Dallan v. Ontario (Niagara Escarpment Commission), 2018 CanLII 40481

minicounsel

April 30, 2018 MNR7048MC2018-588

2222699 Ontario Inc.

Dr. Cliff and Judy Singer

440 Bedford Park Avenue

Toronto ON M5M 1K1

NOTICE OF DECISION

made under the provisions of the

Niagara Escarpment Planning and

Development Act, R.S.O. 1990, c. N.2, as amended

NEHO Case No(s).: 16-011 to 16-016, 16-020, 16-021, 16-024, 16-027

NEC File No(s).: D/L/2014-2015/308

Dear Dr. and Ms. Singer,

Re: Michael Dallan, Harminder S. Dalla, Delfino and Elizabeth Bernardi, Cliff and Judy Singer, Laurel A. Byrne, Joe and Heather Borges, Town of Mono and Park Stud, appellants against Niagara Escarpment Commission’s approval of an application for a development permit made by 2222699 Ontario Inc. (Dr. Cliff and Judy Singer) (D/L/2014-2015/308) to permit the use of a pond and other facilities for water-skiing competitions; to provide hydro service; and to post a security device and signage on property located at Part Lots 1-3, Concession 7 EHS, Township of Mono, County of Dufferin, Ontario.

Pursuant to s. 25 of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended, the Hearing Officers have inquired into the merits of the decision of the Niagara Escarpment Commission (“NEC”) to approve the development proposal and advised me of their opinion of the decision.

I have reviewed the decision of the NEC and the Hearing Officers’ Report and Recommendations (copy attached). After an assessment of the evidence provided at the hearing and in accordance with the policies of the NEP 2017 I approve the Redefined Proposed Development with the modified attached Conditions of Approval and direct the NEC to issue a Development Permit subject to the attached conditions.

Sincerely,

Nathalie Des Rosiers

Minister of Natural Resources and Forestry

Attachment: Hearing Officers Report

cc: Debbie Ramsay, Manager, Niagara Escarpment Commission

Michael Dallan

Harminder S. Dalla

Delfino and Elizabeth Bernardi

Elizabeth Kerr

Paul Roberts

Franceso Pisciella

Terry Jones

Mauro Testani

Laurel A. Bryne

Joe and Heather Borges

Jeff Wilker

Michael C. Bryne

Ed Kroeker and Bob Mitchell

Don MacFarlen

Robert Patrick

Paul Ruppert

Approved Development

NOTICE OF DECISION

OF THE NIAGARA ESCARPMENT COMMISSION

REGARDING

AN APPLICATION FOR A DEVELOPMENT PERMIT UNDER SECTION 25

OF THE NIAGARA ESCARPMENT PLANNING AND DEVELOPMENT ACT,

R.S.O. 1990, CHAPTER N.2

APPLICANT: Cliff and Judy Singer 2222699 Ontario Inc.

AGENT: No agent

OWNER: Same as applicant

LOCATION: Part Lot s 1-3, Concession 7 EHS

Town of Mono, County of Dufferin

PROPOSED DEVELOPMENT:

Temporary Water-ski Competitions/Events

To permit the use of the southerly pond on the 82 ha (204 ac) property (former pit) for up to 2 seasonal water-skiing non-profit competitions/events (a competition/event being up to 2.5 days in length and shall be deemed to include practice sessions, having a maximum of 40 competitors over the course of the weekend) per year using one boat (with one back up or emergency boat);
To use the existing driveway from the Airport Road property to provide access to the proposed automobile parking (maximum 40 automobile spaces as shown on the revised site plan dated April 8, 2016);
To provide the following proposed temporary facilities for the use of competitors, officials, volunteers and spectators (“Attendees [1]”), during the competitions/events: 1 portable toilet, 1 event tent, 1 portable water-ski jump ramp;
To post an entrance sign and event identification signage facing Airport Road at the existing entrance during water-skiing competitions/events.
Overnight Camping by Attendees and permanent septic facilities are not permitted.
Permanent Use by Owner (and Temporary Water-ski Competitions/Events, as applicable)
To permit the permanent use of 1 camping trailer, 1 storage container, 1 floating dock, a concrete deck and overhead canopy, 1 boat lift;
To provide a hydro service from 6th Line;
To erect two poles for proposed security cameras. The security cameras shall face into the property so that they do not capture images of any of the neighbours’ properties or vehicles, etc.; and
1 portable toilet.

The Conditions of Approval are listed below.

CONDITIONS OF APPROVAL

Non-fulfilment or breach of any one of the conditions shall render the Development Permit void.
A site inspection(s) to the property may be undertaken by the Niagara Escarpment

Commission to ensure that the development complies with the conditions of the Development Permit. Persons may accompany the Commission representative on the site inspection(s) who possess expert or special knowledge related to the conditions of the Development Permit.

No municipal building permit or other license, certificate, permit or other similar permission relating to development shall be issued or be considered to be in force unless a Development Permit is in effect.
The Development Permit shall expire three years from its date of issuance unless the development has been completed in accordance with the Development Permit.
Development shall take place only in accordance with the revised site plan dated April 8, 2016 together with any minor site modifications to mitigate any noise exceedance, if required (subject to the special conditions noted below).
No grading of the existing contours of the lot in the area of the development is permitted, with the exception of that which is required for the construction of the deck, storage container, temporary special event tent, floating dock and portable sanitary facilities, which shall be located as shown on the revised site plan dated April 8, 2016.
No trees other than dead or diseased trees shall be cut or removed in the area of the development.
All exposed areas resulting from construction shall be stabilized with suitable ground cover (e.g. mulch, seed) immediately upon completion of the construction.
The use of the south pond for water-skiing competitions/events shall be limited to two (2) weekends per year during the hours of Noon to 1900 on Fridays; 0800 to 1900 on Saturdays; 0900 to 1900 on Sundays.
Prior to the water-skiing competitions/events, the applicant shall obtain a Special Event Permit from the Town of Mono as required by Town Council.
Prior to the water-skiing competitions/events, the applicant shall obtain all necessary approvals from the County Building Department and the Orangeville Fire Department.
Notwithstanding Condition 4, this Development Permit for the water-skiing

competitions/events may be in force for a period of three (3) years after which time the applicant may re-apply for a Development Permit to allow further water-skiing

competitions/events.

The applicant shall provide an annual report to the Niagara Escarpment Commission by December 31 of each year the Development Permit is in force, listing, separately, the number of competitors, officials, volunteers and spectators and outlining any issues including noise or traffic complaints arising from the competitions/events. The listing, separately, the number of competitors, official, volunteers and spectators shall be accomplished by establishing a tracking and/or registration system. Should issues arise regarding the tracking, the applicant shall address such issues to the satisfaction of the Niagara Escarpment Commission.
Only one competition water-ski boat and one back-up/emergency boat will operate during a water-skiing competition/event. The hulls of any water-ski boat(s) and back-up/emergency boat not solely used on the south pond on the property shall be washed (e.g., hosed down) prior to their use on the pond, and any bilge water from use of such boat(s) off-site shall be properly disposed of off-site prior to use of the boat(s) on the pond on the property.
The use of amplification and sound equipment shall not be permitted as part of the holding of any water-skiing competition/event.
On-site refueling of the water-ski tow boat and back-up/emergency boat on the south pond shall be limited to water-skiing competitions/events on a maximum of two weekends per year. Fuel storage on-site shall be in the storage container and shall be limited to those weekends to an amount sufficient to refuel one tow boat and one back-up/emergency boat for each weekend competition/event. A simple Fuel Contingency Plan is to be prepared by the applicant to the satisfaction of the Niagara Escarpment Commission (“NEC”).
The applicant shall obtain from a qualified person a study of the base-line inventory of the wildlife and wildlife habitat on the property, to be completed prior to the commencement of the three-year period of the Development Permit, and updated on its completion and review. This shall include consideration of whether the water-skiing competitions/events are impeding the south pond reverting to a natural state. Representatives of the Company, the NEC, the Town, CONE, MC2, MNRF and the Conservation Authority may discuss and agree upon a qualified person and a reasonably cost-effective wildlife and wildlife habitat base-line study for the property in relation to the proposed use of water-skiing competitions/events and accessory facilities. In the event there is no agreement regarding the qualified person and/or the type of base-line study, then the NEC shall decide.

Notes: The water-skiing competitions/events are subject to the applicable Town of Mono noise by-law. Any advertising sign would be subject to the County of Dufferin Advertising Sign policy, and if placed within the County road allowance and a road occupancy permit would be required.

This Development Permit does not limit the need for or the requirements of any other

approval, by-law, license or certificate under any statute, e.g. Ontario Building Code,

Conservation Authorities Act or Endangered Species Act.

Niagara Escarpment Hearing Office

Bureau des audiences sur l’escarpement du Niagara

ISSUE DATE:

May 31, 2017

CASE NO.:

16-011

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

Appellants:

See Appendix 1 - Appellant List

Applicant/Appellant:

2222699 Ontario Inc. (File No. 16-015)

Respondent:

Niagara Escarpment Commission

Subject of appeal:

Approval of a Development Permit Application to permit the use of a pond and other facilities for water-skiing competitions; to provide hydro service; and to post a security device and signage.

Reference No.:

D/L/2014-2015/308

Property Address/Description:

Part Lots 1-3, Concession 7 EHS

Municipality:

Township of Mono

Upper Tier:

County of Dufferin

NEHO Case No.:

16-011

NEHO Case Name:

Dallan v. Ontario (Niagara Escarpment Commission)

Heard:

April 13, 2016 in Toronto, Ontario; April 22, 26, 2016; May 3, 20, June 2, 30, August 31, 2016 and January 17 and March 1, 2017 by telephone conference call; September 8, 9, 12 to 14, 2016 and February 13 to 16, 2017 in Orangeville, Ontario

APPEARANCES:

Parties

Counsel/Representative^*

Michael Dallan

Self-represented

Delfino and Elizabeth Bernardi

Self-represented

2222699 Ontario Inc.

Cliff Singer*

Laurel A. Byrne

Self-represented

Joe Borges

Self-represented

Town of Mono

Jeff Wilker

Park Stud

Michael Byrne*

Niagara Escarpment Commission

Elizabeth Kerr and Nancy Mott*

Mono Mulmur Citizen Coalition (“MC²”)

Ed Kroeker* and Bob Mitchell*

Don MacFarlen

Self-represented

Water Ski Wakeboard Ontario (“WSWO”)

Terry Jones*

Participants

Mauro Testani

Self-represented

Presenters

Terry Jones

Self-represented

Coalition on the Niagara Escarpment (“CONE”)

Robert Patrick*

REPORT DELIVERED BY KAREN KRAFT SLOAN AND ROBERT V. WRIGHT

REASONS

Overview

1This is a Report regarding appeals of a decision of the Niagara Escarpment Commission (“NEC”) to conditionally approve a development permit for the use of a pond in a former gravel pit on a property in the Niagara Escarpment Plan (“NEP”) area for water-skiing competitions (“Approved Development”, including the Conditions of

Approval). This is the first NEC approval of a development permit for such activities. A copy of the Approved Development is attached as Appendix 2.

2In the case of this development, there are significant differences between: what the NEC conditionally approved; what the applicant, 2222699 Ontario Inc. (“Company”), thought that it had asked for; and what the reviewing agencies, the Town of Mono (“Town”) in particular, understood was being proposed.

3For reasons that follow, the opinion of the Hearing Officers on the merits of the NEC decision on the Approved Development is that the decision should not be confirmed. Instead, the Hearing Officers recommend approval of a conditional development permit substantially in the terms of the Redefined Proposed Development jointly presented and agreed upon by the Town and the NEC, a copy of which is attached as Appendix 3, with some changes recommended by the Hearing Officers as set out in Appendix 4 (“Recommended Development Approval”).

4Of particular importance are the recommended terms and conditions that: the number of proposed water-skiing competitions be reduced from four to two; the number of parking spots be substantially reduced; the number of competitors per competition be capped; the development permit be for a three-year period with a review; the owner of the property provide an annual report; and there be compliance with a Special Event Permit (“SEP”) from the Town.

5The Hearing Officers are of the opinion that a conditional development permit substantially in the form of the Recommended Development Approval (Appendix 4) would accord with the Purpose and the third and fifth Objectives of the Niagara Escarpment Planning and Development Act (“NEPDA”) and the NEP; be a Permitted Use under Part 1 of the NEP in the Escarpment Protection Area (“EPA”), according with Permitted Uses 1.4.5 and 1.4.9; meet the applicable NEP Part 2 Development Criteria; and be consistent with the applicable policies of the Provincial Policy Statement 2014 (“PPS 2014”).

Background

The Property and its Vicinity

Background

6The property is owned by the Company. It is municipally known as 933158 Airport Road, in the Town of Mono, County of Dufferin (“County”). It is approximately one kilometre (“km”) north of Highway 9, and fronts onto Sixth Line East to the west, and Airport Road to the east.

7The property is 82 hectares (“ha”), or 204 acres (“ac.”), in size. It has two man-made ponds on the west side. The northerly pond is 2 ha in size. The southerly pond is 15 ha. The larger southerly pond is where the proposed water-ski competitions would take place.

8Other features of the property include a wetland area in the north-east section, as well as trees and vegetation resulting from rehabilitation reforestation. There are remnant pit berms that largely obscure sight lines of the southerly pond on the property. There have been no formal ecological studies of the property, but there was evidence that the grasslands on the property may be bobolink habitat. Bobolink is a species-at-risk under the Ontario Endangered Species Act, 2017, S.O. 2007, c. 6. There was also evidence, though not in the NEC Staff Report, that there are likely aquatic species in the ponds. It was not disputed that geese and other birds use the pond.

9The surrounding natural features include a headwater tributary of the Humber River, to the south and to the east, and deep forested valleys, which form the most prominent part of the Niagara Escarpment slope.

10Development in the immediate area is characterized by a mix of residential properties, hobby farms, and agricultural operations, including a horse farm to the west (on the west side of Sixth Line East).

Land Use Designations

11After gravel pit operations ceased and a rehabilitation plan was put in place, NEP Amendment PD 191-11 (approved by the Minister on January 14, 2014) re-designated the property from Mineral Resource Extraction Area (“MREA”) to Escarpment Natural Area (“ENA”) and EPA. The proposed activities, hosting non-profit water-skiing competitions, and related facilities and parking spaces, would occur and be located on the portion of the property designated as EPA.

12Under the Town Official Plan (“OP”) the property is also designated as Escarpment Natural and Protected Area, and the Town OP policies permit the same uses as the NEP. The County does not have an official plan.

13Relevant policies in the PPS 2014 include Part 1.1.5, Rural Lands in Municipalities, which permits resource-based recreation, and Part 2.5.3 with respect to the rehabilitation of former aggregate sites to accommodate subsequent land uses, recognizing the interim nature of extraction.

The Approved Development

14The principal of the Company is Dr. Cliff Singer. On behalf of the Company, he submitted development permit application No. D/L/2014-2015/308 to the NEC under the NEPDA and the NEP on January 23, 2015.

15As there was no substantial opposition by the public or any of the commenting agencies to the Company’s development permit application, based on the information that was circulated, it was approved by the NEC on January 13, 2016. The NEC issued a Notice of Decision regarding the Approved Development, with Conditions of Approval, on January 14, 2016. As already noted, a copy of the Approved Development is attached as Appendix 2.

16A previous development permit application made by the Company in 2011, regarding the same property, proposed the construction of a single dwelling, garage, boat-house, geothermal system wind power device, four docks, and two boat launches on the property. That file was closed on May 30, 2014, and no development permit was issued.

Appeals

17Mr. H. appealed the Approved Development on January 24, 2016 (he is not named in this report for privacy reasons described below). The remaining appeals were filed by: the Company on January 25, 2016; Michael Dallan on January 25, 2016; Harminder Dalla on January 25, 2016; Delfino and Elizabeth Bernardi on January 25, 2016; Heather and Joe Borges on January 25, 2016; Jane and Knut Holmsen on January 25, 2016; Laurel Byrne on January 26, 2016; Mauro Testani on January 26, 2016; Park Stud on January 26, 2016; Ronald Clarkson on January 27, 2016; Derek and Amanda Lockerbie on January 27, 2016; Francesco Pisciella on January 27, 2016; and the Town on January 27, 2016. Some of these appeals were withdrawn; information on the withdrawals is summarized in Appendix 5.

18In its initial appeal, the Company objected to the description of the proposed development in the Approved Development, and Conditions 9 (which sets out the number of the water-skiing events per year) and 12 (which provides that the development permit will be in force for three years). The Company asserts that Condition 9 is redundant and unnecessary because the description of the proposed development in the Notice of Decision contains this information. The Company also contends that the Condition 9 hours of operation should be set by the Town and not the NEC, and should correspond with the hours in the Town’s Noise By-law (“NBL”). The Company also objected to Condition 12, as being “inhumane and contrary to the laws of natural justice” to make the Company repeat the application process, given the “hardship and cost that would be imposed over a minor sport gathering”, and thus, it is “disproportionate to the use sought”.

19At the Pre-hearing Conference (“PHC”), and during the Hearing, the Company further objected to Condition 10, which requires compliance with the terms of a Town SEP on the basis that it too, is redundant and unnecessary because the Company intends to comply with applicable by-laws and regulations. It was also the position of the Company that this condition imposes unfair and inequitable treatment. The Company’s objections to the Redefined Proposed Development are discussed in Issue No. 2.

20The Town appealed the description of the proposed development and the Conditions of Approval in the Approved Development on the grounds that: their terms are substantially different from the information circulated by the NEC in the Request for Comments; the description of the scope, nature and scale of the proposed development and Conditions of Approval was still not clear and a “moving target”; and, in the Town’s view, the Approved Development requires a NEP Amendment, and it should not have been approved on the basis of a less rigorous development permit application.

21In the continuation of the PHC by telephone conference call (“TCC”), and at the beginning of the Hearing, the Town stated that it would raise the issue of whether the proposed development meets the applicable Minimum Distance Separation (“MDS”) formulae. It was the Town’s position that the proposed development is not MDS compliant, particularly as it relates to the Park Stud horse farm operation. However, at the commencement of the second phase of the Hearing in February 2017, the Town withdrew the issue of MDS for the reason that matters had changed since the first phase of the Hearing in September 2016. The Town stated that a new MDS formula will come into force by March 1, 2017, which would affect the MDS computations, and that Park Stud was engaged in a consent application process. Thus, the Town did not call the MDS and urban planning expert, as it originally intended.

22The persons who were granted status object to the Approved Development because of their concerns, collectively summarised, about: incompatibility with the surrounding rural area, noise impacts on local residents and Park Stud’s horses, traffic, aquifer and well water contamination, harm to wildlife and wildlife habitat, and lack of adequate studies.

PHC and Status Requests

23The PHC commenced on April 13, 2016 in person at the Town’s municipal offices. It was continued by TCCs on April 22 and 26, May 3 and 20, June 2 and 30, and August 31, 2016, and January 10, 2017. The PHC outcomes were confirmed to the parties in letters and emails as summarized in Appendix 5.

24At the initial PHC and during the TCCs, Mono-Mulmur Citizen’s Coalition (“MC²”) (a community organization initially represented by Ernest Rovett and subsequently by Ed Kroeker and Paul Mitchell) and Water Ski and Wakeboard Ontario (“WSWO”) (initially represented by Paul Roberts and subsequently by Terry Jones), were granted party status; and the Coalition on the Niagara Escarpment (“CONE”) (represented by Robert Patrick), and Terry Jones and Paul Ruppert, were granted presenter status. WSWO, Mr. Jones and Mr. Ruppert (Mr. Ruppert did not appear at the Hearing) supported the Company’s position, while MC², Mr. Pisciella and Mr. Patrick opposed the Approved Development and supported the Town’s position. Additionally, Mr. Pisciella and Mr. Testani requested that their status be changed from party to participant, which was granted by the Hearing Officers. Both Mr. Pisciella (although he did not appear at the Hearing) and Mr. Testani opposed the Approved Development and supported the Town’s position.

Hearing

25The Hearing commenced on September 8, 2016 in the Town’s municipal office, and continued in two phases on September 9, 12, 13, and 14, 2016, and February 13, 14, 15, 16 and 17, 2017. There were also numerous TCCs during the Hearing to deal with various procedural matters. In addition, a final matter, dealt with on March 1, 2017,

by TCC, was a request by the Company to bring “fresh” evidence after the completion of the Hearing. Some of these matters are summarised in Appendix 5, attached.

Relevant Legislation, Plan provisions and Policy

26The relevant provisions of the NEPDA, NEP, PPS 2014 and Municipal Act, 2001, S.O. 2001, c. 25, are set out in Appendix 6.

Issues

27The parties presented the Hearing Officers with an extensive issues list at the PHC stage of the proceedings. Like the Company’s development proposal itself, the issues were a “moving target” during the proceeding due to the parties adding to, or clarifying, the issues, and the Town and the NEC having to resolve some jurisdictional matters. The Hearing Officers have, therefore, consolidated the issues as follows:

Issue No. 1: whether the Approved Development accords with the provisions of the NEPDA and the NEP; and, if not,

Issue No. 2: whether the Redefined Proposed Development, with revised Conditions of Approval, accords with the provisions of the NEPDA and the NEP.

Witnesses and Evidence

28This section provides a general summary of the evidence of the parties and persons who obtained status in the hearing.

29Witnesses were called by the NEC, the Company, the Town and Park Stud. Mr. Borges, Mr. Dallan and Mr. Bernardi provided their own testimony. MC² and WSWO did not call witnesses. The Company subpoenaed two witnesses, and submitted a request to subpoena Deb Pella Keen, the Director of the NEC. The request to subpoena Ms. Pella Keen was objected to by the NEC, the Town and others, and was withdrawn by the Company.

30The NEC gave background evidence first, followed by the Company’s evidence and that of persons supporting its case, the Town’s evidence and that of persons in support of the Town, the NEC’s opinion evidence and, lastly, brief reply evidence of the Company. Some of the parties, participants and presenters gave evidence in a different order, when they were available and the Hearing schedule allowed.

31The witness on behalf of the NEC was Nancy Mott. She was qualified by the Hearing Officers as an expert witness in land use planning. She provided background evidence about the Approved Development and the NEP.

32Ms. Mott stated that the NEC receives development permit applications for events; however, this is the first application for water-ski competitions.

33Ms. Mott explained that as the result of an approval of an NEP Amendment, when the aggregate pit ceased operations, designations of EPA and ENA were applied to the property. Ms. Mott said the MREA, which permits aggregate pits, may be re-designated, once extraction is completed and once minimal rehabilitation has

occurred. Ms. Mott referenced the objectives of Section 1.9 of the NEP regarding MREA, After Uses, which states:

prior to a change of land use a Mineral Resource Extraction Area will require an amendment to the Niagara Escarpment Plan. The after use of the excavated area shall be compatible with, and have minimal impact upon, the surrounding uses and the objectives of the Niagara Escarpment Plan.

34Ms. Mott testified that the NEC staff consulted with the Town, the County, the Ministry of Natural Resources and Forestry (“MNRF”), and the Toronto and Region Conservation Authority (“TRCA”), to prepare the staff report for a decision by the NEC. Comments of the consulted agencies are summarized as follows:

the County commented that parking is not permitted on the County Road Right-of-Way, and that permitting would be required for any driveway alteration and signage;
the Town commented that the proposed dock and deck met the intent of the NEP policy permitting recreational uses oriented to the land that do not involve major structures, as would the proposal for four non-profit water-ski competitions. The Town requested a condition of approval that the Company would have to apply to the Town for a SEP (see Condition 10) and indicated that the Company would be required to comply with all Municipal regulatory by-laws including the NBL. The Town already had referred one noise complaint to the NEC and recommended that any further applications should include the preparation of a detailed Acoustical Analysis of the property during the occurrence of the water-ski events;
the TRCA did not object to the application, and indicated that the area of the property to which the application applies is outside of the TRCA’s regulated area. TRCA staff conducted a site visit on September 29, 2015 and did not consider the subject area to have any significant natural features or natural hazards; and
the MNRF commented that Bobolink (a threatened species) habitat may have been observed in the grassland areas of the property but, as the proposed development would not be within these areas, it would not likely impact the species or its habitat. MNRF further commented that there are no Provincially Significant Wetlands (“PSW”) on the property but there are unevaluated wetlands and a candidate life science Area of Natural and Scientific Interest (“ANSI”).

35Ms. Mott said that the NEC Staff Report recommended approval of the development permit application, subject to conditions. As referenced above, the

information in the Request for Comments circulated by the NEC was not as detailed as the Notice of Decision setting out the Approved Development. Therefore, the appeals by the Town and other persons were in respect of the Approved Development, which contained different information than the Request for Comments, and in particular, a much more detailed site plan.

36Ms. Mott’s initial testimony during the first phase of the Hearing provided an overview of the Approved Development, the application process and relevant NEP policies; her testimony in the second phase of the Hearing included opinion evidence and focused on the Redefined Proposed Development and Revised Conditions of Approval agreed upon between the NEC and the Town. She said that the NEC supported these changes.

37The witnesses on behalf of the Company were:

Craig Laing, who is a former MNR (now MNRF) Aggregate Resources Officer. He was employed by MNRF from 1980 until 2012. Mr. Laing was stationed in the Midhurst District, which administers all of Dufferin County, including the Town. He was responsible for the administration and enforcement of the aggregate extraction license for the property and undertook formal inspections and informal site visits. Mr. Laing provided evidence, under summons, on the equipment at the aggregate site, the rehabilitation requirements and the post-rehabilitation site conditions. He testified to the lack of noise, dust and traffic complaints stemming from the aggregate operation;
Hugh Fraser was qualified by the Hearing Officers as an expert agricultural engineer with expertise in MDS issues. He recently retired from the Ontario Ministry of Agriculture, Food and Rural Affairs (“OMAFRA”). He provided an independent review of the MDS portion of a July 27, 2016 report prepared by Stovel and Associates Inc. (“Stovel Report”), which was commissioned by the

Town for the Hearing. Mr. Fraser addressed whether MDS should be applied at all in this case and, if so, whether “MDS-1” must be applied, as well as the appropriate information to be used and its interpretation. As indicated above, the Town withdrew MDS as an issue during the second phase of the Hearing;

Marc Vaillancourt is a commercial airline pilot, a friend of the Singers, and someone who has water-skied on the south pond several times. He provided testimony on his observations from an aerial perspective, as well as information on the water-skiing competitions hosted on the property in previous years, and information regarding vandalism;
Mark Tijessen is president of the Dufferin Landowners Association (“DLA”), a regional branch of the Ontario Landowners Association. He testified, also by summons, that he has personally observed both amateur and competitive water-skiers using the south pond. He said that the water-ski boat does not make a lot of noise and that, in his view, no development permit should be required at all. He also said that he would never condone a member of the DLA “enjoying the use of his or her property to the detriment of a neighbouring property; however, detriment does not include reasonable noise or visitor levels that do not contravene local bylaws”;
Mr. H. gave evidence under summons. He requested anonymity for personal and professional reasons, which was agreed to by the parties and the Hearing Officers. He said that he is a volunteer firefighter and resides in the area. Between 2010 and 2013 he attended water-skiing competitions at the property and he has made first-hand observations of the property pertaining to noise, traffic and wildlife. While Mr. H. has concerns related to his well water and local traffic issues, he stated that these are the result of other activities in the immediate area and not the proposed water-ski competitions, which he supports;
Dr. Singer was the representative of the Company throughout the proceeding. He called and examined witnesses, gave evidence himself, and made submissions. Dr. Singer requested that aspects of the development identified for personal use in the Approved Development be separated from the approval for the water-skiing competitions/events and he also identified three conditions in the Conditions of Approval to which he objected, Conditions 9, 10 and 12. Dr. Singer provided observations on the Town’s NBL and the noise complaints against his property, and issues that he has with the Town’s SEP process. He used examples of the way that the Town handled other events and ongoing activities to illustrate his concern that the proposed development not be subjected to unfair treatment. Dr. Singer provided examples from other regions on the compatibility of water-skiing to residential land uses. He testified that the sanctioned tow boat, to be used in the water-ski events, would not create a negative impact on water quality and he proffered studies to support this. Through his testimony, Dr. Singer further clarified the intent and the scope of the water-ski events;
John Coulter, President of J. E. Coulter Associates Limited, an engineering consultancy specializing in acoustics, noise and vibration, was retained by the Company to review the proposed water-ski competitions and to prepare a report. He was qualified by the Hearing Officers as an expert in acoustical engineering. Mr. Coulter’s evidence consisted of an on-site test of the sound level of the tow boat running the length of the south pond. The results of the sound level test were incorporated into a model to determine the impact of the sound energy on two receptors, Park Stud and a farming operation north of Park Stud. His report concluded that the sound levels generated by the water-ski competitions will meet the noise criteria of the Ministry of the Environment and Climate Change (“MOECC”), as well as the NBL of the Town. His report recommended that no noise controls, other than what already is in place for the control of noise at the former pit, be required; and
Gavin O’Brien, Manager of Hydrogeology with Soil Engineers Ltd., a consulting engineering firm specializing in geotechnical, environmental hydrogeological and building science, was qualified by the Hearing Officers as an expert in hydrogeology. Mr. O’Brien was retained by the Company to provide a hydrogeological assessment of the property. His evidence is discussed under Issue No. 2.

38Mr. Jones, a presenter, testified that he has been involved in competitive and recreational water-skiing for over 40 years. As noted previously in this report, Mr. Jones requested that the Hearing Officers allow him to maintain his personal presenter status, along with replacing Mr. Roberts as the authorised representative of WSWO. In his capacity as a presenter, he told the Hearing Officers that he served as a National Technical Official at the Toronto 2015 Pan Am Games for water-skiing. Mr. Jones is an international Water Ski and Wakeboard Federation rated judge and official, also known as a homologator, whose role is to ensure fairness and to maintain event standards. He has first-hand knowledge of water-skiing at the property, as well as similar sites in Ontario, Quebec, Alberta, the United States, Australia and New Zealand. Mr. Jones and WSWO support the Company’s position with respect to its appeal of certain Conditions of Approval. Mr. Jones provided testimony regarding the concerns raised by the neighbours about noise, traffic, effects on wildlife and water quality. Mr. Jones also provided the Hearing Officers with details of the practical operation of a water-skiing competition, including details over the course of a weekend WSWO competition/event at the property.

39The Town’s only witness was Mark Early, the Town’s Chief Administrative Officer (“CAO”) and the Clerk. The representative for the Company, Dr. Singer, objected to the Hearing Officers qualifying Mr. Early, as an expert in land use planning and municipal administration on the grounds that his employment with the Town precluded him from fulfilling the responsibilities required by an expert witness to provide opinion evidence that is fair, objective and non-partisan. Dr. Singer did not object to Mr. Early’s qualifications as a land use planner. After hearing submissions from the Parties, the Hearing Officers were satisfied that Mr. Early has signed the Acknowledgement of Expert Duty form in good faith and that he would discharge his duties in the same way. The Hearing Officers noted that the case law is clear that employment status does not disqualify a person as an expert witness. The Hearing Officers qualified Mr. Early an expert in land use planning and municipal administration.

40Prior to July 11, 2016, Mr. Early was the Town’s Director of Planning and he was involved in discussions with Dr. Singer (on behalf of the Company), residents and the NEC with respect to the proposed development and how water-skiing competitions could be affected by the Town’s by-laws, specifically the Town’s NBL. Mr. Early has been the Town’s staff member responsible for processing noise complaints and for providing comments on NEC development permit applications. Mr. Early provided background information on the proposed development from the Town’s perspective. He outlined noise complaints arising from activity on the property, and gave evidence on the Town’s position throughout the process, up to and including the agreement of the Town and the NEC regarding the Redefined Proposed Development and Revised Conditions of Approval.

41As indicated, the Town withdrew the MDS issue and did not call a witness on that subject. Also, the Town did not call a noise expert witness, which it had advised at the beginning of the Hearing that it intended to do.

42Mr. Borges, owner of a neighbouring property on the west side of Airport Road, gave testimony against the proposed water-skiing competitions regarding concerns related to drinking water and potential contamination, as well as issues of safety, noise and garbage. Although Mr. Borges opposes the proposed water-skiing competitions, he is prepared to support the Proposed Revised Conditions of Approval put forward by the Town and the NEC.

43Mr. Dallan, a neighbour who lives on Airport Road directly across from the property’s access road, does not support the proposed water-skiing competitions. He

too supports the Proposed Revised Conditions of Approval. Mr. Dallan testified about his concerns as to the size of the water-skiing competitions, the safety of local residents resulting from increased traffic congestion, garbage from the events, noise, and environment and water quality.

44Michael Byrne gave evidence, as owner, on behalf of Park Stud, a horse breeding farm located on the west side of 6th Line East, across from the property. Mr. Byrne said that he started Park Stud in 1982, after being President of Gardiner Farms, a leading Canadian racing and breeding stable. He said that Park Stud breeds and raises horses and it is ranked as one of the top stallion farms in North America. He testified that Park Stud has produced multiple champion racehorses, for example a Canadian Triple Crown winner and two Queen’s Plate winners.

45Mr. Byrne requested that the Hearing Officers qualify him as an expert in horse breeding and raising. While the Hearing Officers did not qualify Mr. Byrne as an expert witness, they agreed to consider his experience and qualifications in relation to the weight to be given to his evidence. Mr. Byrne’s concerns relate to water quality and potential contamination of the aquifer from which the farm draws its well water. Mr. Byrne gave evidence on the impact of the current recreational water-skiing of the Singer family and friends on Park Stud’s young fillies. He testified that Park Stud has had to make changes to its farming practices; for example, young fillies are not able to remain in their paddock during prolonged periods of water-skiing because the noise generated distresses them and has a negative impact on their ability to grow and thrive.

46Mr. Bernardi lives on the east side of Airport Road, across from the property. Mr. Bernardi testified about: the risks that the development proposal poses to the existing heavy weekend traffic along Airport Road, water quality and potential contamination of local wells; impacts on the quality of life provided by the Town; and impacts on local wildlife such as the Bobolink, Eastern Meadowlark and the Jefferson Salamander, and fish habitat. He is also concerned that the proposed water-skiing events will create a precedent that would allow similar development.

47Mr. Testani, a participant and neighbour who lives on Airport Road, also opposes the proposed development. He testified about the nature and scope of the proposed development project and negative impacts on water safety and water quality, noise, traffic increase that could compound safety issues related to access to the property’s driveway, and quality of life. Mr. Testani questioned whether there can be effective enforcement of the Conditions of Approval and he is also concerned that this development will set a bad precedent.

48During the Hearing, certain parties objected to the invasion of privacy caused by the Company’s evidence. These parties are area residents and include: Mr. Bernardi, Mr. Testani, Mr. Borges, Mr. Byrne, and Mr. Dallan. The evidence in question is a series of photographs taken by Dr. Singer, without consent, of the neighbours’ properties in which addresses, vehicles and license plates, and other personal property is displayed. These parties requested that these photographs be expunged from the Company’s paper and electronic evidence. This was agreed to by the Hearing Officers. Parties were also concerned that the location of the security cameras on the perimeter of the property might negatively impact their privacy.

49The presenter CONE, represented by Mr. Patrick, its President, objects to the proposed development. CONE was founded in 1978, and represents the interests of 29 member organizations. These include province-wide organizations and community groups along the Escarpment. Mr. Patrick reviewed the NEC staff report and NEC decision, as well as the NEP Amendment PD 191-11 that changed the designation of the property from MREA to EPA and ENA. Mr. Patrick walked the site on June 23, 2009, as part of a group touring rehabilitated extraction areas, and in his capacity as a member of the Board of the Aggregate Forum of Ontario. Mr. Patrick’s testimony focused on concerns that the property’s rehabilitation from a gravel pit could be damaged by water-skiing competition activities given the small size and environmental

sensitivity of the ponds. He stated that the “pond is better suited to canoes and/or

kayaks”. Mr. Patrick noted that all of the tour participants saw Bobolink on the property.

Issue No. 1: Whether the Approved Development Accords with the Provisions of the NEPDA and the NEP. Sub-issues are whether the Approved Development is:

a. a Permitted Use under Part 1 of the NEP; and

b. meets the NEP Part 2 Development Criteria.

Discussion

Issue No. 1: Whether the Approved Development Accords with the Provisions of the NEPDA and the NEP

50This section first sets out the description of the proposed development and then the Conditions of Approval.

51On April 9, 2015, the NEC circulated a Request for Comments and then again on April 10, 2015, the NEC circulated an addendum, which included Map 3A, a hand-drawn map of the site. The summary of the Company’s development proposal, as described in the Request for Comments, is:

To host four non-for-profit [sic] waterski events and allow the following accessory facilities, on an existing 82.62 ha. (204.15 ac.) lot:

a +/- 10m by +/- 10m ground-level deck;
a +/- 2m by +/- 3m floating dock moved between five (5) possible locations;
four (4) hydro poles and an electrical power line;
up to two (2) port-a-potty rentals;
a 1 m by 1.5 m sign to be posted at the Airport Road entrance on event days;
the use of shipping container(s) for storage;
the use of parking within an existing gravel area.

Note: the water-ski events would involve up to forty (40) competitors and the operation of one (1) boat at a time, and would take place during daytime hours.

52The Company’s application was less detailed than the description in the NEC’s Request for Comments. For example, it referred, among other things, to “access – Airport Rd., parking on existing gravel”. The application’s hand-drawn “Partial Site Plan” (Map 3A), circulated as an addendum to the Request for Comments, was a rough sketch that also provided very little detail.

53The following is the description of the proposed development in the NEC Approved Development, which is different from the description in the Request for Comments that was circulated by the NEC, and the Company says is different in some respects from the development that it had applied for:

To permit the use of a pond on the 82 ha (204 ac) property (former pit) for up to 4 seasonal water-skiing non-profit competitions per year using one boat (with one back up or emergency boat);
To use the existing driveway from Airport Road property to provide access to proposed spectator parking, (2 parking lots each with 98 spaces and 187 parking spaces along the former haul road);
To provide the following proposed facilities for the use of competitors and visitors during events: 1 portable toilet, 1 camping trailer, 1 storage container, 1 floating dock, concrete deck and overhead canopy, 1 event tent, 1 boat lift;
To provide a hydro service from 6^th Line;
To erect a pole for a proposed security camera; and,
To post an entrance sign and event identification signage facing Airport Road at the existing entrance during water-skiing events.

54The Conditions of Approval attached to the Approved Development include both standard conditions and conditions specifically relating to the Company’s development proposal. Importantly, they include a much more detailed site plan than the one that was circulated in the Request for Comments. Conditions specific to this approval are:

The Development Permit shall expire three years from its date of issuance, unless the development has been completed in accordance with the Development Permit.
The use of the lake for water skiing events shall be limited to four (4) per year during the hours of 0900 to 1900.
Prior to the water skiing events the applicant shall obtain a Special Event Permit from the Town of Mono as required by Town Council.
Notwithstanding Condition 4, this Development Permit for the water skiing events shall be in force for a period of three (3) years after which time the applicant may re-apply for a Development Permit to allow further water skiing competitions.
The applicant shall provide an annual report to the Niagara Escarpment Commission by December 31 of each year the permit is in force, listing the number of participants and spectators and outlining any issues including noise or traffic complaints arising from the competition.
Only one competition waterski boat and one back-up/emergency boat will operate during a water skiing events [sic].

Notes: The water skiing events are subject to the Town of Mono noise by-law. … This Development Permit does not limit the need for or the requirements of any other approval, license or certificate under any stature, e.g. Ontario Building Code, Conservation Authorities Act or Endangered Species Act.

55As mentioned in the Overview, there was clearly confusion about the scope and intensity of the Company’s development proposal and the understanding of the NEC and the Town in that regard, e.g., the number of days of competition per weekend and the number of competitors as opposed to attendees (competitors plus spectators). For example, Ms. Mott said that it was difficult to get a clear understanding from the Company about the actual proposed water-skiing competition events. To illustrate, Ms. Mott’s witness statement recommends approving the proposal on a temporary basis for “holding occasional (four annually) one day competitions as special events”, and she noted that she was surprised to find out later that the water-ski events are proposed to be held for two and one half days.

56Also, the company delivered to the NEC a third site plan with reduced parking and other changes on April 8, 2016. This was after the date of approval of the Approved Development.

57In the second phase of the Hearing, until its final submissions, the Company appeared to modify its proposal regarding the requested number of competitions. However, in its final written submissions, the Company states (emphasis in the original):

We applied to permanently host up to 4 annual not-for-profit water ski competitions per year involving up to 40 competitors (not attendees). I leave it to the Hearing panel to decide what a reasonable number of spectators would be and we will comply.

On the other hand, the final written submission of WSWO refers to “up to 2 seasonal water-skiing non-profit competitions/events” (emphasis added). The Hearing Officers will deal with modifications proposed by the Company, the NEC and the Town to the Redefined Proposed Development under Issue No. 2. The discussion, analysis and findings of Issue No. 1 are in regard to the Approved Development.

Analysis

a. Whether the Approved Development is a Permitted Use under Part 1 of the NEP

Analysis

58The scheme of the NEPDA and the NEP does not allow development as-of-right in the Niagara Escarpment area. The NEP provides that the Part 1 Permitted Uses and Part 2 Development Criteria (how a proposed development should be carried out) are to be read in conjunction with one another.

59Although “development” is not defined in the NEP, the NEPDA provides: “development includes a change in the use of any land, building or structure”. Ms. Mott said that the Company is proposing “development” within its meaning in the NEP because there would be a change from personal use water-skiing to competitions or events, including aspects such as practice sessions for competitions.

60The property where the south pond is located is in the EPA under the NEP. Ms. Mott said that the Approved Development is in accord with the following applicable NEP Permitted Use provisions: EPA part 1.4.5, which provides for “recreational uses oriented towards the land which require minimal modification of the existing natural, topographic and landscape features and which do not require the building of major structures (e.g., picnic sites, day use sites, un-serviced camp sites, trail uses)”; and EPA part 1.4.9 (accessory buildings structures and facilities) and EPA part 1.4.11 (incidental uses, such as ponds), and the site modifications required to accommodate them.

61Ms. Mott’s evidence was that the Approved Development meets the Purpose of the NEPDA and 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.”

62Ms. Mott also stated that the Approved Development meets the virtually identical Objectives of the NEPDA and the NEP, particularly:

Objective 2 of the NEP (“to maintain and enhance the quality and character of natural streams and water supplies”);
Objective 3 (“to provide adequate opportunities for outdoor recreation”);
Objective 5 (“to ensure that all new development is compatible with the purpose of the Plan”); and
Objective 6 (“to provide for adequate access to the Niagara Escarpment”).

63The NEC Staff Report on the development proposal states, at p. 2:

The proposal is consistent with the Provincial Policy Statement 2014 (“PPS 2014”) as it would permit resource-based recreational uses and allow recreational opportunities on rural lands (PPS 2014, Parts 1.1.5.2 and 1.1.5.3) that support healthy, active communities by planning for public access to water-based resources for recreational purposes (Part 1.5.1 b).

Ms. Mott also referred to PPS 2014 policy 2.5.3 and the rehabilitation of aggregate sites. This policy requires that “final rehabilitation shall be required to accommodate subsequent land uses, to promote land use compatibility, to recognize the interim nature of extraction, and to mitigate negative impacts to the extent possible.” Under Part 2.1 of the NEP, NEC decisions are required to be consistent with the PPS 2014 but the NEP shall take precedence to the extent of any conflict.

64The NEC Staff Report also states: “Schedule A of the Town of Mono Official Plan shows the designation of the subject lands as EPA. The Town’s OP policy is the same as that of the NEP and permits recreational uses.”

65Except for MC², the parties did not challenge the use of the south pond for recreational water-skiing by the Singer family and friends. The position of MC² is that both personal use and competition water-skiing are incompatible with the purpose and objectives of the NEPDA and the NEP.

66As will be discussed below, the Company did not accept a proposed settlement by the Town that is agreeable to the NEC, in the terms of the Redefined Proposed Development and its revised Conditions of Approval. The Town therefore takes the position that any water-skiing competitions and related facilities pursuant to the Approved Development are not a Permitted Use. The Town also submits that the Company’s development proposal required a NEP Amendment.

67The Town asserts that “the development proposal has morphed and changed its identity so many times, that there is no certainty of the integrity of the original review by public agencies.” While it is not within the Hearing Officers’ jurisdiction to invalidate the Request for Comments circulated by the NEC, lack of clarity of the proposed development in the Company’s application and disparities between the Request for Comments circulated by the NEC and the Approved Development are relevant to the issues in the Hearing. However, the essence of the proposed development, i.e., holding water-skiing competitions on the property in the NEP EPA, was clear from the application.

68Mr. Early underscored the Town’s concern about the inconsistencies in the description of the proposal, and he reiterated the necessity to clarify the nature and the

scale of the usage. Mr. Early added that over the course of preparing for the Hearing and during the Hearing, this understanding has evolved from being four one-day events to four two and one half day annual events. It is Mr. Early’s opinion that the initial nature of the proposed development has significantly changed and that its scale has substantially increased. Mr. Early emphasized that the objective of the Town Council is to have adequate control of the proposed development to respond to its inconsistencies, as well as to ensure that the residents’ concerns are addressed.

69MC² argues that the proposed use is not compatible with the NEP Amendment that changed the property’s designation from MREA to ENA and EPA upon the termination of the gravel pit operation. This is partly because of MC²’s concerns about potential fuel spills that could have impacts on the ground water and surface water systems on the property, and the naturalisation of the property and wildlife habitat. To the extent that these concerns relate to the Development Criteria, they are discussed under Issue No. 2.

70MC² argues that any water-skiing on the pond would be contrary to the property’s rehabilitation after its use as a gravel pit and contrary to the purpose and objectives of the NEPDA and the NEP in the EPA. MC²’s submissions focus on the “Three E’s”: Environment, Equitable and Ecologic.

71The question under Issue No. 1.a. is whether the Approved Development proposal is a permitted use in the NEP EPA. In the EPA, a recreational use such as the Approved Development must be “oriented towards the land” and “require minimal modification of the existing natural, topographic and landscape features” under part 1.4.5.

72In this case, the water is an artificial pond that was formerly part of a sand and gravel pit. The water-skiing would require some temporary facilities but the pond and berms already exist. There would be very little modification of the existing natural, topographic and landscape features. The property is recovering from being a highly-disturbed site.

73The parties did not make submissions on the meaning of the phrase “oriented towards the land”. While some aspects of water-skiing can be land-based, such as an event tent and spectator seating, the main activity is primarily oriented to water, not land. The examples of permitted uses given in part 1.4.5 are helpful in determining what is intended by this provision. The examples are: “picnic sites, day use sites, un-serviced camp sites, trail uses”.

74Ms. Mott indicated that the NEC considers both the scale and intensity of proposed recreational activities. On those measures, the Approved Development is not in the same category as the examples given in part 1.4.5 of the NEP regarding a recreational use in the EPA. Those are clearly at the low end of the scale in scope in intensity. The Approved Development is for “up to 4 seasonal water-skiing non-profit competitions per year”. The Company’s evidence was that each competition would be over two and one- half days (part of Friday for practice, Saturday and Sunday). The evidence at the Hearing was that the NEC thought the competitions/events would be only one-day events; the difference between what the Company intended and what the NEC thought that it was approving could be quite substantial for neighbours (issues related to noise, traffic, parking, and concerns about wildlife, horses and well water are discussed below under Issue No. 2). The total number of competition days would be ten, instead of four as contemplated by the NEC. The competitions would be held over four three-day weekends during the water-skiing season, instead of four one-day weekend sessions.

Findings

75Four seasonal two and one-half day water-skiing competitions requiring 187 parking spaces would not be the same in nature as the examples of part 1.4.5 Permitted Uses; they would be of a greater scope and intensity, more akin to the type of use contemplated in the Recreation Area. The Hearing Officers therefore find that four water-skiing competitions per year, for two and one-half days on weekends during the season, would not be a Permitted Use under part 1.4.5 of the NEP, and would not be in accord with the provisions of the NEPDA, NEP, and the applicable policies of the PPS 2014.

76The above finding is supported by Recreation development criterion 2.13.4, which provides that: “Intensive recreational activity is intended to occur primarily in the designated Escarpment Recreation Areas and on public lands”. As already mentioned, the NEC’s decision to approve the development was based on a much less intense use of one-day competitions/events as opposed to their being over two and one-half days. The Company’s intended proposed development is the sort of intensive recreational activity described in criterion 2.13.4.

77Permitted Use 1.4.5 was the primary use referred to by Ms. Mott. Permitted Use 1.4.9 (accessory buildings, structures and facilities) is ancillary to Permitted Use 1.4.5. In view of the Hearing Officers’ finding on Permitted Use 1.4.5, it is not necessary to further consider the ancillary structures and facilities in this case in regard to EPA Permitted Use 1.4.9. They will be considered under Issue No. 2.

78The Hearing Officers do not consider EPA Permitted Use 1.4.11 (incidental uses, such as ponds) to be relevant to this development permit application. The pond was created as the result of the aggregate extraction activity on the property and was effectively approved by the NEP Amendment that re-designated the property as EPA when the pit operation ended.

79As a footnote, at the completion of the Hearing, Ms. Mott advised that the NEC has endorsed a change in the mapping designation for the property to Escarpment Rural Area (“ERA”), except for the wetland in the north-east corner, which would remain as ENA. Ms. Mott indicated that the NEC’s recommendations were before the Minister as part of the recent review of the NEP. The ERA designation would be at the Company’s request in the alternative to its unsuccessful attempt to change the property’s designation to Escarpment Recreation Area. That request was not supported by the NEC.

80Ms. Mott stated that there is a slightly broader range of recreational uses in an ERA under the current NEP, but that these uses are not as-of-right and are subject to the Development Criteria. She cautioned that it cannot be assumed that permitted rural uses will be the same after the completion of the review, and indicated that this development permit was conditionally approved based on scale and use as it was initially understood by the NEC based on the Company’s development permit application.

b. Whether the Approved Development meets the NEP Part 2 Development Criteria

81As the Hearing Officers have found that the Approved Development is not a Permitted Use under Part 1 of the NEP, the Part 2 Development Criteria need not be considered in respect of Issue No. 1. They will be discussed below under Issue No. 2, as they relate to the Redefined Proposed Development.

Issue No. 2: Whether the Redefined Proposed Development, with its revised Conditions of Approval, accords with the provisions of the NEPDA and the NEP. Sub-issues are whether the Redefined Proposed Development would:

a. be a Permitted Use under Part 1 of the NEP; and

b. meet the NEP Part 2 Development Criteria.

Discussion, Analysis, Findings and Recommendations

Issue No. 2: Whether the Redefined Proposed Development, with its revised Conditions of Approval, accords with the provisions of the NEPDA and the NEP

82At the continuation of the Hearing in February 2017, the Town and the NEC jointly filed, “with prejudice”, the Redefined Proposed Development with revised Conditions of Approval attached as Appendix 3. The Town explained that the Redefined Proposed Development was drafted by considering the evidence that had been heard in the first phase of the Hearing in September 2016. It redefines the description of the proposed development and divides it into two categories: “Temporary

Waterski Competitions/Events” and “Permanent Use by the Owner”. The Redefined Proposed Development of the Town and the NEC also suggests revisions to the

Conditions of Approval in the Approved Development.

83The following discussion first considers the new description of the proposed development and then the revised Conditions of Approval. This is followed by the analysis of whether the Proposed Redefined Development would be a Permitted Use under Part 1 of the NEP and would meet the Part 2 NEP Development Criteria.

Description of the Use

84The following is the description of the use in the Redefined Proposed Development:

PROPOSED DEVELOPMENT (Redefined February 2017)

Temporary Waterski Competitions/Events

To permit the use of a pond on the 82 ha (204 ac) property (former pit) for up to 2 seasonal water-skiing non-profit competitions/events (a competition/event being up to 2 1/2 days in length having a maximum of 40 attendees) per year using one boat (with one back up or emergency boat);
To use the existing driveway from Airport Road property to provide access to proposed spectator parking, (maximum 40 spaces as shown on the revised site plan dated April 8, 2016 – filed as Tab 21, Exhibit 11);
To provide the following proposed temporary facilities for the use of competitors and visitors during the events: 1 portable toilet, 1 event tent, 1 portable waterski jump ramp;
To post an entrance sign and event identification signage facing Airport Road at the existing entrance during water-skiing events;
Overnight Camping by spectators/competitors and permanent septic facilities are not permitted.

Permanent Use by Owner (and Temporary Waterski Competitions/Events, as applicable)

To permit the permanent use of 1 camping trailer, 1 storage container, 1 floating dock, a concrete deck and overhead canopy, 1 boat lift;
To provide a hydro service from 6^th Line;
To erect a pole for a proposed security camera; and,
1 portable toilet.

85The items in the second category above - “Permanent Use by Owner (and Temporary Waterski Competitions/Events, as applicable” - are in addition to the items in the first category of “Temporary Waterski Competitions/Events”. For example, the

cumulative facilities available for a water-skiing competition/event would include: one temporary event tent, one camper trailer and two portable toilets.

86The following discussion focuses upon the individual items in the description of the proposed use in the Redefined Proposed Development, some of which are not contentious. That is followed by a discussion and analysis of the revised Conditions of Approval.

Number of Water-skiing Competitions/Events and Length

87As already mentioned, although there was discussion during the Hearing of the Company reducing the number of water-skiing competitions/events from four to two, the Company did not commit to this change in its final submissions.

88The NEC thought the Company was applying for four one-day water-skiing competitions/events.

89Mr. Wilker, on behalf of the Town, submits that it was not until the PHC process that the Company provided information that the water-skiing events would be held for more than one day. The Town further submits that the reviewing public agencies were not accurately apprised of the extent of the Company’s development proposal.

90The proposal of the Town and the NEC, of two water-skiing competitions/event for two and one-half days each, is supported by the other parties who oppose the Approved Development, except for MC².

91WSWO appears to agree with the provision in the Redefined Proposed Development that there be two water-skiing competition weekends.

Number of Competitors/Attendees

92The question is whether the number of “attendees” or “competitors” should be limited to 40 in the Redefined Proposed Development.

93Dr. Singer and Mr. Jones testified that the development permit should be for 40 “competitors” and not 40 “attendees”. It is their contention that if the cap for people allowed on the property is set at 40 persons it would reduce the number of competitors. Dr. Singer and Mr. Jones confirmed that 40 competitors represented the total number over the entire weekend of a water-skiing competition/event and not per day.

94Dr. Singer testified that the average number of competitors participating in the water-skiing events that have already been hosted on the property is 26 or 27, with an average number of 20 vehicles. He anticipates that these numbers would remain the same at future water-ski events.

95Mr. Jones explained that there is a lack of understanding of what goes on at water-skiing tournaments. He said that a small number of competitors require a one-day format, whereas 40 competitors require a two-day format. Mr. Jones added that an evening practice session or “familiarization run” generally precedes the day of competition, and that Friday night or Saturday morning is usually reserved for that reason. For the tournament-day there are three published events: slalom, trick and jump. Mr. Jones stated that a majority of the water-skiers compete in slalom events, a

few enter the trick events and a smaller number compete in the jump events. Mr. Jones added that events are by age group, with the youngest age group competing first. He said that there is no award ceremony at the end of the day.

96Mr. Jones added that volunteers, approximately five to six people, start setting up around 6 a.m. to 6:30 a.m., to prepare for a start time of 8 a.m. Mr. Jones noted that many of the volunteers and other officials are also water-ski competitors, and, therefore, the practice of participants assuming multiple roles must be considered when determining whether the total number of people at the events should be based on 40 attendees or 40 competitors. Mr. Jones’ evidence was that not all of the competitors arrive or leave at the same time, nor do they necessarily stay after their events are completed to view other competitors’ water-skiing. Mr. Jones estimated that about half of the 40 competitors would be at the property at one time.

97Mr. Jones was asked by one of the Hearing Officers if any non-sanctioned events occur. He replied, that a non-sanctioned event is “not really an event, it would be considered a practice session amongst friends”. Mr. Jones further stated that he is not aware of any non-sanctioned events held on the property and he noted that non-sanctioned events do not count toward official standings.

98Information in the Water Ski and Wakeboard Canada (“WSWC”) 2014-2016 Event Profiles and Bidding Guidelines document for the 2016 Eastern Canadian Water Ski Championships, which was put to Mr. Jones on cross-examination, indicated that “participants” at its events might bring 1.2 to 1.5 “non-participants” with them to the championships. That does not factor in the period of time over which the “participants” and “non-participants” would attend a competition, i.e., people would be coming and going over the weekend.

99Under cross-examination by MC² on the matter of tracking and calculating spectator numbers, Dr. Singer said that he has never recorded spectator numbers but the number of non-competitors who attend the water-ski competitions is low. Dr. Singer

disagreed with the spectator calculation factor of 1.2 to 1.5 spectators per participant. Dr. Singer was asked if 40 vehicles would result in two people per vehicle for a total of 80 attendees, or if there was a maximum number of people that he could provide. He

responded by saying that water-skiing is not a popular sport and he has never been at a water-ski competition where there are 40 spectators present.

100Dr. Singer submits that the proposed gatherings are small scale with anticipated average attendance of approximately 26 competitors and 20 vehicles. He argues that the WSWC calculation ratio of 1.2 to 1.5 spectators for each competitor “bears no relationship to reality”. Dr. Singer suggested that the Hearing Officers could establish a reasonable limit on the number of spectators in their report.

101The Town argues that it is necessary to limit the number of “attendees” because, otherwise, the water-skiing events could pose a greater impact on the surrounding neighbours. The Town submits that a case has been made for a total of 40 “attendees” because that is the basis for the opinions of the Company’s noise expert, Mr. Coulter, as set out in his witness statement (noise is discussed below in relation to the proposed revised Conditions of Approval).

102Mr. Kroeker, on behalf of MC², submits that the number of people expected at the water-ski events has not been verified. He notes that early in the Hearing process the Company stated that “there are no spectators, only competitors”. In light of this statement, Mr. Kroeker questions the Company’s concern over proposed changes to the Approved Development to allow 40 attendees and not 40 competitors. MC² further submits that when the Company and supporters of the proposal were asked to give the expected number of spectators for each water-ski event, they responded by saying “only a few”. MC² submits that the WSWC 2014-2016 Event Profiles and Bidding Guidelines is a document of considerable relevance for the Hearing because it provides a historically based calculation of the number of spectators (in addition to competitors) who typically go to these events, i.e., 1.2 to 1.5 spectators for each competitor. MC² submits that “40 competitors means a total of 88 to 100 people”.

103Mr. Bernardi submits that, if it is recommended that the Approved Development proceed, he requests that appropriate measures are put in place to guarantee limited personal use of the south pond for water-skiing by the Singer family only or to clearly defined minimum limited use, coupled with conditions, which alleviate the serious concerns in his and his wife’s appeal, along with practical and effective means for enforcement.

104Mr. Dallan contends that if the development permit allows 40 competitors and the total number of attendees is not specified, there could be more than 100 people on the property for water-skiing competitions.

105The Hearing Officers agree with the submissions of the Company and WSWO that the reference to “40 attendees” should be changed to “40 competitors”. That way the number of competitors will not be reduced, there will be greater certainty for the organizer of the competitions as to the number of competitors, and fewer on-site management problems of ensuring the right number of competitors and spectators. The limit on the number of parking spaces will also limit the combined total number of competitors, officials, volunteers and spectators (collectively, the “total attendees”). Mr. Early and Ms. Mott conceded that the change would make sense, although the Town’s formal submission is that the term “attendees” should be retained.

106Nevertheless, the Hearing Officers are concerned at the lack of any control on the total number of attendees as there will be no cap on the number of spectators. Despite having held seven previous water-skiing events over the period 2010 to 2013, Dr. Singer and Mr. Jones could only provide vague estimates on the number of spectators. WSWC’s 2014-2016 Event Profiles and Bidding Guidelines, produced to assist potential hosts prepare bids for WSWC championship events, conducted internal studies and found that for its sanctioned events, competitors bring 1.2 to 1.5 non-competitors with them. These figures were disputed by Dr. Singer without evidence to support his disagreement with the WSWC calculations.

107Further, the WSWC’s 2014-2016 Event Profiles and Bidding Guidelines lists 50 entries for the 2013 Eastern Canada Championship, which was held on the Subject Property. This contradicted information provided by WSWO, which identifies 35 competitors. While Dr. Singer and Mr. Jones explained that the same individual could register for more than one event or that some might register but not show on the day of the competition, the evidence is inconclusive on the reasons for the discrepancy. Even though Dr. Singer and Mr. Early both testified that tracking competitors would be easier than accounting for non-competitors, this example illustrates the inconsistencies and inconclusive nature of evidence on the matter of total persons participating in and attending the water-ski competitions.

108Mr. Jones testified that once competitors complete their events, they leave. However, his evidence was also that people hold different roles, as they are competitors, officiants and other types of volunteers. Mr. Jones also testified that families travel together, with younger member competing earlier in the day, while older members compete later. Mr. Jones estimated that approximately fifty per cent of the competitors would be on site at one time. This estimate did not include officiants, spectators or others. Water-ski competitors take advantage of practice sessions or familiarization runs prior to the competitions. Thus, it is conceivable that one competitor could be on the site on Friday, Saturday and Sunday, depending on the role that the person plays during the water-skiing competition and whether he/she accompanies a family member who competed at another time or on another day.

109For the above reasons, the Hearing Officers recommend that the use of the term “competitors” as opposed to “attendees” be reconsidered on the review of the water-skiing competition activities at the end of the recommended three-year development permit. To accomplish this, the Hearing Officers recommend that a competition/event tracking registration system be instituted to provide data on the total number of attendees and the ratio of competitors to spectators to assist with the three-year review. This could be a term in the SEP or a condition to the development permit.

Parking

110The Redefined Proposed Development substantially reduces the number of parking spaces from 187 to 40.

111Ms. Mott stated that the Company submitted a revised site plan to the NEC on April 8, 2016, after the NEC’s decision on the Approved Development. It shows a voluntary reduction by the Company to just one parking lot with a maximum parking capacity of 40 vehicles.

112Mr. Early, in a memo regarding the original site plan circulated to the commenting agencies, noted that it showed two parking areas of 98 vehicles each and event parking along the entranceway of 187 vehicles. He further reported that “fuel leaks or other maintenance issues faced by any property owner is compounded by the volume of proposed onsite parking, especially on gravel surfaces near the water table”. Mr. Early also noted “that the amount of parking is also an indicator of the number of persons potentially attending the event”.

113The Company agrees with the description of the proposed development being for a “maximum of 40 spaces as shown in the revised site plan dated April 8, 2016” as set out in the Redefined Proposed Development.

114Given the positions of the parties and the evidence on the actual number of attendees at past competitions/events, the Hearing Officers are of the opinion that a “maximum of 40 spaces” is appropriate for a low intensity recreational use in this location in the EPA.

115The Hearing Officers further note that the wording used in the Redefined Proposed Development is “spectator” parking. The Hearing Officers recommend that the word “spectator” be deleted and the word changed to “attendees”.

116The proposed condition does not distinguish between automobiles and buses. This could make a substantial difference to the number of attendees and change the scope and intensity of the water-skiing events. The Hearing Officers recommend that the condition be clarified to refer to automobiles only.

Storage Container(s)

117In its development permit application, the Company had requested “storage-shipping container(s) as needed”. The Approved Development was for “1 storage container” and this is carried forward in the Redefined Proposed Development. The Company and WSWO did not provide any convincing evidence as to why this should be changed to two or more storage containers and the Hearing Officers find that there is no reason to change the approved and proposed number of containers.

Security Camera(s)

118The Company and WSWO say two poles and security cameras would be more effective and not obtrusive to neighbours. There was no substantial objection to this request, provided that the security cameras face into the property such that they would not capture images of any of the neighbours’ properties or vehicles, etc. The Hearing Officers recommend that the security cameras shall face into the property so that they do not capture images of any of the neighbours’ properties or vehicles, etc. With this additional wording, the Hearing Officers agree with this proposed change to the Redefined Proposed Development.

119The above recommended changes of the Hearing Officers to the description of the use in the Redefined Proposed Development are reflected in the version attached as Appendix 4.

Revised Conditions of Approval

120The following discussion considers the more controversial Conditions of Approval. Some conditions are the same as in the Approved Development and some have revisions proposed by the Town and the NEC. Only proposed Conditions 15 (sound equipment) and 16 (fuel storage) are new. The parties opposing the

Development Approval support the Town’s position on the Redefined Proposed Development, except for MC², as discussed.

Condition 4

121Conditions 4 and 12 deal with the three-year expiry of the development permit review period. They have not been revised and will be considered below under Condition 12.

Revised Condition 5

122Revised Condition 5 incorporates the revised site plan, dated April 8, 2016, delivered by the Company after the NEC’s decision on the Approved Development. The condition allows the Company to make minor site modifications without submitting another development permit application. For example, if there is evidence of excessive noise from the water-skiing competitions, then gaps in the berms could be filled to reduce the noise without submitting another application. The Company and WSWO did not oppose this revised condition.

Revised Condition 9

123Revised Condition 9 clarifies the hours of operation, setting out when activities may take place. Ms. Mott explained that revised Condition 9 responds to the activity needs expressed by the Company, as well as the needs of the neighbours for their privacy and a quiet environment. Ms. Mott’s opinion is that this will make enforcement

easier. In final oral submissions, the Company and WSWO did not oppose this revised condition.

Condition 10

124Condition 10 requires the Company to obtain a SEP from the Town for the water-skiing competitions. This condition has not been revised. The Company did not appeal this condition, but the Company and WSWO ask that it be deleted.

125The draft SEP was prepared by Mr. Early, the Town’s CAO and Clerk. He said that it was circulated to the parties prior to the commencement of the second phase of the Hearing to clarify for the parties its potential terms. Counsel for the Town indicated that a SEP is an instrument under s.126 of the Municipal Act, and he emphasized that the draft SEP contains recommended provisions that would require ratification by the Town’s council.

126The draft provisions of the SEP refer to the following:

a ban on retailing goods and services, including food and beverage;
the posting of signs to direct participants and guests away from environmentally sensitive areas;
undertaking a noise study by a qualified acoustic engineer during the holding of the first waterski event;
satisfying the Town that a minimum of $5,000,000 of insurance is in place, that EMS persons certified in first aid and CPR attend waterski events, that emergency first responders are available, and that all public health issues have been addressed;
providing on an annual basis the schedule of waterski events to the neighbours, consulting with neighbours regarding their scheduling concerns, and no scheduling of waterski events on long weekends; and
securing the services of a qualified professional to obtain grab samples and turbidity sampling from wells of neighbours who have concerns regarding their private water supply.

127The Company disputes any condition to the development permit regarding a SEP because it will be directly imposed by the Town. The Company argues that this condition is discriminatory and unfairly targets this development permit application.

128One of the Objectives of the NEPDA and the NEP is: “to support municipalities within the Niagara Escarpment Plan Area in their exercise of the planning functions conferred upon them by the Planning Act.” The Hearing Officers are of the opinion that this condition supports this objective. It ties the Company’s compliance with the SEP to the development permit and makes the development permit a comprehensive document that the owner of the property, the neighbours, the NEC and the municipality can refer to regarding compliance matters.

129The Hearing Officers recommend that the terminology in the SEP be consistent with that used in the revised Redefined Proposed Development, e.g., the use of the words “competitors, officials, volunteers and spectators” and “total attendees”.

Condition 12

130Conditions 4 and 12 deal with the three-year expiry of the development permit. Condition 12 applies “notwithstanding Condition 4”. Therefore, Condition 12 has priority. On a plain reading of Condition 12, the Company’s development permit will only be in force for three years, but the Company may reapply for a development permit to allow further water-skiing competitions.

131The Company and WSWO argue that this is not a condition at all, there cannot be “temporary” development permits under the NEPDA and the NEP, and the Company should not have to apply again for a development permit after three years. They ask that Condition 12 be deleted, in which case under Condition 4 the development permit

would not expire after three years if the “development has been completed in accordance with the Development Permit.”

132The Town’s position is that Condition 12 is essential to a better understanding of the actual impacts of the proposed development and to ensure that the description of the development and the Conditions of Approval are appropriate. The Town suggests that the word “shall” be replaced by “may” so as not to counteract withdrawal of the development permit if the Company is not in compliance. The Hearing Officers agree with the Town’s submission and recommend that change.

133Regarding the three-year term of the development permit, the Town cited the decision in Leckebusch v. Niagara Escarpment Commission, [2013] O.E.R.T.D. No. 49 (“Leckebusch”), in which the issue was whether horse shows and ancillary activities and facilities were a permitted use under the NEP. The NEC had approved a series of one and two-year development permits for horse shows over a period of approximately fourteen years until 2010 but refused to do so for 2011 and following years. The Hearing Officers summarised the reasons for the refusal at para. 5 of the decision: “the proposed use was inconsistent with the permitted uses and objectives of the NEP and the general intensity level of the use, permanent nature of the uses and added components had increased to a point that an amendment of the NEP (a “Plan amendment”) is necessary”.

134In Leckebusch, the development permit approvals were for limited periods of one to two years at a time. The appellants (the owner corporation and its principal), the Region of Halton and the Town of Halton Hills had agreed to a settlement. They supported the settlement subject to some changes, including that the development permit be limited to three years, for a maximum of six events in each year, with no event having more than 600 horses. The Hearing Officers observed:

Over the period of time during which the NEC approved the

development permits sought by the Appellants and

supported their position in the NEHO appeals, the NEC

issued each permit on a temporary basis because of

concerns that the activities on the property might change

with time. That change has now occurred.

135The matter proceeded to a hearing and the NEC’s decision to refuse the application was confirmed by the Hearing Officers on the basis of their finding that the proposed equestrian events were not a permitted use in the ERA designation under the NEP.

136The Town relies upon the Leckebusch decision to support the argument that time limited development permits under the NEPDA and the NEP are not unusual or novel but have a bona fide purpose of keeping a lid on development “creep” in the NEP Area. The Hearing Officers agree with this submission and endorse the use of time limited development permits in circumstances where there are legitimate concerns that the activities on a property might change with time.

137The Hearing Officers find that a development permit for a fixed term of three years would be fair and appropriate in this case. The Hearing Officers consider this to be a development permit with a fixed term as opposed to a “temporary” development permit. It would allow all the parties the opportunity to review the situation and consider changes to the description of the use and the Conditions of Approval so that is future the development might continue to be in accord with the Purposes, Objectives and provisions of the NEPDA and the NEP.

Revised Condition 13

138Condition 13 requires an annual report to be submitted to the NEC each year that the development permit is in force. The Company is to provide a listing of the number of “participants” (the Hearing Officers recommend this be changed to “competitors, officials and volunteers”) and spectators. The annual report is also to include a record of issues that might arise from the water-skiing competitions, such as noise complaints.

Ms. Mott added that a proposed revision to Condition 13 requires follow-up action by the

Company to address issues to the satisfaction of the NEC. The Company and WSWO do not oppose this revised condition.

Condition 14

139Condition 14 deals with the boats to be used for water-skiing competitions. It has not been revised and provides for one competition water-ski boat and one back-up/emergency boat operating during a water-ski event. The Company and WSWO argue that this condition is not necessary and not required elsewhere. The Hearing Officers are of the opinion this is a reasonable condition given the small size and scale of the water-skiing competitions as represented by the Company and WSWO.

140The Town submits that there should be a boat cleansing protocol to prevent transmission of contaminants into the pond, including invasive species. The Hearing Officers recommend that the hulls of any water-ski boat(s) not solely used on the pond on the property shall be washed (e.g., hosed down) prior to their use on the pond, and any bilge water from use of such boat(s) off-site shall be properly disposed of off-site prior to use of the boat(s) on the pond on the property.

New Condition 15

141Condition 15 bans the use of amplification and sound equipment during water-skiing competitions. Ms. Mott said this condition was added to avoid cumulative sound impacts of the tow boat. Ms. Mott said this condition also responds to the Company’s evidence that sound amplification is not normally part of the events, given the modest nature of the water-skiing competitions, and responds to the noise concerns of the neighbours. The Company and WSWO argue that this condition is redundant because they must comply with the Town’s NBL in any case, and unfair as their noise expert said a low-level system would comply with the Town NBL. However, the Company’s noise consultant did not include the contribution of sound generated by a low-level amplification system in his noise analysis.

142The Hearing Officers are of the opinion this is a reasonable condition given the small size and scale of the water-skiing competitions as represented by the Company and WSWO.

New Condition 16

143Ms. Mott said that Condition 16 was added because it was the NEC’s understanding that the water-ski boat would always come out of the water for refuelling off-site at a gas station. The NEC’s understanding was based on discussions with the Company’s representative, Dr. Singer, prior to the NEC’s decision on the Approved Development and right up to his evidence in the Hearing. Therefore, the NEC understood that the Approved Development would not involve on-site fuel storage and refuelling.

144The Company and WSWO describe this condition as “an error in law” because the subject matter is beyond the jurisdiction of the NEC.

145MC² estimated that there could be 100 to 120 litres of gas stored in the shipping container, based on the evidence of Mr. Jones that there would be no spill containment on the door end of the container, and no concrete containment for the shipping container itself, although it is located only 15 m from the water according to the site-plan. Mr. Kroeker described every fill event as a risk.

146The Hearing Officers are of the opinion that on-site refueling of the water-ski tow boat on the south pond and refueling on the property are legitimate concerns that are further discussed below in respect of the NEP Part 2 Development Criteria.

a. Whether the Redefined Proposed Development, with its Revised Conditions of Approval, would be a Permitted Use under Part 1 of the NEP.

Permitted Use under Part 1 of the NEP

147Again, NEP Part 1 Permitted Uses are subject to the NEP Part 2 Development Criteria (how a proposed development should be carried out); they are to be read in conjunction with one another. The NEPDA and the NEP take a development control approach to applications for development permits and do not allow development as-of-right in the Niagara Escarpment area.

148The Purpose and Objectives of the NEPDA and the NEP discussed under Issue No. 1 apply equally to Issue No. 2. Also, the same NEP Part 1 EPA Permitted Use provisions discussed under Issue No. 1 are applicable: EPA Permitted Uses 1.4.5 (a recreational use such as the Approved Development must be “oriented towards the land” and “require minimal modification of the existing natural, topographic and landscape features”); and 1.4.9 (accessory buildings, structures and facilities).

149As already indicated, those opposing the Approved Development, except for MC², are not seeking to prevent the Singer family’s personal use of the south pond on the property for water-skiing; rather, they are concerned with the scale and intensity of water-skiing competitions. They are particularly concerned about what the Town describes as the “creep” of small events such that over time they become big events that magnify concerns about matters such as noise, traffic, water quality and wildlife.

150The description of the Redefined Proposed Development is different in important respects from the description of the Approved Development. In one sense, it is a compromise to address the discrepancy between what the NEC thought that it was approving (four one-day competitions annually) and what the Company was really seeking (four two and one-half competitions annually); the Redefined Proposed Development provides for a maximum of two water-skiing competitions/events per year, of up to two and one-half days each.

151Another significant proposed change, that of distinguishing between the two categories of “Temporary Waterski Competitions/Events” and “Permanent Use by Owner …”, meets the request of Dr. Singer to permit certain facilities for the use of the owner of the property and, in addition, facilities for the water-skiing competitions, e.g., the addition of one portable toilet, one event tent, and one portable water-ski jump.

152The description of the activity and facilities in the Redefined Proposed Development and the various Conditions of Approval that are either carried over, revised or new in respect of the Approved Development, have been discussed above. In brief, the Hearing Officers recommend that the wording in the Redefined Proposed Development be accepted as set out in Appendix 3, subject to the changes suggested by the Hearing Officers as indicated and set out in Appendix 4 (the Recommended Development Approval).

153With the above recommended changes, the proposed use in the Recommended Development Approval would: be similar in scope and intensity to the examples of EPA s. 1.4.5 Permitted Uses; not be so intense a use of the water such that it could not be considered “oriented towards the land”; and “require minimal modifications of the existing natural, topographic and landscape features”. Further, the description of the accessory structures and facilities, and there allocation for personal use and for the competitions/events, appears to be a reasonable compromise approach to help maintain the open landscape character of the Escarpment and be consistent with the provisions of the NEP that contemplate more intensive recreational activities. The Hearing Officers find that two water-skiing competitions per season would not exceed the level of recreational intensity allowed in the EPA.

154In the opinion of the Hearing Officers, subject to the NEP Part 2 Development Criteria discussed below, the Recommended Development Approval with its conditions of Approval, set out in Appendix 4, would: accord with the Purpose and Objectives 3 and 5 of the NEPDA and the NEP; be a Permitted Use under uses 1.4.5 and 1.4.9 in the NEP EPA; and be consistent with the applicable policies of the PPS 2014.

b. Whether the Redefined Proposed Development, with its Revised Conditions of Approval, would meet the NEP Part 2 Development Criteria.

NEP Part 2 Development Criteria

155The NEP Part 1 Permitted Uses are subject to the Part 2 Development Criteria. As submitted by the parties, the Development Criteria of particular relevance here are: (i) General Development Criteria 2.2, (ii) New Development Affecting Water Resources 2.6, (iii) Wildlife Habitat 2.8, and (iv) Recreation 2.13. The Development Criteria were not discussed under Issue No. 1 because of the preliminary finding that the Approved Development is not a permitted use in the EPA under Part 1 of the NEP.

(i) General Development Criteria 2.2

156The objective of the NEP part 2.2 General Development Criteria is: “to permit reasonable enjoyment by the owners of all lots that can sustain development”. However, permitted uses are not as-of-right, they may be allowed provided they meet the listed criteria. The most relevant ones referred to by Ms. Mott are:

2.2.1.a) The long term capacity of the site can support the use without a substantial negative impact on Escarpment environmental features such as contours, water quality, water quantity, natural vegetation, soil, wildlife, population, visual attractiveness and cultural heritage features;
2.2.1.d) Development meets applicable federal, provincial and municipal requirements including health and servicing requirements; and
2.2.4 Any development permitted should be designed and located in such a manner as to preserve the natural, visual and cultural characteristics of the area.

157In this case, the General Development Criterion 2.2.1.a) issues overlap with the more specific criteria regarding New Development Affecting Water Resources 2.6, including water quality, and Wildlife Habitat 2.8. Also, General Development Criterion 2.2.4 overlaps with the Recreation Criterion 2.13, which is also discussed below. Those matters are discussed below and the related findings apply here as well.

158It is Ms. Mott’s opinion that the proposed development would not conflict with the General Development Criteria given the limited amount of proposed recreational activity.

159The Hearing Officers incorporate their findings below on the development criteria regarding water quality, wildlife habitat and recreation, and are of the opinion: that the Redefined Proposed Development and its Conditions of Approval, with the Hearing Officers’ recommended revisions, would meet the objective of the General Development Criteria to permit reasonable enjoyment of the property by the owner (the Company); and that the long term capacity of the property can support the proposed use without a substantial negative impact on Escarpment environmental features.

(ii) New Development Affecting Water Resources 2.6

160The concerns of neighbouring residents and the Town relate to the potential contamination of the large southerly pond on the property from the use of the water-ski boat and the on-shore storage of fuel. Such contamination could have substantial negative impact on water quality in the pond itself and in the well-water of the residents whose wells are fed by the aquifer that connects with the pond.

161The Objective of the NEP Development Criterion 2.6 New Development Affecting Water Resources “is to ensure that new development affecting streams, watercourses, lakes, wetlands, and groundwater systems will have minimum individual and cumulative effect on water quality and quantity, and the Escarpment environment.” Under NEP part 2.6.6: “Where in the opinion of the implementing authority a potential ground or surface water pollution problem exists, the applicant shall detail through appropriate studies, the detrimental effects and how they will be minimized.” Under NEP part 2.6.23: “Existing ponds shall be encouraged to revert to a natural state (e.g. where there are significant environmental impacts or structural problems). This provision is also relevant to the discussion of wildlife habitat in the following section.

162The overlap of the New Development Affecting Water Resources criteria with the General Development criterion 2.2 was identified above. It provides that a permitted use may be allowed if: “The long term capacity of the site can support the use without a

substantial negative impact on Escarpment environmental features such as … water quality … .”

163Ms. Mott said that the Approved Development was partly based on the NEC’s understanding that all refuelling for the water-skiing competitions would be off-site. She said that Dr. Singer told her that refuelling of the water-ski boat for his family’s personal use is done off-site.

164The evidence regarding refuelling of the tow boat that would be operated on the pond for the water-skiing competitions is that: it uses gasoline (not diesel fuel); it meets California emission standards; it exhausts to the air; fuelling would be done from approved containers by persons familiar with their use; and small quantities of fuel would be kept in a locked shipping container until used at a competition/event. However, MC²identified concerns with the container and its location as mentioned above. Mr. Jones stated that in his experience it is unlikely that anything but a very small spill would occur on land.

165Mr. Jones further testified that when the ski boat is operating on the pond, most exhausted or spilled gasoline would quickly evaporate. Mr. Jones and Dr. Singer testified that water-skiers are very cautious regarding gasoline spills in the water because they do not want to come into contact with such substances.

166Mr. Jones also said that it would be impractical to take the tow boat out of the water during a competition for re-fuelling off-site. The Hearing Officers observe that such a requirement would make scheduling events problematic and would have the unwanted effect of extending the length of time to complete a weekend competition. In addition, there would be the added traffic concerns of a vehicle towing a motor boat on a trailer from, and back to, the property.

167The property and lands in the vicinity of the pond have private wells that are not governed by the Clean Water Act, 2006, S.O. 2006, c. 22. However, if they were it would appear, as submitted by WSWO, “the activities proposed and the fuel volumes and types of fuel used are not even considered threats under the Clean Water Act.”

168There was no expert evidence on water quality. The Company called an expert hydrogeologist, whose evidence is discussed below, but he acknowledged that he is not an expert on water quality.

169Having considered the evidence, the Hearing Officers believe that a precautionary approach is warranted and recommend that on-site refuelling of the water-ski tow boat and safety boat on the pond be limited to the water-skiing competitions/events on a maximum of two weekends per year and the fuel stored on-site be limited to those two weekends and to an amount sufficient to refuel one tow boat and one emergency boat during a weekend competition/event. In addition, the Hearing Officers recommend that a simple Fuel Contingency Plan be instituted by the Company. Based on the evidence provided by Mr. Early, a Fuel Contingency Plan need not be onerous. It would document where and how fuel is stored and used, and how a spill would be cleaned-up in order to minimize risk to the water quality of the southerly pond on the property and any connecting aquifer.

170Subject to the above recommended changes to the Redefined Proposed Development and its Conditions of Approval, and for the above reasons, the Hearing Officers are of the opinion that limited on-site storage and refuelling the tow and emergency boats at the property will not, on a balance of probabilities, cause ground or surface water pollution that would have a substantial negative impact, or affect water quality, in the Escarpment environment.

171As indicated above, Mr. O’Brien was qualified by the Hearing Officers as an expert in hydrogeology. Mr. O’Brien was retained by the Company to provide a

hydrogeological assessment of the property. Mr. O’Brien’s evidence included a summary of the 53 water wells within the 500 metre (“m”) boundary of the property; an interpretation of the overburden soil stratigraphic sequence based on a review of data collected from the Ontario Water Well information of these wells; and an interpretation of shallow groundwater flow patterns for the property and the immediate area based on recorded surface water level elevations on the subject site. Mr. O’Brien’s report also contained a section on water quality.

172Mr. O’Brien said that he is not a water quality specialist. He believes that the pond is replenished primarily by ground water with the addition of some surface water. He said the groundwater flow in the vicinity of the property is from west to east. If there are contaminants in the pond, it is his opinion that it will take a long time for the shallow water in the pond to migrate to the aquifer that supplies the deeper wells. In his opinion “the risk to water well supplies is negligible, at worst minimal.”

173The Town did not call any hydrogeological evidence.

174Dr. Singer, on behalf of the Company, argues: “The activity I am engaging in poses less of a risk to the neighbours’ drinking water than many of the functions and activities they routinely engage in”.

175The Town argues that Mr. O’Brien confirmed that the subject area has been identified as a highly vulnerable aquifer and that this requires a higher level of due diligence in respect of a development approval.

176The Town further argues that Mr. O’Brien’s opinions about the geology in the area near the property and potential well contamination of neighbouring lands are not reliable because the underlying data is not reliable. As examples, there was a ten-year

difference in some of the well records; well locations were approximated; and shallow wells could be either 20 m or 30 m, which would affect the mapping.

177Mr. O’Brien agreed that he had only done a “desktop” review. Although he was on the pond on the property he did not take a grab sample, measure the depth of the pond, review Dr. Singer’s aggregate extraction records, undertake a survey of surrounding wells or take other steps to obtain his own data to verify some of the information.

178In cross-examination Mr. O’Brien admitted that he had not calculated groundwater velocity and did not know if the pond was partly spring fed.

179The Town submits: that “the hydrogeology of the area was not sufficiently understood” and that “it is impossible for this hearing panel to be satisfied that the water resources policies of the NEC Plan have been met.”

180All the neighbours at the Hearing are concerned to some degree about the potential impacts of the proposed development on drinking water from private wells in the vicinity. Some are of the view that there will be little to no impact, and some are very concerned because they feel that there is simply too little information about the aquifer, its connection with the pond on the property, and the refuelling activities associated with the more intense use of the pond for water-skiing competitions/events.

181Mr. Kroeker, the representative of MC², objects to portions of Mr. O’Brien’s report on water quality on the basis that Mr. O’Brien does not have expertise in water quality.

182CONE submits that the proposed development is “not compatible with the EPA designation because fuel spills are likely and could result in dire potential impacts on the ground water and surface water systems on this property.” CONE cites the NEP

Amendment PD 191-11 that changed the property’s designation from MREA to ENA and EPA in 2014. It provides:

The after use of the excavated area shall be compatible with and have minimal impact upon, the surrounding uses and the objectives of the Niagara Escarpment Plan. This shall include a consideration of the potential impact of the after use or uses on ground water and surface water systems.

183The Hearing Officers find that the hydrogeological evidence is inconclusive. The evidence on cross-examination of Mr. O’Brien demonstrated that the database for his opinions is insufficient to give anything more than a general overview of the likely hydrogeology of the property and the lands in its vicinity. The Hearing Officers find that given the scale and intensity of the Company’s development proposal, i.e., two weekends of competitions/events per year, and the finding above regarding water quality, at this time it is not necessary to complete a more detailed hydrogeological study. However, this does not rule out such a requirement at the conclusion of the three-year review period or even during the three-year period should additional relevant information be forthcoming or circumstances otherwise change.

184In conclusion, the Hearing Officers are of the opinion that the Redefined Proposed Development and its Conditions of Approval, with the Hearing Officers’ recommended revisions, would accord with General Development criterion 2.2.1.a) that: “The long term capacity of the site can support the use without a substantial negative impact on Escarpment environmental features such as … water quality …” and with the objective and criteria of the New Development Affecting Water Resources criterion 2.6 to ensure that new development affecting the pond and groundwater system in the vicinity of the Company’s property will have minimum individual and cumulative effect on water quality and on the Escarpment environment.

(iii) Wildlife Habitat 2.8

185The Objective of the Wildlife Habit development criterion 2.8 of the NEP is “to protect the habitat of endangered (regulated) as prescribed by the Endangered Species Act, endangered (not regulated), rare, special concern and threatened, plant and animal species, and minimize the impact of new development on wildlife habitat”.

186Development criterion 2.8.2.a) provides (emphasis added):

Development shall be designed so as to: a) Minimize the impacts upon wildlife habitat, in particular, habitats of endangered (not regulated), rare, special concern, and threatened plant or animal species, as identified by on-site evaluation.

187The overlap of the Wildlife Habitat criteria with the General Development Criterion 2.2 was identified above. It states that a permitted use may be allowed provided that: “The long term capacity of the site can support the use without a substantial negative impact on Escarpment environmental features such as … wildlife …”. In addition, criterion 2.6.23 states: “Existing ponds shall be encouraged to revert to a natural state …”, which serves to preserve and create wildlife habitat.

188Ms. Mott testified that the NEC made repeated requests to the Company to provide reports to support the development permit application, including an Environmental Impact Statement (“EIS”); however, these were not submitted.

189The Town submits that there is a lack of understanding concerning the natural heritage of the property; for example, it is not known whether Bobolink or other endangered or threatened species are present, and no empirical evidence has been provided to justify the NEC approval with respect to the impact of the proposed development on fish habitat, birds and other species.

190MC² submits that testimony was given on the negative impact that the boating activity has had on Bobolink, a listed endangered species, and on the relocation of Canada geese from the pond area to the horse paddock on a nearby farm. MC²supports Mr. Patrick’s contention that only canoeing and kayaking should be permitted on the ponds on the property to allow natural rehabilitation to occur. MC²’s submissions regarding the impacts of noise on wildlife are set out below in the section on “Recreation”.

191Mr. Byrne testified that Canada geese and ducks are not remaining on the Company’s property as a result of the water-skiing activities. He said the geese are now feeding in Park Stud fields where they defecate and destroy the grass where his horses graze. Mr. Byrne observed that with the advent of water-skiing at the property bird populations have declined, particularly Bobolink and Red-winged Blackbirds.

192Mr. Bernardi, a 35-year resident of the area, attested to the presence of Bobolink and Eastern Meadowlark in the area, as well as the potential for the Jefferson Salamander. Mr. Bernardi contends that the habitat of these species should be considered before “this motorized water sport” is given tentative approval. Mr. Bernardi further contends that there seems “to be a direct contrast of logic between the reason for this ex-pit to be considered rehabilitated and the approval of this motorized activity, which is detrimental to a much graver degree of concern for species at risk.”

193Mr. Patrick’s visit to the property on June 23, 2009, is described above. It is also his contention that the boating activity would destroy the rehabilitation process on a site that is still naturalizing.

194Dr. Singer said that there are fish, such as catfish, white mullet and other warm water fish in the pond, although he is not aware of the pond being stocked. Dr. Singer provided documents to suggest that water-skiing can co-habitate with fish, and even benefit fish species.

195Dr. Singer and Mr. Jones all testified that the water-ski boat is strong and is designed to tow skiers in a straight line and not create a wake. They inferred that this would decrease impacts on shoreline erosion and wildlife habitat, although those are not expert opinions.

196Dr. Singer added that the property is a disturbed site due to the former gravel pit operation, and that he and his family have worked to be good stewards of the land by, for example, planting 25,000 trees and removing litter and other garbage that has accumulated on the site.

197On behalf of the Company, Dr. Singer submits that the property is one of the most disturbed sites in the NEP Area and it has no unique escarpment natural features. Dr. Singer further submits that the property has been thoroughly vetted by three environmental regulatory agencies: the NEC, TRCA and the MNRF and that the NEC staff reported that no significant environmental impacts from the proposed development are anticipated. The MNRF’s comment, when notice of the proposed development was first circulated, was that it would not likely impact Bobolink habitat.

198The evidence regarding wildlife using the property as habitat is anecdotal and inconclusive regarding species at risk. While there was no expert evidence as to the impact of the proposed development on wildlife and wildlife habitat, either on the property or in its vicinity, the MNRF provided comments on Bobolink habitat during the initial development permit application review. The MNRF stated Bobolink habitat may have been observed in the grassland areas of the property but the proposed development would not be in these areas and it would not likely impact the species or its habitat.

199The Hearing Officers are mindful of the concerns of the Town and resident neighbours that the use of a pond on the property for water-skiing competitions would be a more intense use of the property that may conflict with the NEP goals of protecting

habitat of species at risk (e.g., possibly Bobolink) and minimising impacts on wildlife habitat generally (e.g., other bird species and fish). Dr. Singer testified that the Company wishes to be a good steward of the property, and undertook extensive tree

planting. However, the evidence of Ms. Mott and the Company is that the Company has also applied to change the EPA designation of the property to the less restrictive Escarpment Rural Area.

200The NEC has imposed a three-year review term on the development permit because of the uncertainties of its impacts on a number of fronts, including the Environmental features of wildlife and wildlife habitat. The Hearing Officers recommend that a study of the base-line inventory of the wildlife and wildlife habitat on the property is warranted and should be undertaken prior to the commencement of the three-year period, and updated on its completion and review. This should include consideration of whether the water-skiing competitions/events will impede the south pond on the property reverting to a natural state. The Hearing Officers are of the view that the expense to the Company of such studies should not be too onerous and recommends that representatives of the Company, the NEC, the Town, CONE, MC², MNRF and the TRCA discuss and agree upon a preferred cost-effective wildlife and wildlife habitat base-line study for the property, in relation to the proposed use of water-skiing competitions and accessory facilities.

201In conclusion, the Hearing Officers are of the opinion that the Redefined Proposed Development and its Conditions of Approval, with the Hearing Officers’ recommended revisions, would accord with General Development criterion 2.2.1.a) that: “The long term capacity of the site can support the use without a substantial negative impact on Escarpment environmental features such as … wildlife …”; New Development Affecting Water Resources – Ponds criterion 2.6.23 that: “existing ponds shall be encouraged to revert to a natural state”; and with the objective of Wildlife Habitat Criterion 2.8 to protect the habitat of species at risk and minimize the impact of new development on wildlife habitat.

(iv) Recreation Criterion 2.13

202The Recreation Criterion 2.13 applies to recreation activities on the Niagara Escarpment generally and is not restricted to lands within the NEP Escarpment Recreation Area designation.

203Ms. Mott referred to the Objective of the Recreation criteria, which “is to minimize any adverse impact of recreational activities on the Escarpment”. Ms. Mott said that the most pertinent provision is 2.13.1: “All recreational activities should be designed and located so as not to conflict with surrounding land uses (e.g. agriculture) and be compatible with the natural and cultural character of the area”. Other relevant provisions that she referred to are 2.13.4 (intensive recreational activity is intended to occur in the Escarpment Recreation Areas and public lands), and 2.13.5 (recreational uses should not exceed the carrying capacity of a site or area).

204Ms. Mott explained that although the NEP does not specifically refer to noise or traffic in relation to the EPA, they are considerations in determining compatibility of land use and the NEP Part 2 Development Criteria. She clarified that while noise is a matter for the Town to specifically address in the SEP, non-compliance with the SEP would be a breach of the development permit Conditions of Approval. The following summaries of the evidence on noise and traffic may be of some assistance on a review of the development permit at the conclusion of the three-year term.

Noise

205Ms. Mott stated that the NEC had requested a number of studies from the Company, including a sound test, but did not receive the requested information.

206Mr. Early referenced an email dated January 29, 2015, in which NEC planner Michael Baran wrote: “a noise study is a reasonable request, given the type of use and having received an official complaint”. Mr. Early said that the Town also requested that

a sound test be undertaken but it was not provided and so the Town retained Scott Penton to undertake noise modelling on the impact of the proposed development on local residences. His report analyzed the impact of the water-skiing competitions on neighbouring properties. As the Town decided not to have Mr. Penton appear as a witness during the Hearing, his report was not initially entered into evidence.

207Mr. Coulter was the only expert to testify at the Hearing on potential noise impacts from the proposed development. Mr. Coulter’s report responded to the Town’s noise report prepared by Mr. Penton.

208Mr. Early testified that two noise complaints were received related to operation of water-ski boats on the property. He said that the Town received an anonymous phone call on August 11, 2014 about the noise from boats operating on the property and the caller was advised to contact the NEC because the complaint related to land use issues within the NEP Area. Mr. Early added that County By-law Enforcement staff called to inform the Town that they had a received a noise complaint on the same matter. Mr. Early produced a copy of an email from Ms. Byrne, dated May 25, 2016, outlining concerns related to loud noises emanating from the property, including: yelling with upsetting language, non-stop water-skiing, and engine boating noise. Ms. Byrne’s said that this was heard from Sixth Line East, the road where that Park Stud is located. Ms. Byrne’s email also stated that this transpired over a long-weekend in May of 2016 and the noise was upsetting to Park Stud’s young foals and newly pregnant mares.

209Mr. Borges said his wife and child are bothered by the noise from the property from the operation of the boat on the pond, and that sometimes it operates for eight hours a day.

210Mr. Byrne testified that the noise from the tow boat and water-ski activities is disturbing to Park Stud’s horses and has disrupted its farming practices. He explained that young female horses are raised together as a group at Park Stud, and are let out in a paddock that is 23 m from the Company’s property. He added that the young horses

“grow up with their heads down, eating grass, and their ears up”. He stated that the noise from the water-skiing on the Company’s property startles and stresses them so that they will not eat and do not grow and develop as they should.

211Mr. Byrne said that Mr. Coulter failed to understand the difference between the horses at Woodbine Race Track and Park Stud when he claimed that race horses at Woodbine Race Track tolerate higher levels of noise than what Park Stud’s horses would experience as a result of the proposed development. Mr. Byrne explained that Park Stud raises horses and has “baby” horses and yearlings that have not been broken and so they are more sensitive to noise. He also explained that overhead noise does not bother horses and neither does vehicle noise when horses can see the vehicles. Mr. Byrne underscored that noise from sources that horses cannot see scares them.

212Mr. Byrne said that there is a large gap in the berm where the Park Stud paddock is located and that water-skiing noise can also be heard at his house because it is past the gap in the berm and further south. Mr. Byrne said that there were many times last summer when he and Ms. Byrne had to go in the house because the noise from the water-skiing disrupted their enjoyment of their outdoor home patio. He attributed some of these occasions to water-skiing practice sessions, although he could not confirm this.

213Mr. Coulter provided an overview of the operational background assumptions of his noise analysis. He stated that the property contains berms of varying heights, located along the west and south property lines. Sound level tests of the water-ski boat were taken at the top of the westerly berm, approximately 73 m from the boat’s nearest approach, across from Park Stud. Mr. Coulter noted that the change in elevation in this area represents a 2:1 slope.

214Mr. Coulter stated that his understanding of the evidence was that attendance at water-ski events has been 40 people or less at one time, and there are few non-competitor spectators. Given the small number of persons attending the water- ski events, Mr. Coulter stated that there is no need to use a public address (“PA”) system.

It was Mr. Coulter’s opinion that the 40 people attending the event would not create crowd noise issues because the distance between the area where the attendees congregate and the nearest house is about 200 m. It was also Mr. Coulter’s opinion that it would not be possible for 40 people to sustain “cheering” because to remain constant, it would need to be orchestrated.

215Mr. Coulter stated that on July 25, 2016 a technician undertook sound tests of the Company’s boat to confirm sound levels of the boat at “skiing speed” by driving the boat to simulate water-ski runs. The sound level test results were incorporated into a model to calculate the sound levels at specified receptor sites. Mr. Coulter stated that two receptor sites west of the property, on Sixth Line East, were identified: Park Stud and the farm north of Park Stud. Mr. Coulter also referenced sound receptor sites east and south of the property.

216Mr. Coulter explained that approximately 10 competitors are handled in the water-skiing competition per hour. He added that each competitor makes four passes, or “pass-bys”, of approximately 40 seconds each, which includes acceleration time, time in the course and deceleration time to allow the boat to come to a full stop after exiting the course. He said water-skiers may take up to one minute between runs to rest while the boat idles. Mr. Coulter explained that the total time the boat operates with power per water-skier is 160 seconds or 1600 seconds for 10 competitors, which is 44.5% of the time unit of one hour (in Mr. Penton’s report this was estimated to be 75% of an hour). He added that the boat motor does not run for “significant periods of time” during the competition because of breaks, scoring and reviews.

217Mr. Coulter said that the peak sound level of the water-ski boat was recorded at 58 dBA (A-weighted decibels for which the decibel values of sounds at low frequencies are reduced), which, he added, is 3 dB (unweighted decibels) quieter than a medium sized truck or UPS van. Licensed water-ski tow boats are allowed to be 11 dB higher than the boat owned by the Company/Dr. Singer (“noisier boat”).

218Mr. Coulter explained that the berm, the soft ground in the gap of the berm, and the house on the Park Stud property constitute noise barriers. He stated that if noise barriers are ignored, then the hourly Leq (hourly average of 40 boat pass-bys) would amount to 52 dBA Leq at the second floor of the house on the Park Stud property, which is an additional 83 m from the boat. A correction of – 3 dB is computed to allow for the extra distance of 83 m, resulting in a sound level of 49 dB for the most exposed section of the house. Mr. Coulter added that the noisier boat would create an additional 11 dB.

219Mr. Coulter explained that taking the noise barrier created by the berm and the absorption effect of the soft ground into account, the analysis of the sound created by the noisier boat would result in 45 dB at the second-floor windows and 44 dBA Leq at grade. He added, that at grade level, as one moves eastward toward the Property, the effectiveness of the noise barrier dampening is more pronounced than the sound level rise and, as a result, the sound becomes slightly quieter.

220Mr. Coulter noted that the sound will only reach these levels when the receiver is “downwind, assuming no night-time water-skiing on the pond”, which, he pointed out, occurs only 10% to 15% of the time.

221Mr. Coulter stated that the house north of Park Stud, which is farther away from the property, would experience slightly lower sound levels.

222Mr. Coulter said the impact of the water-skiing competitions on homes to the east of the property and the home to the south would be even less as the nearest easterly property is 450 m from the boat’s pass-bys, while the southern property is approximately 350 m.

223It was Mr. Coulter’s opinion that sound levels posed by the proposed development meet the rural noise guidelines set by the MOECC and the Town’s NBL of 45 dBA Leq hourly during daytime hours. It is also Mr. Coulter’s opinion that no noise controls, other than those that were created for the gravel pit operation’s noise abatement, are required.

224Mr. Coulter stated that sound levels experienced by race horses at Woodbine Racetrack would be at much higher decibel levels of 60 to 65 dBA, and it was his opinion that the more stringent sound level standards that have been met, as shown in his analysis, should not be a problem for any agricultural operation. Under cross-examination by the Town, Mr. Coulter confirmed that he only prepared a reply witness statement because of time constraints. He added that he ran the noise model that he prepared three times.

225Under cross-examination by the Town, Mr. Coulter was asked if he used the International Water-ski Federation (“IWSF”) standard or the American Water-skiing Association (“AWSA”) standard for average tow boat noise. Mr. Coulter replied that there are different standards all over the map. Under cross examination by the Town, Mr. Coulter was asked whether it would be preferred to use the IWSF or AWSA standard for average value of tow boat decibel because the Development Permit and Conditions of Approval did not require a specific boat. Mr. Coulter replied that he measured the Company’s boat.

226The Company’s witnesses, Mr. Laing, Mr. Vaillancourt, Mr. Tijessen, Mr. H, Mr. Coulter, and Mr. O’Brien all testified that they had separately visited the property when the water-ski boat was driven on the pond. Mr. Laing, Mr. Vaillancourt, Mr. Tijessen, and Mr. Coulter testified they could not hear the water-ski boat when they stood on Sixth Line East, in front of the Park Stud lands. Mr. H said that when he stood in front of Park Stud, the noise of passing vehicles and a plane flying overhead was greater than the sound of the boat. Mr. Fraser testified that he was able to talk at a normal conversational level when he rode in the boat.

227Mr. Jones said that the Company’s/Dr. Singer’s boat is one of six water-ski tow boats approved by AWSA and that it is not a high-speed boat, like a jet boat. Mr. Jones testified that the number of spectators at a water-ski competition is small and they do not yell a lot.

228Dr. Singer submits, on behalf of the Company, that Mr. Coulter’s expert opinion is that the competition water-ski boat meets the Town’s NBL, and that an average approved water-ski tow boat would also meet the most stringent noise by-law in Ontario. The Company further submits that it is Mr. Coulter’s expert opinion that spectators attending the water-ski event or a single skier behind the boat would not result in a meaningful difference in the sound level or in the results of his analysis. The Company further submits that Mr. Coulter’s opinion is that the berms that served to provide adequate sound protection during the 30-year aggregate operation, with its crushers and other equipment, are adequate for the proposed development. Dr. Singer said that, as the principal of the Company, he is fully prepared to comply with the Town’s existing NBL.

229Mr. Jones submits, on behalf of WSWO, that Mr. Coulter, a sound engineer, provided evidence demonstrating, through on-site sound tests, that the water-ski boat noise is compliant with the Town’s NBL. Mr. Jones submits that the evidence supports the quiet quality of the boat because the Company’s witnesses said they had to be told that the boat was in operation on the pond and that noise on the gravel road, Sixth Line East, was greater than noise generated by the boat. Mr. Jones submits that while a noise complaint was received by the Town about water-skiing and boat noise from the property, there was no evidence to demonstrate that the complaint was valid.

230Mr. Wilker, on behalf of the Town, submits that the Company’s evidence was flawed and that it did not meet the necessary tests under the NEP to demonstrate that the proposed development would be compatible with the Escarpment with respect to noise. Mr. Wilker says that Mr. Coulter identified the two most affected properties as

receptor sites, Park Stud and the farm to the north of it. The Town submits that Mr. Coulter “managed his analysis” to show compliance with the Town NBL, but the analysis was not consistent with the “worst case scenario” approach, which Mr. Coulter agreed should be used to undertake predictive noise modelling. The Town submits that the following examples demonstrate that Mr. Coulter did not use the “worst case scenario” approach: he used a perfect absorption factor of 1.0; he limited his consideration of the total number of attendees to 40 people, which Dr. Singer has challenged, requesting that it be 40 competitors; and he did not use the worst-case tow boat approved by either the IWSF or the AWSA to determine boat engine sound level. The Town submits that the Development Permit does not require that the Company’s boat be used for water-skiing event, nor does it specify the model of the second back-up boat.

231The Town submits that Mr. Coulter failed to bring to the Hearing Officers’ attention the gap in the berm, and that he downplayed the difference of +/- 3 dbA although the added noise puts the proposed development out of compliance. The Town submits that the measurement technology used for the sound level test is not in accordance with the ISO standard. The Town submits that Mr. Coulter did not undertake the modelling exercise with a skier behind the boat, which, in the words of Mr. Byrne, is “like doing a study of a racehorse without a jockey.”

232Mr. Kroeker, on behalf of MC², submits that frequent comments were made during the Hearing to suggest noise from the proposed development is not a problem because vehicle traffic on adjacent roads or overhead aircraft is noisier than the water-ski boat. MC² submits that this argument cannot succeed because noise effects on both humans and wildlife cannot be simply quantified through “decibel” readings. MC² submits that Mr. Coulter’s report was deficient in “its scope of investigation” and the noise study was “conducted during a carefully crafted, non-event boat activity”. MC² submits that Mr. Coulter demonstrated little knowledge, and no research, on potential noise effects on domestic animals, specifically horses, and wildlife. MC²submits that the proponents of the proposed development described how humans respond to noise

and then projected this on wildlife without considering that animals and birds hear different sound frequencies and have unique physiological responses to noise.

233The Hearing Officers find that Mr. Coulter’s analysis did not replicate actual water-ski competition conditions: for example, the boat did not tow a water-skier when the noise observations were made. There was no data to support his contention that the addition of a water-skier would not make a difference to the sound level outcomes or the results of his analysis.

234Also, Mr. Jones stated that three events could be hosted at the property during water-skiing competitions: slalom, trick and jump. Mr. Coulter’s noise evidence focused on a simulation of boat pass-bys that would be made on slalom runs only. There was no evidence on noise that might be generated from trick and jump events.

235Another shortcoming in Mr. Coulter’s evidence on noise is that his methodology did not consistently apply the “worst case scenario”, an approach that he agreed on cross-examination should be used in predictive noise modelling. Examples of inconsistent use of the worst case scenario approach referenced in his cross-examination and witness testimony are: the analysis used a perfect absorption factor of 1.0 for the soft ground between the berm and the house on the Park Stud farm; the boat tested for water-skiing speed sound levels was not the ‘noisiest’ boat permitted by the ski tow boat certifying bodies, IWSF or AWSA; and 40 persons was the number Mr.

Coulter assumed for attendees, while the Company requested that there be a maximum of 40 competitors, without a specified upper limit on spectators and others.

236The Hearing Officers find that Mr. Coulter’s evidence did not purport to establish whether the noise generated by the water-ski boat would have an negative impact on domestic animals, specifically, Park Stud’s young female horses. Mr. Byrne, a highly-regarded race horse breeder, gave testimony about the impact on Park Stud’s farming practice from the water-skiing activities on the property. However, Mr. Byrne also said that if the water-skiing events are limited to two weekends per month, and he is notified

in advance, he would be able to make alterations to the farm schedule to avoid negative noise impacts on Park Stud’s horses. Mr. Byrne also testified that the noise impacts created by water-skiing on the property have not been limited to the competition weekends, as water-skiing occurs throughout the week, commencing around 4 or 5 p.m. This coincides with the time that Park Stud’s young female horses are taken to the front paddock, which is 23 m from the property. Mr. Byrne was not able to confirm if this water-skiing activity constituted non-personal practice sessions.

237The Hearing Officers find, therefore, that Mr. Coulter’s evidence does not remove the uncertainty regarding noise issues in respect of the introduction of water-skiing competitions in this EPA site on the Niagara Escarpment. The Hearing Officers note that the evidence on noise at the Hearing did not change Ms. Mott’s opinion that compliance with a Town SEP should be a condition of approval and that compliance with the Town’s NBL should be referenced in the Notes to the Redefined Proposed Development. Also, noise issues are to be included in the Company’s annual report to the NEC and the development permit is for a three-year period with a review.

Traffic

238Mr. Jones, on behalf of WSWO, submits that the addition of 40 vehicles at each of two proposed water-skiing events per season is not a significant increase to the 5,970 vehicles per day (2,179,050 per year) that travel Airport Road. He stated that the property’s road entrance is large and paved, and has good visibility. He submits that based on the evidence presented the property’s entrance is significantly safer than most driveways and other road access in the area. Mr. Jones further submits that the residents’ testimony was that the traffic was the result of drivers from the city who were on their way to or from northern destinations.

239The parties Mr. Borges, Mr. Dallan, Mr. Byrne, and Mr. Bernardi, and a presenter, Mr. Testani, are area residents. They are concerned that the number of vehicles used by patrons of the water-skiing events will have negative impacts on the

traffic on Airport Road adjacent to their properties, which all parties agree is very busy. These individuals say that the water-skiing events should not be held on summer weekends, when traffic is particularly pronounced, and specifically on long-weekends.

240Mr. Borges contends that motor vehicle accidents will increase with the estimated 30 to 40 vehicles turning onto the property during water-skiing events.

241Mr. Dallan lives on Airport Road, approximately 100 feet from the property, across from its driveway. Mr. Dallan noted that Condition 13, which requires an annual report on the water-ski events, includes details on the total number of people who attend; he wonders how the condition restricting the number of attendees will be enforced. Mr. Dallan is supportive of a complaint response protocol; however, he wanted to be assured that as the water-ski events occur on weekends, when the Town offices are closed, he would not have to leave a complaint on a telephone voicemail.

242Under cross-examination by the Company, Mr. Dallan was asked if he had any concerns about the 5,907 vehicles that pass by his home on a daily average. He replied that it would be difficult for that many cars to pass by obstructions of potentially 40 to 60 cars making left-hand turns into the property. On cross-examination by the Company on traffic problems related to the Bruce Trail parking lot, which is located north of the entrance to the Company’s property near where 7th Line meets Airport Road, Mr. Dallan stated that he uses that parking lot because he is a bird watcher, and he has never seen more than five vehicles parked there on a weekend.

243Mr. Byrne stated that overflow traffic uses Sixth Line East when Airport Road is busy, particularly on weekends in the summer. Sixth Line East is a dirt road and Mr. Byrne said that an increase in traffic will create a lot of dust, which forces Mr. Bryne and his wife to keep their home windows shut. Mr. Byrne contends that the water-skiing events will result in even more cars using the Sixth Line East.

244Mr. Bernardi echoed the concerns of his neighbours with respect to traffic. He testified that the “mixing of slow accelerating, turning and fast moving traffic is not desirable to have occur in front of your house”. He noted that the water-skiing events are held on weekends, which is peak travel time on Airport Road. Mr. Bernardi stated that on “a 2012 weekend, an off duty Peel Regional Officer lost her life on that very curve at the top of this property following a collision with another vehicle”.

245Mr. Testani, a long-term resident who lives on Airport Road, across from the Company’s property, said that he is required to wait at the bottom of his driveway when the traffic is “jammed” on Airport Road and that cars turn around in his driveway. He does not want to see more traffic congestion caused by vehicles entering and leaving the Company’s property. Mr. Testani questions how the number of cars accessing the property would be controlled.

246On the issue of traffic, Mr. Early reported in the February 26, 2016 memo that Airport Road, at this location, is under the jurisdiction of the County, but the County did not identify traffic volume as a concern for the development permit application

247In support of the Company’s position, Mr. Laing stated it is reasonable to assume that approximately three million trucks would have been used to haul gravel from the property during the time that its aggregate license was in force. Mr. Laing based this estimate on the approximately 20 million tonnes (“t.”) of gravel extracted and hauled by highway gravel trucks, which have a capacity of about 20 to 30 t. for each truck. Mr. Laing testified that he did not recall investigating concerns related to traffic.

248On cross-examination by the Town, Mr. Laing agreed that Airport Road is busier today than it was 10 years ago. Mr. Laing was not able to confirm the number of homes in the area at the time the gravel pit was operational.

249Mr. Vaillancourt testified that he has been on the property many times, as a friend of Dr. Singer, and that he attended one water-skiing competition there in 2013. When he is driving in the area he has experienced cars using the Sixth Line East to avoid the traffic on Airport Road.

250Mr. H also testified about traffic in the vicinity of the property. He indicated that he has been on the Company’s property many times, is familiar with the tow boat, and that he had attended a water-ski event. He provided his own photographs of vehicles on Airport Road and the Bruce Trail parking lot, which is located near where Airport Road meets Line 7. His view is that traffic hazards are more pronounced in the area near the Bruce Trail parking lot and where Airport Road meets the 7th Line than the ingress to and egress from the Company’s property.

251Under-cross examination by MC², Mr. H agreed that the area where 7th Line meets Airport Road is a different situation from the entrance to the Company’s property because there is interference with sight lines and a transition from gravel to pavement.

252Dr. Singer repeated Mr. Early’s statement that Airport Road is under the jurisdiction of the County and, as the appropriate commenting agency for the development permit application, the County expressed no traffic related concerns.

253There is no dispute in the evidence that Airport Road experiences a high volume of traffic, particularly on summer weekends when the water-skiing events would be scheduled.

254Mr. Borges, Mr. Dallan, Mr. Byrne and Mr. Bernardi, parties to the appeal, and Mr. Testani, a participant, all identified the proposal’s impact on local traffic conditions as part of their objections to the Approved Development. Mr. Borges, Mr. Dallan, Mr. Bernardi and Mr. Testani underscored the problem that traffic interruption would create for road safety when vehicles turn into, and out of, the entrance to the Company’s

property on Airport Road. Their concerns are compounded by the uncertainty of monitoring and control of the number of people entering the property over the duration of a weekend water-skiing event.

255The Town supports the testimony of Mr. Dallan with respect to the traffic and turning movements on Airport Road, an already busy road. However, the evidence of Ms. Mott and Mr. Early is that the County, the entity that has jurisdiction for the section of Airport Road where the property is located, found no issues with respect to the Company’s development permit application regarding traffic. This was not refuted by expert testimony.

256Based on the evidence discussed above under the heading “Number of Competitors/Attendees”, the traffic flow on and off the property is not necessarily limited by the maximum number of 40 parked vehicles. The Hearing Officers find that the evidence adduced during the Hearing about the actual traffic flow pattern and numbers of vehicles moving on and off the property remains inconclusive.

257The Hearing Officers agree with the evidence of Mr. Early and Ms. Mott that traffic is a matter for the County to deal with. It did not raise concerns prior to the Approved Development and, at that time, a much larger number of parking spaces were anticipated. There was no expert evidence at the Hearing regarding traffic issues and the nature of the anecdotal evidence related to concerns as opposed to evidence of a conflict with surrounding uses or compatibility with the natural and cultural character of the area.

258The Hearing Officers are of the opinion that the practical measures in the Redefined Proposed Development and its revised Conditions of Approval, with the revisions recommended by the Hearing Officers (the Recommended Development Approval in Appendix 4), will make it more likely than not that the lower level of recreational activity will not conflict with surrounding land uses and will be compatible with the natural and cultural character of the area.

259In conclusion, the Hearing Officers are of the opinion that the Redefined Proposed Development and its revised Conditions of Approval, with the Hearing Officers’ recommended revisions as set out in Appendix 4, would accord with the objective of Recreation Criterion 2.13 to minimize any adverse impact of recreational activities on the Escarpment and that those recreational activities should be designed and located so as not to conflict with surrounding land uses and be compatible with the natural and cultural character of the area.

RECOMMENDATIONS

260The opinion of the Hearing Officers on the merits of the NEC decision on the Approved Development under appeal is that the decision should not be confirmed.

261The Hearing Officers find that four water-skiing competitions per year, for two and one-half days on weekends during the season, would not be a NEP Permitted Use 1.4.5, and would not be in accord with the provisions of the NEPDA, NEP, and the applicable policies of the PPS 2014.

262As the Hearing Officers have found that the Approved Development is not a Permitted Use under Part 1 of the NEP, the Part 2 Development Criteria need not be considered in respect of Issue No. 1.

263Instead, the Hearing Officers recommend approval of a conditional development permit substantially in the terms of the Redefined Proposed Development with its Conditions of Approval set out in Appendix 3, jointly presented and agreed upon by the Town and the NEC, with changes recommended by the Hearing Officers as set out in Appendix 4 (the Recommended Development Approval).

264The Hearing Officers are of the opinion that the Recommended Development Approval with the further revised Conditions of Approval, would accord with the Purpose and Objectives 3 and 5 of the NEPDA and the NEP; be a Permitted Use under Part 1 of the NEP in the EPA as Use 1.4.5 and 1.4.9; meet the NEP Part 2 Development Criteria and be consistent with the applicable policies of the PPS 2014.

265The Hearing Officers further recommend that the terminology in the SEP be consistent with that used in the Recommended Development Approval and its Conditions of Approval (e.g., the use of the words “competitors, officials, volunteers and spectators” and “total attendees”).

NEC Decision Not Confirmed

Recommended Development Approval

“Karen Kraft Sloan”

KAREN KRAFT SLOAN

HEARING OFFICER

“Robert V. Wright”

ROBERT V. WRIGHT

HEARING OFFICER

Appendix 1 – Appellant List

Appendix 2 – Approved Development

Appendix 3 – Redefined Proposed Development

Appendix 4 – Recommended Development Approval

Appendix 5 – Summary of Dispositions

Appendix 6 – Relevant Legislation, Plan and Policy

Appendix 7 – Exhibit List

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

Appendix 1

Appellant List

Appellant Name

File Nos.

Michael Dallan

16-011

Harminder Dalla

16-012

Delfino Bernardi

16-013

Elizabeth Bernardi

16-014

2222699 Ontario Inc.

16-015

Laurel Byrne

16-016

Joe Borges

16-020

Heather Borges

16-021

Town of Mono

16-024

Park Stud

16-027

1For the purposes of this Redefined Proposed Development and Conditions of Approval, the

following terms are defined as: “competitors” means individuals who water-ski in water-ski

competitions or in water-ski events; “officials” means individuals who are sanctioned officials

for water-ski competitions or events; “volunteers” mean individuals who assist in the set-up,

operation and break-down of water-ski competitions or events and are not competitors or

officials; “spectators” means individuals who attend water-ski competitions or events and are

not competitors, officials or volunteers; and “Attendees” means the total number of

competitors, officials (minus officials who are also competitors), volunteers, and spectators.

Overview

Background

Land Use Designations

The Approved Development

Appeals

PHC and Status Requests

Hearing

Witnesses and Evidence

Issue No. 1: Whether the Approved Development Accords with the Provisions of the NEPDA and the NEP

Analysis

Issue No. 2: Whether the Redefined Proposed Development, with its revised Conditions of Approval, accords with the provisions of the NEPDA and the NEP

Description of the Use

Revised Conditions of Approval

Permitted Use under Part 1 of the NEP

NEP Part 2 Development Criteria

Overview

Background

Land Use Designations

The Approved Development

Appeals

PHC and Status Requests

Hearing

Witnesses and Evidence

Issue No. 1: Whether the Approved Development Accords with the Provisions of the NEPDA and the NEP

Analysis

Issue No. 2: Whether the Redefined Proposed Development, with its revised Conditions of Approval, accords with the provisions of the NEPDA and the NEP

Description of the Use

Revised Conditions of Approval

Permitted Use under Part 1 of the NEP

NEP Part 2 Development Criteria

Cited By (2 cases)

Baker v. Ryan et al., 2019 ONMIC 4

Dallan v. Ontario (Niagara Escarpment Commission), 2018 CanLII 123941

Dallan v. Ontario (Niagara Escarpment Commission), 2018 CanLII 40481

Case Summary

Cited By (2 cases)

Baker v. Ryan et al., 2019 ONMIC 4

Dallan v. Ontario (Niagara Escarpment Commission), 2018 CanLII 123941