Niagara Escarpment Hearing Office
Bureau des audiences sur l’escarpement du Niagara
ISSUE DATE:
April 10, 2019
CASE NO.:
18-056
PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Appellants:
See Appendix 1 – Appellant List
Applicants:
Doug and Erin Grace
Respondent:
Niagara Escarpment Commission
Subject of appeal:
Approval of a Development Permit Application to demolish the existing 2 storey chalet and construct a 2 storey with walkout, single dwelling, and construct a driveway
Reference No.:
G/R/2016-2017/9173
Property Address/Description:
Lot 15, Plan 94
Municipality:
Town of the Blue Mountains
Upper Tier:
County of Grey
NEHO Case No.:
18-056
NEHO Case Name:
Torrie v. Ontario (Niagara Escarpment Commission)
Heard:
March 29, 2019 by telephone conference call and in writing
APPEARANCES:
Parties
Counsel/Representative^+^
Tiana Koffler Boyman and Mark Boyman
Self-represented
Ian Brown
Self-represented
Megan McIlroy and Steven Young
Self-represented
Niagara Escarpment Commission
Judy Rhodes-Munk^+^
Doug Grace
Denise Baker
Paul Richards
Self-represented
Participant
Greg Brown
Self-represented
ORDER DELIVERED BY MARLENE CASHIN
REASONS
Background
1This Order responds to a request for a site visit, and sets dates for the Hearing in this matter and for procedural steps leading up to the Hearing.
2On October 16, 2018, the Niagara Escarpment Commission (“NEC”) issued a Notice of Decision conditionally approving an application by Doug and Erin Grace (“Applicants”) to demolish an existing two-storey chalet and replace it with a two-storey with walkout, 498 square metre (“sq m”) single dwelling, with a maximum height to peak of 9.34 metres (“m”) on the walkout side, and to construct a driveway, located at Unit #15 within Grey County Vacant Land Condominium Plan 94, Town of the Blue Mountains, in the County of Grey (“Proposed Development”).
3By letter dated October 22, 2018, Desiree Torrie filed a notice of appeal of the decision. Five other appeals were received within the time period allotted for the filing of appeals. Attached at Appendix 1 is a list of the Appellants.
4The Niagara Escarpment Hearing Office (“NEHO”) acknowledged receipt of the correspondence from Ms. Torrie, but informed Ms. Torrie that it was unable to accept her appeal, as, pursuant to the Niagara Escarpment Planning and Development Act (“NEPDA”) the NEHO does not have the jurisdiction to process an appeal from persons who are: not on the NEC’s list of assessed owners within 120 m of the subject property; not persons whom the NEC considers may have an interest in the decision; or not persons who have requested to receive a notice of decision. Having considered written submissions from the Parties on the issue of jurisdiction, the NEHO, by order dated January 11, 2019, dismissed Ms. Torrie’s appeal and closed her file (see: Torrie v. Ontario (Niagara Escarpment Commission), 2019 ONERT 1208).
5On February 7, 2019, a Pre-Hearing Conference (“PHC”) was conducted by telephone conference call (“TCC”). Two additional Parties, Marc Boyman and Paul Richards, and one participant, Greg Brown, were granted status in the proceeding. The PHC was then adjourned until March 12, 2019 to allow the Parties to take part in a meeting designed to facilitate settlement discussions, or narrowing of the issues to be heard in the appeals. The reasons for those decisions were set out in the order of the NEHO dated March 6, 2019 (see: Torrie v. Ontario (Niagara Escarpment Commission), 2019 ONERT 18854).
6At the continuation of the PHC by TCC on March 12, 2019, Judy Rhodes-Munk, NEC Senior Planner, representing the NEC, provided an update on the status of settlement discussions, advising that a meeting of the Parties and their representatives had taken place on March 4, 2019. She stated that no settlement had been reached but that progress was made. The Hearing Officer was told that the Applicants’ planner, Gordon Russell, had circulated to the Parties a document summarizing the areas where agreement has been reached and proposing changes to the Conditions of Approval of the development permit, including possible changes to the site plan, subject to agreement by the NEC. The other Parties were to respond to the proposal by the Applicants on or before March 22, 2019.
7The Parties then requested that the PHC be adjourned until March 29, 2019 to allow for further settlement discussions to take place. The Hearing Officer agreed. The Parties agreed, if a settlement had not been achieved, to attempt to provide an agreed list of issues for the hearing at that time. The Hearing Officer directed that if agreement could not be reached on a list of issues for the hearing, the Parties should indicate which issues are agreed upon and which are in disagreement, at the continuation of the PHC. Two blocks of time, May 15-17, 2019 and May 27-31, 2019, were agreed upon by the Parties as times during which the hearing could be held if the Parties had not reached a settlement. The Hearing Officer advised that, unless all Parties agree that more time for settlement discussions is necessary, dates for the hearing and for the steps leading up to the hearing (exchange of witness statements etc.) would be set at the continuation of the PHC on March 29, 2019.
8Two other issues arose at the PHC: a request for a site visit, and a request for the Hearing to be held in Toronto.
9On the issue of a site visit, the Parties were asked to provide brief written submissions by April 5, 2019. This Order provides the decision and reasons for that decision.
10The Hearing Officer heard oral submissions at the continuation of the PHC on March 29, 2019 regarding the location of the Hearing, and gave an oral decision that the Hearing would not be held in Toronto, but would be held as close to the site of the Proposed Development as possible. The reasons for that decision are included in this Order.
11Dates were scheduled for the Hearing of the appeals and for the steps leading up to the Hearing. These are confirmed below.
Issues
12The issues are:
whether the request for the Hearing to be held in Toronto should be granted;
whether the request for a site visit should be granted; and
scheduling of dates for the Hearing and procedural steps leading up to the Hearing.
Relevant Rules
13The relevant Rules of Practice of the Environmental Review Tribunal (“ERT Rules”), which apply to the NEHO in this matter, are:
Location of the Hearing
- The Tribunal will schedule the Hearing as close as possible to the site that is the subject of the proceeding. The Parties may agree that the Hearing be scheduled at the Tribunal hearing rooms in Toronto or at another location.
Site Visits and Inspections
- The Tribunal may make one or more site visits or inspections to better understand the evidence given at the Hearing, and may issue directions for the procedures to be followed during the site visit or inspection, in accordance with the Tribunal’s Practice Direction for Site Visits. The Tribunal shall make the site visit in the presence of any Parties and Participants or their representatives interested in attending and in the presence of any Presenters granted permission by the Tribunal to attend.
Discussion, Analysis and Findings
Issue 1 – Request for Hearing in Toronto
14There was a request by Ian Brown, one of the Appellants, for the Hearing to be held in Toronto instead of Thornbury, which is near the Proposed Development site.
15Most Appellants agreed with Mr. I. Brown, but Megan McIlroy, speaking for herself and Steven Young, preferred the Thornbury location, as their planning witness is located closer to the Proposed Development than to Toronto. The Applicants said either location would be acceptable. The NEC said either location would be acceptable but preferred the Thornbury venue.
16Since there was no agreement amongst the Parties for a hearing in Toronto, the Hearing Officer considered the Parties’ submissions and gave an oral decision that the Hearing will be held at the Council Chambers of the Town of The Blue Mountains in Thornbury, Ontario, in line with the NEHO’s usual practice, as set out in ERT Rule 162, to hold hearings as close to the site as possible.
Issue 2 – Request for Site Visit
17During the continuation of the PHC on March 29, 2019, Tiana Koffler Boyman, one of the Appellants, requested that the Hearing Officers conduct a site visit of the location of the Proposed Development, pursuant to Rule 186 of the ERT’s Rules.
18As the issue of a site visit had not been raised before the PHC, Denise Baker, counsel to the Applicants, was unable to receive instructions on a position from her clients. As such, the Parties were asked to provide brief written submissions on the need for a site visit, on or before 4 p.m. on April 5, 2019. For guidance, the Parties were referred to the ERT Rules, in particular Rule 186, as well as to s. 7 of the ERT Practice Direction for Site Visits, which also applies to proceedings under the NEPDA.
19Ms. Rhodes-Munk responded that she would be acting as a witness at the Hearing, but would be available to attend a site visit, should the Hearing Officer determine it would be required to assist with the case.
20Ms. Koffler Boyman, who made the request for a site visit, and Marc Boyman, requested that the site visit be conducted prior to the Hearing, and submitted in part:
…it is our belief that given the proximity of the protected trees to the site development as well as immediate issues of water flow with neighbours on both sides as well as unresolved water distribution issues directly from the proposed house, there is an immediate concern to which a site visit will assist all with a better understanding. Furthermore, a site visit would allow appreciation of the size and scope of the proposed project and its impact.
21Appellants Ms. McIlroy and Mr. Young submitted that a site visit would be justified, in that it would allow for an appreciation of the potential impact of the Proposed Development on a large oak tree, approximately 100-years old, which “reaches significantly over the lot…”, and that, “..[t]he magnitude, size and majesty of that oak tree cannot be appreciated by photographs alone”.
22Mr. Richards’ submissions echoed those of Ms. Koffler Boyman, Mr. Boyman, Mr. Young, and Ms. McIlroy. Mr. I. Brown submitted that that “a Site Visit will be important to fully understand the environmental impacts of the proposed development”. There were no other submissions received.
23Given the nature of the site and the scale of the Proposed Development, the Hearing Officer finds that a site visit will assist in a better understanding of the evidence to be given at the Hearing.
24As set out in Rule 186, the Hearing Officers will make the site visit “in the presence of any Parties and Participants or their representatives who are interested in attending…” As outlined in s. 7 of the ERT Practice Direction for Site Visits, this Order confirms that, if any Party, Participant, or their representatives do not attend, the site visit may proceed in his or her absence.
25The site visit will take place on May 15, 2019, immediately following the conclusion of the Hearing for that day, at approximately 3:30 p.m. The Hearing Officer requests the cooperation of the Applicants in facilitating the site visit. The Hearing Officer directs the Applicants to use tape or some other type of marking on the ground to illustrate the dimensions and location of the proposed structure, and the proposed driveway.
Issue 3 – Procedural Directions
26During the continuation of the PHC, the Parties were asked if they had reached consensus on the dates for the Hearing of the appeals. The Parties did not agree on dates despite having agreed on March 12, 2019 on the two blocks of time from which to choose. The Hearing Officer heard the Parties’ submissions regarding the timing of the Hearing, and decided that the Hearing would be held on May 15, 16, and 17, 2019. Ms. Baker advised that she is not available for the dates from May 27-31, 2019 due to a conflict with a three-week trial on which she was previously committed to appear. She had given the NEHO and the Parties notice that this might be a possibility when the agreed upon tentative dates were discussed at the PHC on March 12, 2019, saying at that time that she would endeavour to rearrange the trial schedule to allow her to be available for the Hearing for at least one of the weeks where dates were proposed. She was unsuccessful in her attempts at rescheduling for availability during the last proposed block of dates, but was able to make herself available during the first block of dates in May.
27All but one of the Appellants was available for the May 15-17, 2019 dates. Mr. I. Brown told the Hearing Officer that he would be unable to be present on the afternoon of May 16, 2019. He had also alerted the NEHO and the Parties that he would be unavailable on this half-day, at the March 12, 2019 PHC. As Mr. I. Brown had previously mentioned the possibility of hiring a lawyer to represent him at the hearing, the Hearing Officer concluded that having a lawyer or another person present to represent Mr. I. Brown for the time when he would be unavailable would best balance the interests of the all the Parties in having the Hearing proceed in a timely manner. The Parties agreed to plan the scheduling of witnesses with Mr. I. Brown’s absence taken into account.
28In consultation with the Parties, the Hearing Officer also set the dates for steps leading up to the Hearing, as set out in the Order below.
ORDER
29The request for a Hearing in Toronto is denied. The Hearing will commence at 11 a.m. on Wednesday, May 15, 2019 in:
Council Chambers
Town of The Blue Mountains
32 Mill Street
Thornbury, Ontario
30The request for a site visit is granted. The site visit will take place on May 15, 2019 immediately following the end of the Hearing for that day, at approximately 3:30 p.m.
31The Hearing Officer directs the following schedule related to the appeals:
On or before April 11, 2019, the Parties shall provide to the NEHO a list of facts and issues that remain in dispute.
On or before April 11, 2019, a Party who intends to call witnesses, whether by summons or not, shall provide to the Hearing Office and the other Parties a list of the witnesses and the order in which they will be called.
On or before April 30, 2019, an expert witness shall provide a copy of their expert witness statements to the Hearing Office and the other Parties. The expert witness statement shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Hearing Office may refuse to hear the expert’s testimony.
On or before April 30, 2019, a witness must provide to the Hearing Office and the other Parties, a copy of their witness statement, or the witness may not be permitted to give oral evidence at the hearing.
On or before April 30, 2019, a Participant must provide to the Hearing Office and the other Parties, a copy of their participant statement, or the Participant may not be permitted to give oral evidence at the hearing.
On or before May 10, 2019, Parties may provide to all other Parties and file with the Hearing Office, a written response to any written evidence. Response may include responding witness statements if deemed necessary.
On or before May 13, 2019, the Parties shall provide copies of their visual evidence to all of the other Parties and file them with the Hearing Office.
Request for Hearing in Toronto Denied
Request for Site Visit Granted
Procedural Directions Ordered
“Marlene Cashin”
MARLENE CASHIN
HEARING OFFICER
Appendix 1 – Appellants 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 Tribunals Ontario - Environment and Land Division
Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
Appendix 1
Appellants List
Appellant Name
File No.
Desiree Torrie
18-056 (File closed)
Tiana Koffler Boyman
18-057
Judi Frost
18-058
Ian Brown
18-059
Steven Young
18-060
Megan McIlroy
18-061