Niagara Escarpment Hearing Office
Bureau des audiences sur l’escarpement du Niagara
ISSUE DATE: August 27, 2018
CASE NO.: 18-010
PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Appellant: Tom Monahan (File No. 18-010)
Appellant: Barry Stone (File No. 18-011)
Applicant: Credit Valley Conservation
Respondent: Niagara Escarpment Commission
Subject of appeal: Approval of a Development Permit Application to construct two vault washrooms in two locations with septic tanks
Reference No.: H/P/2016-2017/085
Property Address/Description: Part Lots 29 & 30, Concession 11 Terra Cotta Conservation Area
Municipality: Town of Halton Hills
Upper Tier: Regional Municipality of Halton
NEHO Case No.: 18-010
NEHO Case Name: Monahan v. Ontario (Niagara Escarpment Commission)
Heard: August 8, 2018 in Georgetown, Ontario
APPEARANCES:
Parties
Representative
Tom Monahan
Self-represented
Barry Stone
Self-represented
Credit Valley Conservation
Shawn Verge, David Orr and Scott Cafarella
Niagara Escarpment Commission
Kim Peters
REPORT DELIVERED BY MARLENE CASHIN AND GRAHAM REMPE
REASONS
Background
1On February 28, 2018, the Niagara Escarpment Commission (“NEC”), by a Director’s Approval, conditionally approved Development Permit Application No. H/P/2016-2017/085 submitted by Credit Valley Conservation (“CVC” or “Applicant”) to construct two +11 square metre vault washrooms in two locations, with a maximum height of 2.9 metres including two associated 9,000 litre septic tanks, on a 165.2 hectare lot (“Conditional Approval”). The proposed development is to take place on a property identified as Part Lots 29 & 30, Concession 11, the Terra Cotta Conservation Area (“Terra Cotta”), in the Town of Halton Hills, Region of Halton (“Subject Property”).
2On March 6, and March 8, 2018 respectively, Tom Monahan and Barry Stone (together the “Appellants”), appealed the NEC’s decision to grant the Conditional Approval. Mr. Monahan and Mr. Stone both live in residences located on Tenth Line, near the Subject Property.
3On June 26, 2018, a Pre-hearing Conference (“PHC”) took place by telephone conference call, resulting in an Order dated July 10, 2018, which set out the dates for the hearing and the procedural steps leading up to the hearing. The hearing was held on August 8, 2018 in Georgetown.
Relevant Niagara Escarpment Plan (“NEP”) Provisions
4The relevant NEP provisions are attached as Appendix 1 to this Report.
Issue
5The issue in the appeals is whether the NEC’s decision to issue the Conditional Approval should be confirmed. This issue involves analysis of the following sub-issues:
whether the proposed development is a Permitted Use under the NEP; and
whether the proposed development is in accordance with the Development Criteria of the NEP.
Discussion, Analysis and Findings
Evidence of the NEC
6At the outset of the hearing, the Hearing Officers qualified Kim Peters, NEC Senior Strategic Advisor, as an expert in land use planning, particularly in relation to the NEP. There were no objections to the expert qualification.
7Ms. Peters testified that, although she was not the author of the NEC staff report, she was familiar with the report and its author, and had reviewed and agreed with the recommendations contained within the report. She also drew attention to and agreed with Memoranda provided to the NEC by CVC, dated November 2, 2017, and February 13, 2018, dealing with CVC’s planning rationale for the toilets.
8Ms. Peters noted that the subject lands fell within the Escarpment Natural Area (“ENA”) designation of the NEP, which requires consideration of permitted uses (Part 1 of NEP) and development criteria (Part 2 of NEP). Ms. Peters referred to s. 1.3.3 of the NEP, which allows land uses that are identified in a management plan. She noted that the Terra Cotta-Silver Creek Management Plan (“Management Plan”) had been prepared in 2008, and had been approved by the CVC, the NEC and the Ministry of Natural Resources and Forestry (“MNRF”) in 2008.
9Ms. Peters explained that Terra Cotta is part of the NEP park network. As such, the policies in NEP Part 3, Niagara Escarpment Parks and Open Space System (“NEPOSS”) were reviewed. She referred to the Objectives section of Part 3, highlighting the objectives of providing opportunities for outdoor education and recreation (s. 3.1.1.2), and providing public access (s. 3.1.1.3). It was Ms. Peters’ expert opinion that the proposed development meets those objectives.
10Ms. Peters also noted that s. 3.1.5.1.3 of the NEP provides that zoning categories put in place through an approved Master/Management plan (as in this case) take precedence over the development criteria within Part 2 of the NEP. Nonetheless, she indicated that NEC staff had considered the criteria in Parts 1 and 2 of the NEP, as well as the Management Plan, and it was her opinion that all the criteria had been met.
11Ms. Peters noted that s. 7.4.5 of the Management Plan identified toilets as the “most important infrastructure gap” at Terra Cotta. That section goes on to state that the use of waterless toilets is something that would be considered in future Terra Cotta development “where feasible and demand dictates”.
12Ms. Peters pointed out that under R.R.O. 1990, Regulation 828 (the regulation applicable to Niagara Escarpment Planning Development Act (“NEPDA”) development permits), toilets that are approved through a master plan are exempt from the requirement for a permit. However, she explained that the exemption only applies to plans approved after 2013, so the exemption did not apply to the proposed toilets here, as the Terra Cotta plan was approved in 2008.
13Under the Management Plan, Ms. Peters explained that Terra Cotta had been categorized as a “Natural Environment” park. This category of park allows hiking and day use activities, consistent, in Ms. Peters’ opinion, with the hiking trails and picnic areas near the sites of the proposed toilets.
14Ms. Peters explained that zones developed under the Management Plan were intended to direct recreational activities in Terra Cotta. In this case, she noted, one toilet is proposed to be located in a Natural Heritage Appreciation zone, and the other in a Nature Reserve zone. It was her opinion that the activities of hiking and picnic areas are consistent with either zone. Further, in her opinion, the toilets were essential accessory services to support those activities, and were therefore permitted uses.
15Ms. Peters indicated that she based her opinion on compliance with the Management Plan land use categories as outlined above. Nonetheless, she said, she considered the provisions of Parts 1 and 2 of the NEP. She concluded that providing the toilets would prevent informal waste disposal practices in the area. This would promote the protection of the Escarpment in accordance with s. 2.2.1 of the NEP. She also reviewed s. 2.7 (Natural Heritage), and concluded that any concerns had been addressed through construction staging, which had been discussed with and approved by MNRF.
16Ms. Peters also noted that s. 2.11.9 of the NEP requires that NEPOSS parks comply with s. 3.3 of the Greenbelt Plan, 2017 (“Greenbelt Plan”). These policies deal with parklands, open space and trails within the Greenbelt. She reviewed these provisions and provided her opinion that nothing in them suggested that the proposed toilets would be a conflicting use.
17Ms. Peters also reviewed the Provincial Policy Statement, 2014 (“PPS”), particularly s. 2.1.1, which provides that “Natural features and areas shall be protected for the long term”. It was her opinion that the proposal would achieve this objective, as it would avoid informal sewage disposal in environmentally sensitive areas.
18Ms. Peters noted that the neither the Town of Halton Hills nor the Region of Halton had any objection to the proposal, and it was her opinion that the Official Plans of both municipalities had been complied with.
19Ms. Peters was cross-examined by Mr. Monahan on the definition of a Nature Reserve category, which is the most restrictive category of park under NEPOSS. Ms. Peters stated that Terra Cotta was, in fact, a Natural Environment park, rather than a Nature Reserve park. She reiterated her opinion that the proposed toilets were consistent with even the most stringent Nature Reserve zone within Terra Cotta. Mr. Monahan also asked where “essential service” was defined. Ms. Peters agreed that there was no definition in the NEP or the Management Plan. Rather, she relied on a “dictionary” approach, but remained of the opinion that toilets were an essential service.
20Ms. Peters was also cross-examined by Mr. Stone as to what constituted the “minimal development” permitted in the most restrictive Terra Cotta zones. Ms. Peters indicated that would depend on the use to which an area was put; however, she noted that the proposed toilets would minimize impacts when compared to informal disposal. Mr. Stone asked Ms. Peters to compare the proposed toilets with portable toilets that have been provided in these areas. She deferred to the Applicant’s witness testimony to follow, but noted that since the portable toilets cannot be used in winter, they would not be available to serve cross-country skiers that use the Subject Property.
Evidence and submissions of the Appellant, Tom Monahan
21Mr. Monahan lives 50 metres away from the Tenth Line access point to Terra Cotta. He lives on a protected heritage property. He has become increasingly concerned with the trespassers that he has seen on his property recently.
22Mr. Monahan noted that the Tenth Line access is a Bruce Trail access point. He said he has seen 20 to 30 cars parked along the Tenth Line at this location, and provided photographs to illustrate. He testified that he has also observed cars slowing and backing up along the Tenth Line, and people and their pets on the road. As this is at a blind corner in the Tenth Line, in his opinion this is an “accident waiting to happen”.
23Mr. Monahan submitted that picnic areas are not consistent with a “natural area”. Further, in his view, the Tenth Line access does not meet the NEP criteria. In his view, the proposed toilets are not an essential service, they will attract vandals, and there are problems associated with the type of toilets proposed, for example, that they tend to generate odours when they are not located in direct sunlight.
24Mr. Monahan filed documents showing the heritage designation report for his property, photographs of the Tenth Line at the access point, and information regarding the limitations of waterless vault toilets.
Evidence and submissions of the Appellant, Barry Stone
25Mr. Stone lives adjacent to the Tenth Line access point into Terra Cotta. He testified that his property is in an environmentally sensitive area as designated by the Province of Ontario. He noted that MNRF had conducted remediation work on ponds on his property in order to restore fish habitat. He stated that he is concerned about any activities that may conflict with the natural environment in the area.
26Mr. Stone stated that Terra Cotta is being misused by people obtaining access through the Tenth Line access and not abiding by Terra Cotta rules (The Tenth Line access point is a “self-serve” access). Mr. Stone said that he feels that all patrons of Terra Cotta should enter through the Winston Churchill Boulevard main entrance, so that staff can explain available toilet locations at that time.
27He also pointed out that the Bruce Trail access to Terra Cotta has been recently changed because of safety concerns raised at the previous access point. Like Mr. Monahan, he said he feels that the siting of the new access point some 40 feet from his property was not carried out in accordance with NEP requirements, and in his view, was “arbitrary”.
28Mr. Stone challenged the need for the toilets, indicating that there had been no research conducted on the quantity of informal sewage being disposed of.
29Mr. Stone showed a video that he had recorded on the closed circuit security camera at his driveway entrance, on August 5, 2018. In the video, a truck is seen passing the driveway, and then reversing on the roadway in order to find a parking spot. People and a dog are then seen leaving the truck. Mr. Stone noted that they were on the roadway because there was no room for them elsewhere.
30Mr. Orr of CVC questioned Mr. Stone on his understanding of the legality of the Tenth Line access. Mr. Stone indicated that the access had been opened without his knowledge, even though he lives next door. He was not consulted. He assumed that the access to an environmentally sensitive area was illegal.
31Ms. Peters pointed out that Bruce Trail access points on lands managed under agreements with the Bruce Trail Conservancy (as in this case) are exempt from NEP development permit requirements under s. 5.30 of the NEPDA development permit regulation (R.R.O. 1990, Regulation 828).
32Mr. Stone indicated that he had discussed his concerns regarding traffic safety issues in the area with his local Councillor and understood that the Councillor would be looking into this.
Evidence and submissions of the Applicant
33Shawn Verge, the Manager of Conservation Parks for the CVC testified for the Applicant. Mr. Verge said that he is sympathetic to the concerns of the Appellants, but he noted that where activities are taking place, such as picnicking and hiking, parking conflicts sometimes arise.
34Mr. Verge outlined the statistics that had been collected, showing increased use of Terra Cotta facilities. He stated that projections showed that this use would continue to increase, as the population in the Greater Toronto Area increases.
35He noted that the two areas where toilets are proposed, the “Forest Meadow Pavilion” and the “Maple Hills Loop”, are at some distance from the main entrance at Winston Churchill Boulevard, and that a walk of up to two kilometres to the washrooms located there would not be practical for some patrons. He explained that CVC has attempted to alleviate this by providing periodic wagon rides back to the main entrance.
36Mr. Verge also noted that CVC has installed portable toilets at the two locations proposed for the new toilets for the last five or six years. These portable facilities, he said, are more expensive to operate than the proposed toilets, and are only able to be used from June to October, and thus not available to winter users such as cross-country skiers.
37Mr. Monahan cross-examined Mr. Verge regarding the proposed toilets being “essential”. Mr. Verge noted that these facilities have drawn larger numbers of people, and that, unlike many Bruce Trail hikers, picnic users are generally less sophisticated about matters such as proper sewage disposal on a trail.
38Mr. Monahan challenged the demand anticipated by CVC, noting that large picnic reservation numbers in 2018 were lower than in 2017. Mr. Verge agreed, but noted that factors such as access to pools or splash pads may have been an issue, given the heat experienced in the summer of 2018 to date.
39Mr. Monahan questioned the efficacy of vault toilets and referred to documents he had filed which raised concerns about such toilets. Mr. Verge noted that a range of options had been considered and the vault toilets had been identified as the best in the circumstances. He conceded that the circumstances may not be “ideal” but he saw no reason to conclude that these toilets would not function normally.
40Mr. Monahan then questioned the basis of the CVC analysis that the vault toilets would be cheaper than continuing with portable toilets. Mr. Verge indicated that these costs were estimates based on the level of detail appropriate given the scope of the project. As this is a minor project, Mr. Verge said, a “fairly simplistic analysis” had been conducted. However, he emphasized that the analysis had not been carried out in haste, nor had its scope been unduly limited.
41Mr. Stone questioned Mr. Verge as to why road access to the picnic areas could not be provided via the Terra Cotta internal roads, making access from the Tenth Line unnecessary. Mr. Verge responded that allowing vehicles to travel throughout the park would be inconsistent with other uses in Terra Cotta. Further, he noted that other means of internal transport (the wagon rides) are available.
42Mr. Stone also questioned the business model that Terra Cotta followed, suggesting that the self-serve access on Tenth Line was resulting in loss of revenue. Mr. Verge noted that Terra Cotta differs from many businesses in that public access is also an important business objective. He noted that he expects the urban boundaries of Brampton to be on Terra Cotta’s doorstep very soon, and concluded that, as a public agency, CVC has an obligation to be prepared to provide adequate toilet facilities.
43Mr. Verge noted that the traffic on the Tenth Line had been discussed with staff of the Transportation Department of the Town of Halton Hills. He observed that the users who parked on the Tenth Line were not the same users who frequented the picnic areas.
44Mr. Orr, the Park Superintendent, also testified for CVC. Mr. Orr noted that the two picnic areas in issue are often rented in advance, generally online. He stated that reserved picnics generally involve between 10 and 50 visitors per reservation, and that sometimes the reservations last all day.
45Mr. Orr indicated that the proposed toilets have to be waterless as there is no water service in these areas. He concluded that the vault toilets are the best option, as they are safer, cheaper to operate, and accessible year round.
46Finally, Mr. Orr pointed out that even though reserved picnic numbers were down this year, the general attendance numbers at the main gate have increased from 5,000 to 20,000 in the last five years.
47Mr. Monaghan, Mr. Stone, and Mr. Verge made brief closing submissions at the end of the hearing.
Sub-Issue No. 1: Whether the proposed development is a Permitted Use under the NEP
48The location of the proposed development is designated as ENA under the NEP. Ms. Peters noted in her testimony that land uses that are provided for in a NEPOSS Master Plan are permitted uses in an ENA area (under NEP, s. 3.3.9). In this case, the Management Plan, as approved by CVC, NEC and MNRF in 2008, explicitly refers to toilets as the “most important infrastructure gap” at Terra Cotta, and contemplates future use of waterless toilets as demand dictates.
49The Appellants questioned the need for additional toilets; however, both Mr. Verge and Mr. Orr provided evidence that demand had increased substantially recently, and that the main concern was “informal” sewage disposal in protected areas. They also noted that portable toilets have been used at the proposed locations during summer months for at least five to six years.
50The zoning categories under the Management Plan create restrictions on land use in those zones. In this case, both applicable zones provide for passive uses. It was Ms. Peters’ unchallenged expert opinion that hiking trail and picnic area uses are such passive uses, and that toilets are an essential accessory use to picnic areas, and are permitted at either location.
51Mr. Monahan and Mr. Stone questioned whether the toilets were consistent with land use categories intended to preserve nature; however, the evidence indicates that the toilets are proposed to be located in previously disturbed areas in zones that permit this type of land use.
52There were further concerns raised as to the “business case” for construction of the toilets, with wide differences on the appropriate level of review required. However, the cost of a proposed project is not an issue that is considered by the NEC when making a decision on whether or not a project is a permitted use on NEP lands.
53Based on a review of the evidence, the Hearing Officers conclude that the proposed toilets are a permitted use at either location.
Sub-Issue No. 2: Whether the proposed development is in accordance with the Development Criteria of the NEP
54Terra Cotta is a park that falls within the NEPOSS category. A relevant objective for these parks is the promotion of outdoor education, recreation and public access. The Hearing Officers accept Ms. Peters’ opinion that the proposal meets this objective.
55Section 3.1.5.1 of the NEP provides that where a NEPOSS Master/Management Plan is in place, its policies take precedence over the designations and criteria contained in Parts 1 and 2 of the NEP. Although NEPOSS policies take precedence, Part 2 of NEP is relevant and should also be considered.
56Ms. Peters reviewed Part 2 of NEP. The Hearing Officers accept her opinion that the proposed toilets are compliant with the relevant provisions of Part 2 regarding protection of the Escarpment, protection of natural heritage features, and compliance with the parkland provisions of the Greenbelt Plan. Similarly, the Hearing Officers accept Ms. Peters’ evidence that the proposal satisfies s. 2.1.1 of the PPS in that it provides long term protection of the natural features on the Escarpment.
57The Hearing Officers conclude that the proposed toilets meet the development criteria in the Management Plan, as well as the applicable permitted uses and development criteria in the NEP.
58For these reasons, the Hearing Officers conclude that the requirements of the NEP have been met in relation to the proposed toilets, and that the appeals should be dismissed.
Concerns Raised by the Appellants Regarding Access at the Tenth Line
59The Hearings Officers appreciated the organized and helpful manner in which the Appellants expressed their concerns about this proposal. Those concerns however, appear largely related to the Terra Cotta access point at the Tenth Line, rather than on the proposal for the vault toilets themselves. The toilets are proposed to be located at some distance from the Tenth Line access (and the properties of the Appellants). The evidence made it clear that the overriding concern of the Appellants is the number of people obtaining access through Tenth Line, and any activity which may encourage that use.
60The Appellants testified that they had not been notified of or consulted about the recent change in the Tenth Line access, even though they both live in very close proximity to the access point. The question of the Tenth Line access to Terra Cotta, though, is not before this panel. The jurisdiction of the Hearing Officers is limited to the proposal before them, which was considered by the NEC in making its decision; in this case, the toilets. It was also pointed out in evidence that access to a park managed under a Bruce Trail Conservancy agreement (as with Terra Cotta) is exempt from the requirement of a development permit. Finally, providing access to NEPOSS parks is a policy objective in Part 3 of the NEP.
61The Hearing Officers are sympathetic to the Applicants’ concerns regarding traffic, parking alongside their properties, and the possibility that an accident may take place. However, the Hearing Officers have no jurisdiction over these issues.
DECISION
62The Hearing Officers have found that the proposal to construct two +11 square metre vault washrooms in two locations with a maximum height of 2.9 metres including two associated 9,000-litre septic tanks, on a 165.2 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 February 28, 2018, to grant a Conditional Approval for Development Permit Application No. H/P/2016-2017/085, is correct and should not be changed. The NEC’s decision is therefore confirmed pursuant to s. 25(12) of the NEPDA. The appeals are dismissed.
Appeals Dismissed
NEC Decision Confirmed
“Marlene Cashin”
MARLENE CASHIN
HEARING OFFICER
“Graham Rempe”
GRAHAM REMPE
HEARING OFFICER
Appendix 1 – Relevant Provisions of the Niagara Escarpment Plan
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