Niagara Escarpment Hearing Office

Bureau des audiences sur l’escarpement du Niagara

ISSUE DATE: May 18, 2018

CASE NO.: 18-005

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

Appellant: James Christopher Young

Respondent: Niagara Escarpment Commission

Subject of appeal: Refusal of a Development Permit Application to construct a 2 storey single dwelling with an attached garage, deck space, pool cabana, swimming pool, patio walkway, septic treatment system and driveway expansion

Reference No.: N/R/2017-2018/026

Property Address/Description: Part Lot 7, Concession 3

Municipality: Town of Pelham

Upper Tier: Regional Municipality of Niagara

NEHO Case No.: 18-005

NEHO Case Name: Young v. Ontario (Niagara Escarpment Commission)

Heard: May 2, 2018 by telephone conference call

APPEARANCES:

Parties	Counsel/Representative+
James Christopher Young	Self-represented
Niagara Escarpment Commission	Jane Thompson
Town of Pelham	Callum Shedden

ORDER DELIVERED BY MAUREEN CARTER-WHITNEY AND MARLENE CASHIN

REASONS

Background

1James Christopher Young (“Appellant”) submitted a development permit application N/R/2017-2018/026 to the Niagara Escarpment Commission (“NEC”) on April 12, 2017. A revision was submitted on June 23, 2017 to remove certain development elements included in the original application. In the Notice of Decision of the NEC, dated January 22, 2018, a hand-written note on the attached application indicates that a further revision was made to the application on July 10, 2017. In the revised application, the Appellant sought to construct a two-storey (with walk-out), ± 656.80 square metre (“sq m”) single dwelling with a maximum height to peak of ± 13.2 metres (“m”), a ± 122.25 sq m attached garage, a one-storey, ± 45.52 sq m pool cabana with a maximum height to peak of ± 4.27 m, and also to construct ±189.79 sq m of deck space, a ± 187 sq m patio walkway, a swimming pool, a septic treatment system, and a driveway expansion, on a 1.5 hectare lot.

2The subject property is located at Part of Lot 7, Concession 3, in the Town of Pelham, Region of Niagara. The Niagara Escarpment Plan (“NEP”) land use designation applicable to the property is Escarpment Rural Area.

3On January 22, 2018, the NEC refused the Appellant’s application. The NEC’s Notice of Decision, dated January 22, 2018, set out the reasons for refusal of the development application as follows:

1. The subject parcel when registered was in contravention of section 50 of the Planning Act R.S.O 1990, C. P.13.
2. The subject lands are not recognized as being created in compliance with the Niagara Escarpment Plan;
3. The subject lands are not recognized as an 'existing lot of record' per the definition contained with the Niagara Escarpment Plan and are therefore not eligible for development under the NEP;
4. The subject lands are not recognized as being created in compliance with the Niagara Escarpment Planning and Development Act.
5. The Town of Pelham objects to the application as the lot was not created in accordance with Planning Act R.S.O 1990, C. P.13, and does not meet the policies of the NEP.
6. The Regional Municipality of Niagara objects to the application as the lot was not created in accordance with Planning Act R.S.O 1990, C. P.13.

4On January 30, 2018, the Appellant appealed the decision of the NEC to refuse the application under s. 25(8) of the Niagara Escarpment Planning and Development Act to the Niagara Escarpment Hearing Office (“NEHO”), on the following bases:

1. Three separate lots were created by a Judge’s Order, pursuant to the provisions of the Rules of Civil Procedure and the Courts of Justice Act. Once a Judge’s Order was registered on title, three separate lots were created and tree separate PIN’s were created in the Registry system for each of the lots. The separate lots and the PINs for each of the lots were acknowledged and have been in existence since their creation.
2. When the lots were created, the Planning Act statements were signed by two independent lawyers, and as a result, pursuant to the provisions of the Planning Act, any Planning Act issues that may have existed were cured by the signing of the Planning Act statements.
3. The judgment creating three separate lots was a Judgment in Rem, which therefore binds the whole world, and it is a valid means to create the separate lots. Therefore, the Niagara Escarpment Commission, the Municipality, the Region and all other government authorities must recognize this Order, as it originated from the Superior Court in Welland, Ontario.
4. There is no longer an issue with respect to a Planning Act violation as if there was a Planning Act violation, it has been cured by the signing of the two Planning Act statements on the deed, thus, a building permit should be issued as there is no existing Planning Act issues.
5. Since the creation of the three separate lots, the owners have been paying taxes on each of the lots, and the Town of Pelham has recognized their existence since their creation.
6. The Judgment in Rem binds all of the parties who would be affected by it, including the Town of Pelham, and the Niagara Escarpment Commission and any other. The approval of these regulatory bodies is not needed as the order has already created these lots.

5A Pre-hearing Conference (“PHC”) regarding the appeal was held by telephone conference call on May 2, 2018. At the PHC, the Appellant appeared on his own behalf, Jane Thompson appeared as counsel for the NEC, and Callum Shedden appeared as counsel for the Town of Pelham (“Town”). Also present at the PHC were John Stuart, NEC Planner, and Barbara Wiens, Director of Community Planning and Development at the Town.

6At the PHC, the Hearing Panel granted Party status to the Town. The reasons for that decision are set out below.

Issue

7The issue is whether a request for Party status should be granted to the Town.

Relevant Rules

8The relevant Environmental Review Tribunal Rules of Practice (“Rules”) which apply to the NEHO, are:

Naming of a Party

62. The following persons are Parties for the purpose of the Rules: (a) persons specified as Parties by or under the statute under which the proceeding arises; (b) persons otherwise entitled by law to be Parties to the proceeding; and (c) persons who request Party status and are so specified by the Tribunal as Parties for all or part of the proceeding, and on such conditions as the Tribunal considers appropriate.

63. In deciding whether to name a person as a Party to the proceeding, the Tribunal may consider relevant matters including whether: (a) a person's interests may be directly and substantially affected by the Hearing or its result; (b) a person has a genuine interest, whether public or private, in the subject matter of the proceeding; and (c) a person is likely to make a relevant contribution to the Tribunal's understanding of the issues in the proceeding.

Discussion, Analysis and Findings

9Mr. Shedden requested Party status on behalf of the Town. He stated that the subject property is located within the Town’s boundaries, and therefore, the Town has an interest in the results of the appeal. Mr. Shedden told the Hearing Panel that the Town was a commenting agency consulted during the application process and it objected to the approval of the application because, in the Town’s opinion, a Planning Act process was not used in creating this lot. Mr. Shedden stated that the Town supports the NEC’s decision that the subject property is not recognized as an “existing lot of record” under the NEP. He submitted that the appeal of this matter is the first opportunity the Town has had to participate in making submissions on how this lot was created, as the Town received no notice of the matter until the application was submitted to the NEC. Mr. Shedden further submitted that the Town Council was not aware of the proposed development on the subject property until the NEC application was made and, at that point, Council instructed him to appear at the PHC to oppose it. He noted that the Town is concerned about the precedent of a lot being created outside of the Planning Act process.

10The NEC did not object to the request for Party status by the Town. Ms. Thompson stated that the NEC recognized the interest of the Town in this proceeding, and supported its addition as a party.

11However, the Appellant objected to the Town being granted Party status in the appeal. The Appellant submitted that the Town already had issued roll numbers to the subject property and the other lots created by the Judge’s Order, and had been collecting property taxes on these lots for several years. The Appellant asserted that the Town had, therefore, recognized the subject property and the related lots in question and should not now be granted Party status in this appeal arising from the application to the NEC. The Appellant added that there was no requirement that the Town be included in the earlier court proceedings.

12The Hearing Panel finds that the Town’s interest in the appeal satisfies the considerations set out in the Rules, in that the hearing or its result may directly and substantially affect its interests. The Town also has a genuine interest in the subject matter of the proceeding, and is likely to make a relevant contribution to the Hearing Panel’s understanding of the issues in the proceeding. Therefore, the Hearing Panel grants the Town Party status in the appeal.

Procedural Directions

13The Hearing Panel, in consultation with the parties, set the schedule for the Hearing and procedural steps leading up to the Hearing, detailed in the Order below.

14The Hearing Panel scheduled the Hearing to commence on October 2, 2018 at 10 a.m. and continue on October 3 and 4, 2018, as set out in the schedule below.

ORDER

15The Town of Pelham is granted Party status.

16The Hearing Panel orders that the proceeding be conducted in accordance with the following schedule, or as may be varied by agreement of the parties and confirmed by the Hearing Panel:

September 4, 2018 Exchange among the parties of all relevant documents

September 18, 2018 Parties to provide to the other parties and file with the NEHO all documents, including witness statements, that they intend to rely on at the hearing, electronically and in hard copy (3 hard copies for the NEHO)

September 25, 2018 Parties to provide to the other parties and file with the NEHO any reply witness statements and documents, electronically and in hard copy (3 hard copies for the NEHO)

October 2 – 4, 2018 Hearing to be held at Pelham Council Chambers, 20 Pelham Town Square, Fonthill, Ontario, beginning at 10:00 am.

Request for Party Status Granted

Hearing Scheduled

“Maureen Carter-Whitney” MAUREEN CARTER-WHITNEY HEARING OFFICER

“Marlene Cashin” MARLENE CASHIN HEARING OFFICER

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