are not notable or extraordinary in any way, and that the size of the building is not unusual on the Escarpment.

21The NEC submits that there are no environmental impact concerns associated with the proposed development, and that none of the authorities consulted have objections to the development. It submits as well that the appeals lacks merit since the proposed development is a Permitted Use and the project is in compliance with the relevant Development Criteria of the NEP.

Applicants

22Mr. Baird testified on behalf of himself and his wife, Caroline Baird. His testimony focused on the potential negative impacts to their enjoyment of their property if the proposed development is not located as per the Conditional Approval. Mr. Baird provided photographic evidence to support his position. He also addressed the positions of the Appellants and the Presenter, and responded to their concerns regarding the potential visual impacts of the proposed development.

23Regarding Mr. Hans’ concerns about the visual impact of the proposed development, Mr. Baird testified that Mr. Hans’ property is screened by mature trees and is more than 300 meters from the proposed garage and at an elevation from which he cannot see where the proposed garage, the existing garage, or the Appellants’ residence are or will be located.

24Mr. Baird also testified that if the garage were to remain in its present location, as advanced by the Appellants, the foundation on the existing building site would have to be raised approximately 7 feet in order to bring the building in line with existing grade as per the Town of Milton Building Permit No. 2012005811, which is one of the reasons for the planned relocation of the garage. He also said that if the structure were to remain in its present location, the added 7 feet of grade and foundation required would make the peak approximately 35 feet from existing grade and far more visible to the Appellants and to drivers passing by, than it will be at the conditionally approved location.

25Mr. Baird testified that the existing garage is less than 5 meters away from a septic field, which is contrary to the Town of Milton building code, and this problem will be solved by demolishing the existing garage. He stated as well that the existing garage is less than 2 meters from the Applicants’ residence and impedes their view of their property therefore reducing their enjoyment of their property. Mr. Baird also testified that he is a registered farmer, and the existing garage impedes the view of his pasture, potentially putting livestock at risk, as he is unable to clearly observe them from his residence.

26Mr. Baird pointed out that under the Conditional Approval, the proposed development will involve no tree removal, and the building will be significantly screened from roadside views by the existing hedgerow which is approximately 50 feet in height.

27The Applicants submit that the Appellants’ appeals are based solely on the size and location of the proposed garage and its potential impact on the Appellants’ enjoyment of their own property, not on whether or not the proposed development complies with the objectives and provisions of the NEP.

28They further submit that the proposed development does comply with the objectives and provisions of the NEP, and they rely on the Staff Report to support their position.

Presenter

29Mr. Hans stated that he and other family members, including his parents, are neighbours to the subject property. He testified that his intention in becoming involved in the appeals was the hope that he could assist in reconciling the differing positions of his neighbours so the matter could be settled without a hearing.

30Other than his interest in having peace between his neighbours, he stated that his main concern was regarding the visual impact of the proposed development, not from his property, as the Applicants understood his position to be, but from the roadway. He is concerned that there will be a negative impact on Escarpment views from the public roadway, thereby affecting him and his family as well as others travelling by. Mr. Hans also expressed concern that the project as conditionally approved would set a precedent for other development on the Escarpment, that being, the siting of buildings close to the roadway as opposed to further back on a property.

Analysis and Findings

Sub-Issue No. 1: Whether the proposed development is in accordance with the Objectives of the ERA Designation in the NEP

31Section 1.5 of the NEP sets out the Objectives, Criteria for Designation and Permitted Uses for ERAs. The first Objective of NEP s. 1.5 regarding ERAs is “to maintain scenic values of lands in the vicinity of the Escarpment”. The second Objective is “to maintain the open landscape character by encouraging the conservation of the traditional cultural landscape and cultural heritage features”.

32The Appellants submit that the proposed development conflicts with the first two objectives of the ERA since allowing the building of a 1.5 storey detached garage with storage loft, as described in the Conditional Approval, will affect the view from the front windows of the Appellants’ property.

33The NEC and the Applicants, however, disagree with this interpretation of how the Objectives of the ERA apply to views from one property to another. They say that maintaining private views from one property to another without allowing for any change is not the intent of the first two ERA Objectives.

34The Hearing Panel observes that if the Appellants’ interpretation of how the Objectives of the ERAs apply were to be accepted, it would be virtually impossible for development of any kind to take place in an ERA, if a view of a development from a neighbouring property were to change at all. The obvious exceptions would be where an existing structure is proposed to be made smaller or removed completely.

35Mr. Baran did not provide a policy on NEP interpretation to support his testimony regarding the application of an assessment of a viewshed when a decision on a proposed development is made. However, he testified that in his experience as a planner with the NEC, visual impact is assessed from the public viewshed, not from private properties. The Appellants have provided no evidence to the contrary, save their plain assertion that the change to their view will conflict with the Objectives of the NEP for ERAs. While it is possible that in some future situation a proposed development might be clearly in conflict with the Objectives of “maintaining scenic values of lands” or maintaining “the open landscape character” by primarily affecting a neighbour’s view, this is not such a situation.

36In this situation, the proposed structure will be hidden from view as much as is possible by placing it behind an existing hedgerow which is approximately 50 feet in height. This will minimize the interruption of views from both the roadway and from the Appellants’ front window.

Conclusion on Sub-Issue 1

37The Hearing Panel finds that the proposed development is not at odds with the NEP Objectives for ERAs regarding maintaining scenic values of lands in the vicinity of the Escarpment and maintaining the open landscape character on such lands.

Sub-Issue No. 2: Whether the proposed development is a Permitted Use under the NEP

38As noted above, the location proposed for the detached parking garage with storage loft is designated as ERA under the NEP.

39On the issue of permitted uses in an ERA, NEP s. 1.5 states:

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

9. Accessory buildings, structures and facilities (e.g. a garage or farm pond), signs, and the site modifications required to accommodate them.

40The Appellants did not specifically address the issue of whether or not the proposed development constitutes a permitted use.

41Mr. Baran testified that in his opinion the development proposed for the site is a permitted use.

42Mr. Baird testified that he also believes that the proposal is a permitted use, and relies on the Staff Report to support his position.

43In the absence of any evidence to the contrary, the Hearing Panel accepts the evidence of the NEC and the Applicants that the proposal for a garage with storage loft in an ERA is a Permitted Use under the NEP.

44The Hearing Panel notes that the site visit and site plan confirm that there is a residence on the site, to which the garage with storage loft would be an “accessory building”, and the wording of the provision allowing for accessory buildings as a permitted use specifically references a garage as an example of a Permitted Use.

Conclusion on Sub-Issue 2

45The Hearing Panel finds that the proposed development constitutes a Permitted Use under the NEP, subject to the Development Criteria in Part 2 of the NEP.

Sub-Issue No. 3: Whether the proposed development is in accordance with the Development Criteria of the NEP

46Part 2 of the NEP provides that Permitted Uses may be allowed, subject to Development Criteria. The Development Criteria relevant to this application is set out in s. 2.2.1(a) as follows:

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 (emphasis added).

47The Hearing Panel notes that this is a rural area and large accessory buildings are not uncommon. While the Appellants’ concerns with the proposed accessory building’s height, mass and proximity to the road may be understandable, the Hearing Panel also notes that the amount of vegetative cover in the hedgerow along the front of the Applicants’ property is significant. As well, there is value in locating the garage away from the woodlot at the rear of the house and the pasture area to the side. Locating it where the existing garage is, as suggested by the Appellants, would not present a preferable solution, as it would be more visible from the public roadway there.

48Despite the Appellants’ concern with the maintenance of the trees that will screen the garage from their view, Mr. Baird has testified that he is aware of an existing gap in the hedgerow adjacent to the road and that he has been making efforts to fill in this area with additional vegetation and will continue to do so. As well, Conditions 7 and 10 of the Conditional Approval address the issue of tree preservation on the property. Condition 7 states that “no trees other than dead or diseased trees shall be cut or removed from the lot in the area of the development”, and Condition 10 sets out the tree protection measures to be put in place until the work is completed and the site is stabilized.

49The Hearing Panel is satisfied that the proposed development will not result in a “substantial negative impact on Escarpment environmental features such as... visual attractiveness and cultural heritage features”.

Conclusion on Sub-Issue 3

50Based on the foregoing analysis and findings, the Hearing Panel finds that the Conditional Approval satisfies the relevant Development Criteria set out in s. 2.2 of the NEP.

DECISION

51In light of the findings that the proposal to demolish an existing single storey detached garage and construct a 1.5 storey detached garage with storage loft is a Permitted Use, and is consistent with relevant NEP Development Criteria and Objectives, the Hearing Panel concludes that the decision of the NEC dated April 29, 2016, to grant a Conditional Approval for Development Permit Application H/R/2015-2016/237, is correct and should not be changed. The NEC’s decision is therefore confirmed pursuant to s. 25(12) of the NEPDA. The appeals are dismissed.

Appeals Dismissed

NEC Decision Confirmed

“Marlene Cashin”

MARLENE CASHIN

HEARING OFFICER

“Bruce Krushelnicki”

BRUCE KRUSHELNICKI

HEARING OFFICER

Appendix 1 - 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

Appendix 1

Relevant Legislation and Niagara Escarpment Plan Provisions

Niagara Escarpment Planning and Development Act

Objectives

8. The objectives of the Niagara Escarpment Plan are, and the objectives to be sought in the consideration of amendments to the Plan shall be, in the Niagara Escarpment Planning Area,

(a) to protect unique ecologic and historic areas;

(b) to maintain and enhance the quality and character of natural streams and water supplies;

(c) to provide adequate opportunities for outdoor recreation;

(d) to maintain and enhance the open landscape character of the Niagara Escarpment in so far as possible, by such means as compatible farming or forestry and by preserving the natural scenery;

(e) to ensure that all new development is compatible with the purpose of this Act as expressed in section 2;

(f) to provide for adequate public access to the Niagara Escarpment; and

(g) to support municipalities within the Niagara Escarpment Planning Area in their exercise of the planning functions conferred upon them by the Planning Act.

Deemed confirmation

25. (12) The decision of the delegate shall be deemed to be confirmed if,

(a) the opinion of the officer expressed in his or her report under subsection (11) is that the decision of the delegate was correct and should not be changed; and

(b) the decision of the delegate was not appealed by a municipality.

Niagara Escarpment Plan

1.5 Escarpment Rural Area

Escarpment Rural Areas are an essential component of the Escarpment corridor, including portions of the Escarpment and lands in its vicinity. They provide a buffer to the more ecologically sensitive areas of the Escarpment.

Objectives

1. To maintain scenic values of lands in the vicinity of the Escarpment.

2. To maintain the open landscape character by encouraging the conservation of the traditional cultural landscape and cultural heritage features.

Permitted Uses

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

9. Accessory buildings, structures and facilities (e.g. a garage or farm pond), signs, and the site modifications required to accommodate them.

Part 2

General Development Criteria (2.2)

The objective is to permit reasonable enjoyment by the owners of all lots that can sustain development.

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.