Headon v. Ontario (Niagara Escarpment Commission), 2017 CanLII 7899

ISSUE DATE: February 10, 2017

CASE NO.: 16-104

(revisions of February 14, 2017 have been incorporated herein)

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

Appellant: Cheryl Headon

Applicant: Highlands Nordic Inc.

Respondent: Niagara Escarpment Commission

Subject of appeal: Approval of a Development Permit Application to install lighting on a portion of the existing cross-country ski trails

Reference No.: S/L/2015-2016/9107

Property Address/Description: Part Lot 23, Concession 11

Municipality: Township of Clearview

Upper Tier: County of Simcoe

NEHO Case No.: 16-104

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

Heard: January 11 and 30, 2017 by telephone conference call

APPEARANCES:

Parties	Representative
Cheryl Headon	Self-represented
Niagara Escarpment Commission	Judy Rhodes-Munk
Highlands Nordic Inc.	Richard Lemoine

REPORT DELIVERED BY MARLENE CASHIN

REASONS

Background

1Highlands Nordic Inc. (“Applicant”) submitted development permit application S/L/2015-2016/9107 to the Niagara Escarpment Commission (“NEC”) on September 17, 2015, seeking permission to install lighting on a portion of the existing cross-country ski trails on its property, to provide longer training opportunities for competitive amateur athletes. The Highlands Nordic Inc. property in question is located at 1182 Nottawasaga Concession 10 South, Part Lot 23, Concession 11 in the Township of Clearview, County of Simcoe. The Niagara Escarpment Plan (“NEP”) land use designations applicable to the property are Escarpment Natural Area (“ENA”) and Escarpment Protection Area (“EPA”).

2On September 23, 2016, the NEC approved application S/L/2015-2016/9107 for a development permit, subject to conditions (“Conditional Approval”). The NEC Notice of Decision was issued on September 29, 2016.

3On October 12, 2016, Cheryl Headon (“Appellant”) appealed the decision of the NEC to issue the Conditional Approval under s. 25(8) of the Niagara Escarpment Planning and Development Act (“NEPDA”). Ms. Headon’s property is directly adjacent to the Applicant’s property. Ms. Headon’s concerns regarding the Conditional Approval relate to the effects that night lighting, and the associated nighttime activity on the Highland Nordic property, would have on her enjoyment and use of her own property.

4A Pre-hearing Conference (“PHC”) regarding the appeal was held by telephone conference call (“TCC”) on January 11, 2017. During the PHC, on consent of the parties, the Hearing Officer granted a request for an adjournment of the PHC, in order that the parties could meet to discuss a possible settlement or a scoping of the issues to be heard in the appeal.

5On January 30,2017, the PHC reconvened by TCC, at which time the parties reported to the Hearing Officer that an agreement had been reached. The Hearing Officer agreed to a written hearing in order to review the terms of the proposed settlement agreement.

6Having considered the written submissions of the parties, the Hearing Officer approves the terms of the settlement agreement and confirms that a hearing is no longer necessary.

Relevant Rules

7The relevant legislation and rules of the Environmental Review Tribunal, which apply to the NEHO, are:

Niagara Escarpment Planning and Development Act

25(12.1) The decision of the delegate shall be deemed to be confirmed if,

(a) the decision of the delegate was a decision to issue a development permit;

(b) the parties who appeared at the hearing have agreed on all the terms and conditions that should be included in the development permit and all of these terms and conditions are set out in the report of the officer under subsection (11); and

(c) the opinion of the officer expressed in his or her report under subsection (11) is that, if the decision of the delegate included the terms and conditions referred to in clause (b), the decision would be correct and should not be changed.

Same

(12.2) If subsection (12.1) applies, the decision of the delegate shall be deemed to be a decision to issue the development permit with the terms and conditions referred to in clause (12.1) (b).

Rules of Practice

Where the Parties agree to all the terms and conditions that should be included in a revised development permit, the Tribunal may confirm the decision of the Niagara Escarpment Commission pursuant to section 25(12.1) of the Niagara Escarpment Planning and Development Act and shall include the terms and conditions in its report.

Issue

8The issue is whether the NEC’s decision to conditionally approve the application for a development permit, with revised conditions as proposed by the parties, would be correct and should not be changed.

Discussion, Analysis and Findings

9The Appellant has indicated that she intends to withdraw her appeal provided that the parties’ proposed modifications and additions are made to the conditions attached to the Conditional Approval. These modifications and additions would restrict the time allowed for the proposed lighting usage and ensure that night lighting will be used only during the winter season for cross-country skiing training activities, and not for large competitive events or bicycling on lit trails. The Revised Conditions of Approval are attached to this report as Appendix 1.

10The NEC agrees with the modifications to the Conditional Approval, those being the proposed amendment to Condition 7 and the inclusion of two new conditions. The NEC states that it understands that the modifications will satisfy the Appellant’s concerns with the application.

11The Applicant has also confirmed that it is in agreement with the proposed wording changes to the Conditional Approval as described above and attached to this Report.

12The Hearing Officer notes that the proposed revision to Condition 7 and the addition of two new conditions appear to completely address the concerns raised by the Appellant. The Hearing Officer finds that the proposed modifications clearly set out the parameters for use of lighting on the ski trails, in that they limit the times and activities for which lighting will be used, and clarify for which activities lighting will not be used. The Hearing Officer finds that these proposed revisions are in accordance with the NEP. Therefore, the Hearing Officer accepts that, if the Conditional Approval is amended as proposed by the parties, the decision would be correct and should not be changed. Consequently, pursuant to s. 25(12.2) of the NEPDA, the NEC’s decision shall be deemed to be a decision to issue the Conditional Approval with a revised Condition 7 and the addition of two new conditions as noted in the Revised Conditions of Approval attached to this report as Appendix 1.

DECISION

13The NEC's decision to conditionally approve the Applicant’s development permit application S/L/2015-2016/9107, with revised Condition 7 and two additional conditions as set out in Appendix 1, is confirmed pursuant to s. 25(12.1) of the NEPDA.

NEC Decision Confirmed with Revised Conditions

“Marlene Cashin”

MARLENE CASHIN

HEARING OFFICER

Appendix 1 – Revised Conditions of Approval - Development Permit S/L/2015-2016/9107

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

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