Niagara Escarpment Hearing Office
Bureau des audiences sur l’escarpement du Niagara
ISSUE DATE:
December 23, 2016
CASE NO.:
16-106
PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Appellant:
Michael Zwiep (File No. 16-106)
Appellant:
Elizabeth Kozlowski (File No. 16-107)
Appellant:
Jason Tuin (File No. 16-108)
Applicant:
Richard Redekop
Respondent:
Niagara Escarpment Commission
Subject of appeal:
Approval of a Development Permit Application to construct three additions onto an existing greenhouse complex
Reference No.:
N/A/2015-2016/370
Property Address/Description:
Part Lots 5 and 6, Concession 6
Municipality:
Town of Pelham
Upper Tier:
Region of Niagara
NEHO Case No.:
16-106
NEHO Case Name:
Zwiep v. Ontario (Niagara Escarpment Commission)
Heard:
In writing
APPEARANCES:
Parties
Representative
Elizabeth Kozlowski and Jason Tuin
Self-represented
Richard Redekop
Barbara Irek
Niagara Escarpment Commission
Martin Kilian
ORDER DELIVERED BY MAUREEN CARTER-WHITNEY
REASONS
Background
1On February 9, 2016, Richard Redekop (“Applicant”) submitted development permit application N/A/2015-2016/370 (“Development Permit Application”) to the Niagara Escarpment Commission (“NEC”) seeking permission to construct a 929 square metre (“sq m”) accessory storage building and three additions totaling 832.8 sq m onto an existing 1,311 sq m agricultural greenhouse complex on a 10.93 hectare (“ha”) lot located on Part Lots 5 & 6, Concession 6 (1760 Effingham Street) in the Town of Pelham, Regional Municipality of Niagara (“Subject Property”). In addition to the existing greenhouse, the Subject Property also supports a single dwelling, two barns, a storage pavilion and a storage trailer (to be removed upon completion of the proposed additions). The Subject Property is owned by Barbara Irek.
2On August 5, 2016, the Applicant revised the Development Permit Application to eliminate the proposal for an accessory storage building.
3On October 24, 2016, the NEC conditionally approved the Development Permit Application for the three additions to the greenhouse.
4On November 1, 2016, Michael Zwiep, a nearby property owner, submitted an appeal of the conditional approval to the Niagara Escarpment Hearing Office (“NEHO”) under s. 25(8) of the Niagara Escarpment Planning and Development Act (“NEPDA”). Elizabeth Kozlowski and Jason Tuin, also nearby property owners, submitted a Notice of Appeal of the conditional approval, which they say was submitted on November 7, 2016 but which the NEC and the Applicant say was not submitted until November 8, 2016. The grounds for the proposed appeals include concerns about the development being made to support medical marijuana operations at the Subject Property.
5Earlier in the year, on June 21, 2016, Ms. Kozlowski and Mr. Tuin also appealed a June 7, 2016 decision by the NEC to conditionally approve development permit application N/A/2014-2015/256 submitted by Ms. Irek seeking permission to construct a 0.2 ha dug pond for agricultural purposes on the Subject Property (Kozlowski v. Ontario (Niagara Escarpment Commission), NEHO Case No. 16-071). That matter was adjourned at the start of the hearing on November 2, 2016 upon request by Ms. Kozlowski and Mr. Tuin due to this related matter. Ms. Kozlowski and Mr. Tuin also raised the question of whether the appeals of the two related development permit applications should be addressed together. This issue is to be determined during an upcoming status update telephone conference call for NEHO Case No. 16-071 regarding the dug pond, to be scheduled for a date after the Pre-hearing Conference (“PHC”) in this matter (i.e., NEHO Case No. 16-106 regarding the greenhouse additions).
6By letter, dated November 29, 2016 and sent to Mr. Zwiep, Ms. Kozlowski, Mr. Tuin, the Applicant and the NEC, the NEHO acknowledged receipt of the Notices of Appeal from Mr. Zwiep on November 1, 2016, and from Ms. Kozlowski and Mr. Tuin on November 8, 2016. The NEHO advised that it appears that the NEHO does not have jurisdiction to process the appeal filed by Ms. Kozlowski and Mr. Tuin, as the 14-day appeal period expired on November 7, 2016 and could not be extended. The letter invited Ms. Kozlowski and Mr. Tuin, the Applicant and the NEC to file submissions on the issue of the NEHO’s jurisdiction to process Ms. Kozlowski’s and Mr. Tuin’s appeals. They did so.
Relevant Legislation and Rule
7The relevant provisions of the NEPDA and the Rules of Practice are:
Niagara Escarpment Planning and Development Act
25(5) The delegate to whom the Minister has delegated his or her authority under subsection (1) shall give notice of decision on any application for a development permit as follows:
- By regular or registered mail or personal service to the Minister, to the applicant for the permit, to persons who have requested to receive notice of the decision, to persons whom the delegate considers may have an interest in the decision and to all assessed owners of land lying within 120 metres of the land that is the subject of the application.
(5.1) A copy of a decision given under subsection (5) to anyone other than the Minister shall include a notice indicating that the recipient of the decision may, within 14 days after the mailing of the decision, appeal the decision by giving the delegate a written notice of appeal that specifies the reasons for the appeal.
Rules of Practice of the Environmental Review Tribunal
- Unless an extension of time is granted in accordance with the relevant statute, the Tribunal cannot process the documents relating to the commencement of a proceeding if the documents are received after the statutory time period for commencing the proceeding has elapsed.
Issue
8The issue is whether Ms. Kozlowski’s and Mr. Tuin’s Notice of Appeal was given in time under s. 25(5.1) of the NEPDA.
Submissions
9Ms. Kozlowski and Mr. Tuin ask that the NEHO process their appeal. They attached a screenshot of their email account documenting the date and time of their submission to the NEC as November 7, 2016 at 11:54 P.M., and contested the NEC’s position that their Notice of Appeal was not received until November 8, 2016. In the alternative, Ms. Kozlowski and Mr. Tuin requested status to be added as parties to the proceeding.
10Ms. Irek, on behalf of the Applicant, questioned the timing of Ms. Kozlowski’s and Mr. Tuin’s Notice of Appeal given their adjourned appeal regarding the dug pond on the Subject Property (NEHO Case No. 16-071), and submitted that their appeal should be dismissed.
11Mr. Kilian, on behalf of the NEC, provided an electronic copy of the email received from Ms. Kozlowski and Mr. Tuin on November 8, 2016 at 12:01 A.M. submitting their Notice of Appeal. The NEC took the position that their appeal could not be accepted because it did not comply with the statutory limit set out in the NEPDA, and argued that the NEHO should accordingly dismiss their appeal. However, Mr. Kilian noted that the NEC does not oppose their request for party status because they received notice of the decision as property owners of land within 120 metres of the Subject Property and have demonstrated their interest in the proceeding.
Discussion, Analysis and Findings
12The Hearing Officer finds that Ms. Kozlowski’s and Mr. Tuin’s Notice of Appeal, while showing as sent at November 7, 2016 at 11:54 P.M. in their email outbox, was not received by the NEC until November 8, 2016 at 12:01 A.M. as noted in its email inbox. NEPDA s. 25(5.1) mandates that notice of an appeal be given to the NEC within 14 days after mailing of the NEC’s decision on an application for a development permit. Here, the NEC gave notice on October 24, 2016 of its decision to conditionally approve the Development Permit Application for the three additions to the greenhouse. The deadline to appeal was therefore November 7, 2016. The Notice of Appeal, received by the NEC the following day, was not given in time under s. 25(5.1) of the NEPDA.
13In this case, there is no statutory authorization to process their appeal after the 14-day time limit for giving the notice of appeal as set out in NEPDA s. 25(5.1). The NEHO has no inherent jurisdiction to process an appeal after the time limit has expired, unless authorized by statute to do so. The general rule that the statutory limitation period cannot be extended applies (see the cases referred to in Kagawong Power Inc. v. Ontario (Ministry of the Environment), [2009] O.E.R.T.D. No. 54 at paras. 17-18). Further, under Rule 114, the NEHO cannot process Ms. Kozlowski’s and Mr. Tuin’s Notice of Appeal since it was received after the statutory time limit for commencing the proceeding had elapsed.
14Ms. Kozlowski and Mr. Tuin may bring their request for status to be added as parties to the proceeding commenced by Mr. Zwiep (File No. 16-106) at the upcoming PHC to be scheduled by the NEHO Case Coordinator.
ORDER
15Ms. Kozlowski’s and Mr. Tuin’s appeals (File Nos. 16-107 and 16-108) are dismissed for lack of jurisdiction.
16The NEHO Case Coordinator will distribute a Notice of Pre-hearing Conference for Mr. Zwiep’s appeal (File No. 16-106), during which preliminary matters, including Ms. Kozlowski’s and Mr. Tuin’s requests for party status, will be addressed.
Appeals Dismissed for Lack of Jurisdiction (File Nos. 16-107 and 16-108)
“Maureen Carter-Whitney”
MAUREEN CARTER-WHITNEY
HEARING OFFICER
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Environmental Review Tribunal
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