Niagara Escarpment Hearing Office

Bureau des audiences sur l’escarpement du Niagara

ISSUE DATE: April 06, 2018

CASE NO.: 16-043

(revisions of April 09, 2018 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: 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: February 1, 2 and 5, 2018 in Caledon, Ontario

APPEARANCES:

Parties	Counsel
Johnnie Nielsen	Simon Fung
Tabitha McDow	Harold Elston

REPORT DELIVERED BY MAUREEN CARTER-WHITNEY AND MARLENE CASHIN

REASONS

Overview

1This decision addresses the question of whether a proposed wedding barn in the area of the Niagara Escarpment designated Escarpment Rural Area (“ERA”) constitutes an on-farm diversified use (“OFDU”). The concept of OFDU was added to the new Niagara Escarpment Plan that came into effect on June 1, 2017 (“NEP” or “new NEP”).

2For the reasons set out below, the Hearing Panel has concluded that the proposed wedding barn, in its particular location, and limited in event size and frequency as set out below, satisfies the purpose and objectives of the NEP, is a permitted use as an OFDU and meets the applicable development criteria.

Background

3In a decision dated February 19, 2016, the Niagara Escarpment Commission (“NEC”) conditionally approved an application for a development permit (“Conditional Approval”) that would allow Tabitha McDow (“Applicant”) to convert the upper floor of an existing 760 square metre (“sq m”) barn, on an existing lot located at Part Lot 8, Concession 3 EHS (“subject property”), in the Town of Caledon (“Town”), to a commercial rental facility (“proposed development”). The proposed development would be primarily used for weddings, on weekends only, annually from May 1 to October 31. The subject property is designated Escarpment Natural Area and ERA in the NEP. The part of the subject property where the existing barn is located is designated ERA.

4The Applicant’s initial application, in July 2015, proposed to rent the converted space on the upper floor of the barn for one event per weekend from May 1 to October 31, and for two events on long weekends (allowing for approximately 30 events annually), with a maximum number of guests at each wedding of 175. The NEC circulated the initial application to the Town, the Region of Peel (“Region”), the Credit Valley Conservation Authority and the Ministry of Natural Resources and Forestry (“MNRF”), none of which had any objections to the proposed development. The Town requested that a condition be included to require that the Applicant apply for and receive Site Plan Approval.

5The NEC staff report on the initial application, dated January 12, 2016, concluded that the proposed use would not be a permitted use in Part 1.5 of the 2015 NEP (“old NEP”). On February 19, 2016, however, the NEC approved the development permit application with conditions, notwithstanding the recommendation of NEC staff.

6Johnnie Nielsen (“Appellant”) submitted an appeal of the NEC’s decision to the Niagara Escarpment Hearing Office (“NEHO”) under s. 25(8) of the Niagara Escarpment Planning and Development Act on February 29, 2016. The Appellant is the owner of two lots in the area of the proposed development. The first is a lot that abuts the subject property to the north and the second is located immediately to the north of the first lot, and contains the home where the Appellant resides.

7The Appellant’s concerns, outlined in his appeal documents, can be summarized as follows:

a) noise pollution resulting from the activities associated with the operation of the proposed development such as loud music, drunken yelling and police activity;

b) impacts of garbage on the environment and on wildlife;

c) impacts on surrounding property values; and

d) visual pollution resulting from the activities associated with the operation of the proposed development, including peaceful enjoyment of the view.

8Further information on this appeal may be found in the NEHO Orders dated July 8, 2016, October 25, 2016 and December 14, 2017.

9A pre-hearing conference (“PHC”) was held by telephone conference call (“TCC”) 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. However, on September 19, 2016, the Applicant requested that the proceeding be adjourned 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.

10The Amendment Application was submitted to the NEC on January 16, 2017. The Planning Justification Report that accompanied the Amendment Application stated that the Applicant intended to limit events to a maximum of 225 people. On October 6, 2017, the Applicant requested a modification to the Amendment Application to allow weddings on Fridays, Saturdays and Sundays each weekend from May 1 to October 31.

11The PHC was continued through 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 hearing.

12The TCCs were held on March 1, March 6, May 25, July 26, August 22, and November 10, 2017. Between March 1 and November 10, 2017, several events occurred which delayed the scheduling of the hearing.

13At the March 6, 2017 TCC, NEC representatives 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 NEP.

14In July of 2017, the Hearing Panel considered a request from the Applicant that a new hearing date be set for the appeal. The other parties did not agree that it was appropriate to set a new hearing date. After considering submissions from the parties, the Hearing Panel responded in part:

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.

15The July, August and September 2017 meetings of the NEC were cancelled for lack of quorum, which further delayed any report regarding the Amendment Application and the effect of the policies of the new NEP on the Conditional Approval.

16At its November 2, 2017 meeting, the NEC discussed the Conditional Approval in light of the new NEP, and considered a NEC staff report dated October 19, 2017 as well as an addendum report by the NEC, which stated as follows:

In the original Development Permit application, the applicant requested one event per weekend, with the possibility for two events on long weekends, between May 1 and October 31 annually. This would result in a total of approximately 30 events annually.

The new request is to host events on Friday, Saturdays and Sundays between May 1 and October 31 annually. This would result in a total of approximately 78 events annually.

17On November, 2, 2017, the NEC passed a motion supporting its original decision to permit 30 events annually, and not supporting the Applicant’s additional request for 78 events. The Minutes of the NEC meeting regarding that motion state:

That the Commission:

1. Receives the staff report;

2. Supports the original decision of 30 events, which meets the OFDU policies in the new Niagara Escarpment Plan; but does not support the additional request for 78 events;

3. Directs NEC staff to undertake work to clarify the OFDU policies to provide more guidance for future Commission decisions.

18A final TCC was held on November 10, 2017, at which time counsel for the Applicant told the Hearing Panel that the Applicant would no longer be pursuing the Amendment Application. As a result, all parties were of the view that it would be appropriate to set dates for the hearing.

19The Hearing took place on February 1, 2, and 5, 2018 at the Town Council Chambers in Caledon. The NEC did not participate in the Hearing, although two of its staff members testified under summons for the Appellant.

Subject Matter of the Hearing

20The parties advised that the Applicant had sought changes to the Conditional Approval through the Amendment Application process. These proposed changes would increase the number of events to a maximum of 78 each year by adding the potential for additional weddings each weekend, increase the number of guests per event to 225, and permit use of the main level of the barn for events in addition to the upper level. The Applicant initially requested that the Hearing Panel consider this amended application at the Hearing.

21However, after some discussion, counsel for the parties agreed, and the Hearing Panel confirmed, that the decision under appeal is the February 19, 2016 decision of the NEC to conditionally approve the Applicant’s application P/C/2015-2016/162, received by the NEC on July 20, 2015, for up to 30 events per year with a maximum of 175 guests per event. Therefore, the Hearing Panel makes no findings with respect to the changes to the application proposed by the Applicant to the NEC.

22Although the initial application and Conditional Approval predated the introduction of the new NEP, which came in to effect on June 1, 2017, s. 3(5) of the Planning Act states that the decision of the council of a municipality, a local board, a planning board, a minister of the Crown and a ministry, board, commission or agency of the government in respect of the exercise of any authority that affects a planning matter shall conform with the provincial plans that are in effect on that date, or shall not conflict with them. Therefore, the new NEP applies to the matter before the Hearing Panel.

Issue

23The issue in the appeal is whether the NEC’s decision to issue the Conditional Approval should be confirmed. This issue involves analysis of the following sub-issues:

1. whether the proposed development is in accordance with the purpose and objectives of the NEP and the objectives of the ERA Designation in the NEP; and

2. whether the proposed development is a permitted use under Part 1.5 of the NEP and is in accordance with the development criteria in Part 2 of the NEP and, in particular, whether the proposed development constitutes an OFDU.

Relevant Legislation and Niagara Escarpment Plan Provisions

24The relevant legislation and NEP provisions are attached as Appendix 1 to this Report.

Witnesses and Summaries of Evidence

25The Hearing Panel heard evidence from five witnesses. A summary of their evidence is set out in this section, with a more detailed discussion of their relevant evidence included in the analysis of the issues below.

Appellant’s Witnesses

26The Appellant summonsed two witnesses to support his case: Kim Peters and Sean Stewart, both of the NEC. Clare Riepma also testified on behalf of the Appellant. The Hearing Panel qualified each of these witnesses to provide opinion evidence as expert land use planners.

Clare Riepma

27Mr. Riepma is President of Riepma Consultants Inc., formed in 1990, a Registered Professional Planner (“RPP”) and member of the Ontario Professional Planners Institute (“OPPI”). He was retained by the Appellant to provide evidence in relation to the planning aspects of the development permit application.

28Mr. Riepma described the vicinity of the subject property as scenic, rolling countryside with a mix of open and forested land, and noted that the open fields tend to be used as pasture and to grow hay. He stated that there is very little agricultural use in the area because the land is too rocky and hummocky. Mr. Riepma characterized the agricultural operation on the subject property as a “hobby farm”, and “not an agricultural activity that is viable on its own”. He pointed out that the subject property is in a rural area and not a settlement area, and the barn itself is located on land designated by the NEP as ERA. In his opinion, the proposed development would be better suited to a settlement area because he characterizes the proposed use as a “banquet facility”.

29Mr. Riepma acknowledged that the NEP is the prime document governing the decision on the Conditional Approval, and that he does not believe there is a conflict between the NEP and the Provincial Policy Statement (“PPS”). He provided opinion evidence on the proposed development in relation to the PPS, NEP, Region of Peel Official Plan and Town Official Plan.

Kim Peters

30Ms. Peters is a Senior Strategic Advisor of the NEC, a position she has held since 2012. She is a RPP and member of the OPPI. Ms. Peters was the author of the October 19, 2017 NEC staff report that was considered by the NEC at its November 2, 2017 meeting. That report’s purpose was stated as follows:

[to]: i) seek clarity on whether commercial event facilities (including banquet halls, conference centres, wedding venues, etc.) can be approved as on-farm diversified uses, and ii) determine if the McDow wedding barn proposal fits the criteria for an on-farm diversified use.

31Ms. Peters testified with respect to her October 19, 2017 staff report and how she came to her conclusions and recommendation that the NEC reject the proposed development. Her evidence is set out and considered in relation to the issues discussed below. In summary, it is Ms. Peters’ opinion that the proposed wedding barn does not meet the criteria for an OFDU and therefore is not a permitted use.

Sean Stewart

32Mr. Stewart is a Senior Planner with the NEC and a candidate member of the OPPI. He authored the January 12, 2016 NEC staff report on the proposed development, which recommended that the proposal be refused. Mr. Stewart provided his opinion that the proposed development is not a permitted use under the NEP because it is not related to agriculture. He stated his concern that, if approved, the proposed development could be a precedent for future applications of a similar nature, with significant negative effects across the Escarpment.

33Mr. Stewart spoke about his role in preparing the January 12, 2016 staff report concerning the proposed development, and provided the Hearing Panel with an overview of the conditions attached to the Conditional Approval.

Applicant`s Witnesses

34The Applicant called two witnesses in support of her position: Jamie Robinson and Dalila Giusti. The Hearing Panel qualified Mr. Robinson to provide opinion evidence as an expert land use planner, and qualified Ms. Giusti as an expert acoustical engineer to provide opinion evidence on noise and acoustics.

Jamie Robinson

35Mr. Robinson is a RPP and member of the OPPI. He is a Partner with MHBC Planning and has particular experience relating to rural and agricultural planning issues. The Applicant retained Mr. Robinson in September of 2016, following the appeal of the Conditional Approval by the Appellant.

36Mr. Robinson testified that he undertook a review of the development permit application, the January 12, 2016 NEC staff report and the old NEP in effect at that time, and advised the Applicant that he could not support the Development Permit, as the proposed use was not, in his opinion, a permitted use under the old NEP. He advised the Applicant to submit an NEP Amendment Application to include the proposed use as a permitted use that would conform to the NEP’s development criteria. Mr. Robinson was subsequently retained to submit an NEP Amendment Application, which he did, as well as to appear on behalf of the Applicant before the NEC to support the application.

37Mr. Robinson stated that the Applicant resides on the subject property, and that approximately 10 hectares (“ha”) of the property are currently developed with a single-family dwelling, a detached garage, a main barn, a storage building, a smaller barn and accessory buildings. He noted that the barn is approximately 120 years old and located near the existing dwelling. Using a contour map, Mr. Robinson illustrated that the property rises to the north away from the barn, which he described as sitting in a “bowl”.

38Mr. Robinson provided an overview of the July 2015 development permit application to remove an existing staircase and construct a wheelchair ramp, staircase and deck to the barn (which has since been constructed) in order to convert the upper floor of the existing barn to a commercial rental barn to be used primarily to host weddings on weekends between May 1 and October 31. His evidence was that: the proposal does not require the construction of any new buildings or structures, or the expansion of existing buildings; potable water and portable toilets will be brought to the subject property for the season; garbage will be removed from the site at the end of each day; no trees will be removed from the subject property; the existing agricultural uses will continue in conjunction with the proposed use; and the commercial rental barn can be accessed from Heart Lake Road, a township road that is maintained year round.

39Mr. Robinson stated that the NEC circulated the development permit application to the Region, Credit Valley Conservation Authority, MNRF and the Town. He noted that none of these agencies objected to the proposed development, but the Town requested that a condition of approval be included to require that the Applicant apply for and receive approval of a Site Plan application. Mr. Robinson confirmed that the condition sought by the Town was subsequently included in the Conditional Approval.

40Mr. Robinson also testified that, in his opinion, the Conditional Approval is consistent with the PPS; conforms to the new NEP; conforms to the Region Official Plan; and conforms to the Town Official Plan. The relevant aspects of his evidence are set out in the analysis of the issues below.

Dalila Giusti

41Ms. Giusti is an acoustical engineer and President of Jade Acoustics Inc. (“Jade”). In August 2016, Jade conducted a Noise Impact Study (“NIS”) at the Applicant’s property and nearby areas, and produced a letter dated October 19, 2016 (“Noise Report”). Ms. Giusti stated that the purpose of assessing the music played at the barn was to address a complaint received from the Appellant, and as a feasibility study in anticipation of a Site Plan Approval application for the proposed development.

42Based on the sound measurements conducted, observations while on site and post-measurement analysis, the Noise Report concluded that the use of the sound system to play music at the Applicant’s barn was in compliance with Town By-law No. 86-110 (“Town Noise By-law”) and would be within the sound level limits set out in the Ministry of the Environment and Climate Change (“MOECC“) Publication NPC-300, “Environmental Noise Guideline: Stationary and Transportation Sources – Approval and Planning” (“NPC-300”), at the Appellant’s property and at receptors to the west. Ms. Giusti noted that NPC-300 is not applicable to amplified sound, but was used to provide a comparison of the measured sound to MOECC criteria. The NPC-300 provides for the classification of Class 1, 2, or 3 areas based on the proximity of a point of reception to roads, the volumes of road traffic and associated sound levels, and the nature of land uses and activities.

43Ms. Giusti stated that By-law No. 86-110 outlines prohibitions by time and place for activities, and prohibits the reproduction or amplification of sound by electronic means between 11 p.m. and 7 a.m. Under cross-examination, she acknowledged that By-law No. 86-110 states that these provisions apply to points of reception located in a “Residential Area”, which means areas of the Town designated Settlement Area. Ms. Giusti was provided with Town By-law No. 95-97, also dealing with noise in the Town, which she acknowledged was not considered in the Noise Report.

44Under cross-examination, Ms. Giusti was directed to a portion of the Noise Report that read, “[a]s the area is rural with road traffic, the Class 2 sound level limits have been used”. She was then taken to the same section of a September 2016 draft of the report prepared by Jade which read, in relation to the sound level limits used, “[a]s the area is predominantly rural, the Class 3 sound level limits have been used”. When asked why the draft was revised to use the Class 2 sound level limits instead of the more stringent Class 3 sound level limits, Ms. Giusti explained, “[w]e reassessed it. That’s the purpose of a draft”. She further testified that, since there was no audibility reported by the Jade staff for any of the four songs and volume combinations tested at a location approximately 40 metres (“m”) south of the Appellant’s driveway and 550 m northwest of the barn, the sound levels would remain inaudible whether measured against either the Class 2 or Class 3 Area levels.

45Ms. Giusti stated that the Noise Report and testing undertaken to date constitute only a portion of the work on noise levels associated with the proposed development. She said that further work will be required in order to fulfill the requirements of the Site Plan Approval application process, and that other types of sound testing will be undertaken and other reports produced during that process.

Discussion, Analysis and Findings

46Throughout the Hearing, in addition to evidence and submissions which referenced the NEP, the Hearing Panel heard evidence referring to the PPS, the Ontario Ministry of Agriculture, Food and Rural Affairs “Guidelines on Permitted Uses in Ontario’s Prime Agricultural Areas” (“OMAFRA Guidelines”), and the Region and Town Official Plans, and how they apply to the proposed development.

47The introduction to the NEP addresses the question of how to read a provincial plan, stating that the NEP is to be read in conjunction with the PPS but shall take precedence over the policies of the PPS to the extent of any conflict.

48With regard to the PPS in particular, the parties agreed that although the PPS may assist in some cases, there is no conflict between the NEP and the PPS in the circumstances of this appeal. Therefore, the focus of the Hearing Panel’s analysis will be on whether the Conditional Approval is in accordance with the NEP, while noting where other policies or planning documents address, or are silent, on various issues related to the proposed development. The planning regime for the NEP area requires that development may only take place with a development permit issued by the NEC “in accordance with the Niagara Escarpment Plan” (NEPDA s. 25(4)). On appeal, in assessing the correctness of the NEC’s decision, the Hearing Panel is to consider whether the proposed development is in accordance with the NEP.

49The analysis below is based on the evidence and legal submissions received by the Hearing Panel, and sets out the relevant evidence in the discussion of each issue. Counsel provided closing legal argument addressing the evidence in light of the issues before the Hearing Panel. Those submissions assisted the Hearing Panel in its analysis of the issues, but are not summarized in a separate section of this report.

Sub-Issue No. 1: Whether the proposed development is in accordance with the Purpose and Objectives of the NEP, and the Objectives of the ERA Designation in the NEP

50All development proposed in the NEP area must accord with the purpose and objectives of the NEP, which mirror the purpose and objectives established in the NEPDA.

51The purpose of the NEP is “to provide for the maintenance of the Niagara Escarpment and land in its vicinity substantially as a continuous natural environment, and to ensure only such development occurs as is compatible with that natural environment.” Ms. Peters addressed the NEP’s purpose directly, providing her opinion that the proposed development represents a commercial event venue, and the attendant number of people, noise and traffic would not be compatible with the natural environment. It was Mr. Robinson’s opinion that the proposed development would be fully consistent and compatible with the natural environment.

52In his analysis of the NEP’s purpose, as well as a number of the NEP objectives and policies discussed below, Mr. Robinson directed the Hearing Panel to the definition of the word “compatible” in the NEP. As set out in Appendix 2 to the NEP, “compatible” is defined as “[w]here the building, structure, activity or use blends, conforms or is harmonious with the Escarpment environment.” Mr. Robinson pointed out that compatibility as defined in this context relates specifically to the Escarpment environment. He then took the Hearing Panel to the definition of “Escarpment environment”, which refers to the “physical and natural heritage features, cultural heritage resources, and scenic resources associated with the Escarpment landscape.” Mr. Robinson testified that there are no significant physical and natural heritage features on the subject property. He added that there are no cultural heritage resources, as defined in the NEP identified at the subject property, although he noted that the proposed repurposing of the barn would make use of and preserve an existing historic structure. Mr. Robinson further stated that the proposed development would not have a negative impact on any scenic resources, as defined in NEP, because no additional buildings are proposed. In Mr. Robinson’s opinion, the proposed development is compatible with the natural environment and fulfills the purpose of the NEP, specifically in the context of the NEP’s definition of “compatible”.

53The seven overall objectives of the NEP are set out in Appendix 1 to this report. Ms. Peters discussed NEP Objectives 3, 4, 5 and 7 as relevant to the proposed development, while Mr. Robinson presented evidence concerning NEP Objectives 4, 5 and 7.

54Regarding NEP Objective 3, to provide adequate opportunities for outdoor recreation, Ms. Peters stated that the proposed development is not tied to outdoor recreation and so does not fulfill that objective. Mr. Robinson characterized NEP Objective 3 as an enabling objective and stated that the Applicant is not proposing outdoor recreation. The Hearing Panel agrees with Mr. Robinson’s view of NEP Objective 3 and does not find it to be relevant to the proposed development. The objectives in the NEP do not all apply to every development proposed in the NEP area, and it is not necessary for every proposal to meet every objective set out in the NEP.

55Ms. Peters also provided her opinion that the proposed development would not meet NEP Objective 4, “to maintain and enhance the open landscape character of the Niagara Escarpment in so far as possible, by such means as compatible farming or forestry and by preserving the natural scenery.” Ms. Peters stated that the proposed development would not encourage compatible farming, but acknowledged that there would be no impacts on views from public access points.

56In respect of NEP Objective 4, however, it was Mr. Robinson’s opinion that the proposed development would not have an impact on the open landscape character of the area because there are no new structures or modifications to the barn proposed. Mr. Robinson added that the proposed development would help to repurpose an existing barn to ensure its viability and maintenance on the landscape, noting that due to the mechanization of farming and different storage methods for hay, historic barns do not serve the purposes that they once did and farmers often remove them if they are not repurposed. Mr. Robinson further stated that the natural scenery would be preserved, and that the proposed use would be compatible with farming and other agricultural uses. He noted that there is no forestry in the area.

57The Hearing Panel finds that the proposed development meets NEP Objective 4, to maintain and enhance the open landscape character of the Escarpment in so far as possible, by such means as compatible farming or forestry and by preserving the natural scenery. There is no dispute that the natural scenery of the area would be preserved as no changes to the landscape are proposed, and compatible forestry is not an issue in relation to the subject property. The Hearing Panel also finds that the proposed development will provide for compatible farming in that there will be no change to, or adverse impacts on, the agricultural activity currently occurring on the subject property. As Mr. Robinson noted, the focus of the definition of “compatible” in the NEP is on whether a structure, activity or use blends, conforms or is harmonious with the Escarpment environment. The proposed development would repurpose an existing century-old barn that is no longer useful or required for farming, and it would not affect the agricultural use of the subject property or the natural scenery, and therefore would maintain and enhance the open landscape character of the Escarpment.

58NEP Objective 5 refers back to the purpose of the NEP and seeks to “ensure that all new development is compatible with the purpose of the Plan.” Ms. Peters testified the general use proposed is not compatible with the overall purpose of the NEP and is not compatible with the natural environment. Mr. Robinson stated that no additional buildings or structures are proposed and the proposed development is not in or adjacent to natural heritage features. He referred back to the NEP’s definition of “compatible” and provided his opinion that the proposed development would be compatible with the purpose of the NEP, and therefore NEP Objective 5, as described in his evidence above.

59The Hearing Panel finds that the proposed development accords with NEP Objective 5 because it is compatible with the purpose of the NEP to provide for the maintenance of the Niagara Escarpment and land in its vicinity substantially as a continuous natural environment, and to ensure only such development occurs as is compatible with that natural environment. There will be no impacts from new buildings or structures on the environment or on any natural features. No trees will be removed from the site. All garbage will be removed from the site at the end of each day. The evidence has not demonstrated that there would be any negative impacts on the natural environment from the proposed development, and the Hearing Panel finds that the proposed development would be compatible, as defined in the NEP, with the Escarpment environment since the proposal will not alter the natural environment.

60Regarding NEP Objective 7, to support municipalities within the NEP Area in their exercise of the planning functions conferred upon them by the Planning Act, Ms. Peters testified that, although a number of concerns relating to the impact of the proposed development may be addressed at the site planning stage, it could not be assumed that these issues will be addressed at the municipal level. She noted the potential for land use conflicts between the event facility and neighbouring residential and agricultural uses due to noise and trespass, and further noted that emergency services are generally farther away in rural areas with longer response times. Mr. Robinson gave his opinion that this objective is not entirely applicable as it is directed at municipalities and not the NEC’s consideration of development permit applications. However, he noted that the Conditional Approval includes Site Plan Approval as a condition and therefore stated that the NEC’s decision conforms to NEP Objective 7.

61The Hearing Panel finds that NEP Objective 7 is directed at supporting municipalities in their efforts to ensure that their planning documents and decisions accord with the NEP. The application for the proposed development has been circulated to the relevant municipalities and the Town has sought that a condition be included in the Conditional Approval. Beyond that, NEP Objective 7 does not apply to the Hearing Panel’s consideration of the proposed development.

62Part 1.5.1 of the NEP sets out the objectives for lands in the NEP that are designated ERA. In particular, the various opinion witnesses directed the Hearing Panel to ERA Objectives 1, 2, 4 and 5.

63ERA Objective 1 speaks to maintaining “the scenic resources of lands in the vicinity of the Escarpment and the open landscape character of the Escarpment.” Mr. Robinson analyzed this objective in his evidence, noting that the proposed use of the existing barn for a commercial rental barn would not require an expansion of the existing barn or the development of any additional buildings on the subject lands. He stated that there would be no impact on the scenic values of the subject lands as a result of the proposed use. Mr. Robinson further stated that the ability to use and retain an existing barn would help to maintain the scenic resources and open landscape character. Consistent with the Hearing Panel’s findings above regarding the general objectives of the NEP, the Hearing Panel finds that the proposed development is in accordance with ERA Objective 1, and would maintain the scenic resources in the vicinity of the Escarpment and the open landscape character of the Escarpment.

64Regarding ERA Objective 2, which is to conserve cultural heritage resources, Ms. Peters stated that she was not aware of any cultural heritage assessment or other study demonstrating that the barn on the subject property had any particular cultural heritage value or interest. She said there was no evidence that maintaining the barn would help to achieve this objective. The Hearing Panel agrees that there is no evidence before it to suggest that the barn has been designated a cultural heritage resource, and finds that ERA Objective 2 is not applicable to the proposed development.

65With respect to ERA Objective 4 to provide for compatible rural land uses, Ms. Peters testified that the intensity of use associated with noise, traffic, parking and servicing the proposed development would not be compatible with rural land uses. In her October 19, 2017 staff report, she regarded the proposed development as at the same intensity of use as permanent event facilities, banquet halls and conference centres. Mr. Stewart agreed that the proposed development would not be consistent with ERA Objective 4 of the new NEP. Mr. Riepma also stated that the proposed development would not be compatible with rural land uses but did not provide detailed relevant evidence to support this opinion.

66Mr. Robinson also addressed ERA Objective 4, providing his opinion that the proposed development would be compatible with rural land uses. He described the surrounding land uses and the distance of nearby dwellings to the site (including the Appellant’s dwelling 490 m to the north and three other residences over 200 m to the south), and testified that the topography of the specific site contributes to making the proposed use a compatible rural land use. Mr. Robinson noted that wedding barns have been permitted in other areas of the province outside of the NEP and are common in rural areas as OFDUs. Mr. Robinson pointed out that although the proposed use has the potential to create traffic and noise, these issues have been considered, and initial work has been completed to ensure that the proposed development will mitigate or eliminate any potential problems associated with either. In particular, he directed the Hearing Panel to the conclusion of the NIS, that the use of the sound system in the barn would comply with the Town Noise By-law and MOECC sound level limits. Mr. Robinson noted that further work on issues of traffic and noise would be dealt with through the process of the Site Plan Approval application for the proposal, which, as noted above, is a condition of the Conditional Approval.

67The Hearing Panel has reviewed the evidence concerning the potential for nuisance impacts such as noise, traffic, parking and servicing for the proposed development. These impacts are also discussed in considering the NEP development criteria below. On the issue of noise and its potential to cause incompatibility with rural land uses in the area, the Hearing Panel notes the conclusion of Jade’s NIS that music from the sound system in the barn would be in compliance with the Town Noise By-law for properties in rural areas and within MOECC sound level limits. In addition, the Hearing Panel notes that additional sound testing and reports would be required and completed as part of the Site Plan Approval application process with the Town, and any needed mitigation measures would be put in place at that time. Based on her expertise, the Hearing Panel accepts Ms. Giusti’s opinion evidence that the use of the sound system to play music at the Applicant’s barn would be in compliance with the Town Noise By-law and within the sound level limits set out in the NPC-300, which was not contested by opinion evidence from any other noise expert. The Hearing Panel heard no direct evidence from any neighbour, including the Appellant, concerning impacts from noise during events that have taken place in the past. The Hearing Panel also accepts Ms. Giusti’s explanation concerning changes to her draft report during the study process. The Hearing Panel observes that it would be for the Town to determine which of its noise by-laws applies to the proposed development during the Site Plan Approval application process.

68The Hearing Panel is also satisfied that the evidence has not indicated that there would be any problem with traffic, noting that it was not identified as an issue by any of the commenting authorities and no evidence was provided by the Appellant to indicate that neighbouring properties would be negatively impacted by the additional cars coming to the site. The uncontested evidence from Mr. Robinson is that Heart Lake Road is not currently operating at capacity, and the Town did not require a Traffic Impact Study as part of the Site Plan Approval application. As well, the traffic related to the proposal would, in general, be limited to weekends on a seasonal basis. The Hearing Panel also heard evidence that adequate provision has been made for parking and servicing, and there was no indication that these arrangements would not be compatible with other rural uses in the vicinity of the subject property.

69ERA Objective 5 is to encourage agriculture and protect agricultural lands and prime agricultural areas. In Ms. Peters’ opinion, the proposed development would not encourage agriculture or protect agricultural lands because it would take the main agricultural building on the property permanently out of use for agriculture, as well as taking land out of agricultural production for parking and outdoor amenity spaces that could result in soil compaction. She noted that the barn would not be replaced with a new modern building to accommodate agriculture on the property. Mr. Stewart testified that he agreed that the proposed development is not consistent with ERA Objective 5 of the new NEP. Mr. Riepma provided his opinion that the proposed development does not promote agriculture or protect agricultural lands, but again did not provide specific evidence to support this opinion.

70Regarding ERA Objective 5, Mr. Robinson characterized the proposed use as intermittent, and stated that it would not have a negative impact on the viability of agricultural activities that exist on the subject lands because no additional buildings are proposed. He testified to his understanding that OFDUs were added to the PPS and the NEP as a permitted use to encourage agriculture by allowing farmers to diversify their farm businesses and generate income from other sources. Mr. Robinson stated that, as farming becomes more mechanized and technology advances, larger farm parcels are needed in order to make a living as a farmer. He further stated that while, historically, smaller farm parcels could sustain a family in Ontario, farmers are no longer able to generate enough income from small farm parcels and many are sold as vacation properties and not used for agriculture. Mr. Robinson testified that the proposed development would protect agricultural lands by allowing the Applicant to continue agricultural activity on the subject property. He further testified that areas proposed for parking and outdoor ceremonies are not in the areas where agriculture currently takes place, so these activities would not remove any lands from agriculture or have a negative impact on agriculture on the subject property. He also stated that allowing the OFDU would encourage agriculture by creating more income for the farm operator for further investment in the farm business. Mr. Robinson noted that the subject property is not within a prime agricultural area and the soil on the site is not of the quality necessary for cash crops.

71The Hearing Panel finds that the proposed development is in accordance with ERA Objective 5. The Hearing Panel accepts Mr. Robinson’s opinion evidence that the proposed development, which is not in a prime agricultural area, would encourage agriculture and protect agricultural lands in that it would not interfere with the agricultural uses that currently exist on the subject property and those uses would continue. Regarding Ms. Peters’ concerns that the proposed development would take the main agricultural building and some land out of use for agriculture, and result in soil compaction, the Hearing Panel is satisfied, based on Mr. Robinson’s testimony, that the century-old barn is no longer needed for the existing agricultural uses and that the proposed parking and outdoor ceremony areas will not take out of production, or cause soil compaction on, any agricultural lands currently in use.

Conclusion on Sub-Issue No. 1

72For the above reasons, the Hearing Panel finds that the proposed development is in accordance with the purpose and relevant objectives of the NEP and, in particular, with the relevant NEP Objectives for ERAs regarding preserving scenic resources and the open landscape character of lands in the Escarpment, is a compatible land use, and cannot be said to interfere with the encouragement of agriculture, and protection of agricultural lands in the area of the proposed development.

Sub-Issue No. 2: Whether the proposed development is a permitted use under Part 1.5 of the NEP and in accordance with the development criteria in Part 2 of the NEP and, in particular, whether the proposed development constitutes an OFDU

Whether the Proposed Development is a Permitted Use under Part 1.5 of the NEP

73To be approved, the proposed development must be a “permitted use” in Part 1 of the NEP. As discussed above, the location of the proposed development is designated as ERA under the NEP. Part 1.5.3 of the NEP lists the uses that may be permitted in the ERA, subject to the Part 2 development criteria. These include agricultural uses, agriculture-related uses and OFDUs.

74All parties agree that the proposed development is not an agricultural use and that it is not an agriculture-related use. The crux of the matter is whether the proposed development is an OFDU. The definition of an OFDU is set out in the definition section of the new NEP, and reads as follows:

Use that is secondary to the principal agricultural use of the property, and is limited in area. On-farm diversified uses include, but are not limited to, home occupations, home industries, agri-tourism uses, and uses that produce value-added agricultural products (Provincial Policy Statement, 2014).

75Ms. Peters, Mr. Stewart and Mr. Riepma are all of the opinion that the proposed development does not meet this definition, which is taken directly from the PPS, and is not an OFDU and therefore not a permitted use in an ERA. Mr. Robinson provided his opinion that the proposed development does meet the definition, noting that OFDUs are not limited to the examples given in the definition.

76In support of their opinions, Ms. Peters, Mr. Riepma and Mr. Robinson all turned to the policies in the OMAFRA Guidelines for guidance. The purpose of the OMAFRA Guidelines is to assist in interpreting the policies in the PPS on land uses permitted in prime agricultural areas, but the OMAFRA Guidelines state, on p. 2 of the document: that they also have relevance for rural lands (defined in the PPS as lands which are located outside settlement areas and which are outside prime agricultural areas); and that permitted uses on rural lands are more permissive than in prime agricultural areas. In her October 19, 2017 staff report, Ms. Peters stated that most of the NEP area lies outside of prime agricultural areas and could be considered “rural lands” under provincial agricultural policy, but further stated that “the NEP is a special land use plan intended to recognize the significance and sensitivity of the Escarpment environment, and rural lands in the NEP Area must be planned for with this special status in mind.” Mr. Robinson, on the other hand, noted that prime agricultural lands are the most significant from an agricultural perspective and, because the lands on the subject property are not designated prime agricultural lands, they are not at the same level of importance as the land the OMAFRA Guidelines are designed to protect. It was Mr. Robinson’s opinion that, if the proposed development meets the test in the OMAFRA Guidelines for prime agricultural areas, then it would most certainly meet the lesser test that should be applied to rural areas.

77The OMAFRA Guidelines provide detailed analysis of the policies relating to OFDUs in the PPS. At s. 1.6, the OMAFRA Guidelines discuss their relationship with provincial plans including the NEP and state that they are specific to the PPS and may not address all aspects covered by provincial plans. This is the first time that OFDUs are being interpreted in the context of the NEP. The OMAFRA Guidelines, while not authoritative, are of assistance to the Hearing Panel in interpreting whether the proposed development is a permitted use under Part 1.5 of the NEP and meets the development criteria in Part 2 of the NEP.

78The OMAFRA Guidelines set out several criteria to be met in order for a use to qualify as an OFDU in a prime agricultural area. One of these criteria states that an OFDU includes, but is not limited to, home occupations, home industries, agri-tourism uses and uses that produce value-added agricultural products. In addition to these examples, other uses may also be OFDUs, subject to meeting all PPS criteria. The list of examples of OFDUs is the same in the definition of an OFDU in the PPS. As this criterion duplicates the language in the NEP definition of an OFDU, the discussion of this criterion in the OMAFRA Guidelines is useful in determining whether the proposed development is a permitted use under Part 1.5 of the NEP.

79Regarding this criterion, Ms. Peters noted that the examples given all contain elements that tie the operator of the OFDU to the farm itself and relate to the agricultural uses on property. It is her opinion that nothing ties the wedding barn in the proposed development to the agricultural operation on the property other than the fact that the Applicant owns the farm. She stated that the wedding venue function could be provided anywhere and is not unique to the agricultural use of property. In Ms. Peters’ opinion, the proposed development would not constitute agri-tourism because there is no real connection between the farm operation and the events proposed to be held there. She noted as an example that food would be brought from offsite and not grown or prepared on the property. Mr. Riepma also addressed the examples of OFDUs, saying they are all fairly low in intensity and would tend to involve relatively few people coming onto the site. He noted a longer list of examples in Figure 3 of the OMAFRA Guidelines, none of which include an event facility or banquet hall. Mr. Riepma further noted a list, at s. 2.3.3, of uses that would typically not be considered OFDUs, including uses with high water and sewage needs and/or that generate significant traffic, such as banquet halls, and large-scale recurring events with permanent structures, which he said is proposed here.

80Mr. Robinson emphasized that these are examples of the sorts of uses that can be considered, but not an exhaustive list of activities that might be considered OFDUs. The Hearing Panel agrees with Mr. Robinson that this criterion provides examples, but the list of potential OFDUs is not limited to those examples. The definition of OFDUs in the new NEP states that OFDUs include, but are not limited to, those examples.

81The Hearing Panel notes that Table 2 of the OMAFRA Guidelines lists, as an OFDU, an “Agri-tourism venture” and further clarifies that “Area limits, rural servicing and building code requirements may restrict uses such as large wedding and banquet facilities.” The Hearing Panel finds that restricting a use implies something different than prohibiting a use and therefore the OMAFRA Guidelines do contemplate wedding facilities as a potential OFDU even in prime agricultural areas, but say that they may not be permitted in all cases because of factors such as area limits, servicing and building code concerns. The OMAFRA Guidelines further state that permitted uses on rural lands are more permissive than in prime agricultural areas. In this case, the proposed development is not located in a prime agricultural area, and in the Hearing Panel’s view, is not appropriately described as a “large wedding and banquet facility”.

82On this basis, therefore, the Hearing Panel finds that the proposed development constitutes a permitted use under the NEP as an OFDU, subject to the development criteria in Part 2 of the NEP.

Whether the proposed development is in accordance with the development criteria in Part 2 of the NEP

83The Hearing Panel now turns to the development criteria in Part 2 of the NEP. The development criteria most relevant to this application are set out in Parts 2.2.1 and 2.8.7. Part 2.2.1 says that the Escarpment environment shall be protected, restored and where possible enhanced for the long term having regard to single, multiple or successive development that have occurred or are likely to occur.

84Regarding Part 2.2.1 of the NEP, Ms. Peters points out that the language “shall be protected” is prescriptive. She stated that there are potential impacts related to this proposal that have not been properly addressed, but have been left to be dealt with in the Site Plan Approval application process. Ms. Peters and Mr. Riepma both testified that it was essential to consider not just the single impact of the proposed development in isolation, but also to consider it as a precedent for multiple, successive developments that could occur if a low bar is set for future applications. It was Ms. Peters’ opinion that it would not be protective of the Escarpment environment to allow such an intensive OFDU where there is a low amount of agricultural activity.

85Mr. Robinson on the other hand, noted that the first words of Part 2.2 state that: “[t]he objective is to permit reasonable enjoyment by the owners of all lots that can sustain development”, and further noted that the Escarpment environment would be protected and restored by the proposed development because the historic barn, which is no longer used for agricultural uses, would be repurposed for a compatible land use. With respect to the concerns about precedent expressed by Ms. Peters and Mr. Riepma, Mr. Robinson testified that each application to the NEC should be evaluated on its own merits, and further noted the unique circumstances of the proposed development, including its unique topography, and the location of the barn set well away from the road and other residential uses. He noted that a wedding barn might not be appropriate in other locations in the Escarpment.

86The Hearing Panel finds that the proposed development accords with the development criterion in Part 2.2.1 that the Escarpment environment shall be protected, restored and where possible enhanced for the long term having regard to single, multiple or successive developments that have occurred or are likely to occur. As discussed above, the proposed development itself would not have any significant adverse impacts on the Escarpment environment. Regarding the concerns about precedent expressed by Ms. Peters and Mr. Riepma, the Hearing Panel is satisfied that this particular subject property is especially well suited to the proposed OFDU due to the topography of the area and the location of the barn on the property. The Hearing Panel also notes that the proposed development would allow for only a limited number of events per year.

87The Hearing Panel notes that Part 2.8 in the new NEP replaces 2.10 of the previous version of the NEP. The old NEP, at Part 2.10.4(a), provided that a high intensity use was out of character with an agricultural area. That provision is not included in the new NEP. Instead, OFDU policies were introduced into the new NEP and the development criteria to which OFDUs are subject address concerns related to intensity of use. Overall, the objective of Part 2.8 is to encourage agricultural uses in agricultural areas, especially in prime agricultural areas, to permit uses that are compatible with farming, and to encourage accessory uses that directly support continued agricultural uses.

88Part 2.8.7 sets out the multiple criteria to which OFDUs are subject. Although neither Ms. Peters nor Ms. Riepma considered the proposed development to be an OFDU, both provided analysis of whether or not the proposal would meet the Part 2.8.7 criteria. Ms. Peters said that in her view, six of the 11 criteria set out in Part 2.8.7 are not met by the proposed development, as further described below. Mr. Robinson was of the opinion that the proposed development would meet all of the criteria in Part 2.8.7, and provided evidence in relation to each one.

89All of the applicable OFDU criteria must be met. The Hearing Panel now turns to consider the criteria relevant to the proposed development. The Hearing Panel notes that several of these criteria are similar or identical to criteria in the OMAFRA Guidelines. As a result, the discussion in the OMAFRA Guidelines assisted the Hearing Panel and is referred to in the analysis below where appropriate.

Criterion 2.8.7 a)

90Criterion 2.8.7 a) requires that the OFDU is located on a farm that is actively in agricultural use. This is similar to the criterion in the OMAFRA Guidelines that an OFDU be located on a farm.

91Mr. Riepma stated that the Applicant’s agricultural operation is a hobby farm at best and, noting the requirement that a property be actively farmed, characterized the amount of farming on the subject property as very low and therefore not actively farmed. Ms. Peters, in her October 19, 2017 staff report, acknowledged that “farming on a small scale (hobby farming, for instance) is still farming and is supported by the NEP…”, and that the Applicant had produced an Ontario Federation of Agriculture (“OFA”) membership number as evidence of farming. She stated that the Applicant had disclosed that revenues from hay production were approximately $17,000 annually.

92Mr. Robinson testified that there is an active agricultural use on the subject property and referred to the definition of an “agricultural use” in the NEP, which includes the growing of crops and the raising of livestock. He noted that the agricultural activity on the subject property includes a small hay crop on 15 ha and the maintenance of livestock consisting of two horses, one pony, two goats and approximately 30 chickens. Mr. Robinson provided evidence of the Applicant’s OFA membership, farm business registration number and a Municipal Property Assessment Corporation assessment notice confirming that the Applicant’s property is assessed as a farm and the farm portion is in the farm property class.

93The Hearing Panel observes that the OMAFRA Guidelines do not set a threshold for the amount or nature of agricultural uses, except that they must be active and occur with the expectation of gain or reward. As these elements are satisfied in the case of the operation on the subject property, the Hearing Panel finds that the proposed use would be located on a “farm”. The Applicant has demonstrated that the agricultural operation is registered as a farm business, and assessed as a farm property. The Hearing Panel finds that the proposed development is located on a farm that is in active agricultural use, and is in accordance with criterion 2.8.7 a).

Criterion 2.8.7 b)

94Criterion 2.8.7 b) requires that the OFDU is secondary to the principal agricultural uses of the farm, and this duplicates a criterion discussed in the OMAFRA Guidelines. The Hearing Panel heard extensive evidence from the planning witnesses regarding the criterion in the OMAFRA Guidelines that OFDUs be secondary to the principal agricultural use of the property. The OMAFRA Guidelines state:

In other words, agricultural uses must remain the dominant use of the property. This is measured in spatial and temporal terms. Spatially, the use must be secondary relative to the agricultural use of the property. The spatial limits are addressed below under the “limited in area” criterion.

Temporal considerations apply to uses that are temporary or intermittent, such as events. Given that on-farm diversified uses (and agriculture-related uses) must be compatible with surrounding agricultural operations, the frequency and timing of any events must not interfere with cropping cycles or other agricultural uses on the farm or in the surrounding area.

Large-scale, repeated or permanent events are not on-farm diversified uses and should be directed to existing facilities such as fairgrounds, parks, community centres and halls, settlement areas or rural lands….

95Ms. Peters and Mr. Riepma both stated that an OFDU would truly need to be secondary and less intense than the principal agricultural use on the property and that, given their shared opinion concerning the small scale of the farming occurring on the subject property, the proposed development would not constitute a secondary use. Ms. Peters testified that there were different measures that could be used to determine what is secondary with respect to OFDUs, one of which could be the intensity of the proposed development (in terms of its potential for noise, traffic and other nuisances) relative to the low intensity of agricultural use. She said that this issue of intensity would be especially important in the NEP area. Regarding the temporal considerations included in the OMAFRA Guidelines, Ms. Peters stated that the proposed use would be considered more intense than the uses that would usually occur in a rural area on weekends or evenings.

96Ms. Peters further stated that another measure of a secondary use could be the revenue derived from the OFDU activity in relation to the overall revenue from the farming operations, or if farming will continue to be the primary occupation of the landowner. Ms. Peters testified that, in this case, the proposed development could not be considered secondary because the agricultural operation is not the primary occupation of, or source of income for, the landowners, and the scale of economic activity arising from the principal agricultural use is very small. She noted that the farm does not operate at a profit level that could be considered a primary source of income for a person or family. According to Ms. Peters, the intent of the government in allowing OFDUs is to ensure that farmers can diversify their incomes in order to contribute to the economic viability of producing food and other agricultural products. She added that the policy intent was not to allow for activities that subsidize the cost of running hobby farms, where agricultural activities merely contribute to the landowners’ enjoyment of a recreational property but do not generate significant income.

97Both Ms. Peters and Mr. Riepma also emphasized that the OMAFRA Guidelines state that large-scale, repeated or permanent events are not OFDUs and should be directed to existing facilities such as fairgrounds, parks, community centres and halls, in settlement areas or on rural lands. Ms. Peters said that the proposed development is essentially a commercial banquet facility, stating that such a use would be indistinguishable from the type of banquet facility typically found in settlement areas. She cited examples of previous development permit applications in which event facilities were proposed, noting that the NEC had refused some of these applications while others had been accepted but with restrictions. She stated that a standalone commercial event venue would not be a permitted use in the NEP. In cross-examination, Ms. Peters was taken to Table 2 at p. 25-27 of the OMAFRA Guidelines, which sets out categories of uses permitted in prime agricultural areas provided all PPS criteria are met. Table 2 lists as an OFDU, an “Agri-tourism venture” and includes a footnote that reads: “Area limits, rural servicing and building code requirements may restrict uses such as large wedding and banquet facilities.” It was her opinion that this contradicts other guidelines in the OMAFRA Guidelines.

98Mr. Robinson provided his opinion that the proposed development would be secondary to the principal agricultural use on the property in both spatial (the space dedicated to the secondary use) and temporal (the time associated with the temporary use) terms. Regarding the temporal aspect of the proposed use, he noted that the Conditional Approval would permit one event per week at the subject property (with the potential for a second on long weekends) from May 1 to October 31 each year, resulting in approximately 30 OFDU events annually. Mr. Robinson further noted that the agricultural use on the property would continue every day year round, and would continue to be the principal use. Regarding the spatial aspect of the proposed use, Mr. Robinson stated that the total area of the subject property to be used for the proposed development was limited to 1.39% of the lot area of the subject property, below the 2% maximum lot area for an OFDU provided for in the recommended area calculations established by the OMAFRA Guidelines, and therefore secondary in that sense.

99Mr. Robinson responded to Ms. Peters’ opinion evidence that the proposed development could not be considered secondary to the agricultural use on the property because the scale of economic activity arising from the principal agricultural use is very small. Mr. Robinson stated that financial gain and economic revenue should not be considered in determining whether an OFDU would be secondary to the principal use. He stated that this is reflected in the OMAFRA Guidelines, which do not address financial aspects in determining whether an OFDU is secondary. Mr. Robinson noted that farm assistance programs exist because even a large farm may not generate any revenue in a given year due to conditions such as drought, but that would not take away from the fact that it is an agricultural operation. As noted above, he testified that allowing the OFDU would encourage agriculture by creating more income for the farm operator for further investment in the farm business.

100Regarding the spatial component of this criterion, the OMAFRA Guidelines state that the secondary nature of OFDU is addressed in the discussion of the “limited in area” criterion. As noted below, the Hearing Panel finds that there was no real dispute between the land use planning witnesses that the proposed development would be secondary in a spatial sense.

101In terms of the temporal component of this criterion, the OMAFRA Guidelines state that temporal considerations apply to uses that are temporary or intermittent, such as events, and given that OFDUs must be compatible with surrounding agricultural operations, the frequency and timing of events must not interfere with cropping cycles or other agricultural uses on the farm or in the surrounding area. As noted above, the Hearing Panel finds that events related to the proposed development would not interfere with agricultural uses on the subject property or in its vicinity. Furthermore, the Hearing Panel finds that the proposed development, limited to a maximum of 30 events annually, would be secondary in a temporal sense to the ongoing principal agricultural use on the property.

102Turning to the evidence of Ms. Peters and Mr. Riepma on this criterion, the Hearing Panel does not accept that the spatial and temporal considerations outlined in the OMAFRA Guidelines indicate that a secondary use must be “less intense” than the agricultural use. There is a great range of potential OFDUs identified in the OMAFRA Guidelines and many of them involve some level of human activity that might be considered a more intensive use than growing hay or raising livestock. For example, the OMAFRA Guidelines give examples of OFDUs that include: value added uses such as a processor, packager, winery, cheese factory, bakery or abattoir; agri-tourism and recreation uses including hay rides, petting zoo, farm-themed playground, horse trail rides, corn maze, equine events and zip lines; and uses such as a café, small restaurant, cooking classes or a food store. As contemplated by the OMAFRA Guidelines, any of these types of OFDUs could be considered more intensive than strictly agricultural uses. The concerns relating to the accompanying potential for noise, traffic and other nuisances have been addressed above in this decision.

103The Hearing Panel disagrees with Ms. Peters’ assertion that economic revenue is a relevant criterion for interpreting the definition of OFDU. Regarding the policy intent of the provincial government in introducing OFDUs, the Hearing Panel prefers the opinion of Mr. Robinson, who has a background working on rural and agricultural planning issues. While Ms. Peters and Mr. Riepma characterize the Applicant’s agricultural uses as a “hobby farm”, it is an operation that includes livestock and the production of hay on 15 ha of land in an area that does not consist of prime agricultural lands and is not suitable for cash crops. As Mr. Robinson points out, the intent of allowing and promoting OFDUs is to maintain and encourage agriculture by creating more income for farm operators. The OMAFRA Guidelines do not include economic revenue as an aspect to consider in determining whether an OFDU is secondary to a principal use.

104As noted above, the OMAFRA Guidelines state that large-scale, repeated or permanent events are not OFDUs and should be directed to existing facilities such as fairgrounds, parks, community centres and halls, settlement areas or rural lands. The Hearing Panel observes that this statement is made in the context of guidelines that address OFDUs in prime agricultural areas, and direct these events out of such areas and into others, including rural lands. The portion of the subject property where the proposed development would take place is considered rural land, designated ERA. As set out above, some limited types of wedding facilities are contemplated by the OMAFRA Guidelines as OFDUs, subject to considerations such as area limits, rural servicing and building code requirements.

105Furthermore, with respect to Ms. Peters’ comments, in her October 19, 2017 staff report, regarding previous NEC applications relating to event facilities that were refused or approved as a scaled-down version of what was originally proposed, the Hearing Panel notes that these applications all appear to predate the new NEP. The staff report provided summaries of these applications, which relate to proposals for an equestrian operation and special event and banquet facilities, but the Hearing Panel was not provided with detailed information about them. While it is not clear which NEP policies applied to the decisions on these proposals, intensity of the activity seems to have played an important role. Nevertheless, it is clear that the decisions were made without an examination of whether or not the proposed developments were permitted uses as OFDUs under the NEP. Regarding Ms. Peters’ statements that the proposed use is indistinguishable from a banquet facility and that a standalone commercial event venue would not be a permitted use under the NEP, the Hearing Panel finds that the proposed development is significantly less intense than a year-round, permanent banquet facility or commercial event venue potentially operating on a daily basis.

106To conclude, based on the above analysis, the Hearing Panel finds that the proposed development is secondary to the principal agricultural uses of the farm, both spatially and temporally, and therefore accords with criterion 2.8.7 b).

Criterion 2.8.7 c)

107Criterion 2.8.7 c) states that the OFDU shall be compatible with and shall not hinder surrounding agriculture operations and other land uses. This is similar to the final element of the test in the OMAFRA Guidelines, with the addition of taking “other land uses” into consideration.

108Ms. Peters stated that the primary agricultural building on the property would no longer be used for agriculture, and the land dedicated to parking and an outdoor ceremony space would no longer be cultivated or available for grazing. Mr. Riepma testified that the proposed development would hinder the surrounding agricultural operations because the large number of people on site for events would result in the compaction of soil. He further stated that the proposed use would not maintain the agricultural and rural character of the area given impacts such as noise. Mr. Robinson, however, stated that the proposed development would be fully compatible with the surrounding agricultural operations and would not have any negative impacts on the agricultural operations on the subject property. As described above, he stated that the historic barn no longer served the purposes that it once did. As noted above, Mr. Robinson testified that areas proposed for parking and outdoor ceremonies are not in the areas where agricultural activities currently take place, so these activities would not remove any lands from agriculture or have a negative impact on agriculture on the subject property.

109Ms. Peters and Mr. Riepma both testified concerning the potential for noise impacts on the surrounding residential land uses. Ms. Peters noted that the Appellant had appealed the proposed development due to noise and other disturbances resulting from unauthorized events on the subject property, and that the NEC had received complaints from the neighbours about noise. (Under cross-examination, Ms. Peters acknowledged that, with one exception, all of these complaints were from the Appellant). She questioned the conclusions of the NIS on the basis that it was conducted on a weekday afternoon and did not account for noise other than music, such as loud partygoers and increased traffic. She stated that the noise and traffic generated by the proposed events would not be compatible with rural residents’ reasonable expectations to enjoy their properties.

110Mr. Robinson testified that the proposed use is expected to generate a limited amount of additional traffic due to cars travelling to the subject property when there are wedding events, but noted that the Town had not required a traffic impact study as part of the Site Plan Approval application and that it appears that Heart Lake Road has capacity for the anticipated traffic increase and that access to the site would not have a negative effect on local traffic. He also referred to the conclusion of the NIS that the sound system in the barn would result in outputs in compliance with the Town Noise By-law and within MOECC sound level limits. Mr. Robinson stated that the proposed development would be set well back from property lines and that the topographic relief of the site, describing the significant hill that exists along the northern portion of the subject property adjacent to the Appellant’s property, and the vegetation both on and adjacent to the site would limit the visibility of the barn and would also limit sound projection. He testified that to his knowledge, no complaints had been received from the three neighbours to the south of the subject property, who are located substantially closer than the Appellant, at almost half the distance to the proposed development.

111As noted above, Mr. Robinson emphasized that the definition of “compatible” in the NEP specifically identifies compatibility with the Escarpment environment and provided his opinion that the proposed development would be compatible with and not hinder surrounding agriculture operations and other land uses in the context of this definition, as it would not negatively impact surrounding agricultural operations or surrounding residential land uses.

112Consistent with its earlier analysis and findings in relation to ERA Objectives 4 and 5, the Hearing Panel finds that the proposed development would be compatible with and would not hinder surrounding agricultural operations and other land uses, and therefore satisfies development criterion 2.8.7 c). As discussed above, the Hearing Panel is satisfied that: the proposed development would not interfere with the agricultural uses that currently exist on the subject property and those uses would continue; the proposed parking and outdoor ceremony areas will not take out of production, or cause soil compaction on, any agricultural lands currently in use; music from the sound system in the barn would be in compliance with the Town Noise By-law for properties in rural areas and within MOECC sound level limits; additional sound testing and reports would be required and completed as part of the Site Plan Approval application process with the Town, and any needed mitigation measures would be put in place at that time; the evidence has not demonstrated that there would be any problem with traffic and the Town is not requiring a Traffic Impact Study; and adequate provision has been made for parking and servicing, and there was no indication that these provisions would not be compatible with other rural uses in the vicinity of the subject property.

Criterion 2.8.7 d)

113Criterion 2.8.7 d) requires that the use is appropriate to available rural services and infrastructure.

114Ms. Peters, while acknowledging that there would be no impacts on the existing private sewage system, questioned whether the proposed portable toilet trailer would meet the intent of this policy because the ongoing set-up and removal of portable toilets would contribute to the intensity of use on the subject property. She also raised concerns about how emergency services would be provided, noting that developments of this kind would normally require a sprinkler system, cistern and high pressure pumping system to support the water pressure required in case of fire. Ms. Peters testified that detailed information about fire response had been requested by the NEC but not provided. Mr. Riepma also commented on fire safety and stated that in his opinion, the existing laneway would need to be widened and reconstructed to meet fire department requirements.

115It was Mr. Robinson’s opinion that the proposed use could be supported by the existing rural infrastructure, which would be sufficient to provide wastewater and water services, fire and emergency services, and service by existing transportation infrastructure. He noted that water would be brought to the site and the portable washrooms are proposed to be used, which would be brought to the site in the spring and removed at the end of the event season, and a contractor would pump out the sanitary facilities over the season. Mr. Robinson testified that there would be no need for additional septic system services on site, and the proposed development would have no negative impact on surrounding wells. He stated that, while the provision of fire and emergency services and traffic considerations, would be addressed at the Site Plan Approval stage, he had made inquiries of members of the Town fire department during a meeting at the subject property, and was confident that the site could be adequately serviced with fire suppression infrastructure, and that the transportation infrastructure in the area could accommodate emergency services and the additional traffic generated by the proposed development.

116The Hearing Panel finds that the proposed development is appropriate to available rural services and infrastructure. The proposal to bring water and portable toilets to the site avoids the need to provide additional water or septic services on the subject property. Notwithstanding the concerns expressed by Ms. Peters and Mr. Riepma about emergency services, they did not provide evidence that such services would not be possible to provide. Mr. Robinson did inquire of Town fire department officials to confirm that the subject property could be adequately serviced with fire suppression infrastructure and that the transportation infrastructure in the area could accommodate emergency services and additional traffic. The Hearing Panel is satisfied by Mr. Robinson’s evidence that the required rural services and infrastructure can be provided, and notes that the Applicant will need to address these issues with the Town to receive Site Plan Approval as a condition of the Conditional Approval.

Criterion 2.8.7 e)

117Criterion 2.8.7 e) requires that the use maintain the agricultural and rural character of the area.

118Ms. Peters stated that rural character goes beyond considerations of scenery and landscape, and could also be adversely impacted by the intensity of the proposed use due to the potential for noise and traffic. Mr. Riepma testified that the proposed development would introduce an urban use into the area that would likely have an adverse impact on its rural character. Mr. Robinson, however, stated that because no new development or site alterations were proposed on the site, it was his opinion that the proposed development would maintain the agricultural and rural character of the area because there would be no impact from a visual perspective.

119Again, the Hearing Panel has considered similar arguments to these in its discussion above regarding potential impacts on the rural character and agricultural and residential uses in the area. Consistent with its findings above regarding ERA Objectives 4 and 5 and development criterion 2.8.7 c), the Hearing Panel finds that criterion 2.8.7 e) is met, and the proposed use will maintain the agricultural and rural character of the area.

Criterion 2.8.7 f)

120Criterion 2.8.7 f) requires that the impact of multiple uses in prime agricultural areas be limited and not undermine the agricultural nature of the area.

121While Ms. Peters and Mr. Riepma acknowledged that the subject property is not in a prime agricultural area, both stated that the proposed use would likely have a negative impact, including as a precedent for future applications. Mr. Robinson testified that this criterion does not apply in the case of the proposed development because it is not located in a prime agricultural area. Based on a plain reading of this criterion, the Hearing Panel finds that the subject development is not situated in a prime agricultural area and criterion 2.8.7 f) does not apply.

Criteria 2.8.7 g) and h)

122Criterion 2.8.7 g) requires that the use be limited in area to up to 2% of a farm lot, to a maximum of 10,000 sq m, and criterion 2.8.7 h) requires that the gross floor area of buildings used for OFDUs is limited to 20% of the maximum area allowed for an on-farm diversified use as set out in 2.8.7(g). With respect to criterion 2.8.7 g), the OMAFRA Guidelines state that the “limited in area” requirement should be based on the total land area that is unavailable for agricultural production as a result of the OFDU, and recommend that the standard for the acceptable area occupied by an OFDU is up to 2% of a farm parcel, to a maximum of 1 ha. Mr. Robinson testified that the area of the subject property dedicated to the proposed development would be less than 2%. None of the land use planning witnesses disputed the issue of whether the proposed development would be limited in area. The Hearing Panel accepts that the area used by the activities related to the proposed development would be below the 2% maximum of the farm parcel, as recommended by the OMAFRA Guidelines. Ms. Peters and Mr. Riepma agreed with Mr. Robinson that the proposed development meets both criterion 2.8.7 g) and criterion 2.8.7 h). As a result, the Hearing Panel finds on the evidence that both of these criteria are met.

Criterion 2.8.7 i)

123Criterion 2.8.7 i) requires that existing buildings, structures or facilities on the property that are no longer needed to support agricultural uses, should be used where possible. While Mr. Riepma was of the opinion that this criterion is met, Ms. Peters stated that the proposed development would take the largest agricultural building on the property out of use for agricultural activities, and that there had been no exploration of how the building might be better used to further agricultural development on the property, nor had it been rendered surplus through replacement by a more modern building. Mr. Robinson testified that the Applicant currently uses other farm structures on the property to house livestock and feed, and the barn to be used for the commercial use is not needed to support agricultural uses. He provided his opinion that the proposed development would meet this criterion because there is currently no need for the barn on the property to be used for agriculture, and he noted the added benefit of preserving the existing barn structure.

124The Hearing Panel finds that the proposed development meets criterion 2.8.7 i) in that existing buildings, structures or facilities on the property that are no longer needed to support agricultural uses, should be used where possible. It is a central feature of the proposal that an existing century-old barn, which is no longer needed, will be repurposed for an OFDU. Regarding Ms. Peters’ concern that a building is being taken out of use for agricultural activities, the Hearing Panel accepts Mr. Robinson’s opinion that the barn is no longer useful for its original agricultural purpose due to modern agricultural practices.

Criterion 2.8.7 j)

125Criterion 2.8.7 j) requires that all buildings, structures and facilities, including parking areas, associated with the use shall be designed and located to have minimal impact on agricultural uses in the area and the Escarpment’s open landscape character.

126Ms. Peters testified that the outdoor ceremony space and parking area would prevent the land from being used for agricultural purposes but acknowledged that the parking area is not visible from the main road and would not have a negative impact on the Escarpment’s open landscape character. Mr. Riepma stated that the potential need for reconstruction of the driveway or construction of a fire pond could have an impact on the character of the vicinity or the environment. Mr. Robinson testified that the barn and parking are clustered on the property, which will minimize impacts on the agricultural uses on the property, and the parking lot is situated around trees, bush cover and accessory buildings that make cultivation of the that area difficult. He stated that as a result, there would be no loss of agricultural lands for crop production. He further stated that the proposal would not have a negative impact on the Escarpment open landscape character.

127The Hearing Panel finds that the proposed development meets criterion 2.8.7 j) in that all buildings, structures and facilities, including parking areas, associated with the use be designed and located to have minimal impact on agricultural uses in the area and the Escarpment’s open landscape character. As discussed above, because no new buildings will be constructed and no additions required, and because there will be no negative impacts on agricultural activities on the subject property, the Hearing Panel is satisfied that this criterion is met.

Criterion 2.8.7 k)

128Criterion 2.8.7 k) requires that the land supporting the use shall not be severed from the farm lot exclusively for the OFDU. All of the land use planning opinion witnesses agreed that there is no proposal to sever the proposed development from the lot, so this criterion does not apply.

Conclusion on Sub-Issue No. 2

129Based on the foregoing analysis and findings, the Hearing Panel finds that the Conditional Approval is a permitted use under Part 1.5 of the NEP and is in accordance with the development criteria in Part 2 of the NEP, and that the proposed development constitutes an OFDU.

Overall Conclusion

130In light of the findings that the proposal to convert the upper floor of an existing barn to a commercial rental facility, to be used for weekend weddings, annually from May 1 to October 31, is a permitted use, and is consistent with relevant NEP development criteria and objectives, the Hearing Panel concludes that the decision of the NEC dated February 19, 2016, to grant a Conditional Approval for Development Permit Application P/C/2015-2016/162, is correct and should not be changed.

131Notwithstanding that the Hearing Panel has concluded that the decision to grant the Conditional Approval is correct and should not be changed, the Hearing Panel notes that the Conditions as drafted, attached as Appendix 2, do not specifically reflect that the application as approved is for a maximum of 175 guests for each wedding event. Nevertheless, the conditions do include a requirement that the development take place in accordance with the application and it is understood that the maximum of 175 guests is considered part of the application that was approved by the NEC. The Hearing Panel reiterates that it is confirming the NEC decision to conditionally approve the proposed development with a maximum number of 175 guests per event.

DECISION

132The NEC’s decision is confirmed pursuant to s. 25(12) of the NEPDA. The appeal is dismissed.

Appeal Dismissed

NEC Decision Confirmed

“Maureen Carter-Whitney”

MAUREEN CARTER-WHITNEY

HEARING OFFICER

“Marlene Cashin”

MARLENE CASHIN

HEARING OFFICER

Appendix 1 – Relevant Legislation and Niagara Escarpment Plan Provisions

Appendix 2 – Conditions of Approval

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