Ministry of Natural Resources and Forestry
Office of the Minister
Room 6630, Whitney Block
99 Wellesley Street West
Toronto ON M7A 1W3
Tel: 416-314-2301
Ministère des Richesses naturelles et des Forêts
Bureau du ministre
Édifice Whitney, bureau 6630
99, rue Wellesley Ouest
Toronto (Ontario) M7A 1W3
Tél.: 416-314-2301
VIA EMAIL
DEC 1 9 2019
Pam Jackson and Josh Phillips Ramani Nadarajah
Jessica Karban Rashin Alizadeh
· pam@jacksonstewardship.com ramani@cela.ca jessica@cela.ca articiling@cela.ca
NOTICE OF DECISION
made under the provisions of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2
Niagara Escarpment Hearing Office Case No. 18-001
NEC File No.: P/R/2016-2017/442
Dear Parties,
Re: The Coalition on the Niagara Escarpment, appellant against Niagara Escarpment Commission's Conditional Approval to construct a 2-storey secondary dwelling, a detached garage, a deck, and driveway on an existing parcel and an accessway from the adjacent lot on a property located at Part Lot 14 RP, Concession 3 EHS: in the Town of Caledon, Regional Municipality of Peel
Pursuant to s. 25 of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended, the Hearing Officer has inquired info the merits of the decision of the Niagara Escarpment Commission ("NEC") to permit the development proposal and advised me of their opinion of the decision.
I have reviewed the decision of the NEC and after reviewing the Hearing Officer's Recommendation (copy attached), I concur with the NEC's decision to issue a Development Permit subject to the attached conditions and find that the decision is
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correct and should not be changed. According to s. 25(12) of the NEPDA, the decision of the NEC is, therefore, confirmed. ·
Sincerely,
Attachment
cc: Debbie Ramsay (debbie.ramsay@ontario.ca)
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Jackson & Phillips
CONDITIONS of APPROVAL P/R/2016-2017/442
Conditions of Approval
Development shall occur in accordance with the Development Permit Application as modified by this approval, the approved Site Plan and these Conditions.
The landowner shall advise the Niagara Escarpment Commission in writing of the start and the completion date of the development. This notice shall be provided to the NEC 48 hours prior to the commencement of development, and within 14 days upon completion.
No site alteration of the existing contours of the property including the placement or stockpiling of fill on the property is permitted with the exception of that identified within the development envelope in accordance with the approved Site Plan.
Prior to the issuance of a Development Permit by the Niagara Escarpment Commission, the edge of the significant woodland and associated valley feature shall be staked in the field by Credit Valley Conservation staff with a licenced surveyor with Niagara Escarpment Commission staff present, surveyed and plotted on a geodetic survey as the “Top of Slope” by a licensed Ontario Lands Surveyor and put on the Site Plan which shall then form part of the Site Plan referenced in Condition #1.
No vegetation shall be cut or removed from the development envelope except for that identified within the development envelope in accordance with the approved Site Plan.
If and when the occupancy of the existing farm house on the property (owned by David and Jane Jackson), as their residence is discontinued or interrupted for more than 1 year, one of the two single dwellings shall cease to be occupied (including by any subsequent owner), and shall be removed and the site rehabilitated within ninety (90) days of such discontinuance of occupancy and only one single dwelling shall remain on the lot. Any change to this restriction shall require a further Development Permit.
Prior to the issuance of a Development Permit by the Niagara Escarpment Commission, the Landowner shall enter into an agreement under Section 24(2.1) of the Niagara Escarpment Planning and Development Act, in a form acceptable to the Niagara Escarpment Commission to ensure compliance with Condition #6. The agreement may include but is not limited to, provisions as to which dwelling is to be removed, that removal must occur in any event prior to any transfer of title, and that any subsequent owner would be required at his or her own expense to remove one of the dwellings from the site and rehabilitate the site in accordance with the Development Permit. The agreement shall be
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registered on title of 18178 Horseshoe Hill Road, Part Lot 14, Concession 3, EHS in the Town of Caledon, Region of Peel, at the owner’s expense.
- Prior to the issuance of a Development Permit by the Niagara Escarpment Commission, an accurate and detailed Final Site Plan shall be submitted to the Niagara Escarpment Commission for approval and shall form part of the Site Plan referenced in Condition #1. The Plan shall include but not be limited to the following:
a) All drawings submitted must be drawn to scale (bar scale shown), reference the application number and address of the proposal, be dated (revisions as well) and denote the relevant consultant;
b) An accurate delineation of the approved development envelope with temporary fencing;
c) The accurate location of all structures, sewage disposal system within the development envelope showing setbacks from the property lines, a 10 metre buffer from the Provincially Significant Wetland and watercourse, top/bottom of slope with a 50 metre buffer from the Top of Slope (as staked and surveyed) and a 30 metre setback from wooded areas.
d) Additional details on the proposed driveway including footprint, associated grading, drainage, location of above and below grade utilities, limits of disturbance, construction staging areas. This information shall be plotted on a geodetic survey by a licensed Ontario Lands Surveyor.
e) Extent of all disturbed areas;
f) Extent and amount of fill removal or placement. Detailed grading and drainage design including the areas of excavation and temporary or permanent fill placement. The type, quantity, quality and source location of any imported fill material must be accurately identified. Any fill material approved for importation under this Permit shall conform to the definition of “inert fill” per Ontario Regulation 347 and Table 1 of the Soil, Groundwater and Sediment Standards for use per Part XV.1 of the Environmental Protection Act, dated March 9, 2004;
g) Erosion and sediment control measures completely enclosing the footprint of the proposed development; associated grading, drainage, utility trenches, and construction staging areas.
h) Planting layout in accordance with Condition #12. Areas of supplemental tree planting including quantities, species and size;
- Prior to issuance of a Development Permit by the Niagara Escarpment Commission an “Agricultural Plan” shall be prepared by qualified person demonstrating and detailing the new agricultural uses being introduced on the site, including but not limited to grading, planting of crops and the introduction of livestock. Any changes or additions beyond that described in the Agricultural Plan will require a further Development Permit.
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Prior to the issuance of a Development Permit by the Niagara Escarpment Commission, the landowner shall complete a Minimum Distance Separation (MDS 1) evaluation to ensure required separation distances between the proposed dwelling and neighbouring livestock facilities can be met.
Prior to issuance of a Development Permit by the Niagara Escarpment Commission, the landowner shall obtain ownership of the required land from the adjacent landowner for the lot addition, to facilitate the proposed driveway access and any screening identified as being required by the approved Visual Assessment Study (Condition #12), in accordance with this Development Permit and shall complete the transfer of title in accordance with the Development Permit.
Prior to the issuance of a Development Permit by the Niagara Escarpment Commission, a scoped Visual Assessment Study shall be undertaken by a qualified professional and consistent with the Niagara Escarpment Commission Visual Assessment Guidelines, to the satisfaction of the Niagara Escarpment Commission. The assessment shall evaluate any potential for impacts to the Escarpment open landscape character and scenic resources as a result of the development and identify mitigation measures. Stipulations:
a) Prior to commencement of the visual impact assessment a terms of reference be prepared to the satisfaction of the NEC;
b) Maximum height to the peak of roof be established from the investigation to ensure no skylining of the built form occurs;
c) The final Site Plan referenced in Condition #1, vegetation protection plan and landscape plan are in accordance with the findings of the approved visual impact assessment.
- Prior to the issuance of a Development Permit by the Niagara Escarpment Commission, a Final Landscape / Vegetation Plan shall be prepared by a qualified person, for Niagara Escarpment Commission and Credit Valley Conservation approval. The Plan shall address all planting, screening requirements associated with screening and mitigation in accordance with Condition #1, and Condition #8 respecting the creation of an enhanced buffer to the woodland/valley feature. Stipulations:
a) Surveyed location and inventory of vegetation to be removed and preserved as well as all protection measures shall be identified.
b) All new tree and shrub species shall be native to Ontario. Only in extenuating circumstances will non-native species be considered. Plant material shall be sourced from local plant nurseries; bush dug plant material is not acceptable.
c) Planting and the rehabilitation of all disturbed areas shall be completed by the end first growing season following the completion of site grading,
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servicing and building construction to the satisfaction of the Niagara Escarpment Commission.
d) All plant material shall be guaranteed for 24 months following installation. All plant material found during this time to be dead or dying must be replaced with a size and species to the satisfaction of the Niagara Escarpment Commission.
e) Subsequent to the completion of the works a letter certifying the work has been completed in accordance with the approved plan shall be provided to the Niagara Escarpment Commission by a qualified person.
Prior to the issuance of a Development Permit by the Niagara Escarpment Commission, the applicant shall submit for the approval of the Niagara Escarpment Commission, final building design/construction details for the dwelling including but not limited to exterior elevations, floor area, height above existing and proposed grades, the number of stories and lighting. The dwelling shall not contain a secondary dwelling unit. Upon approval, these plans will be stamped “NEC Approved” and shall form part of the Development Permit referred to in Condition #1.
No severances of the single dwellings shall be permitted.
The existing watercourse crossing shall not be enlarged or expanded and vehicles and machinery shall not utilize the existing crossing.
This conditional approval expires one (1) year from the date of confirmation of the decision to approve the Development Permit application.
Notes:
a) This Development Permit does not limit the need for or the requirements of any other applicable approval, licence or certificate under any statute (e.g., Ontario Building Code, Conservation Authorities Act, Endangered Species Act, etc.). The Niagara Escarpment Commission Development Permit is required prior to the issuance of any other applicable approval, licence or certificate.
b) The Niagara Escarpment Commission supports the protection of the night sky from excessive residential lighting and recommends that the applicant obtain information on shielding the night sky through the use and operation of appropriate lighting fixtures. This information is available at www.darksky.org.
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Niagara Escarpment Hearing Office
Bureau des audiences sur l’escarpement du Niagara
ISSUE DATE:
October 11, 2019
CASE NO.:
18-001
PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Appellant:
Kevin Bond (18-001) (File closed)
Appellant:
Karen Redgers (18-002) (File closed)
Appellant:
Coalition on the Niagara Escarpment (18-003)
Applicant:
Pam Jackson and Josh Phillips
Respondent:
Niagara Escarpment Commission
Subject of appeal:
Approval of a Development Permit Application to construct a 2 storey secondary dwelling, a detached garage, a deck, and driveway on an existing parcel and an accessway from the adjacent lot
Reference No.:
P/R/2016-2017/442
Property Address/Description:
Part Lot 14 RP, Concession 3 EHS
Municipality:
Town of Caledon
Upper Tier:
Regional Municipality of Peel
NEHO Case No.:
18-001
NEHO Case Name:
Bond v. Ontario (Niagara Escarpment Commission)
Heard:
June 12, 2019 in Amaranth, Ontario
APPEARANCES:
Parties
Counsel/Representative+
Coalition on the Niagara Escarpment
Ramani Nadarajah, Jessica Karban and Rashin Alizadeh (student)
Pam Jackson and Josh Phillips
Self-represented
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REPORT DELIVERED BY JUSTIN DUNCAN
REASONS
Reasons
1On March 2, 2017, Pam Jackson and Josh Phillips (“Applicants”) filed a Development Permit Application with the Niagara Escarpment Commission (“NEC”) to allow them to construct a two-storey dwelling, detached garage, deck and driveway (“proposed development”) on an existing lot at 18178 Horseshoe Hill Road, in the Town of Caledon (“Site”). The Site is designated Escarpment Natural Area and Escarpment Rural Area in the Niagara Escarpment Plan (“NEP”); however, the proposed development would be constructed entirely within the Escarpment Rural Area designation. The Site currently supports a single dwelling and several accessory buildings within a farm cluster; the proposed development would add a second single dwelling.
2The NEC Staff Report, prepared by Lisa Grbinicek, recommended refusal but, on January 24, 2018, the NEC conditionally approved the proposed development. On February 2, 2018, Karen Redgers and Kevin Bond filed appeals of the NEC decision with the Niagara Escarpment Hearing Office (“NEHO”) pursuant to s. 25(5.1) of the Niagara Escarpment Planning and Development Act (“NEPDA”) and, on February 6, 2018, the Coalition on the Niagara Escarpment (“CONE”) did likewise.
3A Pre-Hearing Conference was held on April 30, 2018 and continued by telephone conference calls on May 28, 2018 and on June 18, 2018.
4A hearing of the appeals took place on June 12, 2019. Only CONE maintained its appeal at the time of hearing. Karen Redgers and Kevin Bond advised the NEHO prior to the hearing that they had settled their issues with the Applicants.
5During the hearing, the Hearing Officer heard evidence from Kim Peters, Planner with the NEC, who was summonsed by CONE. Ms. Peters was qualified to provide expert opinion evidence in her capacity as a land use planner with particular expertise in the NEP.
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6On behalf of the Applicants, the Hearing Officer heard evidence from David Jackson, owner of the Subject Property, and also from Ms. Jackson and Patrick Robson. Mr. Robson was qualified by the Hearing Officer to provide expert land use planning evidence.
Issue
Issue
7The main dispute between the parties is whether policy permits the Applicants to construct a second dwelling on the Subject Property. The main issue therefore, is whether the conditional development permit granted by the NEC is correct in light of the provisions of the NEPDA and the NEP and if not, whether a conditional development permit with revised or additional conditions of approval would be correct.
Evidence
Evidence
8Ms. Peters explained that she agrees with the recommendations made by Ms. Grbinicek that the application for the development permit be refused. She explained that Policy 2.2.7 of the NEP only permits a single dwelling on the Subject Property as a permitted use and that there are only two exceptions to this general rule.
9Ms. Peters explained that the first exception is found in NEP Policy 2.8.5 which permits additional dwellings accessory to a farm use. The second exception is contained in Policy 2.2.7 where it provides that a second dwelling may be permitted to protect heritage attributes of the original dwelling.
10Ms. Peters explained that NEP Policy 2.2.11 requires that any secondary unit be located within or attached to the existing dwelling. Policy 2.2.11(c) specifically provides that a secondary unit shall not be in a detached accessory facility. It was Ms. Peters’ opinion that the development criteria contained in Policy 2.8.5 and Policy 2.2.11 are not met in this instance where the proposal is to construct a stand-alone second dwelling on the Subject Property.
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11With regards to the NEC decision to conditionally approve the development permit, Ms. Peters explained that there is no provision in the NEP that says a development permit can be approved where it is in the ‘spirit’ of the NEP.
12She explained that Policy 2.2.11 of the NEP provides sufficient flexibility to farmers to create secondary dwelling units on properties to implement successional planning as intended by the Applicants. She explained that this policy was introduced in 2017 with the NEP amendments and it intended to balance the rights of farmers to build on their lands to accommodate staff while also limiting the built form on the escarpment. She explained that when there is more than one dwelling on a property that it often serves as justification for future lot creation which fragments the agricultural land base and open landscape character of the Niagara Escarpment.
13As an alternative to the development permit proposed by the Applicants, Ms. Peters explained that the Applicants have three options that would not offend NEP policy: utilize a mobile house that is clearly temporary, build on a property owned by the Applicants’ family located across the street from the Subject Property which does not currently have a house on it; or apply for a plan amendment to create a permitted use.
14Ms. Peters was of the opinion that there are no conditions of approval that would bring the proposal into compliance with the NEP.
15Ms. Peters also referred to the Provincial Policy Statement, 2014 (“PPS”). She explained that direction found in Policy 1.1.4 does not support residential growth outside of rural settlement areas. She also explained that farm succession planning is not an issue or a criteria mentioned in the PPS as a basis for additional residential development.
16Ms. Peters also referenced Policy 1.1.5.6 of the PPS and explained that locating a second dwelling outside of the existing cluster of farm buildings on the Subject Property could limit the possibility of agricultural operation expansion on other properties nearby.
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17Ms. Peters also referred to Policy 5.1.1.13.1 of the Town of Caledon Official Plan (“Town OP”) and explained that the policy permits secondary dwellings if the occupants are employed full time in the agricultural operation. She explained that the Town OP also requires that any secondary dwelling be located close to an existing farm cluster and that the same driveway be used by the secondary dwelling. Since the Applicants propose to locate the proposed second dwelling outside of the existing farm cluster utilizing a new driveway, Ms. Peters opined that the Town OP was not met by the proposal.
18Ms. Peters explained that there were no issues of non-compliance with Regional Official Plan policy as the Region defers to the NEP and Town OP in this situation. Similarly, Ms. Peters explained that the proposal does not offend any policy of the Credit Valley Conservation Authority relating to hazardous land and environmental protection.
19Overall, it was Ms. Peters’ opinion that the proposal does not meet NEP policy and does not meet PPS or Town OP policy.
20In cross-examination, Ms. Peters acknowledged that conditions imposed by the NEC requiring that one of the two residences be removed in future and precluding severance did have the effect of bringing the application into closer compliance with the NEP but she remained of the opinion that the even with the conditions, the application does not meet the NEP.
21Mr. Jackson explained how the existing farm operation uses the Subject Property and also explained that the location of the proposed second house is the least disruptive location for farming operations on the Subject Property. He also explained that the property across the street from the Subject Property has the best soil quality in the area and that he would not support building a house on those lands. In cross- examination, Mr. Jackson acknowledged that he owns and uses various lands in the area for his cash-cropping operation and explained that he travels up to 15 kilometres (“km”) to reach all of these lands. However, he explained that traveling such a distance
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would not be practical for the livestock operation the Applicants intend to establish on the Subject Property.
22Ms. Jackson explained that her family has implemented various measures to improve the environmental quality of their farming operation and to improve the riparian habitat on the Subject Property specifically. She also explained that her intent is to establish a cattle farm on the Subject Property and owning a home off of the Subject Property would make that challenging. Ms. Jackson explained that the existing farm house is approximately 1,000 square feet in floor area and is becoming dilapidated. She explained that the intent is that it will be demolished in future.
23Mr. Robson opined that the NEC made the correct decision in this instance by issuing the conditional development permit. He explained that the effect of the conditions will be to ensure that there is eventually only one house on the Subject Property.
24Mr. Robson’s evidence focused largely on the need to support farm succession through a flexible application of the existing NEP policy.
25With regard to the precedential value of the NEC’s decision, Mr. Robson explained that it was his experience that the NEC has often reacted to new situations that has led to future NEP policy refinement.
26With regards to the language of the NEP, Mr. Robson explained that the locational requirement is that a secondary dwelling should be located near the existing farm cluster, not that it must be.
27In cross-examination, Mr. Robson acknowledged that nothing in the NEPDA or the NEP specifically references the requirement to support agriculture.
Discussion, Analysis and Findings
Discussion, Analysis and Findings
28CONE submits that the development permit does not meet Policy 2.2.11 or Policy 2.8.5 of the NEP which provide:
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Secondary Dwelling Units
2.2.11. The following provisions apply to secondary dwelling units:
a) a single secondary dwelling unit may be permitted on an existing lot of record;
b) notwithstanding the above, a secondary dwelling unit shall not be permitted on an existing lot of record where there is more than one single dwelling, including any dwelling approved under Part 2.2.7 of this Plan;
c) the secondary dwelling unit shall be contained entirely within a single dwelling or in an addition to a single dwelling and shall not be permitted in a detached accessory facility;
d) the floor area of a secondary dwelling unit shall be subordinate in size to the single dwelling;
e) secondary dwelling units shall not be permitted in a group home or a single dwelling containing a bed and breakfast; and
f) a home occupation or home industry shall not be permitted within a secondary dwelling unit.
Dwelling Units Accessory to Agricultural Uses
2.8.5. A temporary dwelling unit(s) for farm labour may be permitted on the same property as the principal farm house, subject to the following criteria:
a) additional farm labour is required on a full-time or seasonal basis;
b) the dwelling unit(s) shall be mobile or portable, without a basement; or the dwelling unit(s) may be permitted within an existing farm building or structure on a temporary basis, where justified (e.g., barn);
c) the dwelling unit(s) should be located within the existing farm building cluster, and the existing farm lane access is to be used where possible; and
d) the dwelling unit(s) shall be temporary and shall be removed within a period set out in the Development Permit when the dwelling unit is no longer required.
29CONE submits that approving the application will set a negative precedent by accommodating the personal needs of the Applicants while ignoring the policy requirements of the NEP. CONE submits that Policy 2.2.11 is intended to accommodate farm succession while Policy 2.8.5 contains requirements that must be met in relation to temporary dwelling units. It is submitted that neither policy has been met by the Applicants in this case.
30CONE submits that there could be cumulative negative impact to the Niagara Escarpment if the Applicant’s application is approved and it serves as an example relied upon by other property owners to temporarily place two dwellings on their property.
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31Finally, CONE submits that the NEC was without jurisdiction to approve what amounts to a plan amendment. CONE requests that the development permit not be confirmed.
32In final submissions, Mr. Philips submitted that the onerous conditions imposed by the NEC will ensure that the intent of the NEP will be met by the proposal. The request was made that the conditional development permit be confirmed by the NEHO.
33Based on the evidence and submissions of the parties, the Hearing Officer finds that the relevant Policies for consideration in this context are Policies 2.2.11 and 2.8.5. The NEP is clear at Policy 2.2.7 that only one single dwelling is permitted on the Subject Property:
2.2.7 Only one single dwelling is permitted on each existing lot of record in the Escarpment Natural, Escarpment Protection and Escarpment Rural Area designations, unless a second single dwelling is, in the opinion of the implementing authority, the only viable way to conserve the heritage attributes of an existing single dwelling…
34No submission was made that the heritage exception contained in Policy 2.2.7 applies in this instance.
35Policy 2.2.11 permits a secondary dwelling unit that is located within a single dwelling or is an addition to a single dwelling. Additionally, the secondary dwelling is required to be subordinate in size to the single dwelling. These requirements have not been met by the Applicants.
36Policy 2.8.5 provides that temporary dwelling units for farm labour may be permitted on the same property as the principal farm house, subject to the criteria that additional farm labour is required on a full-time or seasonal basis, the dwelling shall be mobile or portable or located within an existing farm building, the dwelling should be located within the existing farm building cluster, and the existing farm lane access is to be used where possible; and the dwelling shall be temporary and shall be removed within a period set out in the Development Permit when the dwelling unit is no longer required.
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37As stressed by Mr. Hobson, the criteria in Policy 2.8.5 that the temporary dwelling unit be located within the existing farm building cluster and use the existing farm lane access are not strict requirements. However, the other criteria are mandatory and have not been met by the Applicants’ proposal. The proposed new dwelling is not proposed to be temporary or mobile.
38The Applicants take the position that the conditions imposed by the NEC would eventually have the effect of ensuring only one residence would be located on the Subject Property and that the ‘spirit’ of the NEP would be met.
39Condition 6 imposed by the NEC provides that when the occupancy of the existing farm house is discontinued or interrupted for more than one year, that one of the two residences is required to be decommissioned and only one dwelling shall remain on the Subject Property. It could be decades before this condition is fulfilled. I find that there is nothing contained in the NEP or the NEPDA that allows for development permits to be issued that will create development that is inconsistent with the NEP for an uncertain length of time.
40I accept that the Applicants will need to live in close proximity to the Subject Property if they are to successfully pursue their business plan to establish a cattle farm on the Subject Property. However, I find that the Applicants and their extended family are not without options to achieve this objective. In addition to the options suggested by Ms. Peters in her evidence, is the option to rebuild a larger single dwelling on the Subject Property or to propose demolition of the existing farm house at this time as part of the application to build a new, larger dwelling at an alternative location. Although these alternatives would be subject to additional application processes, they would not have the same negative precedential potential that may lead to the proliferation in built form on the Niagara Escarpment which the NEP has been specifically drafted to regulate for.
41In conclusion, in accordance with s. 25(11) of the NEPDA, the Hearing Officer finds that the decision of the NEC is not correct and should not be confirmed.
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RECOMMENDATION
42In accordance with s. 25(11) of the NEPDA, the Hearing Officer reports to the Minister that it is his opinion that the decision of the NEC should not be confirmed. Instead, the Hearing Officer recommends that the development permit be refused.
NEC Decision Not Confirmed
“Justin Duncan”
JUSTIN DUNCAN HEARING OFFICER
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Niagara Escarpment Hearing Office Environmental Review Tribunal
A constituent tribunal of Tribunals Ontario – Environment and Land Division Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248