Blueridge Cedar Ltd. v. Ontario (Niagara Escarpment Commission), 2017 CanLII 34389

Niagara Escarpment Hearing Office

Bureau des audiences sur l’escarpement du Niagara

ISSUE DATE: May 31, 2017

CASE NO.: 16-047

PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended

Appellant: Blueridge Cedar Ltd.

Respondent: Niagara Escarpment Commission

Subject of appeal: Refusal of a Development Permit Application to construct an agricultural accessory building for a proposed organic orchard/berry farm

Reference No.: S/A/2015-2016/9089

Property Address/Description: Part Lot 14, Concession 7

Municipality: Township of Clearview

Upper Tier: County of Simcoe

NEHO Case No.: 16-047

NEHO Case Name: Blueridge Cedar Ltd. v. Ontario (Niagara Escarpment Commission)

Heard: May 8, 9, and 10, 2017 at Stayner, Ontario

APPEARANCES:

Parties Niagara Escarpment Commission Counsel/Representative: Sunny Zhai

Blueridge Cedar Ltd. Counsel/Representative: Patrick Kraemer

Participant Mike MacBain Counsel/Representative: Self-represented

Presenter Bob Weiss Counsel/Representative: Self-represented

REPORT DELIVERED BY KAREN KRAFT SLOAN

REASONS

Background

1This is a Report regarding an appeal of a decision by the Niagara Escarpment Commission (“NEC”) to refuse to approve a development permit application submitted by Blueridge Cedar Ltd. (“Blueridge Cedar”). Blueridge Cedar submitted a development permit application to the NEC to construct a one-story 35.7 square metre (“sq m”) agricultural accessory building to store farm equipment for a proposed organic orchard and berry farm on an existing 9.4 hectare (“ha”) lot (“Subject Property”). The Subject Property is located at Part Lot 14, Concession 7 with no assigned address in the Township of Clearview (“Township”).

2The Subject Property is owned by Blueridge Cedar. It is located southeast of Glen Huron on a landlocked parcel with deeded right-of-way (“ROW”) for ingress and egress in common with two other property owners, Mike MacBain and Bob Weiss. The Subject Property is the back lot of two lots previously owned by Mr. MacBain, who still owns the lot that fronts on Riveside Drive. Originally the Subject Property, along with Mr. MacBain’s front lot and Mr. Weiss’ two lots, a back and a front lot, made up a four-parcel lot. An existing driveway entrance is accessed off Riverside Drive along the ROW and continues across a private bridge over the Mad River. Past the bridge, the driveway forks to the northern front lot and to the southern front lot. The driveway to the north winds up a steep slope in switchback formation to Mr. Weiss’ residence. The driveway to the south is also in a switchback formation leading to Mr. MacBain’s residence. There is no vehicle access to the Subject Property by way of the unimproved ROW. Blueridge Cedar has confirmed it does not intend to seek a development permit to improve the ROW in a way that would allow vehicle access.

3The previous owner of the four parcels of land, the Subject Property, Mr. MacBain’s lot and Mr. Weiss’ two lots previously submitted a related development permit application No. S/T/89-90/233 to the NEC seeking to construct an access road along a 66-foot ROW to service two 9 ha lots for recreational activities and possible tree cutting on the four parcels of land. However, the NEC planning staff recommended that this be refused and the application was abandoned.

4Patrick Kraemer is both the principal of, and counsel for, Blueridge Cedar. On behalf of Blueridge Cedar, he submitted development permit application No. S/A/2015-2016/9089 to the NEC under the Niagara Escarpment Planning and Development Act (“NEPDA”). The application was dated August 18, 2015 and received on August 24, 2015.

5Tributaries of the Leys Burn Creek flow through the lot forming steep-sided valleys and emptying into the Mad River. A large unevaluated wetland area borders the Subject Property at the northeast corner with a smaller wetland in the southeast and other wetland areas associated with Leys Burn Creek. Two-thirds of the Subject Property is wooded with predominantly deciduous tree coverage and is identified as a deer wintering area.

6The Subject Property is designated Escarpment Rural Area (“ERA”) and Escarpment Natural Area (“ENA”) under the Niagara Escarpment Plan (“NEP”). Blueridge Cedar intends to establish an organic apple orchard and berry farm on the Subject Property and estimates that an area of about 8-10 acres (“ac.”) is available for active farming. The proposed development is to construct a building accessory to the agricultural operation on a level grassed area in the eastern part of the Subject Property, which is within the portion designated ERA.

7The Subject Property is designated ERA and ENA in the Simcoe County (“County”) Official Plan (“OP”) of which the ENA is part of the County’s “Greenlands” designation, a part of the Natural Heritage Systems plan (“NHS plan”) for the County. The Subject Property is also designated ERA and ENA in the Township’s OP. Both the County and the Township’s OPs are in accordance with the NEP.

8Relevant policies in the Provincial Policy Statement 2014 (“PPS”) include Policies 1.1.1, 1.1.4.1., 1.1.5.4 and 1.1.5.5, Rural Lands in Municipalities.

9The NEP received comments from the following agencies:

a. The Township Planning Department objects to the development permit application to construct a building because the Subject Property does not have frontage onto a year round maintained public road, which is a prohibition under the Township’s OP;

b. The Nottawasaga Valley Conservation Authority (“NVCA”) stated the proposed development is within the regulatory jurisdiction of the NVCA and it has no objection to the proposed development subject to Blueridge Cedar obtaining a permit from the NVCA under the Conservation Authorities Act.

10The County Planning Department and the Ministry of Natural Resources and Forestry (“MNRF”) did not comment on Blueridge Cedar’s application.

11The NEC planning staff did not support the development permit application. On March 21, 2016, the NEC refused to approve the development permit application for the following reasons:

• The lot is landlocked and access to the property is by way of a deeded shared ROW, which is unimproved and not accessible by vehicle. The NEC refused an application to construct a driveway access up the steep slope through Escarpment Natural on the ROW and any proposal for improvement is unlikely to meet the Development Criteria of the NEP.
• The proposal does not meet the definition of “accessory building” as there is not a principal use established on the property and therefore it is not a permitted use.
• The lot does not meet municipal servicing requirements as required under the General Development Criteria 2.2.1.(d) .
• The Township objects to the proposed construction on a lot without frontage and objects to the proposed NEC development permit application.
• The proposal does not satisfy Policy 1.1.1.(c) and Policy 1.1.5.5. of the PPS.

12Blueridge Cedar appealed the NEC decision to the Niagara Escarpment Hearing Office (“NEHO”) on the grounds that the Subject Property is not landlocked because it is accessible by a ROW; the proposed development meets the accessory to agriculture requirements in the NEP or, alternatively, it is an agricultural use and not accessory as set out in the NEP; the Subject Property has frontage, and meets all Township requirements, including municipal servicing requirements; and the proposal satisfies Policies 1.1.1.(c) and 1.1.5.5. of the PPS.

13The Pre-hearing Conference (“PHC”) commenced by telephone conference call (“TCC”) on July 6, 2016, and was continued by further TCCs on August 16, 2016 and March 3, 2017. During the initial PHC TCC, Mr. MacBain requested and was granted participant status, and Mr. Weiss requested and was granted presenter status. The reasons for granting status and additional procedural background to this matter may be found in the NEHO Order issued on July 25, 2016.

14A two-day Hearing was scheduled for November 16 and 18, 2016. On November 10, 2016, Mr. Kraemer, on behalf of Blueridge Cedar, informed the NEHO by email that an offer of settlement had been presented to the NEC. As a result, Blueridge Cedar requested that the Hearing be adjourned. A TCC was scheduled on November 16, 2016 to hear submissions from the parties, the participant and the presenter. The Hearing Officer granted the adjournment in a NEHO Order issued on December 1, 2016.

15During the TCC on March 3, 2017, Mr. Weiss raised the possibility of a site visit and Sunny Zhai, counsel for the NEC, did not object. Mr. Kraemer, on behalf of Blueridge Cedar submitted that he has attended site visits in the past, he did not think it is necessary for this matter, and it might be more appropriate for the Hearing Officer to tour the Subject Property alone. Mr. MacBain stated a site visit would be important to understand how challenging the Subject Property is to access. After considering the submissions by the parties, the participant and the presenter, the Hearing Officer found that a site visit would be appropriate to better understand the evidence at the Hearing and decided that the Hearing Officer would attend the site in the presence of the parties and the participant or their representatives pursuant to Rule 186 of the Environmental Review Tribual’s Rules of Practice (“Rules”), which apply to the NEHO. Mr. Weiss requested that he be allowed to participate in the site visit. The Hearing Officer found that it was appropriate for Mr. Weiss, a presenter in the Hearing, whose property abuts the Subject Property and who shares legal access to the ROW with both Mr. MacBain and Blueridge Cedar, to attend the site visit. On May 2, 2017, the NEHO circulated an email to the parties, the participant and presenter setting out the purpose of a site visit, which is to:

provide the opportunity for the Tribunal to better understand the issues raised or the evidence submitted in the main Hearing. A site visit is not held for evidence gathering, although questions and answers raised as a result of the site visit may be evidence at the Hearing.

16In addition, the Hearing Officer directed the planner for Blueridge Cedar, Robert Stovel, to indicate the location of the proposed building on the Subject Property during the site visit.

17The site visit began at 10 a.m. on May 8, 2017 at the Subject Property prior to the commencement of the main Hearing. Judy Rhodes-Munk and Ms. Zhai attended on behalf of the NEC, Mr. Stovel attended on behalf of Blueridge Cedar, and Mr. MacBain and Mr. Weiss also participated.

Relevant Legislation, Rules, Plan Provisions and Policy

18The relevant Rules of the Environmental Review Tribual and provisions of the NEPDA, NEP and PPS are set out in Appendix 1.

Issues

19The Hearing Officer has consolidated the issues to be determined as follows:

Issue No. 1: whether the proposed development accords with the relevant Development Criteria of Part Two of the NEP?

Issue No 2: whether the proposed development is a permitted use in accordance with Part One of the NEP and pursuant to section 1.5: ERA of the NEP?

Witnesses and Summary of Evidence

20Blueridge Cedar called two witnesses: Mr. Stovel, who was qualified as an expert in land use planning and as an agrologist: and Steve Adema, who was qualified as a civil engineer with a specialty in structural engineering and an expert in the Ontario Building Code (“OBC”) and the design and construction of farm buildings. Ms. Rhodes-Munk appeared as a witness on behalf of the NEC and was qualified as an expert in land use planning with expertise in the NEP. Mr. MacBain, a participant, and Mr. Weiss, a presenter, also gave testimony during the Hearing.

NEC Evidence

Judy Rhodes-Munk

21Ms. Rhodes-Munk testified twice during the Hearing, at the outset to provide background information on the development permit application and the NEP, and later to give expert opinion evidence. She provided testimony on her role in reviewing the development permit application; a description of the Subject Property and surrounding lands; an overview of the NEP and its mechanics; the steps taken to review the proposal; and a review of relevant provisions in the NEP, the PPS and the Township’s OP.

22Ms. Rhodes-Munk explained the way in which the NEP is structured, beginning with the purpose and objectives. She added that Part 1 contains land use designations and related policies, and permitted uses, and Part 2 includes Development Criteria. Ms. Rhodes-Munk said the first step in considering an application is to determine whether it is a permitted use and if it is, the development permit application is reviewed within the context of the Development Criteria.

23Ms. Rhodes-Munk said the purpose of the NEP is “to provide for the maintenance of the Niagara Escarpment and the land in its vicinity substantially as a continuous natural environment and to ensure only such development occurs as is compatible with that natural environment”.

24Ms. Rhodes-Munk testified that the Subject Property is within ENA and ERA land use designations of the NEP. The application was circulated to commenting agencies on August 27, 2017, with a subsequent circulation for comments on September 9, 2017. The County and the MNRF did not have comments. Ms. Rhodes-Munk outlined the comments received by NEC, as noted above. In addition to the comments received from the Township and the NVCA, Ms. Rhodes-Munk stated that the NEC received comments from neighbours objecting to the development permit application. As a result of these objections, the application could not proceed to a decision by the NEC Director, and instead the application went before the NEC.

25Ms. Rhodes-Munk stated that the NEC staff planning report recommended the development permit application be refused and the NEC refused to approve the development permit application at the NEC meeting on March 17, 2016. On March 21, 2016, a Notice of Decision was circulated, which included the reasons for refusing the application as set out above.

26Ms. Rhodes-Munk stated that her evaluation of the development permit application included a site visit in September 2015; and a review of maps, relevant provisions in Part 1 and Part 2 of the NEP and the PPS, as well as the Township’s OP and Comprehensive Zoning By-law (“CZBL”), and a previous development permit application related to the Subject Property. Ms. Rhodes-Munk submitted maps as part of her evidence to illustrate the Subject Property’s terrain and natural heritage features, which includes wetland and wooded areas, and a grassy level area.

27Ms. Rhodes-Munk tried to conduct a site visit of the Subject Property on September 23, 2015 but there was “no obvious way” to get to the site. On September 30, 2015, after gaining permission from Mr. MacBain, she used his property to access the Subject Property to undertake the site visit. Ms. Rhodes-Munk observed an open grassy area, some protective fencing, some small tree species and cane berry species, which she estimated to be in a 30 ft. X 30 ft. area, similar to what she saw during the Hearing site visit on May 8, 2017.

28The proposed location of the farm building is in the portion of the Subject Property designated ERA. Ms. Rhodes-Munk spoke to the following ERA permitted uses found in Part 1.5 of the NEP:

1. Agricultural operations;

2. In non-prime agricultural areas and non-specialty crop areas, recreational uses such as campgrounds, golf course and associated golf course country clubs and trail uses, provided that any detrimental impact of these on the Escarpment scenic qualities and natural environment is kept to a minimum;

3. Forest, wildlife and fisheries management;

4. Accessory buildings, structures and facilities (e.g. a garage or farm pond), signs, and site modifications required to accommodate them, provided that the impact on the natural environment is minimal;

5. Incidental uses (e.g. swimming pools, tennis courts and ponds) and site modifications required to accommodate them, provided that the impact on the natural environment is minimal.

29Ms. Rhodes-Munk said the definition of “accessory building” found in Appendix 2 of the NEP is “a detached building or structure that is not used for human habitation, the use of which is naturally and normally incidental to, subordinate to, or exclusively developed to a principal use or building and located on the same lot”. Based on the small size of the proposed building and the intended use, Ms. Rhodes-Munk said “accessory building” was the most appropriate permitted use in Part 1.5 of the NEP to apply to the development permit application.

30Ms. Rhodes-Munk’s Witness Statement states:

An accessory use by definition and by regulation is to be accessory to a principal use or building located on the same lot.

The lot is currently vacant without any principal building or apparent established principal use. Portions of the lot have been used for agricultural purposes (hay production) in conjunction with surrounding properties. The applicant proposes to establish an organic fruit/berry-producing agricultural use on the lot. The open grassed area available for the proposed agricultural use of fruit farming is approximately 0.9 ha (2.3 ac.).

31Ms. Rhodes-Munk added, it was difficult assigning a use on the ERA portion of the Subject Property. Based on her visit in September 2015, it was not apparent that an agricultural use had been established.

32Ms. Rhodes-Munk said it is possible for an accessory use to be allowed prior to a principal use being conditionally approved (for example, a garage being constructed before a house). However, the NEC requires the applicant enter into a legal agreement that would allow the accessory use development to proceed without the principal use being established. With respect to this development permit application, Ms. Rhodes-Munk noted there is no agreement in place that would allow the accessory use, proposed farm building, to be constructed prior to a principal agricultural use being established.

33Ms. Rhodes-Munk stated that Part 1.5, ERA Objective 3 of the NEP is to encourage agriculture and forestry and to provide for compatible rural land uses. Ms. Rhodes-Munk said “compatible” is defined in the NEP as follows: “where the building, structure or use blends, conforms or is harmonious with the Escarpment’s ecological, physical, visual or cultural environment”.

34In her Witness Statement, Ms. Rhodes-Munk expresses the opinion:

The natural heritage features and functions, rolling forested topography and soils with limited capability for agriculture, suggests the most compatible harmonious use of this lot is as natural environment/forestry, not necessarily agriculture.

35Under cross-examination, Ms. Rhodes-Munk was asked how she concluded the Subject Property’s soils have limited capability for agriculture. Ms. Rhodes-Munk replied she used the Canada Land Inventory’s tool, the Soil Capability Classification of Agriculture (“CLI Soil Capability Classification tool”). She explained this is a methodology to group soils into soil classes according to potential to produce field crops. The higher the number of the soil class, the lower the capability of the soil. The CLI Soil Capability Classification tool identifies Class 7 soils on the Subject Property, which have , “no capacity for arable culture or permanent pasture”. Under cross-examination she agreed that this tool is not always accurate, that a soil sample was not taken and that the NEC did consult an agrologist.

36Ms. Rhodes-Munk said farming activities may occur without a development permit within the grassy open area of the Subject Property, which is the area proposed for the orchard and berry farm. However, a development permit would be required if Bluedridge Cedar wanted to farm outside that area or in the wooded valleys.

37Ms. Rhodes-Munk did not consider the proposed accessory building an incidental use under Part 1.5 of the NEP.

38In summary, Ms. Rhodes-Munk said it was her opinion that the existing use is not an agricultural operation, she saw no fences for pasture, no crops, and no tilled land. Instead, she saw a pleasant rural property with a wooded stream, a small grassed open area, a tractor covered by a tarpaulin and a small area planted with trees and berries. It was her opinion that with no established agricultural principal use, the proposed accessory farm building is not a permitted use under Part 1.5 of the NEP.

39Ms. Rhodes-Munk stated she reviewed the proposed development in the context of Development Criteria, Part Two of the NEP, even though the proposed accessory farm building is not a permitted use.

40Ms. Rhodes-Munk said the proposed development met many of the appropriate Development Criteria; however, it was her opinion it did not meet Part 2.2.1.d of the NEP, where permitted uses may be allowed where the “development meets applicable federal, provincial, and municipal requirements including health and servicing requirements”. Ms. Rhodes-Munk pointed to s. 8.17 of the Township’s OP, which prohibits the construction of a building on a landlocked property with no frontage on a public road. Ms. Rhodes-Munk said that, in general, frontage is important to bring in services, such as hydro and, in more built-up areas gas, sewage and water. She noted the Subject Property is rural and there is no intent to have the installation of water, sewage or electricity included in the proposed development. Ms. Rhodes-Munk added that there is garbage pickup and the need for emergency services to be considered, such as fire-fighting, ambulance and police.

41Ms. Rhodes-Munk’s opinion was that the proposed development permit was not consistent with the PPS, specifically Policy 1.1.1.c., which provides that healthy, livable and safe communities are sustained by avoiding development and land use patterns which may cause environmental or public health and safety concerns. Ms. Rhodes-Munk reiterated that the unimproved ROW provided only foot access to the Subject Property and no vehicular access for fire-fighting, ambulance or police. She also noted Policy 1.1.4.(e), which provides that healthy, integrated and viable rural areas should be supported by using rural infrastructure and services efficiently. Ms. Rhodes-Munk’s opinion was the proposed development did not meet this provision nor did it meet Policy 1.1.5.4, which states that proposed development should be compatible with the rural landscape and sustained by rural services levels. She noted that, while the development permit application does not include water or sewage systems, Policy 1.1.5.5 should be considered because it states that development shall be appropriate to the infrastructure planned or available and to avoid the need for unjustified and/or uneconomical expansion of this infrastructure. As an example, Ms. Rhodes-Munk identified concerns of some municipalities that community pressure may be applied to assume private roads to the standard of public roads.

42Ms. Rhodes-Munk provided information on a related development permit application. She explained NEC staff observed construction of a driveway by a previous owner of the four parcels of land, the Subject Property, Mr. MacBain’s lot and Mr. Weiss’ two lots, who did not have a development permit. Work on the driveway included bulldozing, grading and tree removal. As a result, an interim measure required straw bales to be installed to stop sediment from entering the Mad River. The previous owner, who had commenced this work, then applied for a development permit to construct a road along the 66 ft. ROW to service the two back lots for recreation and tree removal. The NEC staff planning report recommended the development permit be refused andthe application was abandoned.

43During cross-examination, Ms. Rhodes-Munk acknowledged the current NEC staff planning report erred when it stated in one section that the previous development permit application had been abandoned and in another section that it had been refused.

44Ms. Rhodes-Munk stated that the steep slope of the ROW near the Mad River posed a hazard. She said the slope is vegetated and the top of the slope is partly forested with more vegetation. Ms. Rhodes-Munk explained that this part of the ROW is designated ENA and she was concerned soil, vegetation and trees would be negatively impacted by hauling heavy equipment or by driving a tractor on the flatter land at the top of the slope.

45Ms. Rhodes-Munk said that while the proposed building is small, it was her opinion it would be better to take a comprehensive approach to development of the Subject Property. She said it is not possible to just ‘plunk’ a building down on the site; therefore construction of the building and transportation of construction materials and equipment as well as future operation of the proposed orchard and berry farm, must be considered within the context of the current access conditions to the Subject Property. Ms. Rhodes-Munk stated that, as more time is spent on the Subject Property development creep may occur because the need for sewage disposal and water will increase. She concluded that all these things must be considered in the development of the Subject Property.

Blueridge Cedar

Robert Stovel

46Mr. Stovel gave an overview of the proposal; described the Subject Property and neighbouring lands, including an assessment of the site for agriculture; reviewed relevant provisions in the NEP, the PPS and the Township’s OP; and presented draft Conditions of Approval.

47In his Witness Statement, Mr. Stovel stated:

…the Applicant has planted a small orchard and intends to develop a small organic apple orchard and fruit farm. There is a tractor and farm equipment along with a small tool shed (7 feet X 7 feet) currently on the property. The Applicant intends to store the tractor and equipment in the Proposed Building.

48Mr. Stovel said the Subject Property and properties adjacent to the east and to the north were part of a four-lot parcel of an approximately 100 ac. block. He noted that the four properties are similar in size with the southerly two parcels slightly larger due to the location of the ROW, and that these four parcels include land gone fallow, hedge row, wetland, creek/river at the back, wetland to the north and unevaluated wetlands to the south. Mr. Stovel stated that the lands have been used for agriculture since the time of pioneer settlers. He said there are two houses on each of the front parcels. He added that, in the immediate area to the south and the north of the four parcels, there is similar land that is farmland that may be in fallow or pasture. Mr. Stovel said that surrounding area is characterized by a beautiful landscape of rolling hills and of properties containing houses of differing vintages.

49Mr. Stovel said the proposed farm building would be located on the eastern side of the Subject Property, within the portion designated ERA. It was his opinion that the flat grassy area or table land is adequate to provide appropriate setbacks for the building from the wetland area. It was Mr. Stovel’s opinion the site is in fallow, and therefore, agricultural land. He added that it would not take much to put a horse on it.

50In his Witness Statement, Mr. Stovel states that the proposed building “is set back more than 100 ft. from a seasonally wet area of the property (“seasonal wetland”)”. During the Hearing, he said there is “puddling” on the Subject Property and soils are heavier. Mr. Stovel determined that there is some silt content in the soils. During the Hearing he said that if the Subject Property “had sand everywhere water would go through it”. Soils which contain silt would be good for farming and the purpose intended, which is an organic apple orchard and berry farm.

51Under cross-examination, Mr. Stovel was questioned about the small number of trees on the Subject Property. He replied, “that’s the way orchards go, you plant and replant, and you are never done.”

52Mr. Stovel stated that the NEP, an important plan and the province’s first environmental plan, allows a variety of uses in the Niagara Escarpment area, one of which is agriculture.

53Mr. Stovel said the NEP’s ERA purpose identifies ERA as an essential component of the Escarpment corridor. Mr. Stovel’s opinion was that the proposed development accords with Objective 3 of Part 1.5 of the NEP, in that it encourages agriculture and provides for compatible rural land uses. He supported this by providing an overview of the surrounding lands. In Mr. Stovel’s opinion the proposal also accords with Objective 4 of Part 1.5 of the NEP in that the proposed development will be located with adequate setbacks from the more ecologically sensitive areas, such as the wetland areas and wooded areas of the Subject Property and the adjacent lands to the west and north.

54Mr. Stovel reviewed the definition of Agricultural Use in Appendix 2 of the NEP:

Agricultural Use:

The land, building or structure used for the purpose of animal husbandry, horticulture, beekeeping, dairying, fallow, field crops, fruit farming, fur farming, market gardening, maple syrup production, pasturage, poultry keeping, mushroom farming or any other farming use and may include growing, raising, small-scale packing and storing of produce on the premises and other similar uses customarily carried out in the field of general agriculture.

55In his Witness Statement, Mr. Stovel states,

Agricultural Operation is defined as: the carrying out of an agricultural use

The proposed farm building is intended to store a tractor, mower, plough, cultivator, disc and similar farm equipment currently being used on the Subject Property. The building and equipment supports the horticulture, fallow, field crops, fruit farming and market gardening currently happening and planned for the Subject Property.

56Mr. Stovel testified that the existing land use is agricultural because the land is in fallow. It his opinion that the proposed farm building falls within the meaning of Agricultural Use and Agricultural Operation.

57Mr. Stovel stated that the NEC mischaracterized the proposed development as an accessory building. Mr. Stovel contends the use of the proposed building is not related to some other use; it is agricultural. Mr. Stovel added that it may be possible to consider the proposed building accessory to use of the land for growing crops or cultivation, but it is his opinion this is not an accurate way to characterize the proposed development.

58Mr. Stovel’s opinion was that the proposal is a permitted use in that it meets Part 1.5 of the NEP, Agricultural Operation and Agricultural use.

59It was Mr. Stovel’s opinion that the proposal accords with the Development Criteria of Part 2 of the NEP and that it is consistent with the PPS. Mr. Stovel identified relevant provisions and policies in each of these planning documents.

60Mr. Stovel’s opinion was that the proposed farm building met the requirements of the Township’s OP, even though the Subject Property did not have frontage on a public road as set out in s. 8.17 of the Township’s OP because access to the public road was achieved by use of the ROW.

61Mr. Stovel stated that there is no requirement for the proposed farm building to be serviced by fire, police or medical emergency services, as these could be provided by foot over the ROW or in the event of a medical emergency, by helicopter.

62Mr. Stovel’s opinion was that, given the small size of the proposed building and small scale of the organic orchard and berry farm, the ROW provided adequate access by foot to haul material for construction of the proposed farm building and for agricultural materials and equipment, such as seedlings and fertilizer for the operation of the farm. Mr. Stovel stated that this small-scale operation was labour intensive, which is characteristic of farming operations.

63It was Mr. Stovel’s opinion that the proposed development should be approved with Conditions of Approval. Mr. Stovel submitted draft Conditions of Approval for consideration.

Steve Adema

64Mr. Adema addressed the issue of whether there is adequate access to the Subject Property to accommodate the proposed development. His evidence focused on the OBC, the Building Code Act and the National Farm Building Code (“NFBC”). Mr. Adema explained that under Clause 1.3.1.2 of the OBC, farm buildings are to be designed in accordance with the NFBC. It was his opinion that the proposed building meets the OBC definition of farm building:

All or part of a building,

a. That does not contain any area used for residential occupancy,

b. That is associated with and located on land devoted to the practice of farming, and

c. That is essentially for the housing of equipment or livestock or the production, storage or processing of agricultural and horticultural produce or feeds.

65Mr. Adema explained the OBC assigns risk classifications for buildings based on the level of human occupancy, with buildings in the highest level of occupancy having the highest level of risk. He said that uildings with the highest level of risk, such as shopping centres, require more than one road for access. Farm buildings have low human occupancy and as a result are considered to have low risk. Mr. Adema stated there is no requirement under the NFBC for vehicular access to farm buildings, including no requirement for “a road, lane or any other means for fire-fighting equipment”. It was his opinion that “the proposal meets the requirement for vehicular and fire-fighting equipment access and the proposal is appropriate as submitted”.

Participant Evidence

Mike MacBain

66Mr. MacBain’s property abuts the eastern lot line of the Subject Property with deeded access to the ROW.

67Mr. MacBain’s testimony focused on the way in which Blueridge Cedar acquired the Subject Property, access, impacts on his family, and concerns for the wetland and conservation areas.

68Mr. MacBain stated that when he purchased his property in 2006, he was not aware the land was split in two parcels: one parcel fronts Riverside Drive and the other parcel is the Subject Property. He said that, at the time the property sale closed, the back parcel (Subject Property) was not properly conveyed. Mr. MacBain stated that the Township did not send property tax notices for the parcel that was not conveyed, even though he had regularly paid taxes on the front parcel. Mr. MacBain said that in 2013, the Township put the back parcel, the Subject Property, for sale to recoup the back taxes, and it was sold to Blueridge Cedar for approximately $15,000. After the sale, Mr. MacBain stated that Mr. Kraemer offered to sell him the Subject Property for $500,000.

69In his written statement, Mr. MacBain states,

There is a right of way (ROW) that can arguably be used to access the property on foot by a relatively athletic individual. It is impossible for any vehicle to access the property via the ROW because the ROW runs up a 60 foot cliff shortly after crossing the bridge over the Mad River. This cliff is the reason that Mr. Weiss and I were mandated to build our driveways in a switch back fashion as there is a mandated minimum steepness of grade permitted in order to prevent excessive run off and soil erosion falling into the sensitive environmental areas around the Mad River.

70Mr. MacBain testified that the Subject Property has no green sign number because there is no access for emergency vehicles. Mr. MacBain stated that Mr. Kraemer is not able to transport equipment and materials to construct the proposed building without road access nor was he able to drive the tractor, which is currently on the Subject Property, without trespassing.

71Mr. MacBain expressed other concerns related to the ROW; for example, Mr. Kraemer parks his vehicle on the ROW, even though the ROW allows only ingress and egress. Mr. MacBain is also concerned about Mr. Kraemer not respecting the provincial trespassing laws. Mr. MacBain alleges that the Mr. Kraemer and his associates have trespassed on both his property and on Mr. Weiss’ to the extent that Mr. MacBain had to contact the Ontario Provincial Police (“OPP”).

72Mr. MacBain said he and his family have experienced a pattern of behaviour by Mr. Kraemer that does not respect the boundaries of the property lines. He stated that Mr. Kraemer allows his dogs to run loose and Mr. MacBain’s wife is concerned for the safety of their young sons.

73Mr. MacBain stated that he does not believe farming is the Blueridge Cedar’s intended use of the Subject Property. He said that if Mr. Kraemer was motivated to establish an orchard and berry farm, he would have planted more trees in the three years of owning the lot.

74Mr. MacBain provided photographs that he took of the Subject Property from the ROW and on the Subject Property during the site visit on May 8, 2017 as well as photographs of locations on his property and Mr. Weiss’ property to the north of the Subject Property. The photographs are marked as Exhibit 11-1 through 11-13.

75Mr. MacBain said brush fires on the Subject Property are not uncommon and he is concerned there is no fire truck access. He provided Exhibit 11-5 to confirm the existence and size of a burned area on the Subject Property. Mr. MacBain noted that the Subject Property has no green sign address, which is required to get a burn permit online. Mr. MacBain alleges that either the burn permit was not applied for or the Subject Property’s lack of access to a public road was not disclosed.

76Mr. MacBain pointed to a set of the photographs, which illustrate the natural heritage features of the Subject Property, his property and Mr. Weiss’ land. He identified red bushes associated with the wetlands covering all the properties. Mr. MacBain pointed to stumps, twigs and grass rising out of some of the wetlands. He explained that even though these wetland areas are shallow, they provide habitat for beavers, groundhogs, geese and other birds. Mr. MacBain marked the photographs to demonstrate the size of the various wetland areas and distance between the edges of these wetland areas to the Subject Property. He said that the largest wetland area, which is mostly on Mr. Weiss’ land but also cuts across the ROW, is deeper. Mr. MacBain added that it has grown to a ‘significant’ size and continues to do so, resulting from the activities of the beaver families who live there.

77Mr. MacBain disputed Mr. Stovel’s testimony about “puddling” on the Subject Property. Mr. MacBain referenced photographs of specific wetland areas to demonstrate that these are large areas and they are ‘not puddles’. He said these wetlands either totally or partially obscure the ROW. Mr. MacBain was concerned that traversing the ROW in this area could damage vegetation and habitat for groundhogs, beavers, geese and other birds.

78Mr. MacBain provided another set of photographs showing tilling, cultivating, earth dragging equipment and a tractor and disc under a tarpaulin. He noted that the state of the equipment, which he said is not good and not in good repair, and suggested it could be leaching red paint and rust into the nearby wetland. Mr. MacBain estimated how much he thought the assorted equipment weighed.

79Mr. MacBain stated that there is no “humanly way possible” that any of the equipment could have made it up the steep slope of the ROW without trespassing. Mr. MacBain provided a photograph, which shows marks in a grassy area on his property created by hauling or dragging a heavy piece of equipment. He added that in May 2016, Mr. Kraemer asked if he could travel over Mr. MacBain’s property, a request that Mr. MacBain refused. Mr. MacBain stated that later that summer a trailer appeared on the Subject Property, which he estimates weighs about 200 to 300 pounds.

80Mr. MacBain said he is concerned this equipment will be left “to rot and contaminate the wetlands”. Mr. MacBain said if the development permit application is approved, the enforcement of the alleged trespassing and other concerns that he identified will be left to him and his family.

81Mr. MacBain was not cross-examined.

Presenter Evidence

Bob Weiss

82Mr. Weiss owns two lots, one fronting Riverside Drive, north of Mr. MacBain, and the other to the back of the first lot, north of the Subject Property. Mr. Weiss emphasized that he is strongly opposed and continues to be strongly opposed to the proposed development. He added that in fact, the evidence he heard at the Hearing may have strengthened his opposition to the proposed building.

83Mr. Weiss provided testimony of his concerns relating to: non-compliance with regulations and policies; environmental concerns; access; acquisition of the Subject Property; testimony of the expert witnesses; and challenges related to the construction of his driveway.

84Mr. Weiss confirmed Mr. MacBain’s testimony with respect to how the Subject Property was acquired by Blueridge Cedar. He said after Mr. MacBain refused Mr. Kraemer’s offer to sell the Subject Property for $500,000, Mr. Kramer made a similar offer to Mr. Weiss’ wife. He noted that this offer was turned down as well.

85Mr. Weiss stated it is difficult to believe Blueridge Cedar’s intent to construct a building to support an organic orchard and berry farm without water or sewage, and no access other than by foot, which included the climb up the steep slope of the ROW.

86Mr. Weiss said while Mr. Adema’s conclusion was that the small orchard was exempt from safety concerns, the real question to be answered is whether the building is permitted on a landlocked lot as an accessory use.

87Mr. Weiss stated that the “elephant in the room” is the ROW. He stated that he was quite knowledgeable about the steep slope because he has had to deal with the design of the driveway and slope of the land for the past 20 years. Mr. Weiss said it is impossible get up his driveway without a four-wheel drive vehicle and he noted there have been multiple car accidents related to cars skidding. He explained that the driveway has been specially constructed to include intermittent posts connected by heavy ropes to stop vehicles from going over the edge.

88Mr. Weiss stated that the Township OP prohibits building a structure on a landlocked property. Mr. Weiss asked how an accessory building could be built if a principal use could not be established. He said that the construction materials for the proposed building could not be delivered without disturbance to environmental features. Mr. Weiss was concerned that the proposed development permit would have an environmental impact, especially on the ROW, where deer and wildlife can be found. He added that the impact would “undoubtedly be magnified if the size or the scope increases”.

89Mr. Weiss said that Mr. Kramer’s reference to the NVCA not objecting to the proposed development is misleading. The Subject Property is clearly in the NVCA jurisdiction and “these agencies will concern themselves with erosion, sedimentation and protection of the Mad River” as well as having concerns regarding impacts to the trees and the vegetation, and the grade and related safety issues. Mr. Weiss confirmed this by relating his own experience with the NVCA. He said the NVCA told him the top of hill is in an erosion zone. Mr. Weiss emphasized that this should be considered before any development of the ROW can be considered.

90Mr. Weiss was not cross-examined.

Discussion, Analysis and Findings

The scheme of the “NEPDA” and the NEP do not allow development as of right in the Niagara Escarpment area; instead, the NEPDA and the NEP take a development control approach and require development permit applications. The NEP provides that Part 1 Permitted Uses and Part 2 Development Criteria (how proposed development should be carried out) are to be read in conjunction with one another.

91This report will first address Issue No. 1 whether the proposed development accords with the relevant Development Criteria of Part 2 of the NEP. This approach follows the structure of the Issues List submitted by the parties to the NEHO on August 15, 2017 and the structure of Mr. Stovel and Ms. Rhodes-Munk’s Witness Statements.

Issue No. 1: Whether the proposed development accords with the relevant Development Criteria of Part 2 of the NEP. Sub-issues, as defined by the parties, are whether:

a. the proposed development meets the applicable federal, provincial and municipal requirements including health and servicing requirements pursuant to s. 2.2.d. of the NEP and s. 5.2.1.1 of the Township’s OP;

b. the proposed development meets the requirement for frontage onto a public road pursuant to the Township’s OP;

c. the proposed development meets the requirements of the PPS, including but not limited to Policies 1.1.1, .1.1.4.1, 1.1.5.4 and 1.1.5.5; and

d. there is adequate access to the Subject Property to accommodate the proposed development.

Subissues a. and b.: NEP Development Criteria and Other Applicable Requirements to be Met

Evidence on sub-issues a. and b.

92Mr. Stovel noted that the objective of Part 2.2 of the NEP: General Development Criteria is to permit reasonable enjoyment by the owners of all lots that can sustain development. In particular, Mr. Stovel added, in Part 2.2.1.(a) and 2.2.1.(b) of the NEP, permitted uses may be allowed provided that:

The long-term capacity of the site can support the use without 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.

The cumulative impact of the development will not have serious detrimental effects on the Escarpment environment (e.g. water quality, vegetation, soil, wildlife, and landscape).

93It was Mr. Stovel’s opinion that the proposed development would allow Blueridge Cedar reasonable enjoyment and sustainable use of its property. He stated that the proposed building location is well back from the more ecologically sensitive wetlands and forested areas. It was Mr. Stovel’s opinion that the proposed development would have no long-term substantial negative impact on environmental features and its cumulative impact would not result in serious detrimental effects on the environment.

94Mr. Stovel elaborated by saying that the site does not contain unstable soil conditions or possible flooding and the proposed development is contained within the ERA, well away from the more ecologically sensitive ENA, where development would be inappropriate.

95Mr. Stovel testified that access to Riverside Drive, a public road, can be easily accommodated by the ROW, which Blueridge Cedar is legally entitled to use. He added that any improvements to the ROW would require a separate development permit application; however, the NEC has not required Blueridge Cedar to undertake improvements. Mr. Stovel stated that this minimizes impact to the natural environment because trees do not have to be removed and soil stability issues do not have to be addressed that would otherwise be created by constructing a road on the steep slope of the ROW near the Mad River.

96Mr. Stovel’s opinion was that the proposed development met both s. 2.2.1.d of the NEP and s. 5.2.1 of the Township’s OP, on the basis that despite not having road frontage, the Subject Property accesses the public road by way of the ROW.

97It was Ms. Rhodes-Munk’s opinion that the proposed development met most of the Development Criteria in Part 2 of the NEP. However, it failed to accord with s. 2.2.1.d. of the NEP, where permitted uses may be allowed provided that proposed development meets applicable federal, provincial and municipal requirements including health and servicing requirements.

98Ms. Rhodes-Munk explained that the Township OP mirrors the NEP for lands that are within the Niagara Escarpment area as it utilizes the same land use designations and respective land use policies. She stated that the Subject Property is designated ENA and ERA in the Township’s OP and polices relevant to the proposed development are found in s. 5.1.4 ERA of the Township’s OP. The Township’s OP Policy 5.2.1 is like 2.2.1.(d) of the NEP. It states that “permitted uses may be allowed within the Niagara Escarpment Plan Area designation provided that: development meets applicable federal, provincial and municipal requirements (e.g. Road frontage) including health and servicing requirements”.

99Ms. Rhodes-Munk stated that the Township objected to the proposed development because the Subject Property does not have frontage onto a year-round maintained public road as set out in s. 8.17 of the Township’s OP. It was her opinion that the proposed development did not meet the policies in the Township’s OP because it prohibits the construction of buildings or structures that do not have public road frontage in s. 8.17 of the Township’s OP. Section 8.17 says “no building or structure shall be erected, extended or enlarged on lot within the Township of Clearwater unless such lot fronts a public road”.

100Ms. Rhodes-Munk stated that the importance of frontage is to facilitate the provision of services. The Township’s OP does not specify human habitation in its prohibition against constructing a building with no lot frontage. Ms. Rhodes-Munk stated that it does not matter if there is no human habitation; servicing requirements are still necessary. It is her understanding that Blueridge Cedar does not intend to have electricity, water or sewage included with the proposed development. Ms. Rhodes-Munk explained that there are still emergency services to consider, such as, ambulance, fire-fighting and police as well as services like garbage pickup. Servicing will be discussed in more detail below.

101Under cross-examination, Mr. Stovel agreed that s. 8.17 of the Township’s OP is a prohibition against constructing a building on lot that does not have frontage on a public road. However, he stated that the Township’s OP does not define or limit frontage. In his opinion, a 66 ft. ROW, from a “land-use planning perspective, provides the same level of access, service and impact on surrounding uses … and should not be interpreted to meet the requirements for some lots (front two lots) and not for others (rear two lots)”. It was Mr. Stovel’s opinion that if the provision is interpreted in this manner, it would not meet the intent of the Township’s OP.

102It was Mr. Stovel’s opinion that the proposed development, on a lot without frontage, and having access to the public road by legal entitlement to the ROW, is similar to, and could be, considered like a private road in a plan of condominium.

103Mr. Stovel stated that the Township failed to mirror the NEP Policy, Part 2.2.1.(d), in its OP, even though it is required to do so with the NEP. He noted that the words “e.g. road frontage” have been added to language of Part 2.2.1.d of the NEP. It was his opinion that s. 5.2.1 of the Township’s OP represents poor drafting, which results in uncertainty because it is not known what else would be considered in addition to “road frontage”. Regardless of how this provision has been drafted in the Township’s OP, Mr. Stovel said his opinion has not changed; and that it is his opinion the proposed development meets the Township’s OP and does not conflict with s. 2.2.1.d of the NEP.

104Mr. Stovel’s opinion was that s. 8.17 of the Township’s OP is poorly drafted and does not represent good planning policy. He stated that the provision does not define the term “public road” and it ignores other examples where buildings or structures would be built, such as, condominium roads, cottages or residences built on islands, trailer parks and seniors’ homes. Under cross-examination, Mr. Stovel was not able to identify local examples of these within the Township’s planning regime.

105Ms. Rhodes-Munk stated that despite lands within the Niagara Escarpment area being subject to development control and not municipal zoning by-laws, it is the practice of NEC planning staff to review municipal planning documents, such as the OP and municipal zoning by-laws when preparing an NEC planning report. Both Mr. Stovel and Ms. Rhodes-Munk referenced s. 3.42 of Niagara Escarpment (NEC), By-law No. 06-54, CZBL of the Township, which states:

Lands zoned Niagara Escarpment fall under the land use jurisdiction of the Niagara Escarpment Commission.

The Niagara Escarpment Commission has the authority to control land use in this area and municipal land use zoning by-laws do not apply.

Submissions on sub-issues a. and b.

106Ms. Zhai submits that the Township’s OP must be read, as it is written and Mr. Stovel’s comments with respect to the quality of drafting is not at issue at the Hearing. She further submits that it is outside the jurisdiction of the Tribunal to ‘look behind the policy’ of the Township’s OP and to make a finding on the why and how of drafting. Ms. Zhai submits that s. 8.17 of the Township OP prohibits a building or structure to be constructed on the Subject Property because it does not front on a public road.

107Mr. Kraemer submits that s. 8.17 of the Township’s OP is problematic and creates confusion because there are a variety of development types, such as those identified by Mr. Stovel, which would not be covered by this section. Mr. Kraemer submits that the Township OP is document, which expresses “goals” and that it requires the CZBL to implement its provisions. However, Mr. Kraemer submits, in this instance, the Subject Property is within the Niagara Escarpment Area and not subject to the CZBL. Mr. Kraemer also submits that the NEP is silent on the requirement for lots to have frontage on public roads before a building or structure may be constructed.

108Ms. Zhai submits that s. 8.17 of the Township OP prohibits a building or structure to be constructed on the Subject Property because it does not front on a public road. Mr. Kraemer submits that road frontage is met by utilizing the access provided by the 66-ft. ROW.

Findings on sub-issues a. and b.

109The Hearing Officer notes that while the two front lots share a ROW for vehicles to access two separate driveways, both lots front the public road. With respect to the rear lots that Mr. Stovel referenced in his evidence, the rear lot to the north is owned by Mr. Weiss, who owns the front lot and does not have any buildings or structures on his back lot, and the rear lot to the south is owned by Blueridge Cedar, previously owned by Mr. MacBain the owner of the front lot to the south. Based on the evidence presented, the Hearing Officer finds that the Subject Property is a landlocked lot and lacks frontage on a public road.

110It was Mr. Stovel’s opinion that s. 8.17 of the Township’s OP did not define the term “public road” despite this section reading,

For the purposes of this Official Plan, a public road shall mean:

A road which affords the principal means of access to an abutting lot, and which is dedicated, assumed and maintained by the municipality, the County or the Province, and

A road within a registered plan of subdivision where a subdivision agreement has been entered into but the road(s) will not be assumed until the end of the maintenance period.

111The Hearing Officer agrees with the testimony of Ms. Rhodes-Munk and the submissions of Ms. Zhai that the matter of how the Township’s OP is drafted is not before the NEHO; it is not an issue. The Hearing Officer agrees with the testimony of Ms. Rhodes-Munk that s. 8.17 of the Township OP is a prohibition against any building or structure being constructed on a lot without frontage. Mr. Stovel’s evidence that the ROW provides access to the public road for the Subject Property does not negate the prohibition in s. 8.17 of the Township OP. Even if in the face of this prohibition, a sound planning argument could be made that the ROW should be considered as an alternative to the frontage requirement in the Township OP, the issue of whether there is adequate access to the subject property to accommodate the proposed development would have to be addressed. This issue is discussed in the following section.

112The Hearing Officer accepts the evidence of Ms. Rhodes-Munk that the proposed development does not meet the requirement for frontage onto a public road, pursuant to the Township’s OP. The Hearing Officer also finds that the proposed construction of a building on a lot without frontage and without access to services does not accord with s. 2.2.1.d of the NEP or s. 5.2.1.1 of the Township’s OP.

Sub-issues c. and d.: Applicable PPS Provisions and Access

Evidence relevant to sub-issues c and d.

113It was Ms. Rhodes-Munk’s opinion that the proposed development is not consistent with the PPS. Ms. Rhodes-Munk stated that PPS Policy 1.1.1.(c). is important to the Hearing: “Healthy, livable and safe communities are sustained by avoiding development and land use patterns which may cause environmental or public health and safety concerns”. Ms. Rhodes-Munk stated that this policy speaks to inefficient land use patterns, which cause problems for health and safety. It was Ms. Rhodes-Munk’s opinion that development of the Subject Property may cause public health and safety concerns because the proposed building would not be accessible to emergency services such as fire, police and ambulance.

114Ms. Rhodes-Munk stated that the only access to the Subject Property from the public road, Riverside Drive, is by foot on the unimproved ROW. She added, due to the physical nature of the land, the ROW transverses it would be difficult to meet Development Criteria in Part 2 of the NEP for the construction of a private driveway to the Subject Property. Ms. Rhodes-Munk explained that the ROW begins at the entrance to a mutual driveway off Riverside Drive, where the driveway follows the ROW and crosses a bridge over the Mad River, and then the ROW meets a steep slope, which is vegetated and inclined to erosion, and difficult to climb by foot. At the top, the land is designated ENA, and there are trees and more vegetation. Further along, the ROW flattens, however, wetland areas partially or entirely cover the ROW. Ms. Rhodes-Munk stated that it is impossible for an emergency vehicle to access the Subject Property should a medical emergency occur or fire break out.

115It was Ms. Rhodes-Munk’s opinion that the preferred approach is a comprehensive one that would include all aspects of development: the construction; the transportation of construction material and equipment; and the orchard berry farm operation. She emphasized that it would be important to understand how this more complete picture of development would impact the natural heritage features of the ROW and hazards posed by the steep slope. Ms. Rhodes-Munk also raised a concern over ‘development creep’ that might occur once more time is spent on the Subject Property, specifically, that the need for sewage disposal, water and other amenities may grow.

116It was Mr. Adema’s opinion that the proposed farm building is a low risk structure and as such, meets the requirements for vehicular access and fire-fighting equipment access under the OBC and the NFBC.

117Mr. Stovel agreed with Mr. Adema that the low categorization of risk for a farm building means that vehicular access is not required. Under cross-examination, Mr. Stovel stated that many farm buildings do not have road access to a public road and if a medical emergency occurs, a helicopter could be deployed.

118Mr. Stovel’s opinion was that the ROW provides adequate access to the Subject Property for this small scale organic orchard and berry farm. He stated the steep slope near the Mad River would not pose difficulties transporting the necessary tools, fertilizer, seedlings, equipment and other items required to support this farming operation. Under cross-examination, Mr. Stovel agreed that what he described is labour-intensive and this operation, like farming in general is labour-intensive. Mr. Stovel said his sons would have “no problem” to carry heavy bags of fertilizer up the steep slope and through the forested portion of the ROW. He added that, once the climb had been made to the top of the slope, goods and equipment could be easily transferred to a cart and towed by the tractor currently on the Subject Property. Mr. Stovel did not provide any evidence to explain how the existing tractor, mower, cultivator, tiller, earth dragger, other equipment or even fuel for the tractor were transported to the Subject Property. Under cross-examination, Mr. Stovel denied there was a need to service or replace the existing tractor because farm tractors last a long time.

119Mr. MacBain and Mr. Weiss affirmed they did not give permission for Mr. Kraemer’s farm equipment to be transported across their property. Mr. MacBain and Mr. Weiss recounted the problems they have had with alleged trespassing occurring on their respective properties by Mr. Kraemer and his associates, to the extent that Mr. MacBain contacted the OPP. Mr. MacBain’s photographic evidence confirmed that several pieces of heavy farming related equipment currently exist on the Subject Property, and ranging by his estimate this equipment weighs from 150 to over 500 lbs. One of Mr. MacBain’s photographs showed an imprint left by heavy equipment being moved or dragged across a grassy section of his lot. The allegations of trespassing and the photographs submitted by Mr. MacBain in evidence were not challenged by Mr. Kraemer in cross-examination.

120As stated earlier in this Report, Ms. Rhodes-Munk identified her concern that part of the ROW was within the ENA designation and the vegetation, trees and wetland areas and could be harmed by hauling heavy material or equipment. She noted that the steep slope of the ROW near the Mad River posed a hazard.

Submissions on sub-issues c and d.

121Mr. Kraemer submits that Mr. Adema, a civil engineer and an expert in the OBC and farm building construction, provided the opinion that no access, including vehicular access for fire trucks is required. Mr. Kraemer submits that based on Mr. Adema’s evidence, the main cause of fire in farm buildings is electrical wiring and heating appliances. Mr. Kraemer submits that the development permit application for the proposed farm building does not include electricity.

122Ms. Zhai submits that the evidence of Mr. Adema is not relevant to the Hearing because a building permit application is undertaken after a development permit application has been conditionally approved. Thus, the provisions of the OBC and the NFBC, which Mr. Adema referred to in his evidence should not be deemed relevant.

123Ms. Zhai submits that the only way to get the heavy farm equipment to the Subject Property is to drive or carry it up the steep slope, which is impossible or to trespass on Mr. MacBain’s or Mr. Weiss’ properties.

124Ms. Zhai submits further that the development permit application is premature and needs to take into consideration how the ROW would be improved to provide adequate access, as well as take into consideration the comprehensive approach put forward by Ms. Rhodes-Munk.

125Mr. Kraemer submits that the ROW is not legally relevant in this appeal, that it is outside the jurisdiction of the Hearing Officer, and that it has no bearing on the development permit application.

126Mr. Kraemer submits the refusal of the development permit application would act to “sterilize” the Subject Property from future development. He argues that “private and public control of land” must be balanced to ensure land use rights are not “extinguished”.

127Ms. Zhai submits that Blueridge Cedar’s land use rights will not be extinguished or sterilized with the refusal of a single application because Blueridge Cedar has other development options. She submits that Blueridge Cedar could submit a comprehensive development permit, similar to what was proposed by Ms. Rhodes-Munk, which takes the entirety of the proposed development into consideration, including how adequate access might be achieved.

Findings on sub-issues c and d.

128The Hearing Officer agrees with the testimony and submissions of the NEC that the evidence supplied by Mr. Adema with respect to the OBC and the NFBC is not relevant to the matter under appeal. The Hearing Officer notes that Mr. Adema and Mr. Stovel agreed that a development permit must be approved prior to seeking a building permit.

129The Hearing Officer agrees with Mr. Kraemer that disputes concerning the use of the ROW are matters for another jurisdiction and not relevant to the appeal before the Tribunal. However, in the context of whether there is adequate access to the Subject Property to accommodate the proposed development, the land upon which the ROW transverses and the physical topographical and natural heritage features of this landscape are relevant and important considerations for the appeal.

130The allegations of trespass made by Mr. MacBain and Mr. Weiss against Mr. Kraemer and his associates, likewise, are not matters before the Tribunal; allegations of trespass are matters for another jurisdiction. This was acknowledged by Mr. MacBain and Mr. Weiss. As well, with respect to Mr. Kraemer’s argument relating to the sterilization of land, the Hearing Officer agrees that the refusal of this application does not constitute such a sterilization. Moreover, the question for the Hearing Officer to determine is whether the application accords with the NEP.

131Pertinent to the issue of whether there is adequate access to the Subject Property to accommodate the proposed development is the question of how the farm equipment, which the proposed farm building is intended to house, made its way to the Subject Property. The Hearing Officer finds, it is only pertinent in so much as this unanswered question highlights the condition of inadequate access by way of the existing legal means, the ROW, to accommodate the proposed development.

132The Hearing Officer agrees with the testimony of Ms. Rhodes-Munk, Mr. MacBain and Mr. Weiss, and the submissions of Ms. Zhai about access to the Subject Property. The Hearing Officer accordingly finds based on the physical topography and natural features of the land that the ROW traverses, access to the Subject Property to accommodate the proposed development is not adequate.

Conclusion on Issue 1

133The Hearing Officer finds the proposed development does not accord with Development Criteria 2.2.1.(d). of the NEP.

Issue No 2: Whether the proposed development is a permitted use in accordance with Part 1 of the NEP and pursuant to section 1.5: ERA of the NEP

134The Hearing Officer finds that the proposed development does not accord with Development Criteria 2.2.1.(d). of the NEP, and that the NEC was correct in denying the development permit application. Therefore, it is not necessary to resolve the parties’ disputes on other matters such as permitted uses and the PPS.

DECISION

135The Hearing Officer finds that the NEC’s decision to refuse the development permit application is appropriate and should be confirmed.

Appeal Dismissed

NEC Decision Confirmed

“Karen Kraft Sloan”

KAREN KRAFT SLOAN

HEARING OFFICER

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Niagara Escarpment Hearing Office

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