Niagara Escarpment Hearing Office
Bureau des audiences sur l’escarpement du Niagara
ISSUE DATE:
December 27, 2017
CASE NO.:
17-062
PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Appellant:
Danik Daniels
Applicant:
Charles Linsey & Associates Limited
Respondent:
Niagara Escarpment Commission
Subject of appeal:
Approval of a Development Permit Application to recognize the demolition of a one-storey storage barn
Reference No.:
W/D/2015-2016/384
Property Address/Description:
Part Lot 17 FW FLM, Concession 2
Municipality:
(Former) Town of Dundas
Upper Tier:
City of Hamilton
NEHO Case No.:
17-062
NEHO Case Name:
Daniels v. Ontario (Niagara Escarpment Commission)
Heard:
December 12, 2017 by telephone conference call
APPEARANCES:
Parties
Representative
Danik Daniels
Self-represented
Charles Linsey & Associates Limited
Charles MacPhail
Niagara Escarpment Commission
Jim Avram
ORDER DELIVERED BY MARLENE CASHIN AND JUSTIN DUNCAN
REASONS
Background
1On June 22, 2017 the Niagara Escarpment Commission (“NEC”) conditionally approved a development permit application, number W/D/2015-2016/384, submitted by Charles MacPhail of Charles Linsey & Associates Ltd., as agent for the property owner, to recognize the demolition of a one-storey, 515 square meter implement storage barn on a 21.2 hectare lot identified as Part Lot 17 FW FLM, Concession 2 located in the (Former) Town of Dundas, City of Hamilton (“Conditional Approval”). The subject property is owned by Andrew Dyment and supports a variety of other structures, including a residential dwelling, a livestock barn and silo, a detached garage, and a swimming pool.
2On July 5, 2017, Danik Daniels, owner of an adjacent property, appealed the NEC’s decision to grant the Conditional Approval.
3On December 12, 2017 a Pre-hearing Conference (“PHC”) took place by telephone conference call (“TCC”). Attending the call were Mr. MacPhail, Mr. Dyment, Mr. Daniels and Jim Avram, planner with the NEC.
4At the outset of the PHC, Mr. Avram explained the history of the application and provided an overview of the terms of the Conditional Approval.
5In a discussion of the issues raised in the appeal, Mr. Daniels explained that he is concerned that proper procedures were not followed in the application for the development permit, as the Applicant was allowed to obtain the Conditional Approval after demolishing the barn. Mr. Daniels explained that the site map provided in the application represents only a portion of the property, not the entire 21.2 hectares, and did not identify all of the structures and uses existing on the property. Mr. Daniels explained that he is also concerned that during the demolition of the storage barn, airborne particles containing contaminants may have drifted onto his land, adversely impacting his organic farm operation. He explained that since the barn is now gone, and its wood and paint cannot be tested, soil testing where the barn stood should be performed as a condition of the development permit to ensure no contamination existed or remains. It was Mr. Daniels’ position that additional conditions relating to environmental testing in the area of the demolished barn, heritage resource identification and the preparation of a complete site plan/site map should be included as part of the proposal.
6Both Mr. MacPhail and Mr. Dyment expressed the view that none of these additional conditions were necessary in the circumstances. They explained that the barn at issue had been constructed in the mid-1970s and that one would not expect that any toxic materials had been used in its construction. Additionally, it was their position that the barn did not have any heritage value given its vintage and that the existence of other structures and uses on the property were not relevant to the Conditional Approval at issue. They did not agree to the inclusion of any additional conditions with the approval.
7During the course of the PHC it became apparent that Mr. Daniels had not yet received all of the documents associated with the application, Conditional Approval and appeal.
8Pursuant to Rule 141(e) of the Rules of Practice of the Environmental Review Tribunal, applicable to the Niagara Escarpment Hearing Office, the Hearing Panel directed that the parties exchange all documents relevant to the proceeding by January 31, 2018. The Hearing Panel also scheduled a further TCC for a continuation of the PHC on February 16, 2018. The purpose of the next TCC will be for the parties to identify the issues remaining on the appeal following their review of documentary disclosure and to set the remaining dates for the appeal, including filing and hearing dates.
ORDER
9The exchange of documents between the parties shall occur on or before January 31, 2018.
10A TCC shall take place on February 16, 2018, at which time a date for the hearing of the appeal and associated filing dates will be set.
Exchange of Documents Ordered
Telephone Conference Call Scheduled
“Marlene Cashin”
MARLENE CASHIN
HEARING OFFICER
“Justin Duncan”
JUSTIN DUNCAN
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