Niagara Escarpment Hearing Office
Bureau des audiences sur l’escarpement du Niagara
ISSUE DATE:
December 19, 2019
CASE NO.:
19-064
PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Appellant:
See Appendix 1 - Appellant list
Applicant:
Peter Walker
Respondent:
Niagara Escarpment Commission
Subject of appeal:
Approval of a Development Permit Application to construct a broiler barn, control room, concrete pad, and a gravel driveway extension
Reference No.:
H/A/2017-2018/467
Property Address/Description:
7076 Tremaine Road – Part Lot 11, Concession 7
Municipality:
Town of Milton
Upper Tier:
Region of Halton
NEHO Case No.:
19-064
NEHO Case Name:
Aquilina v. Ontario (Niagara Escarpment Commission)
Heard:
December 10, 2019 by telephone conference call
APPEARANCES:
Parties
Counsel+/Representative
Peter Walker
Kurtis R. Andrews+
Stephen Burnett
Gregory Bryant
Geoff Jones
Adam Raso
Self-represented
Self-represented
Self-represented
Self-represented
Niagara Escarpment Commission
Cheryl Tansony
Participant
Dimple Sandhu
Self-represented
DECISION DELIVERED BY HELEN JACKSON
REASONS
Background
1Peter Walker (“Applicant”) submitted a development permit application to the Niagara Escarpment Commission (“NEC”) on March 21, 2018, which was revised September 26, 2018, January 15, 2019, January 21, 2019, and by Revised Site Plan on June 17, 2019. The proposal is for a new chicken broiler barn and control room, a concrete pad for feed bins, a concrete pad for manure storage, and a gravel driveway extension to connect the existing farm cluster at 5199 Derry Road to the proposed structure at 7076 Tremaine Road. The property is located at Part Lot 11, Concession 7, Town of Milton.
2The Niagara Escarpment Plan (“NEP”) land use designation applicable to the property is Escarpment Protection Area. The agricultural use is a permitted use in this designation.
3On July 8, 2019, by Notice of Decision, the NEC approved the Applicant’s application H/A/2017-2018/467, subject to conditions (“Conditional Approval”).
4Pursuant to s. 25(8) of the Niagara Escarpment Planning and Development Act (“NEPDA”), a number of local residents appealed the decision of the NEC to conditionally approve the application for a development permit. The following individuals filed appeals: Sonya Aquilina, Stephen Burnett, Gregory Bryant, Geoff Jones, Adam Raso, and Osman Sait (“Appellants”).
5By email to the Tribunal on November 18, 2019, Sonya Aquilina withdrew her appeal indicating that she was relocating out of Milton.
6A Pre-hearing Conference (“PHC”) regarding the remaining appeals was held by telephone conference call (“TCC”) on December 10, 2019. The attendees at the PHC are provided in the Appearances section above. Osman Sait did not attend the PHC.
7At the PHC, Dimple Sandhu requested and was granted participant status. Ms. Sandhu lives nearby and expressed concerns similar to those of the Appellants, being odour, traffic, construction in a protected area, and impacts to property value.
8During the PHC, Cheryl Tansony, planner for the NEC, described the development permit and the conditions of approval. Kurtis Andrews and Luke Walker, the son of Peter Walker, provided information and explanation regarding the proposed new barn and operation. The new barn is to permit a modern modular loading system for the chickens that reduces the stress on the birds and improves animal welfare. The system provides for a more rapid loading by the trucks and consequently less truck noise. There is no expansion to the operation, and it is possible the odours will be reduced due to venting in the new barn.
9Following discussion and submissions of the parties, each Appellant indicated that, based on the explanations provided during the TCC, each Appellant was withdrawing their appeal.
Issue
The issue is whether the NEC’s decision to conditionally approve the Development Permit Application should be deemed to be confirmed.
Relevant Legislation and Rule
10The relevant provisions of the NEPDA and the Environmental Review Tribunal’s Rules of Practice (“Rules”) that apply to this proceeding are:
Section 25(10.2) If the persons who appealed the decision withdraw their appeals or fail to appear at the hearing, the decision of the delegate shall be deemed to be confirmed.
Tribunal Rule
Rule 205. If the Appellant withdraws his or her appeal of a development permit, or fails to appear at the Hearing, the decision of the Niagara Escarpment Commission is automatically confirmed pursuant to section 25(10.2) of the Niagara Escarpment Planning and Development Act.
Discussion, Analysis and Findings
11Section 25(10.2) of the NEPDA provides that the Appellant’s withdrawal of an appeal or the failure to appear at the hearing results in a confirmation of the NEC decision. That section is reflected in Rule 205 which applies to the Niagara Escarpment Hearing Office. The Hearing Officer is satisfied that s. 25(10.2) of the NEPDA applies in this matter. Therefore, the NEC’s decision to conditionally approve the Development Permit Application is deemed to be confirmed.
DECISION
12As one of the Appellants (Osman Sait) failed to appear at the PHC, and the remainder of the Appellants withdrew their appeals in this matter, the NEC’s decision to conditionally approve the Development Permit Application by Peter Walker for a development permit (H/A/2017-2018/467) is deemed to be confirmed pursuant to s. 25(10.2) of the NEPDA.
Appeals Withdrawn
NEC Decision Confirmed
“Helen Jackson”
HELEN JACKSON
HEARING OFFICER
Appendix 1 - Appellant 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 No.
Sonya Aquilina
19-064 (File Closed)
Stephen Burnett
19-065
Gregory Bryant
19-066
Geoff Jones
19-067
Adam Raso
19-068
Osman Sait
19-069