Khursigara v. Ontario (Niagara Escarpment Commission), 2018 ONERT 80803

Niagara Escarpment Hearing Office

Bureau des audiences sur l’escarpement du Niagara

ISSUE DATE:

August 24, 2018

CASE NO.:

18-006

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

Appellant:

Sherazade Khursigara

Applicant:

Ron Reiserer

Respondent:

Niagara Escarpment Commission

Subject of appeal:

Approval of a Development Permit Application to demolish a single dwelling and wood frame shed and to construct a 2 storey dwelling with an attached garage, deck, covered porch, balcony and install a sewage treatment system

Reference No.:

H/R/2016-2017/332

Property Address/Description:

Part Lot 4, Concession 2, NS

Municipality:

City of Burlington

Upper Tier:

Regional Municipality of Halton

NEHO Case No.:

18-006

NEHO Case Name:

Khursigara v. Ontario (Niagara Escarpment Commission)

Heard:

July 12, 2018 in Burlington, Ontario

APPEARANCES:

Parties

Counsel/Representative+

Sherazade Khursigara

Self-represented and Zahan Khursigara+

Ron Reiserer

Jennifer Meader

Niagara Escarpment Commission

Michael Baran+

REPORT DELIVERED BY MARLENE CASHIN AND GRAHAM REMPE

REASONS

Background

1On January 26, 2018, the Niagara Escarpment Commission (“NEC”) conditionally approved a development permit application, H/R/2016-2017/332 submitted by Ron Reiserer (“Applicant”) to demolish an existing two-storey, 178 square metre (“sq m”) single dwelling to its foundation and demolish a wood frame shed, to construct a new two-storey, ± 295.6 sq m single dwelling (including attached garage), and to install a new sewage treatment system, with minor grading related to the construction of a drainage swale, on a 0.43 hectare lot (“Conditional Approval”). The proposed development is to take place on a property identified as Part Lot 4, Concession 2, NS, located in the City of Burlington, Region of Halton, Ontario (“Subject Property”). The Subject Property is located on lands designated as Escarpment Natural Area (“ENA”) by the Niagara Escarpment Plan (“NEP”).

2On February 8, 2018, Sherazade Khursigara (“Appellant”), owner of an adjacent property, appealed the NEC’s decision to grant the Conditional Approval.

3On May 24, 2018, a Pre-hearing Conference (“PHC”) took place by telephone conference call (“TCC”), at which time the Hearing Officers indicated that the Appellant’s concerns about the prudence and safety of a rear lot fence on the Applicant’s property was not a proper issue for the hearing. The issues for the hearing were narrowed to the Appellant’s concerns about the propriety of the Applicant relying on an off-site water source located on the Appellant’s property, and the possibility and risk of contamination of that water source. The water source was generally referred to by the Parties as a “spring” and has pipes leading from its source on the Appellant’s property to several other properties, as explained below.

4Following the PHC, an Order was issued on June 20, 2018, setting out dates for the exchange of documents between the parties, serving and filing of witness statements and the hearing. The hearing was held on July 12, 2018 in Burlington, Ontario.

5At the outset of the hearing, Jennifer Meader, counsel for the Applicant, requested that the Hearing Officers refuse to conduct the hearing in accordance with s. 25(8.1) of Niagara Escarpment Planning and Development Act (“NEPDA”), which is set out below:

25(8.1) Despite subsections (8) and (10), an officer appointed under subsection (8) may refuse to conduct or to continue a hearing if,

(a) in the opinion of the officer, the appeal does not disclose a planning justification for the appeal, is not in the public interest, is without merit, is frivolous or vexatious, or is made only for the purpose of delay;

(b) the notice of appeal did not specify the reasons for the appeal; or

(c) the person who appealed the decision has not responded to a request by the officer for further information within the time specified by the officer.

6Ms. Meader submitted that the Appellant had not complied with the requirements of the Order of June 20, 2018 requiring the filing of witness statements prior to the hearing, and that the appeal lacked merit as it alleged contamination concerns, but the Appellant did not provide any indication that there would be evidence to substantiate these concerns.

7The Appellant’s son, Zahan Khursigara, responded on behalf of his mother that she had not been given notice of this motion and that, in view of the limited evidence being presented by any of the parties, the hearing should proceed as planned.

8The Appellant also submitted that the appeal was not a frivolous one, but had been made based on her concern regarding her views on the propriety of relying on a historical legal agreement providing for access to water, and the potential for civil liability in respect of the water source on her property. She told the Hearing Officers that she had been ill for some time and had not had the opportunity to file witness statements in relation to the hearing, but only brief statements regarding her evidence, in emails to the parties and the Niagara Escarpment Hearing Office (“NEHO”).

9The Hearing Officers exercised their discretion under s. 25(8.1) to proceed with the hearing on the basis that, while the Appellant’s statements regarding her proposed evidence lacked specifics, the parties were generally aware of the issues that were of concern, everyone was present and able to proceed, and the Hearing Officers had the ability to weigh any evidence submitted having regard to the adequacy of the disclosure provided.

Relevant Niagara Escarpment Plan Provisions

10The relevant NEP provisions are attached as Appendix 2 to this Report.

Issue

11The issue in the appeal is whether the NEC’s decision to issue the Conditional Approval should be confirmed. This issue involves analysis of the following sub-issues:

1. whether the proposed development is a Permitted Use under the NEP;

2. whether the proposed development is in accordance with the Development Criteria of the NEP.

Discussion, Analysis and Findings

Evidence of the NEC

12At the outset of the hearing, the Hearing Officers qualified Michael Baran, NEC Senior Planner, as an expert in land use planning, particularly in relation to the NEP. There were no objections to the expert qualification.

13Mr. Baran explained the history of the application and provided an overview of the terms of the Conditional Approval. He also testified with regard to a staff report, dated January 25, 2018, which he had prepared for the NEC on the application (“Staff Report”). He indicated that the application had been subject to extensive review, including a major revision filed on July 31, 2017 to remove any concerns about proximity to slopes on the Subject Property. He provided his opinion that the application conformed to the relevant provisions of the NEP, particularly s. 2.2 (general development), s. 2.5 (steep slopes), s. 2.6 (water resources) and s. 2.7 (natural heritage). He went on to indicate that the application is consistent with the provisions in s. 2.1 of the Provincial Policy Statement (2014) (“PPS”).

14Mr. Baran noted that the application had been reviewed without objection by the City of Burlington, the Regional Municipality of Halton, Conservation Halton, and the Ministry of Natural Resources and Forestry.

15He stated that the NEC does not require that applicants identify well sites. Rather, he noted that wells are the responsibility of municipal authorities. In this case, he pointed out that Halton’s Public Health Department had requested water quality and quantity testing, which he understood to be a requirement in advance of granting an occupancy permit for the new building.

16Mr. Baran noted that the proposed single dwelling will replace an existing single dwelling and will rely on the same water source as the existing dwelling. He was not aware at the time of processing the application whether or not the off-site water source would continue to be available. He noted that, in retrospect, he would have required confirmation of that fact. Ultimately, however, it was Mr. Baran’s opinion that a development permit from the NEC is not required for a well. He noted that s. 5.15 of R.R.O. 1990, Regulation 828, Development within the Development Control Area, explicitly exempts wells from NEC development permit requirements.

17Finally, Mr. Baran drew attention to the “notes/advisories” section of the NEC Conditions of Approval, which indicates that the development permit does not limit the need for any other approval, specifically including “water quality/quantity testing”.

18During cross-examination by Mr. Khursigara, Mr. Baran stated that he did not believe that the City of Burlington or the Region of Halton were aware that the source for the water was off-site of the Subject Property. In his view, the proposed development would have no impact on the stream supplying the water source, as the proposal maintains the status quo of that water source. He noted that of some approximately 1,800 NEC files he had dealt with, he was not aware of shared water sources being an issue before. Nor was he aware of any instance where the NEC had required a well installation. Mr. Baran reiterated his view that nothing in the jurisdiction of the NEC gives it authority over well drilling, or water sources in general, and that this was a matter in the jurisdiction of other agencies.

19Ms. Meader also cross-examined Mr. Baran. Through him, she introduced a certificate from Public Health Ontario dated March 19, 2018, confirming that the water supply at the Subject Property was free of coliform bacteria on the March 15, 2018 test date. She also provided Mr. Baran with a copy of Ms. Khursigara’s 2014 approval for a development permit, dated January 29, 2014, which required as a condition of NEC approval that Ms. Khursigara provide proof of a potable water source to the Burlington Building Department. Ms. Meader asked Mr. Baran to explain why a condition for proof of a potable water source was required for Ms. Khursigara’s application but not for Mr. Reiserer’s. Mr. Baran explained that in July 2016, the NEC stopped adding specific conditions of approval that referenced matters over which the NEC had no jurisdiction. He testified that a letter was sent to all reviewing agencies within the NEP Area, explaining the results of a comprehensive review of the standard conditions used by the NEC when issuing a development permit. The letter indicated that the changes would be applied to NEC development permits issued after August 2, 2016. Mr. Baran noted that such matters are now included as “notes/advisories” to the NEC approval, as is the situation in the case at hand, with the requirement for water testing.

Evidence and Submissions of the Appellant

20Ms. Khursigara testified on her own behalf. She indicated that she had purchased her property in 2011, unaware that neighbouring properties had rights over the water source on her property. Ms. Khursigara intended to undertake construction of a new dwelling on her land. When she applied for her own development permit, Ms. Khursigara indicated that she had faced objections by the Applicant’s father that his water supply would be affected. As a result, she had drilled a well on her property, in her words, to “avoid a hearing”.

21Ms. Khursigara was strongly of the view that, since all of the other neighbours have wells, the Applicant should drill his own well, rather than rely on an historical agreement entered into in 1964.

22Ms. Khursigara also referred to a series of photographs depicting the well/spring site (“Source”) on her property, and the pipe, much of which appeared above ground in the undergrowth apparently en route to the Applicant’s property. Ms. Khursigara noted that there were three pipes coming from the Source. One, she said, went to the Applicant’s property, one went to a neighbour’s property (John Medendorp), and one serviced her garlic farm (this was the water source for the dwelling on her property before Ms. Khursigara rebuilt).On cross-examination by Ms. Meader, Ms. Khursigara agreed that a deed from December 20, 1964 conveyed to the Applicant’s predecessor the right to water from the Source through a “one inch” pipe, as well as the right to maintain that pipe. Ms. Khursigara conceded that she had agreed to live by that agreement (even though she said she understood it was not registered on title on her lands) to settle the Applicant’s father’s objection to her NEC permit application.

23Ms. Khursigara’s son also testified on behalf of the Appellant. He indicated that he resides in the “old” dwelling on the Khursigara property, which draws its water from the Source. He said that in his experience the water pressure on the Khursigara property sometimes drops, which he assumed was a result of consumption by other users. He speculated that the current arrangement could result in costs should trees fall on the water line, or if maintenance workers were injured, or if a cattle farm was started nearby leading to fecal pollution.

24He reviewed for the Hearing Officers a video of the property taken by him on or around April 20, 2018, showing the Source, the pipe, and undergrowth around it.

25He stated his belief that Halton and Burlington might not have been aware that the Conditional Approval involved a shared source of water and may not have approved the NEC’s granting of a development permit had they known.

26Under cross-examination, Mr. Khursigara agreed that no-one had actually tested the flow of the water to determine the source or cause of any pressure changes.

27Although the Appellant had indicated that she intended to call two additional witnesses (a plumber and a well driller) during the PHC, those witnesses were not called at the hearing.

Evidence and Submissions of the Applicant

28Mr. Reiserer testified on his own behalf. He stated that he had taken over the Subject Property from his father in 2017 and intended to rebuild the home and retire there. He noted that in 1964, a local farmer, Mr. Coverdale, had subdivided his lands, conveying to the new owners both the land and the right to take water from the Source on the property he retained, and to maintain the supply pipe. That Source has been the water supply for the Applicant’s property since that time.

29Mr. Reiserer said that springs are quite common in the area, noting that his address is on Cedar Springs Drive.

30He testified that, although there are three pipes leading from the Source, the one leading to his property is not a shared pipe. He noted that the water supply is gravity fed to his property, but he intends to construct a cistern and pump in future. Mr. Reiserer noted that he has never experienced any problems with the water supply flow rate and that he was not aware of any problems or damage associated with the maintenance of the pipe ever having occurred. Mr. Reiserer provided a letter from a neighbour, Mr. Medendorp, who also draws water from the Source, which states in part, “I have never had any contamination problems with the water supply, and the water has always had a constant flow”.

31Finally, Mr. Reiserer testified that he had requested the water test conducted by Public Health Ontario after the appeal to the NEHO had been filed, and that the results showed the water is potable.

32Under cross-examination by Mr. Khursigara, Mr. Reiserer indicated that he did not know whether the deed conveying the right to the water supply (along with the subdivided lands) was registered on title for the Khursigara land. He also stated that he had not raised the location of the water source in the NEC application process, as he did not have any reason to do so. He stated that he had provided everything he had been asked to, and reiterated his view that the existing arrangement had never been a problem.

33The Applicant submitted that the Appellant’s appeal is without merit and that the proper procedures were carried out throughout the application process to ensure that the proposed development would comply with the objectives and provisions of the NEP.

34The Applicant further submitted that the proposed development complies with the objectives and provisions of the NEP, and relied on the NEC Staff Report to support that position.

Sub-Issue No. 1: Whether the proposed development is a Permitted Use under the NEP

35As noted above, the location for the proposed development is designated as ENA under the NEP.

36On the issue of permitted uses in the ENA designation, the NEP Part 1.3.3 states in part:

Subject to Part 2, Development Criteria, the following uses may be permitted:

2. Single dwellings.

37The Appellant stated clearly that she does not want the development of the Applicant’s house halted. The main issue, from the Appellant’s point of view, is whether the Conditional Approval should have been issued, given her assertion that the Applicant’s use of the Source of water on her property represents a possible hazard for persons using, or seeking to maintain the Source, resulting in potential liability for her.

38Mr. Baran testified that in his opinion, replacing the existing dwelling with a new dwelling is permitted, subject to satisfying Part 2, Development Criteria, of the NEP. This evidence relating to permitted use was uncontested.

39The Applicant testified that he also believes that the development proposal, as conditionally approved, is a permitted use, and relies on the NEC Staff Report to support his position.

40In the absence of any evidence to the contrary, the Hearing Officers accept the evidence of the NEC and the Applicant’s submission that to demolish an existing two-storey, single dwelling to its foundation and to construct a new two-storey single dwelling, with a new sewage treatment system, and minor grading related to the construction of a drainage swale in an ENA, are Permitted Uses under the NEP.

Conclusion on Sub-Issue No. 1

41The Hearing Officers find that the proposed development constitutes a Permitted Use under the NEP, subject to the Development Criteria in Part 2 of the NEP.

Sub-Issue No. 2: Whether the proposed development is in accordance with the Development Criteria of the NEP

42Part 2 of the NEP provides that Permitted Uses may be allowed, subject to Development Criteria. The Development Criteria relevant to this application are contained in Parts 2.2 (General), 2.5 (Development Affecting Steep Slopes and Ravines), 2.6 (Development Affecting Water Resources), and 2.7 (Development Affecting Natural Heritage).

43Mr. Baran took the Hearing Officers through the NEC Staff Report regarding the proposed development, pointing out that an elevated ridge associated with an Earth Science Area of Natural and Scientific Interest (“ANSI”), listed as a key natural heritage feature in Part 2.7.1 of the NEP, is located adjacent to the rear lot boundary. He stated that the development site is situated at least 50 metres down-slope from the ANSI and therefore no negative impacts to the feature are anticipated. He stated that staff has no visual impact concerns since the wooded ridge provides a dominant visual backdrop and the view from the roadside is fleeting.

44Mr. Baran pointed out that Conservation Halton did not initially support the proposal, as it was in conflict with its floodplain policies and also conflicted with PPS provisions. The Applicant, with guidance from Conservation Halton, redesigned the proposal in order to address those issues. Mr. Baran noted that with the revised application, the development “would occupy existing disturbed areas and avoid encroachments into the floodplain and woodland”. Mr. Baran directed the Hearing Officers to the Staff Report for an explanation regarding the proposed tile bed and setbacks from a tributary (a key hydrologic feature) as follows:

…the proposed tile bed…would maintain a 30 metre setback from the tributary/on-line pond…however, the system’s mantel/dispersal bed would only have a setback of + 24 metres. There is no alternate location available due to limited site area and topographic conditions. Part 2.6.8 of the NEP requires a minimum 30 metre setback from a key hydrologic feature (permanent stream), although where this setback cannot be achieved on an existing lot of record, the distance may be varied depending on the sensitivity of the feature.

45Mr. Baran explained that since Conservation Halton confirmed that it had no concerns with a larger tile bed footprint and will review a grading plan in conjunction with its permit issuance, NEC staff supported the varied setback distance that is provided through Part 2.6.8 of the NEP.

46Mr. Baran noted that, although it is unlikely that Species at Risk or other aquatic habitat would be negatively impacted, staff recommended, per Part 2.6.4(a) and (b) of the NEP, that naturalization enhancement be addressed through the submission of a Naturalization Plan (subsequently included as Condition 10 of the Conditions of Approval). Although Mr. Baran referred the Hearing Officers to s. 5.15 of the Regulation which states in part, “digging or drilling of a well for the purpose of supplying potable water to a single dwelling” is exempt from the requirement for a development permit, the Hearing Officers note that the NEP does require, in some circumstances, the consideration of the potential for adverse impacts of development on springs, which are defined in policy 2.6 as a key hydrologic feature. Here however, no evidence was led suggesting that the proposed development may result in adverse effects (either increased takings or contamination) affecting the spring.

47Based on the evidence presented, including a consideration of the conditions of the Conditional Approval, the Hearing Officers agree that the proposed development meets the relevant Development Criteria described above.

Conclusion on Sub-Issue No. 2

48Based on the foregoing analysis and findings, the Hearing Officers find that the Conditional Approval satisfies the relevant Development Criteria set out in Parts 2.2, 2.5, 2.6, and 2.7 of the NEP.

Overall Conclusion

49The sole issue is whether or not the Appellant has established that the NEC decision is not correct and should be changed. In the view of the Hearing Officers, she has not. The uncontested evidence of the NEC planner is that the Conditional Approval conforms to the relevant provisions of the NEP and is consistent with the PPS. Neither the local nor regional municipality had any concerns with non-conformity with their Official Plans.

50The issues raised by Ms. Khursigara as to the quality and quantity of a potable water supply are within the proper jurisdiction of the municipal authorities, and is properly reflected in the wording of the “notes/advisories” section of the Conditional Approval.

51The issues raised as to potential safety of workers, future contamination, or possible liability to the Khursigaras are speculative and lack any evidentiary foundation.

52It may be that legal arrangements from 1964 regarding access to the water source are subject to differing interpretations; however, that would be an issue for the civil courts, not the NEHO. The jurisdiction of the NEHO on an appeal is limited to the question of conformity with the requirements of the NEP. In this case, the evidence fails to demonstrate that the proposed development does not conform to the NEP.

53The Hearing Officers have found that the proposal to demolish an existing two-storey, 178 sq m single dwelling to its foundation and demolish a wood frame shed, to construct a new two-storey, ± 295.6 sq m single dwelling, and to install a new sewage treatment system, with minor grading related to the construction of a drainage swale, on a 0.43 hectare lot is a Permitted Use, and accords with relevant NEP Development Criteria and Objectives. Therefore, the Hearing Officers conclude that the decision of the NEC dated January 26, 2018, to grant Conditional Approval for Development Permit Application number H/R/2016-2017/332, is correct and should not be changed. The NEC’s decision should therefore be confirmed pursuant to s. 25(12) of the NEPDA and the appeal is dismissed.

DECISION

54The NEC’s decision of January 26, 2018 is confirmed pursuant to s. 25(12) of the NEPDA. The appeal is dismissed.

Appeal Dismissed

NEC Decision Confirmed

“Marlene Cashin”

MARLENE CASHIN

HEARING OFFICER

“Graham Rempe”

GRAHAM REMPE

HEARING OFFICER

Appendix 1 - Conditions of the Conditional Approval - N/R/2016-2017/332

Appendix 2 - Relevant Niagara Escarpment Plan Provisions

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