Niagara Escarpment Hearing Office
Bureau des audiences sur l’escarpement du Niagara
ISSUE DATE: December 23, 2016
CASE NO.: 16-102
PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Appellant: Wendy Roberts (File No. 16-102)
Appellant: Ian Thompson (File No. 16-103)
Applicant: 2066012 Ontario Ltd.
Respondent: Niagara Escarpment Commission
Subject of appeal: Approval of a Development Permit Application to undertake environmental remediation involving the removal of fill material and to import an equal volume of clean fill from an off-site location with final rehabilitation of the site
Reference No.: H/F/2015-2016/168
Property Address/Description: Part Lot 1, Concession 1
Municipality: Town of Milton
Upper Tier: Regional Municipality of Halton
NEHO Case No.: 16-102
NEHO Case Name: Roberts v. Ontario (Niagara Escarpment Commission)
Heard: In writing
APPEARANCES:
Parties
Representative
Wendy Roberts and Ian Thompson
Self-represented
2066012 Ontario Ltd.
Dave Scott
ORDER DELIVERED BY LAURIE M. BRUCE AND MAUREEN CARTER-WHITNEY
REASONS
Background
1The Niagara Escarpment Commission (“NEC”) conditionally approved an application for a Development Permit that would allow 2066012 Ontario Ltd. (“Applicant”) to undertake environmental remediation activities on a property located at Part Lot 1, Concession 1 in the Town of Milton (“Town”), Region of Halton (“Region”). The proposed remediation includes removing approximately 1800 cubic metres (“m3”) of fill material from the site and importing an equal volume of clean fill from an off-site location, with final rehabilitation of the site. The area proposed for remediation (“subject lands”) is approximately 0.30 hectares (“ha”) in size. The removed materials, known to contain elevated concentrations of barium, would be segregated and temporarily stockpiled for testing purposes.
2Wendy Roberts and Ian Thompson (“Appellants”) appealed the conditional approval to the Niagara Escarpment Hearing Office (“NEHO”) on October 14, 2016. The Appellants oppose the proposed development due to what they consider to be deficiencies in the Development Permit’s conditions of approval. Specifically, the Appellants believe that there should be conditions requiring mitigation measures to avoid impacts to wildlife as well as conditions requiring ongoing environmental monitoring. In addition, they are concerned about the potential cumulative effects of this remedial work on the Niagara Escarpment.
3On November 4, 2016, the NEHO received a request from the Applicant’s agent, Dave Scott of the Municipal Infrastructure Group Ltd., to dismiss the appeals. Mr. Scott requested 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. It was his submission that the Appellants’ grounds for the appeals are not relevant to the proposal before the NEHO.
4The NEHO informed the Appellants that they had until November 21, 2016 to file responding written submissions as to why the Hearing Officers should not refuse to conduct a hearing, and invited the NEC and the Applicant to provide written submissions in reply by November 24, 2016. The Appellants filed responding materials on November 21, 2016, with an additional submission on November 22, 2016 after receiving a clean copy of correspondence from Conservation Halton. An illegible version of this correspondence had initially been provided to the Appellants by the NEC, through the NEHO. Mr. Scott submitted a reply to the Appellants’ response on November 25, 2016. Although the Applicant’s brief reply submissions were received one day late, the NEHO exercised its discretionary authority to accept them. The NEHO received no submissions from the NEC in relation to the request to dismiss the appeals.
5As set out in the September 29, 2016 NEC Staff Report (“staff report”), the Development Permit application was circulated to the Town, the Region, Conservation Halton, the Ministry of Natural Resources and Forestry and the Ministry of Environment and Climate Change (“MOECC”), none of which objected to the proposal. Conservation Halton stated, in a letter dated August 23, 2016, that it had no objection to the Development Permit application subject to the following conditions:
That, prior to the initiation of works, a permit pursuant to Ontario Regulation 162/06 be obtained from Conservation Halton for the proposed works associated with NEC Application H/F/2015-2016/168.
Should works occur between the last week of August and October 1st, that a biologist be available on site to ensure the safe passage of wildlife to the adjacent wetland; or, that a wildlife encounter protocol be prepared and implemented in consultation with a wildlife biologist to ensure proper mitigation measures are applied to prevent harm to wildlife.
Should stockpiles remain on site beyond the last week of March, that fence surveys be conducted to ensure turtles are not laying their eggs in stockpiles or becoming trapped within the work area.
6The staff report recommended the proposal be approved subject to the conditions of approval appended to the staff report. However, the conditions appended to the staff report did not include the conditions recommended in Conservation Halton’s August 23, 2016 letter. Further, the Development Permit application was conditionally approved by the NEC on September 30, 2016 without including the conditions requested by Conservation Halton.
Relevant Legislation and Rules
7The relevant provisions of the NEPDA, and the Rules of Practice (“Rules”) of the Environmental Review Tribunal that also apply to the NEHO are:
Niagara 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
- 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
8The issue is whether the appeals should be dismissed pursuant to s. 25(8.1) of the NEPDA.
Discussion, Analysis and Findings
Submissions
9The Applicant provides additional background information concerning the Development Permit application, noting that the proposed remediation and restoration work is for the subject lands, which are a small portion of lands referred to as the Jannock Park lands, a former quarry site being transferred to the Town. The Applicant notes that the report that indicated the barium exceedances on the subject lands was prepared on behalf of Andrin, the neighbouring landowner. The Applicant further notes that the MOECC has ordered that the remediation work be completed as soon as possible, and that construction work is to occur between October 2, 2016 and March 31, 2017 to ensure that impact to turtles and other wildlife is mitigated.
10The Applicant submits that the Appellants seek to slow, stop or delay the cleanup work, suggesting that the Appellants’ concerns are beyond the scope and nature of the remediation work proposed. The Applicant asserts that the Appellants’ goal is to delay or stop the development of the neighbouring Andrin property and save the wetlands located on that property, noting that the Appellants raised concerns in their Notice of Appeal about the future use of the subject lands and the development of the Andrin property. The Applicant states that if the Appellants have issues with the future use of the Jannock Park lands or the proposed development on neighbouring lands, they should address these matters through the Town’s development approval process.
11The Applicant maintains that it is only interested in undertaking the works directed by MOECC, and states that it has consulted with environmental experts and agencies to provide all efforts to protect the wildlife habitat during the period of disturbance. The Applicant says that granting a hearing will merely delay work that should ideally occur this winter to minimize impacts to wildlife.
12In requesting that the appeals be dismissed, the Applicant did not speak directly to the factors in s. 25(8.1) of the NEPDA or Rule 113 of the Rules. However, the Applicant’s submissions suggest that the Appellants have no planning justification for their appeals and that they have made the appeals for the purpose of delay, although the Applicant does not make these statements explicitly.
13The Appellants’ extensive submissions set out their view of the planning justification and merits of their appeals, elaborating on the issues raised in their initial Notice of Appeal. Noting the policies in s. 2.8 of the Niagara Escarpment Plan (“NEP”) regarding Wildlife Habitat, the Appellants assert that there are threatened species and species at risk in the area of the subject lands, and submit that appropriate measures ought to have been included in the conditions of approval to protect the habitat of these species. They note that there is no reference to wildlife protection in the conditions of approval for the Development Permit, notwithstanding Conservation Halton’s recommendations.
14Among the other issues they raise, the Appellants submit that a greater degree of environmental monitoring should be required as a condition of the Development Permit, citing s. 2.1 of the NEP. They believe that, at a minimum, there should be soil and water testing in and near the work area on an annual basis and up to 10 years following the completion of the remediation of the subject lands. In addition, the Appellants say that observations of species at risk in and near the work area should be documented for the duration of the remediation. They also raise issues with respect to water-related matters, under s. 2.6 of the NEP, and cumulative effects on the Escarpment environment, under s. 2.2 of the NEP.
15In their submissions, the Appellants address the Applicant’s submission that their appeals are intended to delay development on the Andrin property, stating that they understand that the Ontario Municipal Board made its ruling on that matter in the fall of 2014 and they cannot overturn that decision, and that saving the wetlands on the Andrin property is not behind these appeals.
16The Appellants further submit that it may be possible to resolve their concerns through “facilitation” prior to the Pre-hearing Conference (“PHC”) or hearing of this matter as they believe that it would “take very little effort on the part of the NEC and the Applicant to address our concerns and to resolve this appeal.”
Analysis and Findings
17The Hearing Officers have the discretion, under s. 25(8.1) of the NEPDA to refuse to conduct or continue a hearing if one of the factors in s. 25(8.1)(a), (b) or (c) is present. Rule 113 of the Rules requires a party bringing a motion to dismiss an appeal of a development permit to specify the basis for the motion, which may fall under one of the factors in s. 25(8.1) or be that the proceeding relates to matters that are outside the Hearing Officers’ jurisdiction. The Hearing Officers note that the Applicant did not make reference to Rule 113 in its submissions.
18Under s. 25(8.1)(a) of the NEPDA, a Hearing Officer may refuse to conduct a hearing if “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”. As was noted in Dodds v. Niagara Escarpment Commission, [2005] O.E.R.T.D. No. 55 (“Dodds”), at para. 16, s. 25(8.1) has been used to screen out unmeritorious appeals as 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.” Dodds goes on, at para. 19, to emphasize that:
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.
19As noted above, the Applicant suggests that the Appellants have no planning justification for their appeals, alleging that their concerns do not relate to the proposed remediation and restoration work on the subject lands but instead relate to other proposed development in the area. The Applicant asserts that the Appellants seek to delay the work on the subject lands in order to delay development on the neighbouring property.
20As set out in Dodds, the party seeking dismissal of an appeal at a preliminary stage, in this case the Applicant, bears the onus of showing that the Appellants have failed to disclose a planning justification for the appeals. Having reviewed the parties’ submissions, the Hearing Officers find that the Applicant has not satisfied that onus, under s. 25(8.1)(a) of the NEPDA, of showing that the appeal has no planning justification. The Hearing Officers are satisfied that at least some of the issues raised by the Appellants, such as the lack of conditions to protect wildlife, relate to the provisions of the NEP noted above, and disclose valid planning justifications for the appeals in relation to the subject lands.
21The Applicant has submitted that the Appellants have appealed the Development Permit in order to delay the development of the neighbouring Andrin property. However, the Hearing Officers accept the Appellants’ submissions that they understand a final ruling has been made on the Andrin development and that they have not filed these appeals to save the wetlands on the Andrin property. The Hearing Officers find that the Applicant not satisfied the onus of showing that the appeals were made only for the purposes of delay.
22The Hearing Officers find that the Applicant has failed to show that the appeals do not disclose a planning justification, are not in the public interest, are without merit, are frivolous or vexatious, or are made only for the purposes of delay.
23As noted above, the Applicant focused on the factors in s. 25(8.1)(a) of the NEPDA and did not rely on the grounds in s. 25(8.1)(b) and (c). However, the Hearing Officers have assessed these grounds and find that the Appellants have not failed the tests in s. 25(8.1)(b) and (c) as their Notice of Appeal did specify the reasons for their appeal, and they did respond to the Hearing Officers’ request for further information within the time specified by the Hearing Officers.
24Therefore, the Hearing Officers will not exercise their discretion to refuse to conduct a hearing pursuant to s. 25(8.1) of the NEPDA. The Hearing Officers find that the matter should now proceed to a PHC and, if necessary, a hearing.
25The Hearing Officers take note, however, of both the Applicant’s statements concerning the urgency of completing the work on the subject lands and the Appellants’ submissions that their concerns primarily relate to the appropriate conditions of approval for the Development Permit and not whether or not the Development Permit should have been granted. The Hearing Officers urge the parties to consider meeting to discuss the Appellants’ concern about the conditions of approval in advance of the PHC in an effort to ensure that the remediation may be performed in a timely fashion. Similarly, the NEHO is prepared to expedite the scheduling of the PHC and hearing.
ORDER
26The request to dismiss the appeals without a hearing, pursuant to 25(8.1) of the NEPDA, is dismissed.
Request Dismissed
“Laurie M. Bruce”
LAURIE M. BRUCE
HEARING OFFICER
“Maureen Carter-Whitney”
MAUREEN CARTER-WHITNEY
HEARING OFFICER
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Environmental Review Tribunal
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