Niagara Escarpment Hearing Office
Bureau des audiences sur l’escarpement du Niagara
ISSUE DATE:
March 08, 2017
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
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:
February 17 and March 1, 2017 by telephone conference call
APPEARANCES:
Parties
Representative
Michael Zwiep
Self-represented
Victoria Zwiep**
Richard Redekop
Barbara Irek
Niagara Escarpment Commission
John Stuart
Debbie Ramsay*
Elizabeth Kozlowski
Self-represented
Jason Tuin
Self-represented*
Elizabeth Kozlowski**
H. Willard Bradley
Self-represented
*February 17, 2017 only
**March 1, 2017 only
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). Barbara Irek is the owner of the Subject Property.
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 (“Appellant”), a nearby property owner, submitted an appeal of the conditional approval of the Development Permit Application to the Niagara Escarpment Hearing Office (“NEHO”) under s. 25(8) of the Niagara Escarpment Planning and Development Act (“NEPDA”) (“Zwiep matter”). Elizabeth Kozlowski and Jason Tuin, also nearby property owners, submitted a Notice of Appeal of the conditional approval of the Development Permit Application, which was received after the deadline to appeal.
5In an order issued on December 23, 2016, the appeals by Ms. Kozlowski and Mr. Tuin were dismissed for lack of jurisdiction.
6Earlier 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 (NEHO Case No. 16-071; “Kozlowski matter”). The Kozlowski matter was adjourned at the start of the hearing on November 2, 2016, granting a request by Ms. Kozlowski and Mr. Tuin due to the related Zwiep 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 question is addressed below in this Order.
7The Pre-hearing Conference (“first PHC”) in this matter began on February 17, 2017 by telephone conference call (“TCC”) and continued by TCC on March 1, 2017 (“second PHC”). John Stuart represented the NEC at the first and second PHC, and was joined by Debbie Ramsay at the first PHC only. Barbara Irek appeared as representative for the Applicant at both the first and second PHC alongside Mr. Redekop and both made submissions. Mr. Zwiep appeared at the first and second PHC, but was unable to stay until the end of the second PHC and was represented by Victoria Zwiep in his absence. Mr. Tuin appeared at the first PHC and was represented by Ms. Kozlowski at the second PHC. Ms. Kozlowski and H. Willard Bradley appeared at both the first and second PHC to represent themselves.
8At the first PHC, the Hearing Officer heard several requests for status, heard submissions on combining this proceeding with the Kozlowski matter, and convened a discussion by the Parties of the issues in this matter. The issues related to the Niagara Escarpment Plan (“NEP”) that have been raised are as follows:
Whether a medical marijuana facility is permitted as an agricultural use in the Escarpment Protection Area of the NEP;
Whether there will be adverse impacts from light emissions from the proposed development;
Whether increased water consumption as a result of the proposed development will result in adverse impacts to groundwater quantity, affecting surrounding drilled wells and water table levels; and
Whether there will be adverse odour impacts as a result of the proposed development.
9Although proposed hearing dates were discussed at the first PHC, it was premature to schedule the hearing due to incomplete information concerning the number of witnesses and the estimated length of the hearing. The Hearing Officer scheduled the second PHC to finalize details concerning scheduling the hearing, as well as dates for disclosure.
10At the conclusion of the first PHC, the Hearing Officer briefly addressed the status of the Kozlowski matter with the Parties to that proceeding.
11Prior to the second PHC, the Hearing Officer was advised of certain requests, in relation to both the Kozlowski and Zwiep matters, pursuant to the Freedom of Information and Protection of Privacy Act (“FOI requests”). According to the information provided to the Hearing Officer, the FOI requests relate generally to the documentation underlying the decisions by the NEC to conditionally approve the development permit applications in the Kozlowski and Zwiep matters.
12At the second PHC, the Parties made submissions on the effect of the FOI requests on scheduling disclosure and hearing dates in respect of both the Kozlowski and Zwiep matters, as set out below.
Relevant Rules
13The relevant provisions of the Environmental Review Tribunal’s Rules of Practice (“Tribunal Rules”), which apply to this proceeding, are:
Tribunal Rules
- In deciding whether to name a person as a Party to the proceeding, the Tribunal may consider relevant matters including whether:
(a) a person's interests may be directly and substantially affected by the Hearing or its result;
(b) a person has a genuine interest, whether public or private, in the subject matter of the proceeding; and
(c) a person is likely to make a relevant contribution to the Tribunal's understanding of the issues in the proceeding.
All Parties shall provide without charge to all other Parties within the time directed by the Tribunal, which is usually no later than 15 days before the commencement of the main Hearing, a copy of every relevant document in the possession, control or power of a Party, except for those documents that are privileged. Documents may be exchanged electronically if all Parties agree.
If two or more proceedings before a Tribunal involve the same or similar questions of fact, law or policy, the Tribunal may:
(a) combine the proceedings or any part of them, with the consent of the Parties;
(b) hear the proceedings at the same time, with the consent of the Parties;
(c) hear the proceedings one immediately after the other; or
(d) stay one or more of the proceedings until after the determination of another one of them.
Issues
14The issues are:
whether to grant the requests for Party status;
whether to combine the proceedings in the Kozlowski and Zwiep matters; and
whether to delay the scheduling of the hearing due to the FOI requests.
Discussion, Analysis and Findings
Issue 1: Whether to grant the requests for Party status
15As noted above, the appeals by Ms. Kozlowski and Mr. Tuin in the Zwiep matter were dismissed for lack of jurisdiction. In the December 23, 2016 order, the Hearing Officer noted that Ms. Kozlowski and Mr. Tuin could make requests for Party status at the PHC in the Zwiep matter. At the commencement of the PHC, Ms. Kozlowski and Mr. Tuin sought to be named as Parties in the Zwiep matter for the following reasons: they are proximate to the Subject Property as they live next door; they sought to appeal the Development Permit Application in the Zwiep matter; and they are the appellants in the Kozlowski matter, which also relates to the Subject Property. Mr. Bradley also asked to be named as a Party in the Zwiep matter, stating that his property is adjacent to the Subject Property. He noted that he had not received notice of the NEC’s conditional approval of the Development Permit Application for the greenhouse expansion, but had received notice of the first PHC in the Zwiep matter.
16While the NEC did not object to adding Ms. Kozlowski, Mr. Tuin and Mr. Bradley as Parties, Ms. Irek and Mr. Redekop did raise objections. They stated that Ms. Kozlowski and Mr. Tuin had the opportunity to appeal the conditionally approved Development Permit Application but waited until the last minute to do so. They further stated that Mr. Bradley should not be able to be a party if he did not receive notice of the conditionally approved Development Permit Application, and noted that common property line with Bradley is a distance away from the proposed development on the Subject Property on the other side of a forested area.
17Mr. Stuart confirmed that Mr. Bradley was on the NEC’s circulation list to receive notice of the conditionally approved Development Permit Application, and that the decision was mailed out to him.
18The Hearing Officer granted Party status to Ms. Kozlowski, Mr. Tuin and Mr. Bradley at the first PHC, with reasons to follow in this Order. The reasons for this decision are set out here. In determining whether to grant Party status, the Hearing Officer may consider relevant matters including the factors listed in Rule 63, set out above. The Hearing Officer has considered those factors in light of the submissions provided, and determined that it is appropriate to name Ms. Kozlowski, Mr. Tuin and Mr. Bradley as Parties because they all live in close proximity to the Subject Property. Furthermore, Ms. Kozlowski and Mr. Tuin have already appealed, or sought to appeal, the NEC decisions concerning the proposed development on the Subject Property. With respect to Ms. Kozlowski, Mr. Tuin and Mr. Bradley, the Hearing Officer is satisfied that: their interests may be directly and substantially affected by the hearing in the Zwiep matter or its result; they have a genuine interest in the subject matter of the proceeding; and they are likely to make a relevant contribution to the Hearing Officer’s understanding of the issues in the proceeding.
Issue 2: Whether to combine the proceedings in the Kozlowski and Zwiep matters
19In an order issued on December 8, 2016, the Hearing Officer provided written reasons for the decision to grant an adjournment of the hearing in the Kozlowski matter. In doing so, the Hearing Officer stated the most efficient course of action might be to hear the appeals of Kozlowski and Zwiep matters together.
20Under Rule 173, two proceedings may be combined (under Rule 173(a)) or heard at the same time (under Rule 173(b)), with the consent of the Parties, if they involve the same or similar questions of fact, law or policy. At the first PHC, the Hearing Officer addressed the question of whether to combine the two proceedings or hear them together. While there were no objections from the other Parties, Ms. Irek and Mr. Redekop did not consent to combining the two proceedings or hearing them together. Without the consent of all Parties, Rule 173 does not permit the proceedings in the Kozlowski and Zwiep matters to be combined or heard together.
21Where the Parties do not consent to combining the matters or hearing them at the same time, Rule 173 gives the Hearing Officer the discretion to hear the proceedings one immediately after the other (under Rule 173(c)), or to stay one of the proceedings until after another is determined (under Rule 173(d)). At the second PHC, the Hearing Officer proposed to hear the proceedings one immediately after the other as provided for in Rule 173(c). There were no objections to proceeding in this manner. However, there was discussion of which appeal would be heard first and it was determined that the order in which the two proceedings are to be heard will be confirmed at the next PHC, to take place on April 6, 2017, as discussed below.
22Given the estimated number of witnesses to be put forward by the Parties, the Hearing Officer has determined that it would be appropriate to set aside a total of ten days to hear the two proceedings as approximately seven days will be required for the Zwiep matter and about three days for the Kozlowski matter.
Issue 3: Whether to delay the scheduling of the hearing due to the FOI requests
23As a result of the pending FOI requests for documents in the possession of the NEC, Mr. Zwiep, Ms. Kozlowski, Mr. Tuin and Mr. Bradley asked that the hearing dates not be scheduled until the requested information has been received, which is anticipated by the end of March 2017. Ms. Irek and Mr. Redekop wish to move forward with scheduling the hearing dates to avoid further delay. The NEC took no position on whether or not to delay the scheduling of the hearing.
24The Hearing Officer explained that, under Rule 166, all Parties in these proceedings (including the NEC, which is the subject of the pending FOI requests) are required to provide a copy of every relevant document in the possession, control or power of a Party, except for those documents that are privileged. However, concern remains among some of the Parties that the NEC will not disclose all of the relevant documents and the FOI request is therefore necessary.
25In an effort to balance the importance of ensuring that all relevant information is disclosed with the desire of Ms. Irek and Mr. Redekop to move ahead with scheduling the hearing, the Hearing Officer determined that it would be appropriate to set dates for the hearings, as well as for the disclosure of documents and the exchange and filing of documents upon which the Parties intend to rely. However, the Hearing Officer also set a date following the disclosure date for a further PHC, at which time she will address the remaining questions of: whether there is reason to believe that Mr. Zwiep, Ms. Kozlowski, Mr. Tuin and Mr. Bradley are missing any relevant documents; and whether it would be prejudicial to them to proceed to a hearing without that information. If, at that time, the Hearing Officer finds that there would be prejudice to any of the Parties, the hearing dates for the proceedings may be adjourned and rescheduled or, alternatively, the hearing of only one of the two proceedings may go forward on the scheduled hearing dates. The next PHC, therefore, has been scheduled for April 6, 2017, after the disclosure date scheduled for March 17, 2017.
26Subject to the preceding paragraph, the hearings in the Kozlowski and Zwiep matters have been scheduled to take place, one immediately after the other, from May 8 to 19, 2017.
27To assist in ensuring that all relevant documents are disclosed in a timely manner, the Hearing Officer set a disclosure date of March 17, 2017. The Hearing Officer emphasized to the Parties that disclosure occurs so that Parties can adequately prepare for the case, and to ensure that there is no information presented at the hearing that has not been previously shared with all Parties.
28The Hearing Officer set a further date for the exchange and filing of all documents upon which each Party intends to rely at the hearing. This is to include a list of witnesses that each party intends to call, a witness statement for each witness and a curriculum vitae and any reports if the witness seeks to submit evidence at the hearing as an expert in a matter. If a Party intends to call an expert witness to give opinion evidence, the witness must sign an Acknowledgement of Expert’s Duty Form (see Appendix F: Form 5 of the Tribunal Rules and Rule 170) and the Party must file it with the NEHO. A witness statement should consist of one or more paragraphs stating what the witness plans to say at the hearing. The Parties are encouraged to carefully review the information provided in “A Guide to Development Permit Appeal Hearings and Niagara Escarpment Plan Amendment Hearings under the Niagara Escarpment Planning and Development Act”, as well as the Tribunal Rules. These documents are available from the NEHO and are posted on its website.
ORDER
29Elizabeth Kozlowski, Jason Tuin and H. Willard Bradley are granted Party status.
30The hearings in the Kozlowski matter and the Zwiep matter have been scheduled to take place one immediately after the other. The order in which the two proceedings are to be heard will be confirmed at the next PHC, scheduled for April 6, 2017 at 2:00 p.m., as set out below.
31The Hearing Officer directs the following schedule:
March 17, 2017: Date for disclosure of all relevant documents (regardless of whether the disclosing Party intends to rely on such documents at the hearing) – Parties to exchange all documents in their possession, control or power that are relevant to the Zwiep matter.
April 6, 2017: Continuation of the PHC by TCC at 2:00 p.m. as set out below.
April 21, 2017: Date for exchange between the Parties, and filing with the NEHO, of all documents to be relied upon at the hearing – Parties to exchange all documents to be relied upon, including a list of witnesses that each Party intends to call, a witness statement for each witness and, for any witness intending to submit evidence at the hearing as an expert in a matter, a signed Acknowledgement of Expert’s Duty Form, a curriculum vitae and any reports the witness is submitting as evidence.
May 8 to 19, 2017: Hearing of the appeals of the Kozlowski matter and the Zwiep matter, commencing at 10 a.m. on May 8, 2017, at a venue to be determined.
32The PHC in this matter is adjourned and will reconvene by TCC on April 6, 2017 at 2 p.m., in conjunction with the status update TCC in the Kozlowski matter.
Requests for Party Status Granted
Pre-hearing Conference Adjourned
Procedural Directions Ordered
“Maureen Carter-Whitney”
MAUREEN CARTER-WHITNEY
HEARING OFFICER
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Environmental Review Tribunal
A constituent tribunal of Environment and Land Tribunals Ontario
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