Niagara Escarpment Hearing Office
Bureau des audiences sur l’escarpement du Niagara
ISSUE DATE: March 24, 2017
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: March 20, 2017 by telephone conference call
APPEARANCES:
| Parties | Counsel/Representative⁺ |
|---|---|
| Wendy Roberts and Ian Thompson | Self-represented |
| 2066012 Ontario Ltd. | Nancy Smith |
| Niagara Escarpment Commission | Michael Baran⁺ |
REPORT DELIVERED BY LAURIE M. BRUCE AND MAUREEN CARTER-WHITNEY
REASONS
Background
1On August 5, 2015, 2066012 Ontario Ltd. (“Applicant”) submitted an application for a Development Permit (H/F/2015-2016/168) to the Niagara Escarpment Commission (“NEC”) to undertake environmental remediation activities on a property located at Part Lot 1, Concession 1 in the Town of Milton (“Town”), Region of Halton (“Site”). The proposed remediation includes removing approximately 1,800 cubic metres 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 is approximately 0.30 hectares in size. The removed materials, known to contain elevated concentrations of barium, would be segregated and temporarily stockpiled for testing purposes.
2On September 30, 2016, the NEC conditionally approved the Development Permit application.
3Wendy Roberts and Ian Thompson (“Appellants”) appealed the conditional approval of the Development Permit to the Niagara Escarpment Hearing Office on October 14, 2016. The Appellants raised several reasons for the appeal, including alleged deficiencies in the Development Permit’s conditions of approval with respect to potential impacts of the proposed remediation on species at risk and their habitats.
4On November 4, 2016, the Applicant 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. After receiving written submissions on the motion to dismiss, the Hearing Officers dismissed the Applicant’s request to dismiss the appeals without a hearing in an order issued December 23, 2016.
5In the December 23, 2016 order, the Hearing Officers noted the Applicant’s submission that there is some urgency to complete the remediation work on the Site. The Hearing Officers further noted the Appellants’ submissions that their concerns primarily relate to the appropriate conditions of approval for the Development Permit and not whether the Development Permit should have been granted. The Hearing Officers urged the parties to consider meeting to discuss the Appellants’ concerns about the conditions of approval in advance of the Pre-hearing Conference (“PHC”) in this matter, in an effort to ensure that the remediation may be performed in a timely fashion.
6The PHC was held on March 20, 2017 by telephone conference call. The Appellants represented themselves at the PHC, Michael Baran appeared on behalf of the NEC, and Nancy Smith appeared as counsel for the Applicant. Andrea Skinner, counsel for the Town, attended as an observer at the PHC.
7Prior to the PHC, Ms. Smith informed the Hearing Officers that the parties had reached a settlement agreement to amend a condition as well as items in the Notes/Advisories of the Development Permit. She provided an executed settlement agreement in addition to the proposed Revised Conditions of Approval attached as Appendix A to this Report.
8The Town had previously expressed its intention to seek party status in this proceeding. In light of the settlement, however, the Town chose not to seek to be added as a party.
Relevant Legislation and Rule
9The relevant provisions of the NEPDA and the Rules of Practice of the Environmental Review Tribunal that apply to this proceeding are:
Niagara Escarpment Planning and Development Act
25(12.1) The decision of the delegate shall be deemed to be confirmed if,
(a) the decision of the delegate was a decision to issue a development permit;
(b) the parties who appeared at the hearing have agreed on all the terms and conditions that should be included in the development permit and all of these terms and conditions are set out in the report of the officer under subsection (11); and
(c) the opinion of the officer expressed in his or her report under subsection (11) is that, if the decision of the delegate included the terms and conditions referred to in clause (b), the decision would be correct and should not be changed.
(12.2) If subsection (12.1) applies, the decision of the delegate shall be deemed to be a decision to issue the development permit with the terms and conditions referred to in clause (12.1)(b).
Rules of Practice of the Environmental Review Tribunal
- Where the Parties agree to all the terms and conditions that should be included in a revised development permit, the Tribunal may confirm the decision of the Niagara Escarpment Commission pursuant to section 25(12.1) of the Niagara Escarpment Planning and Development Act and shall include the terms and conditions in its report.
Issue
10The issue is whether the decision of the NEC to conditionally approve the Development Permit would be correct and should not be changed if the proposed Revised Conditions of Approval are included.
Discussion, Analysis and Findings
11Ms. Smith made submissions concerning the proposed revisions to the conditions of approval to address the Appellants’ concerns about deficiencies in relation to species at risk. She indicated that the parties propose additional language in Condition 7 to clarify that the purpose of the appropriate erosion/sediment control and tree protection measures required by that condition is to ensure that the proposed works do not adversely affect wildlife and/or aquatic habitat.
12Ms. Smith also addressed the following two proposed amendments to the Notes/Advisories to the conditions of approval:
- to the first note, which states that the Development Permit does not limit the need for or the requirements of any other approval, license or certificate under any statute, the parties propose the addition of the Migratory Birds Convention Act to the list of statutes provided as examples; and
- the parties propose the inclusion of a fourth note stating that, to achieve compliance with the Migratory Birds Convention Act, for construction that takes place between July 1 and August 15, nesting surveys will be completed prior to site disturbance.
13Ms. Roberts, Mr. Thompson and Mr. Baran confirmed their agreement with the Revised Conditions of Approval resulting from the settlement. The Hearing Officers commend the parties for their efforts to meet to discuss the conditions of approval and reach agreement on revised conditions.
14The Hearing Officers note that the proposed revisions to the conditions of approval appear to address the Appellants’ concerns about impacts on species at risk and their habitats. The Hearing Officers find that the proposed amendments clarify that the required erosion/sediment control and tree protection measures are intended to ensure that the proposed works do not adversely affect wildlife and/or aquatic habitat, and that the Development Permit does not limit the requirements of the Migratory Birds Convention Act, including the requirement for the completion of nesting surveys prior to site disturbance where construction is to take place in the time period between July 1 and August 15. The Hearing Officers note that the settlement agreement will allow the remediation work on the Site to progress in a timely manner, subject to the conditions that have been clarified to ensure the protection of species at risk.
15The Hearing Officers find that the proposed revision to Condition 7 and the amendments to the Notes/Advisories are in accordance with the Niagara Escarpment Plan.
16Therefore, it is the opinion of the Hearing Officers, pursuant to s. 25(12.1) of the NEPDA, that if the decision of the NEC included the terms and conditions referred to in the Revised Conditions of Approval, the NEC's decision would be correct and should not be changed.
DECISION
17The decision of the NEC, dated September 30, 2016, to conditionally approve Development Permit application H/F/2015-2016/168, with the inclusion of the Revised Conditions of Approval set out in Appendix A, is confirmed pursuant to s. 25(12.1) of the NEPDA.
NEC Decision Confirmed with Revised Conditions of Approval
“Laurie M. Bruce”
LAURIE M. BRUCE
HEARING OFFICER
“Maureen Carter-Whitney”
MAUREEN CARTER-WHITNEY
HEARING OFFICER
Appendix A – Revised Conditions of Approval
If there is an attachment referred to in this document,
please visit www.elto.gov.on.ca to view the attachment in PDF format.
Environmental Review Tribunal
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