Niagara Escarpment Hearing Office
Bureau des audiences sur l’escarpement du Niagara
ISSUE DATE: September 8, 2017
CASE NO.: 16-085
PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Appellants: See Appendix 1 – Appellant List
Applicant: Danik Daniels
Respondent: Niagara Escarpment Commission
Subject of Appeal: Approval of a Development Permit Application to construct a barn, storage facilities, sales outlet, greenhouse, gravelled customer parking lot and business advertising sign
Reference No.: W/A/2012-2013/215
Property Address/Description: Part Lot 16, Concession 2
Municipality: (Former) Town of Flamborough
Upper Tier: City of Hamilton
NEHO Case No.: 16-085
NEHO Case Name: Dyment v. Ontario (Niagara Escarpment Commission)
Heard: November 25, 2016, and January 18, March 3, May 31, June 28, July 28, and August 31, 2017 by telephone conference call
APPEARANCES:
| Parties | Representative |
|---|---|
| James Dyment | Self-represented* |
| Kyle Davies and Julie Davies | Self-represented* |
| Andrew Dyment and Myrna Dyment | Self-represented* |
| Peter Tate and Alison Payne-Tate | Self-represented* |
| Danik Daniels | Self-represented* |
| Niagara Escarpment Commission | Martin Kilian, John Stuart and Jim Avram* |
*appeared as set out in the Order below
ORDER DELIVERED BY MAUREEN CARTER-WHITNEY AND MARLENE CASHIN
REASONS
Background
1Danik Daniels (“Applicant”) initially submitted a development permit application to the Niagara Escarpment Commission (“NEC”) in November 2012. Final revisions to the application proposal were submitted on June 22, 2016, seeking permission to construct the following on a 27.3 hectare (67.5 acre) property, which supports a single dwelling, a barn and a silo: a one-storey, 185.8 square metre (“sq m”) (2,000 square foot (“sq ft”)) barn to contain livestock (upwards of 6 cows, 20 goats and 30 chickens) with a small manure storage facility; a one-storey, 156 sq m (1,680 sq ft) farm produce storage and sales outlet to be open on a seasonal basis (May to November), restricted to on-site production items; a one-storey, 156 sq m (1,680 sq ft) storage shed near Fallsview Road for storage of hay and/or other harvested crops; a one-storey, 185.8 sq m (2,000 sq ft) greenhouse structure for vegetable production to be offered for retail sale; a six-car gravelled customer parking lot; and placement of a business advertising fascia sign not exceeding 0.9 sq m (9.7 sq ft) in area.
2The subject property is located at Part Lot 16, Concession 2 in the former Town of Flamborough, City of Hamilton (“City”). The Niagara Escarpment Plan (“NEP”) land use designation applicable to the property is Escarpment Protection Area (“EPA”) and all of the existing and proposed development is situated within this designation.
3On August 19, 2016, the NEC approved application W/A/2012-2013/215 for a development permit to allow for all aspects of the proposed development, subject to 14 conditions (“Conditional Approval”).
4On dates between August 30 and September 1, 2016, several of the Applicant’s neighbours appealed the decision of the NEC to issue the Conditional Approval, under s. 25(8) of the Niagara Escarpment Planning and Development Act (“NEPDA”). They were as follows: James Dyment (August 30); Gerard Van Herk (August 31); Kyle Davies and Julie Davies (August 31); Andrew Dyment and Myrna Dyment (September 1); and Peter Tate and Alison Payne-Tate (September 1) (collectively “Appellants”).
5The Niagara Escarpment Hearing Office (“NEHO”) conducted a Pre-hearing Conference (“PHC”) regarding the appeals by telephone conference call (“TCC”), on November 25, 2016. The PHC was attended by: Appellants James Dyment, Kyle Davies and Julie Davies; Martin Kilian, planner for the NEC; and the Applicant.
6James Dyment confirmed for the Hearing Officers that he would be representing the interests of Betty and Roger Dyment in the appeal, as well as his own. Betty and Roger Dyment, who live on the same property as James Dyment, had advised the NEHO of this in writing.
7No others attended the PHC to request Party, Participant, or Presenter status.
8After a discussion among the parties, there appeared to be potential to settle some or all of the issues raised by the Appellants. Mr. Kilian undertook to host a meeting of the parties, with officials from the City, to further discuss the Appellants’ concerns.
9A continuation of the PHC was held on January 18, 2017 by TCC. The call was attended by: Andrew Dyment, James Dyment, Mr. Davies, Mr. Daniels, and Mr. Kilian and John Stuart, a planner with the NEC. Mr. Kilian provided a status update on behalf of the parties. He told the Hearing Officers that since the first PHC in November, an informal meeting had taken place, with most of the parties attending, as well as two planners from the City of Hamilton. He also told the Hearing Officers that, due to his upcoming retirement, Mr. Stuart would be carrying through on the appeals file.
10Mr. Daniels informed the Hearing Officers that he intended to revise his plans in response to his neighbours’ concerns and would be bringing forward revisions, for approval from the City, which may resolve the appeals. Mr. Kilian said that the City would be asked to review the proposed development and provide comments to assist the parties in determining whether the revised site plan may be put forward as the basis for a settlement agreement.
11Mr. Kilian, on consent of the parties, suggested that a further TCC be scheduled for early March 2017. The Hearing Officers set March 3, 2017 for a continuation of the PHC by TCC. The parties remained on the line to continue discussions after the Hearing Officers left the call.
12A continuation of the PHC was held on March 3, 2017. It was attended by Mr. Stuart, Mr. Daniels, Andrew Dyment, James Dyment and Ms. Davies. Mr. Stuart updated the Hearing Officers on events that had taken place since the last TCC. He said that an updated site plan had been submitted to the City earlier in the week but that the City had not had time to review and provide comments on the revised proposal.
13Mr. Daniels stated that he had been told that the City would need at least three to four weeks to review the revised site plan and, given that he was required to submit a new permit application for the proposed septic system, it might be appropriate to set the next TCC continuation of the PHC for the end of May. The parties on the call agreed, and the Hearing Officers set May 31, 2017 for the next TCC.
14Mr. Stuart and Mr. Daniels expressed concern that some of the Appellants had not attended any of the PHC TCCs, nor participated in the informal meetings or discussions aimed at scoping issues or reaching a possible settlement on the appeals. The Hearing Officers told the parties on the TCC that those who had not been attending the PHC TCCs would be contacted by the NEHO Case Coordinator, to canvass the intentions of those parties regarding proceeding with their appeals.
15On March 6, 2017, the NEHO Case Coordinator wrote to the Appellants who had not appeared at the PHC and asked them to confirm whether or not they were pursuing their appeals and to attend the PHC continuation scheduled for May 31, 2017.
16A continuation of the PHC was held by TCC on May 31, 2017, attended by Mr. Stuart, Mr. Daniels, Andrew Dyment, Ms. Davies and Mr. Tate, on behalf of himself and Ms. Payne-Tate. The Hearing Officers were advised that the parties were still waiting for a response from the City to the proposed site plan revisions. As a result, a further continuation of the PHC was scheduled for June 28, 2017.
17During the May 31, 2017 PHC, Mr. Stuart noted that a revised version of the NEP, including new policies, would come into effect on June 1, 2017 and be applicable to the proposed development.
18In a letter to Gerard Van Herk, dated June 2, 2017, the Hearing Officers closed Mr. Van Herk’s appeal file. He had been given notice that since he had not attended any of the PHCs held on November 25, 2016, January 18, 2017, and March 3, 2017, he must attend the continuation of the Pre-hearing Conference to be held by telephone conference call on May 31, 2017, or the NEHO would assume that he had decided not to pursue his appeal and would close his file. Mr. Van Herk confirmed by email on March 7, 2017, that he did not intend to attend any further conference calls or meetings. He did not attend the PHC on May 31, 2017. The Hearing Officers, therefore, dismissed his appeal (File No. 16-086) in accordance with Rule 16 of the Environmental Review Tribunal’s Rules of Practice (“Tribunal Rules”), which apply to the NEHO.
19A continuation of the PHC was held by TCC on June 28, 2017, attended by Mr. Stuart, Mr. Daniels, Andrew Dyment and Ms. Davies. Mr. Stuart advised that the City still had not provided any comments on its review of the revised site plan. A further continuation of the PHC was scheduled for July 28, 2017 and tentative hearing dates were also discussed.
20A continuation of the PHC was held on July 28, 2017 by TCC. Andrew Dyment, James Dyment, Mr. Daniels and Mr. Stuart attended the PHC. At that time, the Hearing Officers outlined the anticipated dates for the procedural steps leading up to the hearing and canvassed the parties on the TCC for their availability for a hearing on October 10 and 11, 2017. In a follow-up email from the NEHO to all parties later that day, the parties were instructed to notify the NEHO by August 4, 2017 if they would not be available on those dates. No responses were received indicating non-availability for the proposed hearing dates.
21On the July 28, 2017 PHC, and confirmed in the follow-up email to all parties, the parties were notified that, during January 2017, the NEHO was copied on email correspondence between the parties that appeared to relate to settlement discussions and that correspondence was inadvertently forwarded to the Hearing Officers. The parties were asked to notify the NEHO by August 4, 2017 if they objected to Hearing Officers Carter-Whitney and Cashin presiding at the hearing as a result of having been privy to the January 2017 emails. No responses were received.
22The parties on the TCC, and all parties in the follow-up email, were advised to review the Practice Direction for Technical and Opinion Evidence developed by the Environmental Review Tribunal, which also applies to the NEHO. They were further advised that given the Applicant’s revised proposal for the development, some of the issues raised initially by the Appellants may have been addressed, and that during the continuation of the PHC on August 31, 2017, the parties would have a discussion of the issues in order to determine the issues that remain for the hearing.
23The Hearing Officers set a tentative schedule for the disclosure of documents among the parties prior to the hearing, which was to be confirmed during the continuation of the PHC on August 31, 2017.
24A further continuation of the PHC was held by TCC on August 31, 2017. Jim Avram, a planner with the NEC, and the Applicant, Mr. Daniels also appeared. None of the Appellants attended. Following the August 31, 2017 PHC, the NEHO Case Coordinator, on the instruction of the Hearing Officers, sent a detailed email to the parties confirming the discussions during the TCC and stating in part:
As scheduled during our July 28 telephone conference call (“TCC”), a continuation of the Pre-hearing Conference (“PHC”) in this matter was held by TCC on Thursday, August 31, 2017. None of the Appellants attended this TCC.
Next teleconference call:
A further continuation of the PHC by way of TCC has been scheduled for Monday, October 2, 2017 at 10:00 a.m. (Please see instructions to call in at the bottom of this email). Attendance at this continuation of the PHC is “peremptory” to the Parties, meaning that Parties (or their representative) must attend.
Schedule for hearing:
During the call on July 28, tentative dates for the two-day hearing were scheduled for October 10 and 11, 2017. Following the July 28 call, an email was sent to the Parties, requesting that the Parties notify the Niagara Escarpment Hearing Office (“NEHO”) by Friday, August 4, 2017 if any of the Parties would not be available on those dates. The NEHO did not receive any responses indicating non-availability from any of the Parties. Therefore, during the call held on August 31, 2017, the October 10 and 11, 2017 dates for the hearing were confirmed.
Hearing Venue
The hearing will take place at the Whitehern Historical House and Garden at 41 Jackson St W, Hamilton, Ontario.
Settlement discussions:
In the July 28 email to the Parties, the Parties were notified that during January 2017, the NEHO was copied on email correspondence between the Parties that appeared to relate to settlement discussions, and that correspondence was inadvertently forwarded to the Hearing Panel Members. Parties were asked to notify the NEHO by Friday, August 4, 2017, if there was any objection to Hearing Officers Carter-Whitney and Cashin presiding at the hearing as a result of having been privy to the January 2017 emails. The NEHO did not receive any responses from the Parties objecting to the Hearing Panel Members presiding at the hearing.
Issues for hearing:
As a result of the Applicant’s revised proposal for the development, some of the issues raised initially by the Appellants may have been addressed. It was planned that in order to determine the issues that remain for the hearing, the Parties were to have a discussion of the issues, during the continuation of the PHC on August 31, 2017. However, as noted above, none of the Appellants attended the August 31 TCC.
The Hearing Members therefore have requested: that each of the Appellants provide to all of the other Parties a list of their outstanding issues/concerns with the revised proposal by no later than September 14, 2017, by which time the Parties will have had the opportunity to see all of the documents disclosed by all of the other parties; and that the NEC contact the Parties for a discussion of the remaining issues, and if possible, lead in the creation of a joint issues list for the hearing. Mr. Avram, of the NEC, agreed to the request on behalf of Mr. Stuart, NEC planner on the appeal. If the parties are able to develop a joint issues list, it is to be provided to the NEHO by no later than September 26, 2017.
Schedule for disclosure:
The Hearing Officers confirm a schedule for disclosure of documents among the Parties prior to the hearing, to ensure that there are no surprises regarding relevant documents, at the hearing, as follows:
4 weeks before first day of hearing (September 12): date for the exchange amongst the parties of all documents relevant to the proceeding
Appellants to provide to all of the other Parties a list of their outstanding issues/concerns by September 14
Joint issues list, if developed, to be provided to the NEHO by September 26
2 weeks before first day of hearing (September 26): date for the Appellants to provide to the other Parties and file with the NEHO all documents that they intend to rely on at the hearing (including a list of witnesses that each Party intends to call, a witness statement for all witnesses, and a witness’ curriculum vitae and any reports if the witness is to submit evidence at the hearing as an expert in a matter)
1 week before first day of hearing (October 3): date for the Applicant and the Niagara Escarpment Commission to provide to the other Parties and file with the NEHO all documents that they intend to rely on at the hearing (including a list of witnesses that each party intends to call, a witness statement for all witnesses, and a witness’ curriculum vitae and any reports if the witness is to submit evidence at the hearing as an expert in a matter).
The Hearing Officers are aware that the City of Hamilton has not yet provided comments related to its review of the revised proposal, and understands that certain documents may not be available to be disclosed by the dates noted above. Any documents received subsequent to these dates are to be disclosed to all other Parties as soon as possible.
25This Order confirms the hearing dates and related procedural dates set out during the PHC TCC of August 31, 2017 and in the NEHO’s email to the Parties of August 31, 2017.
26Regarding the continuation of the PHC scheduled for October 2, 2017, the Hearing Officers note that Rule 16 of the Tribunal Rules provides that, where a party does not attend a Hearing (which is defined to include a Pre-hearing Conference) of which he or she has been given notice, the Hearing Officers may proceed in the Party’s absence without any further notice to him or her, dismiss the proceeding, or make any other order they consider appropriate.
27If any of the Appellants do not intend to pursue their appeals at the hearing, they are directed to contact the NEHO Case Coordinator immediately.
ORDER
28The Hearing Officers order that the proceeding be conducted in accordance with the following schedule, or as may be varied by agreement of the parties and confirmed by the Hearing Officers:
September 12, 2017 Exchange among the parties of all relevant documents.
September 14, 2017 Appellants to provide to all of the other Parties a list of their outstanding issues/concerns.
September 26, 2017 The Parties are instructed to make best efforts to create a joint issues list; otherwise each Party is to file an issues list with the NEHO.
September 26, 2017 Appellants to provide to the other parties and file with the NEHO all documents that they intend to rely on at the hearing.
October 2, 2017 Continuation of the PHC by TCC for a status update. Attendance at this continuation of the PHC is “peremptory” to the Parties, meaning that Parties (or their representative) must attend for a status update, pursuant to Rule 16.
October 3, 2017 Applicant and the NEC to provide to the other parties and file with the NEHO all documents that they intend to rely on at the hearing.
October 10-11, 2017 Hearing to be held at Whitehern Historical House and Garden, 41 Jackson Street West, Hamilton, Ontario.
Procedural Directions Ordered
“Maureen Carter-Whitney”
MAUREEN CARTER-WHITNEY
HEARING OFFICER
“Marlene Cashin”
MARLENE CASHIN
HEARING OFFICER
Appendix 1 – Appellant List
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
Appendix 1
Appellant List
| Appellant Name | File No. |
|---|---|
| James Dyment | 16-085 |
| Gerard Van Herk | 16-086 (File closed) |
| Kyle Davies | 16-087 |
| Julie Davies | 16-088 |
| Andrew Dyment | 16-089 |
| Myrna Dyment | 16-090 |
| Peter Tate | 16-091 |
| Alison Payne-Tate | 16-092 |