Niagara Escarpment Hearing Office
Bureau des audiences sur l’escarpement du Niagara
ISSUE DATE: March 29, 2018
CASE NO.: 17-066
PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Appellant: Sheila Hirsch-Kalm (File No. 17-066) Appellant: Michael Kalm (File No. 17-067)
Applicants: Martin and Rachel Werner
Respondent: Niagara Escarpment Commission
Subject of appeal: Approval of a Development Permit Application to recognize the change in use of an unauthorized second dwelling to become a use accessory and carry out driveway alterations
Reference No.: N/R/2017-2018/068
Property Address/Description: Part Lot 44, Plan 30R8775 Part 1
Municipality: Town of Niagara-on-the-Lake
Upper Tier: Region of Niagara
NEHO Case No.: 17-066
NEHO Case Name: Hirsch-Kalm v. Ontario (Niagara Escarpment Commission)
Heard: In writing
APPEARANCES:
Parties Counsel/Representative^+^
Sheila Hirsch-Kalm and Michael Kalm Patrick Robson^+^
Martin and Rachel Werner Thomas G. Hanrahan
Niagara Escarpment Commission John Stuart^+^
Participant
Town of Niagara-on-the-Lake Shirley Cater^+^
REPORT DELIVERED BY MARLENE CASHIN AND HELEN JACKSON
REASONS
Background
1Martin and Rachel Werner (“Applicants”) submitted a development permit application to the Niagara Escarpment Commission (“NEC”) on May 17, 2017. The application was subsequently revised on June 6, 2017 and August 8, 2017 to remove two elements of the original application. In the revised application, the Applicants are seeking recognition of a change in use of an unauthorized second dwelling to become a use accessory to the existing single dwelling, and to carry out driveway alterations on a 8.4 hectare (20.7 acre) lot that supports a single dwelling (century house), three accessory structures and one agricultural storage structure. The subject property is located at Part Lot 44, 30R8775 Part 1, in the Town of Niagara-on-the-Lake, Niagara Region. The Niagara Escarpment Plan (“NEP”) land use designations applicable to the property are Escarpment Protection Area and Escarpment Natural Area.
2On October 4, 2017, the NEC approved the Applicants’ application N/R/2017-2018/068, subject to conditions (“Conditional Approval”).
3On October 18, 2017, Sheila Hirsch-Kalm and Michael Kalm (“Appellants”) appealed the decision of the NEC to conditionally approve the application for a development permit under s. 25(8) of the Niagara Escarpment Planning and Development Act (“NEPDA”).
4A Pre-hearing Conference (“PHC”) regarding the appeals was held by telephone conference call (“TCC”) on January 11, 2018. At the PHC, on consent of the parties, the Niagara Escarpment Hearing Office (“NEHO”) Hearing Panel granted participant status to the Town of Niagara-on-the-Lake (“Town”). The PHC was then adjourned, to allow for settlement discussions to take place between the parties. The Hearing Panel’s oral dispositions at the PHC and reasons were set out in an Order dated January 19, 2018. The resumption of the PHC was scheduled for January 30, 2018, to be held by TCC.
5The January 30, 2018 TCC was subsequently rescheduled to February 23, 2018 at the request of the parties.
6On February 14, 2018, the NEHO received an email from the Appellants saying that they had reviewed a draft set of revised conditions circulated by John Stuart of the NEC, and that they were in agreement with the revised conditions. On February 22, 2018, Patrick Robson, for the Appellants, sent a follow-up email confirming the agreement of all parties, and attached a scanned copy of the agreement executed on behalf of the Applicants and the Appellants. Mr. Robson did not include the revised conditions in this email. He requested that the TCC scheduled for February 23, 2018, be cancelled. On February 23, 2018, Mr. Stuart sent: a letter from Counsel for the Applicants, Thomas G. Hanrahan, agreeing to the revised conditions; a scanned copy of the agreement between the parties; and a copy of the revised conditions. The NEHO then cancelled the TCC scheduled for later that day. By way of an email to the NEHO on March 10, 2018, the Appellants have confirmed that they withdraw their appeals in this matter as a result of the agreement between the parties.
7Having considered the written submissions of the parties, and upon review of the proposed revised conditions, the Hearing Panel approves the terms of the settlement agreement and confirms that a hearing is no longer necessary, as set out below.
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.
Relevant Legislation and Rules
9The relevant legislation and rules of the Environmental Review Tribunal’s Rules of Practice (“Rules”), which apply to appeals under the NEPDA in this situation, are:
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
- 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.
Discussion, Analysis and Findings
10The Appellants indicated that they would withdraw their appeals provided that the parties’ proposed modifications and additions are made to the conditions attached to the Conditional Approval. These modifications and additions would: correct a clerical error in Note A; confirm that an accessory building will not be offered for rent or lease; confirm that the Conditional Approval has the effect of re-establishing one (1) single-family dwelling on an existing lot of record; and confirm that any future improvements or expansion of private services, including septic services, on the subject lands may require a separate development permit. The Agreement of the parties and Revised Conditions of Approval, with the proposed amendments and additions underlined, are attached to this report as Appendices 1 and 2, respectively.
11The NEC agrees with the modifications to the Conditional Approval, those being the correction of the clerical error, the proposed amendment to Condition 9 and the inclusion of two new notes (“D” and “E”) attached to the conditions. The NEC states that it understands that the modifications will satisfy the Appellant’s concerns with the application.
12The Applicants have also confirmed that they are in agreement with the proposed wording changes to the Conditional Approval as described above and attached to this Report.
13The Hearing Panel notes that the proposed revision to Condition 9 and the addition of two new notes attached to the conditions appear to completely address the concerns raised by the Appellants. The Hearing Panel finds that the proposed revisions, as set out in paragraph 10 above, are in accordance with the NEP, as the clarifications provided by the revisions serve to strengthen the protections for the subject Escarpment lands, set in place by the original conditions. Therefore, the Hearing Panel 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 correction to a clerical error in Note A, a revised Condition 9 and the inclusion of two new notes attached to the conditions, as noted in the Revised Conditions of Approval attached to this report as Appendix 2.
DECISION
14The NEC's decision to conditionally approve the Applicants’ development permit application N/R/2017-2018/068, with the revisions set out in Appendix 2, is confirmed pursuant to s. 25(12.1) of the NEPDA.
NEC Decision Confirmed with Revisions
Appeal Dismissed
“Marlene Cashin”
MARLENE CASHIN HEARING OFFICER
“Helen Jackson”
HELEN JACKSON HEARING OFFICER
Appendix 1 – Agreement of Parties
Appendix 2 – Revised Conditions of Approval - Development Permit N/R/2017-2018/068
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