Niagara Escarpment Hearing Office
Bureau des audiences sur l’escarpement du Niagara
ISSUE DATE: December 14, 2017
CASE NO.: 16-043
PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Appellant: Johnnie Nielsen
Applicant: Tabitha McDow
Respondent: Niagara Escarpment Commission
Subject of appeal: Approval of a Development Permit Application to convert the upper floor of an existing barn to a commercial rental facility
Reference No.: P/C/2015-2016/162
Property Address/Description: Part Lot 8, Concession 3 EHS
Municipality: Town of Caledon
Upper Tier: Region of Peel
NEHO Case No.: 16-043
NEHO Case Name: Nielsen v. Ontario (Niagara Escarpment Commission)
Heard: November 10, 2017 by telephone conference call
APPEARANCES:
Parties
Counsel/Representative+
Johnnie Nielsen
Simon Fung
Tabitha McDow
Harold Elston
Niagara Escarpment Commission
Kim Peters+
ORDER DELIVERED BY LAURIE M. BRUCE AND MARLENE CASHIN
REASONS
Background
1On February 19, 2016, the Niagara Escarpment Commission (“NEC”) conditionally approved an application for a Development Permit that would allow Tabitha McDow (“Applicant”), to convert the upper floor of an existing 760 square metre (“sq. m.”) (8,184 square feet (“sq. ft.”)) barn to a commercial rental facility. The facility would be primarily used for weekend weddings, annually from May 1 to mid-October on the existing 59.95 acre lot.
2Johnnie Nielsen (“Appellant”), an adjacent property owner, submitted an appeal to the Niagara Escarpment Hearing Office (“NEHO”) under s. 25(8) of the Niagara Escarpment Planning and Development Act, on February 29, 2016.
3Further information on this appeal may be found in the NEHO Orders dated July 8, 2016 and October 25, 2016.
4A pre-hearing conference (“PHC”) by telephone conference call (“TCC”) was held on September 14, 2016, at which time the parties agreed on a schedule for disclosure and filing of documents, upon which the parties were to rely at the hearing scheduled for October 17, 2016. This was confirmed by the Hearing Officer in a letter to the parties dated September 15, 2016.
5On September 19, 2016, the Applicant requested an adjournment of proceedings, and that the dates associated with the hearing be vacated, so that the Applicant could submit an application for an amendment to the Niagara Escarpment Plan (“Amendment Application”). All parties agreed, and the Hearing Panel granted both requests.
6The Amendment Application was submitted to the NEC on January 16, 2017. The PHC was continued though a number of TCCs held between March 2017 and November 2017, to give the parties opportunities to update each other and to provide the Hearing Panel with status updates on the processing of the Amendment Application, and its timing in relation to scheduling of the appeal, which had been placed on hold.
7The PHC TCCs were held on March 1, March 6, May 25, July 26, August 22, and November 10, 2017.
8The March 1, 2017 TCC was adjourned and rescheduled to March 6, 2017 so that all parties were able to attend. At the March 6, 2017 TCC, the representatives of the NEC, Debbie Ramsay and Kim Peters, informed the Hearing Panel that all current NEC plan amendment applications had been put on hold until the completion of a review of the new Niagara Escarpment Plan (“NEP”). They stated that the review of the new NEP was expected to be completed in mid to late spring 2017, at which time the Applicant’s Amendment Application would be reviewed and processed. The next status update TCC was scheduled for May 25, 2017.
9On May 19, 2017, Ms. Ramsay of the NEC notified the NEHO that the new NEP had been released and would come into effect on June 1, 2017. At the TCC on May 25, 2017, Don MacDow, for the Applicant, informed the Hearing Panel that the Applicant had retained a new lawyer, Harold Elston, for the purposes of the appeal. He explained that Mr. Elston was unable to attend that day’s TCC, but would be communicating shortly with the NEHO. Ms. Peters, for the NEC, informed the parties and the Hearing Panel that a Staff Planning Opinion Report on the Amendment Application would be provided to the NEC for its July 20, 2017 meeting. A status update TCC was scheduled for July 26, 2017.
10Prior to the July 26, 2017 TCC being held, the Hearing Panel considered a request from the Applicant that a new hearing date be set for the appeal. On June 30, 2017 the Hearing Panel responded to the request in an email addressed to the parties as follows:
The Hearing Panel has had the opportunity to consider the Applicant's request to set a hearing date in advance of the continuation of the Pre-hearing Conference (PHC) teleconference call (TCC), scheduled for July 26, 2017.
The other parties, the Appellant and the Niagara Escarpment Commission (NEC), are not in agreement with the hearing date being set at this time.
Having considered the Applicant's request, the submissions of the parties, including the submissions of the Appellant, and the reply submissions of the NEC (June 29, 2017) and of the Applicant (June 29, 2017), the Hearing Panel declines the request to set a hearing date in advance of the continuation of the PHC TCC.
In an Order dated October 25, 2016, the Hearing Panel granted an adjournment of proceedings in the NEHO appeal No. 16-043 and vacated dates for the hearing and related procedural dates, at the request of the Applicant, and with the consent of all parties. This was to "...allow the NEP amendment application and normal processing to take place" (para. 11).
Given that (a) processing of the Niagara Escarpment Plan Amendment (NEPA) application is currently underway but not completed, and (b) NEC staff has requested additional information from the Applicant in advance of a mid-July meeting of the NEC in order to determine if the development proposal complies with the policies of the new Niagara Escarpment Plan, the Hearing Panel is of the view that setting a Hearing date at this time would be premature.
11On July 7, 2017, the Hearing Panel and the parties received an email message from Ms. Peters of the NEC, stating that:
The July 20th Commission meeting has been cancelled. Unfortunately this means that the policy interpretation report regarding on-farm diversified uses cannot go to the Commission until the next scheduled meeting, which is August 17th.
12At the July 26, 2017 TCC, the parties requested a further extension of time, given the cancellation of the NEC meeting for the reason of lack of quorum. The parties told the Hearing Panel that after the next NEC meeting, scheduled for August 17, 2017, they would be in a position to report on how the Amendment Application will affect Mr. Nielsen's appeal. A status update TCC was scheduled for August 22, 2017.
13At the August 22, 2017 TCC with the parties, Ms. Peters for the NEC, told the Hearing Panel that the August meeting of the NEC, like the July meeting, did not take place because they did not have quorum. Ms. Peters also informed the parties and the Hearing Panel that two new NEC members and a new Chair are to be appointed, and it is expected that there will be a quorum at the next scheduled meeting on September 21, 2017. The parties requested, and the Hearing Panel agreed to, a TCC on October 13, 2017 for an update on matters related to the appeal.
14On September 6, 2017 Ms. Peters emailed the parties and the NEHO, with the information that the September 21, 2017 NEC meeting had been cancelled, and as a result the policy interpretation report regarding on-farm diversified uses was still on hold. As a result, the Hearing Panel scheduled a status update TCC for October 13, 2017.
15On October 12, 2017, Ms. Peters again emailed the parties and the NEHO stating:
Based on the availability of the appellant and applicant, November 2nd is the confirmed date for the Commission meeting at which the McDow proposal will be discussed.
At this meeting, NEC staff will bring a report to the Commission that considers the McDow development permit application against new NEP policies related to “on-farm diversified uses.” The Commission will not be making a new decision on the McDow application, but only providing an interpretation as to whether the proposal would be permitted under the policies in the new NEP. The staff report will also consider the changes that the applicant recently made to the proposal. The Commission’s interpretation will then be submitted to the Hearing Office for consideration during the hearing.
The meeting agenda and staff report will be available on Friday, October 27th. I will ensure that all parties and the Hearing Office receive the staff report on that date.
Given this update, I suggest that the pre-hearing conference call scheduled for tomorrow morning be postponed until after November 2nd.
16The other parties agreed with Ms. Peters’ suggestion that it would be appropriate to reschedule the October 13, 2017 call, and the Hearing Panel rescheduled the status update TCC to November 10, 2017.
17The status update TCC was held on November 10, 2017. Counsel for the Applicant told the Hearing Panel that it appears that the NEP Amendment that the Applicant was seeking will not be pursued. Ms. Peters told the parties and Hearing Panel that the approved minutes of the NEC’s November 2, 2017 meeting will be available for the next NEC meeting scheduled for January 18, 2018.
18All parties were of the view that it would be appropriate to set dates for the hearing of the appeal in this matter. After conferring with the parties regarding their availability, the Hearing Panel set dates for the hearing of the appeal and for the procedural steps to be taken in relation to the appeal.
ORDER
19Witness statements of the parties are to be exchanged with each other and filed with the NEHO by December 29, 2017.
20Reply, if any, is to be served and filed with the NEHO by January 22, 2018.
21The Hearing of the appeal will take place at the:
Council Chambers
Town of Caledon
6311 Old Church Road
Caledon, Ontario
commencing at 10 a.m. on February 1, 2018 and continuing on February 2 and 5, 2018.
Procedural Dates Ordered
Hearing Scheduled
“Laurie M. Bruce”
LAURIE M. BRUCE
HEARING OFFICER
“Marlene Cashin”
MARLENE CASHIN
HEARING OFFICER
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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