Chothia v. Ontario (Niagara Escarpment Commission), 2017 CanLII 87101

Niagara Escarpment Hearing Office

Bureau des audiences sur l’escarpement du Niagara

ISSUE DATE: December 21, 2017

CASE NO.: 17-061

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

Appellant: Hormuzd R. Chothia

Applicant: Doug Matthews Design and Drafting Services Inc.

Respondent: Niagara Escarpment Commission

Subject of Appeal: Approval of a Development Permit Application to demolish a one-storey portion of an existing two-storey dwelling, and to construct a two-storey dwelling addition and covered deck

Reference No.: H/R/2016-2017/452

Property Address/Description: 13394 Tenth Line, Part Lot 27, Concession 10

Municipality: Town of Halton Hills

Upper Tier: Region of Halton

NEHO Case No.: 17-061

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

Heard: November 29, 2017 by telephone conference call

APPEARANCES:

Parties

Counsel/Representative*

Hormuzd R. Chothia

Self-represented

Doug Matthews Design and Drafting Services Inc.

Herbert Arnold

Niagara Escarpment Commission

Amaraine Laven*

REPORT DELIVERED BY JUSTIN DUNCAN AND GRAHAM REMPE

REASONS

Background

1This decision follows from a Pre-hearing Conference (“PHC”) on an appeal filed with the Niagara Escarpment Hearing Office (“NEHO”) by Hormuzd Chothia (“Appellant”) from the decision of the Niagara Escarpment Commission (“NEC”) to conditionally approve application H/R/2016-2017/452 for a Development Permit (“Development Permit”) sought by Doug Matthews Design and Drafting Services Inc. (“Applicant”). The Development Permit allows for the demolition of a one-storey sunroom attached to an existing two-storey dwelling and to construct a two-storey dwelling addition and covered deck at a property located at 13394 Tenth Line in the Town of Halton Hills (“Town”), Region of Halton (“subject property”).

2Prior to the PHC, the Applicant filed a motion to dismiss the appeal without a hearing. The Hearing Officers directed that the motion be heard during the PHC and, if the Appellant decided to file any responding written material, that it be filed at least two days previous to the PHC as required by Rule 99 of the Environmental Review Tribunal's Rules of Practice (“Tribunal Rules”). The Appellant did not file any written materials on the motion.

3The PHC took place by way of telephone conference call on November 29, 2017. No additional persons sought status to participate in the proceedings during the PHC.

4At the outset of the PHC, the parties provided an overview of their positions on the appeal.

5Amaraine Laven, planner with the NEC, provided an overview of the Development Permit, including the conditions imposed by the NEC. She explained that the Applicant seeks to demolish an existing sunroom and construct a two-storey addition to an existing dwelling. She further explained that the addition will include some adjustments to the roof on the dwelling to accommodate the addition. Ms. Laven provided a detailed overview of the conditions of approval, including an explanation that standard NEC conditions have been attached to the approval, that final site plan approval is required, that approval of final construction details is required, that sediment control is required and that a sunset clause has been imposed that requires the work to be completed within one year.

6Counsel for the Applicant, Herbert Arnold, added to the overview provided by Ms. Laven by explaining that the Applicant’s proposal was circulated to relevant agencies and no concerns had been raised which have not been addressed.

7The Appellant then provided an overview of his appeal. He explained that the basis of his appeal is that the NEC has approved the Development Permit without addressing a property boundary issue. He explained that he believes that the existing garage and fence at the north end of the subject property is currently encroaching into an unopened road allowance owned by the Town by approximately 3-4 feet. He explained that he uses this unopened road to access his property. The Appellant expressed the view that no Development Permit should be given for any work on the subject property until this encroachment issue has been resolved.

8The Appellant also questioned whether there were any slope stability concerns raised by the proposed work or whether the foundation to be established for the addition would be deeper than the existing foundation for the dwelling, resulting in impacts to groundwater.

9In response to the issues raised by the Appellant, Ms. Laven confirmed that the proposed addition was close to the top of the slope and that the deck had been reduced in size to satisfy concerns of the NEC and the Credit River Conservation Authority (“Conservation Authority”) relating to slope stability. She explained that the Conservation Authority did not recommend a slope stability study as a result. Mr. Arnold also responded to the Appellant’s concern about the foundation depth by indicating that the foundation for the addition would be constructed in accordance with the Ontario Building Code and at a similar depth to the foundation established for the existing parts of the dwelling.

10After a discussion amongst the parties facilitated by the Hearing Officers, it was agreed that the only remaining issue was a disagreement over the alleged encroachment of the garage and fence at the north property line of the subject property.

11The Hearing Officers directed that since this issue remained that it would be necessary to hear the Applicant’s motion to dismiss the appeal.

12By way of summary, it was the position of the Applicant that the location of the garage and the fence is unrelated to the subject matter of the Development Permit, which specifically relates to the demolition of a sunroom and the construction of a two-storey addition and deck on the existing dwelling. Furthermore, Mr. Arnold submitted that the Town, as the owner of the right of way, should be the entity with standing to address any encroachments on its land. Mr. Arnold also submitted that should the Appellant wish to have this issue addressed, the proper process would be to approach the Town and request that it conduct a survey.

13In response, the Appellant explained that when he approached the Town, staff with the Building Department had explained that it was up to the NEC to address any of his concerns with the Development Permit. He submitted that any illegal encroachment should properly be addressed by the NEC or, failing that, by the Hearing Officers on this appeal prior to any additional approvals for development on the subject property.

14After hearing from the Applicant’s counsel and from the Appellant, the Hearing Officers decided that the appeal, as scoped by the Appellant, did not raise an issue that can properly be considered by the Hearing Officers in the context of the specific Development Permit before the NEHO. The Hearing Officers provided a decision to the parties at the PHC orally with written reasons to follow.

15These are the reasons for the Hearing Officers’ decision.

Issue

16The issue is whether the Appellant’s appeal raises a planning justification that the Hearing Officers can consider in the context of this specific Development Permit.

Relevant Legislation and Rules

17The relevant provisions of the Niagara Escarpment Planning and Development Act (“NEPDA”) and the Tribunal Rules are as follows:

Niagara Escarpment Planning and Development Act

25 (8.1) Despite subsections (8) and (10), an officer appointed under subsection (8) may refuse to conduct or to continue a hearing if,

(a) in the opinion of the officer, the appeal does not disclose a planning justification for the appeal, is not in the public interest, is without merit, is frivolous or vexatious, or is made only for the purpose of delay;

(b) the notice of appeal did not specify the reasons for the appeal; or

(c) the person who appealed the decision has not responded to a request by the officer for further information within the time specified by the officer.

25 (8.3) If an officer refuses under subsection (8.1) to conduct or to continue a hearing, the decision of the delegate shall be deemed to be confirmed.

Tribunal Rules

Motions for Dismissal of Appeals of Development Permits under the Niagara Escarpment Planning and Development Act

113. A Party bringing a motion to dismiss an appeal of a development permit shall specify the basis for the motion, which may include that:

(a) the appeal does not disclose a planning justification for the appeal, is not in the public interest, is without merit, is frivolous or vexatious or is made only for the purpose of delay;

(b) the notice of appeal did not specify the reasons for the appeal;

(c) the person who appealed the decision has not responded to a request by the Tribunal for further information within the time specified by the Tribunal; or

(d) the proceeding relates to matters that are outside the jurisdiction of the Tribunal.

Discussion, Analysis and Findings

18The Hearing Officers considered the Appeal Form filed by the Appellant, the submissions of the parties during the PHC and also the NEC file provided to the NEHO. The issue raised by the Appellant on his appeal seeks to have the Hearing Officers resolve the question of whether the Applicant’s garage and fence are located within an unopened right of way that is owned by the Town. Neither the garage, the fence or the north property line of the subject property are matters engaged by the Development Permit approved by the NEC in any way; that is, they did not form part of the Development Permit application, were not considered by the NEC in its decision, and have not been shown to be germane to the question of whether the specific development proposed accords with the Niagara Escarpment Plan.

19Furthermore, in these circumstances it is the prerogative of the Town to take steps to resolve any encroachments onto its lands by the Applicant. That is not to say that the Appellant has no venue to have this matter addressed. Rather, it is a matter that should be properly raised with the Town directly.

20For the reasons set out above, the Hearing Officers find that the appeal, as it has been scoped by the Appellant, does not disclose a planning justification in the context of the specific Development Permit that is currently before the NEHO.

21As a result, the Hearing Officers find that the motion should be granted and the appeal dismissed. Furthermore, in accordance with s. 25(8.3) of the NEPDA, the Hearing Officers find that the decision of the NEC to conditionally approve the Development Permit should be confirmed.

DECISION

22The Hearing Officers order that:

1. The motion by the Applicant to dismiss the appeal is granted.

2. The appeal is dismissed.

3. The decision of the Niagara Escarpment Commission to conditionally approve the Applicant’s development permit application H/R/2016-2017/452 is deemed to be confirmed pursuant to s. 25(8.3) of the Niagara Escarpment Planning and Development Act.

Motion Granted

Appeal Dismissed

Decision of the Niagara Escarpment Commission Confirmed

“Justin Duncan”

JUSTIN DUNCAN

HEARING OFFICER

“Graham Rempe”

GRAHAM REMPE

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