Niagara Escarpment Hearing Office
Bureau des audiences sur l’escarpement du Niagara
ISSUE DATE: May 09, 2018
CASE NO.: 15-030
PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Appellant: Chippewas of Nawash Unceded First Nation (File No.15-030)
Appellant: Ontario Heritage Trust (File No.15-031)
Applicant: Alton Stewart Hunter
Respondent: Niagara Escarpment Commission
Subject of appeal: Approval of a Development Permit Application to construct a dwelling, an accessory building, a private sewage disposal system and a driveway on an existing lot
Reference No.: B/R/2014-2015/9060
Property Address/Description: Lot 2, Plan 3M-117, Part Lot 7, Concession 14 EBR
Municipality: Municipality of Northern Bruce Peninsula
Upper Tier: County of Bruce
NEHO Case No.: 15-030
NEHO Case Name: Chippewas of Nawash Unceded First Nation v. Ontario (Niagara Escarpment Commission)
Heard: By telephone conference call on July 2, 2015, August 24, 2015, February 18, 2016, August 3, 2016, November 17, 2016, February 28, 2017, May 3, 2017, November 23, 2017, and in writing
APPEARANCES:
| Parties | Counsel/Representative^+^ |
|---|---|
| Chippewas of Nawash Unceded First Nation | Lorraine Y. Land |
| Ontario Heritage Trust | Richard Ogden, Seth Zuk and Sean Fraser^+^ |
| Alton Stewart Hunter | Peter Loucks and Leroy Dirckx^+^ |
| Niagara Escarpment Commission | Jane Thompson, Sunny Zhai and Judy Rhodes-Munk^+^ |
REPORT DELIVERED BY MARLENE CASHIN AND JUSTIN DUNCAN
REASONS
Background
1Alton Stewart Hunter (“Applicant”) submitted a development permit application to the Niagara Escarpment Commission (“NEC”) on October 8, 2014. The application sought approval: to construct a two-storey, 279 square metre (“sq m”) (3,000 square foot (“sq ft”)) dwelling, having a maximum height of 10 metres (“m”) (32 feet (“ft”)), a 67 sq m (720 sq ft) deck on the waterside of the dwelling, and a one-storey, 83.7 sq m (900 sq ft) accessory building, having a maximum height of 4.9 m (16 ft); and to install a private sewage disposal system and a driveway on a 0.43 hectare (“ha”) (1.05 acre (“ac”)) existing lot. The subject property is known municipally as Lot 2, Plan 3M-117, Part Lot 7, Concession 14 EBR in the Municipality of Northern Bruce Peninsula, County of Bruce (“Subject Property”). The Subject Property is located within lands known as Hunter’s Point Subdivision (“Hunter’s Point”). The Niagara Escarpment Plan (“NEP”) land use designation applicable to the Subject Property is Escarpment Recreation Area.
2On April 2, 2015, the NEC approved the Applicant’s application B/R/2014-2015/9060, subject to conditions (“Conditional Approval”).
3As provided for by s. 25(8) of the Niagara Escarpment Planning and Development Act (“NEPDA”) on April 16, 2015, the Chippewas of Nawash Unceded First Nation (“Chippewas of Nawash”) and the Ontario Heritage Trust (“OHT”), collectively the “Appellants”, filed separate appeals of the NEC’s Conditional Approval. The OHT holds, on behalf of the people of Ontario, certain lands located south of the Subject Property, which the OHT co-manages with the Chippewas of Nawash. These lands and all of the lands surrounding Hunter’s Point (including the Subject Property) comprise a sacred cultural landscape known as “Nochemowenaing”.
4A Pre-hearing Conference (“PHC”) regarding the appeals was held by telephone conference call (“TCC”) on July 2, 2015. No additional persons sought status during the PHC. At the PHC, on consent of the parties, the Niagara Escarpment Hearing Office (“NEHO”) Hearing Officers granted an adjournment, to allow for settlement discussions to take place between the parties. Between 2015 and 2017, a number of TCCs were held to allow for the parties to update the Hearing Officers on the status of their settlement discussions. The TCCs were held on August 24, 2015, February 18, 2016, August 3, 2016, November 17, 2016, February 28, 2017, May 3, 2017, and November 23, 2017.
5A TCC scheduled for February 15, 2018 was rescheduled to May 15, 2018 at the joint request of the parties, who indicated that settlement documents were being prepared that would settle both appeals. The parties also indicated that the settlement would involve the Subject Property being purchased from the Applicant.
6On April 16, 2018, Lorraine Land, counsel for the Chippewas of Nawash, wrote to the NEHO on behalf of the parties, indicating that a settlement agreement had been reached between the parties.
7The parties have agreed that the expiry date of the Conditional Approval is to be revised to May 15, 2018 and that the Appellants will withdraw their appeals, and they jointly request that the NEHO confirm the NEC’s Conditional Approval subject to the revised condition.
8Furthermore, the parties filed agreements of purchase and sale executed between the Applicant and the Chippewas of Nawash that transfer ownership of not only the Subject Lands, but also Lot 25 and Lot 5 identified in Plan 3M-117.
Issue
9The issue is whether the NEC’s decision to conditionally approve the application for a development permit, with a revised condition agreed upon by the parties, would be correct and should not be changed.
Relevant Legislation and Rules
10The relevant legislation and the Environmental Review Tribunal’s Rules of Practice (“Rules”) which apply to appeals under the NEPDA in this situation, are:
Niagara Escarpment Planning and Development Act
Agreement on terms and conditions
25(12.1) The decision of the delegate shall be deemed to be confirmed if,
(a) the decision of the delegate was a decision to issue a development permit;
(b) the parties who appeared at the hearing have agreed on all the terms and conditions that should be included in the development permit and all of these terms and conditions are set out in the report of the officer under subsection (11); and
(c) the opinion of the officer expressed in his or her report under subsection (11) is that, if the decision of the delegate included the terms and conditions referred to in clause (b), the decision would be correct and should not be changed.
Same
(12.2) If subsection (12.1) applies, the decision of the delegate shall be deemed to be a decision to issue the development permit with the terms and conditions referred to in clause (12.1) (b).
Rules of Practice
- Where the Parties agree to all the terms and conditions that should be included in a revised development permit, the Tribunal may confirm the decision of the Niagara Escarpment Commission pursuant to section 25(12.1) of the Niagara Escarpment Planning and Development Act and shall include the terms and conditions in its report.
Discussion, Analysis and Findings
11The Appellants indicated that they would withdraw their appeals provided that the parties’ proposed modification is made to the conditions attached to the Conditional Approval. Ms. Land described the proposed modification in her letter to the NEHO as follows:
That the existing clause 16 in the appendix to the Approval be deleted and replaced with the following:
- This conditional approval shall expire May 15, 2018.
12Clause 16 originally provided, “[t]his conditional approval shall expire if a Development Permit is not issued within one year of the date that the decision is confirmed”. The Agreement of the parties and Revised Conditions of Approval, with the proposed modification underlined, are attached to this report as Appendices 1 and 2, respectively.
13The NEC agrees with the modification to the Conditional Approval, that being the deletion of the existing condition 16 in the appendix to the Conditional Approval and the replacement of condition 16 with wording to reflect a change of date for the expiration of the Conditional Approval. The NEC does not object to the settlement of the appeals in this manner.
14The Applicant has also confirmed that he is in agreement with the proposed wording changes to the Conditional Approval as described above and attached to this Report.
15The Hearing Officers note that the proposed modification to the conditions of the Conditional Approval and the change in property ownership that such modification will facilitate appears to address the concerns raised by the Appellants. The Hearing Officers find that the proposed revisions, as set out above, are in accordance with the NEP, as the modification will result in stronger protection for the Subject Property than had the development occurred as set out in the Conditional Approval. Therefore, the Hearing Officers accept that, if the Conditional Approval is amended as proposed by the parties, the decision would be correct and should not be changed.
16Consequently, pursuant to s. 25(12.2) of the NEPDA, the NEC’s decision shall be deemed to be a decision to issue the Conditional Approval with the deletion of the existing condition 16 in the appendix to the Conditional Approval and the replacement of condition 16 with wording to reflect a change of date for the expiration of the Conditional Approval, as noted in the Revised Conditions of Approval attached to this report as Appendix 2.
DECISION
17The NEC's decision to conditionally approve the Applicant’s development permit application B/R/2014-2015/9060, with the revisions set out in Appendix 2, is confirmed pursuant to s. 25(12.2) of the NEPDA.
NEC Decision Confirmed with Revisions
Appeals Withdrawn
Appeals Dismissed
“Marlene Cashin”
MARLENE CASHIN HEARING OFFICER
“Justin Duncan”
JUSTIN DUNCAN HEARING OFFICER
Appendix 1 – Agreement of Parties
Appendix 2 – Revised Conditions of Approval - Development Permit B/R/2014-2015/9060
If there is an attachment referred to in this document, please visit www.elto.gov.on.ca to view the attachment in PDF format.
Niagara Escarpment Hearing Office A constituent tribunal of Environment and Land Tribunals Ontario Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248