Cavdek v. Ontario (Niagara Escarpment Commission), 2017 CanLII 34395

Niagara Escarpment Hearing Office

Bureau des audiences sur l’escarpement du Niagara

ISSUE DATE: May 31, 2017

CASE NO.: 16-079

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

Appellant: Gordon Cavdek (File No. 16-079)

Appellant: Sybil Cavdek (File No. 16-080)

Applicants: Andre and Judene Benoit

Respondent: Niagara Escarpment Commission

Subject of Appeal: Approval of a Development Permit Application to construct a new dwelling including garage, porches/patios, pool with a sewage disposal system and driveway; also to construct a hoop greenhouse accessory to a new agricultural operation; and to establish within the existing dwelling a commercial operation with parking

Reference No.: N/R/2014-2015/035

Property Address/Description: Part Lot 156

Municipality: City of Thorold

Upper Tier: Regional Municipality of Niagara

NEHO Case No.: 16-079

NEHO Case Name: Cavdek v. Ontario (Niagara Escarpment Commission)

Heard: January 10, 2017 and March 24, 2017 in Thorold, Ontario

APPEARANCES:

Parties	Representative
Gordon and Sybil Cavdek	Self-represented
Andre and Judene Benoit	Self-represented
Niagara Escarpment Commission	Martin Kilian* and John Stuart (*on January 10, 2017 only)

REPORT DELIVERED BY LAURIE M. BRUCE AND MARLENE CASHIN

REASONS

Background

1Andre and Judene Benoit (“Applicants” or “Benoits”) submitted a development permit application to the Niagara Escarpment Commission (“NEC”) on May 15, 2014. The development permit application was subsequently revised after discussions between the Applicants and the NEC staff. The latest revised proposal was submitted on November 5, 2015, seeking permission to construct a new 2 ½ storey, ⁺ 12.2 metre (“m”) (40 feet (“ft”)) high, ⁺ 512 square metre (“sq m”) (5,510 square feet (“sq ft”)) single dwelling (including attached garage) plus attached porches/patios and a swimming pool, with a private sewage disposal system and driveway access. The development permit application also sought permission to construct a 108 sq m (1,163 sq ft) hoop greenhouse accessory to a new agricultural operation and to establish, within the existing single dwelling, a small-scale commercial use accessory to agriculture and a dwelling accessory to agriculture with a new customer parking area. The Applicants propose to carry on an agricultural operation known as Community Supported Agriculture (“CSA”) on the site.

2The subject property is a 3.1 hectare (7.6 acre) lot located at Part Lot 156, in the City of Thorold (“City”), Regional Municipality of Niagara. The municipal address is 1965 Hollow Road. The Niagara Escarpment Plan (“NEP”) land use designation applicable to the majority of the property is Escarpment Protection Area (“EPA”) and all of the existing and proposed development is situated within this designation. The extreme northwest of the property is designated Escarpment Natural Area, where an unopened road allowance separates the property from the St. John’s Conservation Area.

3On June 23, 2016, the NEC approved application N/R/2014-2015/035 for a development permit to allow for all aspects of the proposed development, with the exception of the use of the existing building as a dwelling accessory to agriculture. The application approval was allowed subject to 20 conditions (“Conditional Approval”).

4The reasons for the refusal of the use of the existing building as a dwelling accessory to agriculture were set out in Appendix 1 of the NEC Notice of Decision, and are attached to this Report as Appendix 1. The reasons for the partial refusal, in summary, are that the use of a second single dwelling where both dwellings are permanent buildings does not conform to the NEP, the land use policies of the City, nor the Official Plan for the Regional Municipality of Niagara.

5The Applicants did not appeal the refusal of the use of the existing building as a dwelling accessory to agriculture, choosing instead to move ahead with the use of the existing building as a small-scale commercial use accessory to agriculture only, as allowed by the Conditional Approval.

6On July 6, 2016, the Applicants’ neighbours, Sybil Cavdek and Gordon Cavdek (“Appellants” or “Cavdeks”) appealed the decision of the NEC to issue the Conditional Approval, under s. 25(8) of the Niagara Escarpment Planning and Development Act (“NEPDA”).

7A Pre-hearing Conference (“PHC”) regarding the appeals was held by telephone conference call on October 28, 2016, at which time the presiding Hearing Officer provided procedural directions for the exchange of documents, and set January 10, 2017 as the date for the hearing of the appeals. At the PHC the parties also discussed the issues raised by the Appellants: the appropriateness of permitting a commercial operation on property that is designated EPA; the potential for the existing building to fall into a state of disrepair if it is rendered uninhabitable and there is no longer heat or electricity; and concern that the proposed development would create a traffic safety issue, particularly for cyclists in the area. Martin Kilian, planner for the NEC, clarified that heat and electricity would still be provided to the existing building; no further concern respecting the potential for the existing building to fall into disrepair was raised by the Cavdeks.

8The hearing of the appeals was held on January 10 and March 24, 2017 at the Council Chambers, City Hall, Thorold.

9On January 10, 2017 at the outset of the hearing, Mr. Kilian on behalf of the NEC, requested an opportunity for the parties to hear from the Manager of Engineering for the City, Sean Dunsmore, who was willing to attend and who was in the same building at the time. Mr. Kilian submitted that information from Mr. Dunsmore might assist with a settlement in the matter. As all parties were in agreement with Mr. Kilian’s proposal, the Panel allowed time for the settlement discussions to take place without the Hearing Panel Members present. The parties subsequently returned to the hearing and informed the Hearing Panel that the discussions had been very helpful, but had not resulted in a settlement of the issues. The Hearing continued for the balance of the morning with opening statements from each of the parties, testimony from Mr. Kilian for the NEC, testimony from Mr. and Ms. Cavdek, and cross-examination of the witnesses by each of the other parties. This evidence is summarized later in this report.

10In the afternoon of the first day of hearing, as the testimony of the Applicants was to begin, Ms. Benoit asked if it would be possible to summons Mr. Dunsmore, referred to above, as a witness in the Hearing. As it appeared to the Hearing Panel that Mr. Dunsmore could provide information to assist the Hearing Panel, and all parties were in agreement, the Hearing Panel granted the motion to adjourn the proceeding in order that Mr. Dunsmore could be summonsed to appear.

11The Appellants then requested that they be permitted to summons Eldon Darbyson, Senior Planner for the City, to appear at the Hearing. Mr. Cavdek submitted that Mr. Darbyson’s testimony would be of assistance to the Hearing Panel, and noted that correspondence from Mr. Cavdek to Mr. Darbyson, and from Mr. Darbyson to Mr. Kilian, had already been made an exhibit in the proceeding. The Hearing Panel agreed that Mr. Darbyson’s testimony would likely be of assistance, and as all parties were in agreement, granted the motion to allow Mr. Darbyson to be summonsed to appear at the Hearing. The Hearing was adjourned, with March 24, 2017 set for the next hearing day.

12On March 24, 2017 the Hearing recommenced, at which time Mr. Darbyson and Mr. Dunsmore testified and were cross-examined, the Benoits testified and were cross-examined, and all parties gave brief closing statements.

Relevant Niagara Escarpment Plan Provisions

13The relevant NEP provisions are attached as Appendix 2 to this Report.

Issue

14The issue in the appeals is whether the NEC’s decision to issue the Conditional Approval should be confirmed. This issue involves analysis of the following sub-issues:

1. whether the proposed development is a Permitted Use under the NEP;

2. whether the proposed development is in accordance with the Development Criteria of the NEP; and

3. whether the NEC should have conditionally approved the proposed development, not having received comments from the City regarding traffic issues, and whether there are outstanding traffic safety issues associated with the proposed development.

Discussion, Analysis and Findings

Evidence and Submissions of the NEC

Martin Kilian

15Mr. Kilian, Planner with the NEC, testified on the NEC’s behalf on January 10, 2016. He provided an overview of the history of the development permit application. He reviewed the NEC Staff Reports dated March 9, 2016 (“First Staff Report”) and June 7, 2016 (“Addendum Report”), which he authored, and which were both approved by NEC Manager Bohdan Wynnycky. Mr. Kilian also led the Hearing Panel through a review of the NEC’s Notice of Decision dated June 23, 2016, where the development permit application was conditionally approved, with the exception of the request for use of the existing building as a dwelling accessory to agriculture. He explained the reasons for the 20 conditions of the Conditional Approval and for the partial refusal for a second single dwelling on the site. The conditions attached to the Conditional Approval are attached as Appendix 3 of this Report.

16Mr. Kilian testified that the First Staff Report and the Addendum Report had recommended that the portion of the revised proposal requesting the retention of the existing single dwelling as a second dwelling unit accessory to agriculture, be refused. In his opinion, the proposed development, as it was originally submitted to the NEC, did not conform to Parts 1.4 and 2.2.7 of the NEP, the land use policies of the City, or the Official Plan for the Regional Municipality of Niagara, since a second single dwelling is not allowed by any of those plans or policies.

17He testified that in his opinion, the proposed development, as it was conditionally approved, is a permitted use in the EPA, and addresses the applicable Development Criteria and policies of the NEP. He said that in his opinion, replacing the existing dwelling and establishing an agricultural operation (including a small-scale commercial use accessory to agriculture) using an existing building as an accessory building, is permitted, subject to satisfying Part 2, Development Criteria.

18Mr. Kilian stated that, with the exception of allowing a second single dwelling on the site, the development permit application was supported by all relevant land use authorities and agencies.

19Regarding the traffic concerns of the Appellants, Mr. Kilian testified that he had solicited comments from the City, and that the issue of parking on the property had been thoroughly discussed and addressed throughout the process of the application review. He stated that it was his understanding that the City did not identify traffic as an issue that would present a barrier to the proposed development, as the operation of the CSA was not anticipated to involve a high traffic volume.

John Stuart

20Mr. Stuart, NEC Planner, provided a closing statement for the NEC on March 24, 2017. He submitted that there are no environmental impact concerns associated with the proposed development, and that none of the authorities consulted have objections to the development proceeding as conditionally approved. Mr. Stuart submitted that the Cavdeks’ appeals lack merit, since the proposed development is a Permitted Use and is in compliance with the relevant Development Criteria of the NEP. He added that the conditions attached to the development permit will ensure that any concerns raised by the City, Regional Municipality of Niagara, Niagara Peninsula Conservation Authority, and Ministry of Natural Resources and Forestry, will be adequately addressed.

Evidence and Submissions of the Appellants

21Mr. Cavdek and Ms. Cavdek each testified, with Mr. Cavdek providing the opening statement on behalf of himself and Ms. Cavdek and conducting the cross-examination of the other parties’ witnesses. The Cavdeks each gave brief closing statements as well. The Cavdeks live next door to the Applicants’ property. They initially submitted in their Notice of Appeal that the proposed development does not comply with the objectives and provisions of the NEP because: (a) their line of sight view will be negatively affected by the proposed development on the Applicants’ property; (b) their property values will be negatively affected; and (c) the proposed development will threaten safety in relation to traffic disruption for cars and particularly for cyclists. As noted above, the parties subsequently refined the scope of the appeals to issues related to whether the accessory commercial agricultural operation was a permitted use and traffic safety.

Gordon Cavdek

22Mr. Cavdek questioned whether it is appropriate for there to be a commercial operation on lands that are in an EPA and submitted that it is not. He testified in support of this submission that:

…we and many other groups such as the Niagara Land Trust, wish to focus on conservation and management of protected land for public interest and benefit…I cannot think of any rationale that makes the case for this development’s need in our community…nor one that supports such a radical change from a Niagara Escarpment Protection Area to that of a “commercial front” like any other unprotected area.

23Mr. Cavdek submitted that this development will have a negative impact on traffic safety, given that there are numerous winding curves in the area. He stated that the road is frequently travelled by drivers who are sightseeing and by nature enthusiasts and bicycling clubs. He noted in particular, that the Greenbelt cycling route in the area passes along the proposed development’s frontage on Hollow Road, and that in addition to related safety concerns, the purpose for the route, a “nature themed activity” will be negatively impacted by “commercial development along its path”.

24Mr. Cavdek indicated that the driveway of the subject property is located at the middle point between two 90 degree corners, which increases traffic safety concerns, as drivers use the area for passing.

25Mr. Cavdek testified that he and Ms. Cavdek had been approached by several of their neighbours, who were concerned by the notice from the NEC regarding the Applicants’ proposal to establish a CSA business on Hollow Road. He said that in response to his neighbours’ concerns, in November 2016, he and Ms. Cavdek prepared and circulated a letter requesting expressions of support from their neighbours, regarding the proposed development (“Letter of Request”).

26In the Letter of Request, the Cavdeks’ concerns related to safety were stated as follows:

[1] Traffic on this road is at its best dangerous, roads are quite narrow, and this business application (and specifically the entry/exit parking associated with it[)], would only add to safety risks.

[2] Sharp turns and hills approaching this property location in either direction is extremely difficult to maneuver; traffic stopping, pulling over, trying to enter and passing are just a few issues that will come into play.

[3] Walking enthusiasts and bicyclists will find an extreme danger with added traffic concerns and congestion.

27The Letter of Request noted that a response which provided the neighbours’ address would be sufficient, unless they wished to provide additional information in support. The Cavdeks received seven responses from neighbouring residents, with two providing only names and contact information, and the other five providing comments which expressed concerns regarding: an increase in traffic volume and related noise; air pollution; damage to the road and shoulder of the road; and traffic accidents.

28During cross-examination, Ms. Benoit questioned Mr. Cavdek regarding the responses to the Letter of Request, asking him if he believed that the neighbours who responded, understood the details regarding the operation of a CSA as proposed by the Appellants, and the approximate number of vehicles that would be entering and leaving their property daily. Mr. Cavdek said he believed that they did.

29Mr. Cavdek submitted that the City understands the safety concerns that he and Ms. Cavdek have expressed, but that staff were unable to provide an opinion on safety since no traffic assessment, including sight line assessment, was undertaken. He submitted that the NEC did not exercise due diligence in making its decision to conditionally approve the proposed development, having not received comments from the City regarding traffic safety issues. He further submitted that the City did not exercise due diligence in providing its comments to the NEC, since those comments did not address possible traffic safety issues associated with the proposed development.

Sybil Cavdek

30Ms. Cavdek shared Mr. Cavdek’s concerns and submitted that she believes the proposed development will have a substantial negative impact on the safety of drivers and cyclists travelling on Hollow Road in the area of the proposed development.

Eldon Darbyson

31Mr. Darbyson, Senior Planner for the City, was summonsed by the Cavdeks to provide testimony on all aspects of the Applicants’ application as it pertained to comments he provided to the NEC on the proposed development.

32Specifically, Mr. Darbyson discussed the issues of parking and traffic, and how he came to the opinion that the proposed development was in compliance with the City’s Official Plan.

33Mr. Darbyson testified that he was the individual representing the City, who provided comments to the NEC regarding the Appellants’ application, and who, at various points during the processing of the application, advised on the location and number of parking spaces to be provided for the proposed development.

34Mr. Darbyson said that the proposed development was considered a “low key” use in terms of number of vehicle trips the operation would generate. In addition, there was no change to the location of the driveway, and therefore, he did not consider traffic safety to be an issue associated with the operation of the CSA. Mr. Darbyson testified that a traffic study is not needed if a proposed operation will not generate at least 100 vehicles per day. He said that it was his understanding there would be between 5 and 10 vehicles per day entering and exiting the subject property, and as such, the proposed operation did not warrant a traffic study. On questioning from the Hearing Officers, he stated that while there are no specific guidelines, there are typically discussions between the Municipal Planner and the Engineer to make a decision about the need for a traffic study. Further, he said that he relies on the City Engineer to raise the issue of traffic safety as a concern for any proposed development, and that in this case, traffic safety was not raised as a concern.

35Mr. Darbyson was asked by Mr. Cavdek if there was a defined process which would ensure due diligence when making a decision on traffic and community safety. Mr. Darbyson replied that decisions are “based on trained professionals making judgements”.

Evidence and Submissions of the Applicants

36Ms. Benoit and Mr. Benoit both testified, with Ms. Benoit conducting the cross-examination of the other parties’ witnesses. The Benoits’ testimony focused on describing the plans for the proposed development, in particular the details of the operation of the CSA.

37The Applicants submitted that the Appellants’ appeals are without merit and that the proper procedures were carried out throughout the application process to ensure that the proposed development would comply with the objectives and provisions of the NEP.

38They further submitted that the proposed development complies with the objectives and provisions of the NEP, and they rely on the Staff Report to support their position.

Judene Benoit

39Ms. Benoit described a CSA as an operation where there is a direct exchange between producers and consumers, whereby the consumer buys a share in a farm’s production at the beginning of the season. She explained that the farm grows quality produce, and at harvest time, prepares baskets of produce that has been harvested on the day before pick up or even the same day.

40Ms. Benoit testified that on the subject property there is not a lot of land available, and therefore the CSA will be a small operation that is based on biologically intensive farming practices.

41Ms. Benoit addressed the position of the Appellants, and responded to their concerns regarding the impacts of the proposed development on traffic safety in the area. In response to a question from the Hearing Officers, she stated that they expected to begin with approximately 10 members, eventually growing to 20 to 30 CSA members visiting the property. She estimated that there would be one vehicle trip per week per member, and even less if one member picks up multiple members’ produce, or if the Benoits have one or more baskets delivered. In addition, there would be one car a day associated with one worker.

42Ms. Benoit submitted that, given the expressions of concern received by the Cavdeks from their neighbours, the neighbours did not seem to have an understanding of the low numbers of vehicles that will be involved in entering and exiting the CSA operation on any given day, given their responses to the Letter of Request.

Andre Benoit

43Mr. Benoit pointed out that under the Conditional Approval, the proposed development will involve a very small number of vehicles coming to the CSA and that the pick-up of baskets of produce will only happen during harvest time. He testified that he and Ms. Benoit will be happy to schedule the pick-up of baskets so as to minimize the numbers of cars arriving and leaving the CSA on any given day or at any given time.

Sean Dunsmore

44Mr. Dunsmore, as noted previously, is the Manager of the Engineering Department for the City. He was summonsed by the Applicants to provide information about how he had participated in the provision of advice or comments to the Senior City Planner, Mr. Darbyson, on the proposed development application, and the process of responding to comments solicited by the NEC on development permit applications, generally.

45Mr. Dunsmore testified that the review of the proposed development and comments to the NEC proceeded in the same way as other applications. He said that, as in all similar situations, discussions between himself and Mr. Darbyson took place in person, and through emails and phone calls.

46Mr. Dunsmore testified that the use of safety experts from outside the City does not typically occur, and he confirmed that he completed a review of the proposed development in response to a formal request from Mr. Darbyson. He said that a date for response was indicated and that he responded with any concerns or comments on engineering issues related to the request from the NEC on the development application.

47Mr. Dunsmore testified that he did not identify any issues regarding traffic safety in his review of the proposed development. He stated that Hollow Road, where the proposed development will take place, is “a low volume road with low volume usage”. He said that in his opinion, regarding traffic issues, the proposed application involved “not much more than a driveway off a local road”.

48In response to questions, Mr. Dunsmore testified regarding what type of vehicle data would be considered when deciding if there is a safety concern with a proposed development with access onto an existing road. He stated that the vehicle volume data from Hollow Road is from the late 1990s to early 2000s, and that they showed volumes of 1,000 -1,500 vehicles per day. He stated that although the numbers are not recent, even if this number doubled, which was unlikely, the volumes would still be sufficiently low that there would be no need to make physical modifications to the road such as turning lanes or reconfiguring to address sight lines. When asked if there is any other data such as line-of-sight information for the road, Mr. Dunsmore stated that there is no further data, but the fact that there has not been a significant volume of accidents on the road, suggests that there are no significant line-of-sight issues.

Sub-Issue No. 1: Whether the proposed development is a Permitted Use under the NEP

49As noted above, the location proposed for the proposed development is designated as EPA under the NEP.

50On the issue of permitted uses in an EPA, NEP Part 1.4 states in part:

Subject to Part 2, Development Criteria, the following uses may be permitted:

1. Agricultural operations.

2. Existing uses.

3. Single dwellings.

4. Mobile or portable dwelling unit(s) accessory to an agricultural operation.

5. In non-prime agricultural areas and non-specialty crop areas, recreational uses oriented towards the land which require minimal modification of the existing natural, topographic and landscape features and which do not require the building of major structures (e.g., picnic sites, day use sites, unserviced camp sites, trail uses). Golf courses are not permitted.

6. Forest, wildlife and fisheries management.

7. Archaeological activities.

8. Transportation and utility facilities, however, only linear facilities will be permitted in prime agricultural areas and specialty crop areas.

9. Accessory buildings, structures and facilities (e.g. a garage or farm pond), signs, and the site modifications required to accommodate them.

10. Small scale commercial uses accessory to agriculture.

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

51The Appellants clearly opposed what they termed as the “commercialization” of the area, and provided a list of “agricultural/farmland/organic produce providers within a kilometer or so” of the proposed development; however, they did not provide any evidence to address their concern that the proposed development does not constitute a permitted use(s) under the provisions of the NEP. The main issues, from the Appellants’ point of view, are whether the Conditional Approval should have been issued, given their assertion that the City did not exercise due diligence when providing its comments in regard to the proposed development, in particular with respect to traffic volume or traffic flow in the area of the project, and their assertion that there are traffic safety concerns.

52Mr. Kilian testified that in his opinion, replacing the existing dwelling and the establishment of an agricultural operation (including a small-scale commercial use accessory to agriculture) using an existing building as an accessory building, are permitted, subject to satisfying Part 2, Development Criteria of the NEP.

53Mr. and Ms. Benoit testified that they also believe that the development proposal, as conditionally approved, is a permitted use, and rely on the NEC Staff Report to support their position.

54In the absence of any evidence to the contrary, the Hearing Panel accepts the evidence of the NEC and the Applicants submissions, that a single dwelling plus attached porches/patios and a swimming pool, with a private sewage disposal system and driveway access; a hoop greenhouse accessory to a new agricultural operation; and within the existing single dwelling, a small-scale commercial use accessory to agriculture with a customer parking area, in an EPA, are Permitted Uses under the NEP. The Hearing Panel finds that each aspect of the proposed development, as described by the evidence, corresponds with one or more of the Permitted Uses listed in Part 1.4 of the NEP.

Conclusion on Sub-Issue No. 1

55The Hearing Panel finds that the proposed development constitutes a Permitted Use under the NEP, subject to the Development Criteria in Part 2 of the NEP.

Sub-Issue No. 2: Whether the proposed development is in accordance with the Development Criteria of the NEP

56Part 2 of the NEP provides that Permitted Uses may be allowed, subject to Development Criteria. The Development Criteria relevant to this application for the creation of a CSA is, Agriculture: Small-scale Commercial Uses Accessory to Agriculture set out in Part 2.10.4 as follows:

Small scale commercial uses accessory to agriculture must satisfy the following criteria:

a) A small scale commercial use accessory to agriculture may be permitted provided it is subordinate, incidental and exclusively devoted to the principal agricultural use carried out on the farm property by the owner and is not considered a high intensity use out of character with the agricultural area.

b) All buildings, structures and facilities, including parking areas, associated with the small scale commercial use accessory to agriculture shall be designed and located to minimize the impact on the principal agricultural use, adjacent land use and the rural open landscape character.

c) Notwithstanding the policies that apply to wineries in Part 2.10.4 d), the majority of retail sales conducted as part of the small scale commercial use accessory to agriculture shall be limited to the sale of produce grown on the property or produced on the property from the produce grown on the property. This relationship shall be clearly outlined to the satisfaction of the implementing authority in the proposed plans for the development.

d) Signage for small scale commercial uses accessory to agriculture shall be subject to Part 2.2.11 General Development Criteria.

57Mr. Killian spoke to each of the four criteria that must be satisfied in order for a small-scale use to be permitted. He testified that the Benoits’ proposal fits the criteria in that it is not a high intensity use, there are a limited number of parking spots, and the majority of the sales on the property will be of produce grown on the property. He noted that the conditions of the Conditional Approval address all restrictions and requirements for commercial uses accessory to agriculture as set out in Part 2.10.4. The Appellants did not provide any evidence to show that the proposed development does not satisfy the relevant Development Criteria set out in Part 2.10.4 of the NEP.

58Based on the evidence presented, including a consideration of the conditions of the Conditional Approval, the Hearing Panel agrees that the proposed development for the creation of a CSA meets the Development Criteria for Agriculture: Small-scale Commercial Uses Accessory to Agriculture.

Conclusion on Sub-Issue No. 2

59Based on the foregoing analysis and findings, the Hearing Panel finds that the Conditional Approval satisfies the relevant Development Criteria set out in Part 2.10.4 of the NEP.

Sub-Issue No. 3: Whether the NEC should have conditionally approved the proposed development, not having received comments from the City regarding traffic issues, and whether there are outstanding traffic safety issues associated with the proposed development

60The Hearing Panel heard testimony from Mr. Darbyson that since the proposed development would generate such a low number of vehicle trips, he did not at any time consider traffic safety to be an issue associated with the operation of the CSA on the subject property. Further, he relies on the City Engineer to raise the issue of traffic safety as a concern for any proposed development, and in this case, traffic safety was not raised as a concern.

61Mr. Dunsmore stated that when he reviewed the proposed development he proceeded in the same way as he does for other applications and did not have any concerns or comments on traffic issues, since in his opinion it was “not much more than a driveway off a local road”.

62The Hearing Panel also heard from both Mr. Darbyson and Mr. Dunsmore that Hollow Road is considered to be a low volume road with low volume usage.

63It is the Hearing Panel’s understanding that the low number of vehicles associated with the proposed development, and the low volume road which the vehicles would be using, led Mr. Dunsmore and Mr. Darbyson to conclude that there would be no traffic safety impacts. Therefore, they did not identify any traffic safety issues in their response to the NEC, which does not appear to the Hearing Panel to be an unreasonable decision.

64With respect to concerns of neighbours who responded to the Cavdeks’ Letter of Request, the Benoits submitted that, given the nature of the expressions of concern received, the neighbours did not seem to have an understanding of the low numbers of vehicles that will be involved in entering and exiting the CSA operation on any given day.

65In response to a question from the Hearing Panel, Mr. Cavdek indicated that at the time that he and Ms. Cavdek issued their Notice of Appeal, they were not aware of how many vehicles per day would be accessing the CSA, so were unable to provide that information to their neighbours.

66The Hearing Panel agrees with the Benoits’ submission that their neighbours’ concerns regarding an increase in traffic volume, and related noise, air pollution, road damage and traffic accidents, while undoubtedly genuine concerns, indicate a fundamental misunderstanding regarding the numbers of vehicles anticipated to enter and exit the subject property on any given day. That number has been estimated at 3 to 10 per day during harvest times, and as few as one, being the one additional employee of the business other than the Benoits, during other times.

Conclusion on Sub-Issue No. 3

67Based on the foregoing analysis and findings, the Hearing Panel finds that there was nothing inappropriate in the NEC conditionally approving the proposed development without having received comments with regard to traffic issues from the City, in the particular circumstances of this case. As well, the City’s absence of comments on traffic issues in its comments to the NEC, does not indicate a lack of due diligence on the City’s part, in the Hearing Panel’s view. In light of the estimated low numbers of new vehicle traffic to be generated by the proposed development, not commenting on traffic safety issues was appropriate given the circumstances of this case.

DECISION

68The Hearing Panel has found that the proposal to construct a 2 ½ storey, ⁺ 12.2 m (40 ft) high, ⁺ 512 sq m (5,510 sq ft) single dwelling (including attached garage) plus attached porches/patios and a swimming pool, with a private sewage disposal system and driveway access; also to construct a 108 sq m (1,163 sq ft) hoop greenhouse accessory to a new agricultural operation; and to establish within the existing single dwelling a small-scale commercial use accessory to agriculture with a new customer parking area is a Permitted Use, and accords with relevant NEP Development Criteria and Objectives. The Hearing Panel has further found that the NEC’s decision to conditionally approve the proposed development, not having received comments with regard to traffic issues from the City of Thorold, was appropriate in this case. Therefore, the Hearing Panel concludes that the decision of the NEC dated June 23, 2016, to grant a Conditional Approval for Development Permit Application N/R/2014-2015/035, is correct and should not be changed. The NEC’s decision is therefore confirmed pursuant to s. 25(12) of the NEPDA. The appeals are dismissed.

Appeals Dismissed

NEC Decision Confirmed

“Laurie M. Bruce”

LAURIE M. BRUCE

HEARING OFFICER

“Marlene Cashin”

MARLENE CASHIN

HEARING OFFICER

Appendix 1 - NEC Reasons for Partial Refusal of Development Permit Application No. N/R/2014-2015/035

Appendix 2 – Relevant Niagara Escarpment Plan Provisions

Appendix 3 – Conditions of the Conditional Approval - N/R/2014-2015/035

If there is an attachment referred to in this document,

please visit www.elto.gov.on.ca to view the attachment in PDF format.

Niagara Escarpment Hearing Office

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