Niagara Escarpment Hearing Office
Bureau des audiences sur l’escarpement du Niagara
ISSUE DATE:
April 16, 2019
CASE NO.:
18-063
PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Appellant:
Gundula Baehre (File No. 18-063)
Appellant:
Ted Stayshyn (File No. 18-064)
Appellant:
Erin Stayshyn (File No. 18-065)
Appellant:
Patrick Bermingham (File No. 18-066)
Applicant:
Ahmed Bilal
Respondent:
Niagara Escarpment Commission
Subject of appeal:
Approval of a Development Permit Application to demolish a dwelling, small shed and detached garage and to construct a single dwelling (including attached garage and walkout basement), undertake associated site alterations for driveway access and retaining wall construction, and install a new septic system
Reference No.:
W/R/2016-2017/118
Property Address/Description:
Part Lot 36, Concession 1
Municipality:
(Former) Town of Ancaster
Upper Tier:
City of Hamilton
NEHO Case No.:
18-063
NEHO Case Name:
Baehre v. Ontario (Niagara Escarpment Commission)
Heard:
March 27, 2019 by telephone conference call
APPEARANCES:
Parties
Counsel/Representative^+^
Gundula Baehre
Paul Marshall
Ted Stayshyn and Erin Stayshyn
Ted Stayshyn
Patrick Bermingham
Tim Bermingham
Ahmed Bilal
Jennifer Meader
Niagara Escarpment Commission
Jim Avram^+^ and Nancy Mott^+^
ORDER DELIVERED BY MARCIA VALIANTE
REASONS
Background
1This Order relates to the Pre-Hearing Conference (“PHC”) held on March 27, 2019 in respect of appeals of the decision of the Niagara Escarpment Commission (“NEC”) to conditionally approve a development permit application filed by Ahmed Bilal (“Applicant”).
2In April 2016, the Applicant applied to demolish an existing 117.1 square metre (“sq. m”) dwelling and small shed and garage and to construct a two-storey single dwelling with attached garage, having a floor area of approximately 873.1 sq. m and a maximum height of 15 metres (“m”), undertake associated site alterations for the driveway access and retaining wall construction, and install a new septic system (“development proposal”) on a 0.7 hectare lot located at 1273 Mineral Springs Road in the former Town of Ancaster, City of Hamilton (“subject property”). The subject property is designated as Escarpment Protection Area in the Niagara Escarpment Plan. In July 2018, following a series of meetings with NEC staff and objectors between July and December 2017, the Applicant submitted a revised development proposal so that the floor area was reduced to approximately 838.3 sq. m and the maximum height reduced to approximately 12.5 m (“revised development proposal”).
3At its meeting on October 25, 2018, the NEC approved the revised development proposal subject to a set of conditions (“conditional approval”). Notice of the NEC decision was given on November 6, 2018. As of November 20, 2018, appeals were received from Gundula Baehre, Ted Stayshyn, Erin Stayshyn and Patrick Bermingham (“Appellants”). The Appellants all reside in the immediate area of the subject property and oppose the NEC’s conditional approval of the revised development proposal. Mr. Bermingham is a member of the Dundas Valley Residents Association, an unincorporated association of local landowners.
4On February 11, 2019, the Niagara Escarpment Hearing Office (“NEHO”) gave notice of the PHC. The PHC was held by telephone conference call on March 27, 2019.
Preliminary Issue
5The Appellant, Mr. Stayshyn, raised a preliminary question regarding notice of the application made to the NEC, stating that he was not aware of the application until November 2018. Jim Avram, Senior Planner with the NEC, explained that the Niagara Escarpment Planning and Development Act (“NEPDA”) only requires that notice be given once a decision is made by the NEC. However, he advised that the NEC’s practice is to send a small sign to each applicant with a request to post the sign on the property that is the subject of the application. Mr. Stayshyn alleged that the sign may have been removed by the Applicant. This allegation was disputed by Applicant’s counsel, and no evidence was presented in support of Mr. Stayshyn’s allegation.
6The Appellant, Mr. Bermingham, asked whether one neighbour in particular, Pam Kortmann, had been given notice of the NEC decision. Mr. Avram advised that notice of the NEC decision had been sent to Ms. Kortmann on November 6, 2018, in accordance with s. 25(5) of the NEPDA, but he did not know whether she had received it. The copy of the materials provided by the NEC to the NEHO confirms that proper notice was given to Ms. Kortmann and no evidence indicating the contrary was presented.
7No requests for status were made at the PHC. Mr. Bermingham stated that he has been in contact with Ms. Kortmann and understands that she wants to appeal the NEC decision, despite the deadline to appeal having passed. Ms. Kortmann was given notice of the PHC but did not contact the NEHO regarding participation prior to the PHC as requested in that notice, and did not attend the PHC either in person or through a representative. On April 4, 2019, the NEHO received an email from Ms. Kortmann requesting Party status. The NEHO has provided her and the other parties an opportunity to make submissions regarding her request and will make a decision on the request once those submissions have been provided.
Scheduling of the Hearing
8The parties discussed the requirements for the hearing and a schedule was agreed on. Mr. Stayshyn advised that he may not be available on one or both of the dates for the hearing, June 26 and 27, 2019. Given the availability of all other parties and their witnesses, and their later unavailability, the Hearing Officer set the preparation schedule for a two-day hearing. The hearing will commence on June 26, 2019, unless the Hearing Officer directs otherwise. The schedule is set out in the Order below. The Hearing Officer encourages the parties to cooperate in facilitating the preparations for the hearing, including a meeting of expert witnesses and a site visit if appropriate.
ORDER
9The Tribunal orders that the following deadlines shall apply to the hearing of the appeals:
a. The parties shall serve on the other parties and file with the NEHO their issues lists and lists of witnesses by April 30, 2019;
b. The parties shall serve on the other parties and file with the NEHO all witness statements, prepared in accordance with Rules 170 and 171 of the Rules of Practice of the Environmental Review Tribunal, and all documents they intend to rely on in the hearing by May 31, 2019;
c. The parties shall serve on the other parties and file with the NEHO any reply witness statements and documents they intend to rely on in the hearing by June 14, 2019;
d. Mr. Stayshyn shall advise the NEHO and the other parties as to whether he is available to attend the hearing on June 26 or 27, 2019 and any change in representation of himself and Ms. Stayshyn by June 14, 2019;
e. The hearing shall commence on Wednesday, June 26, 2019 at 10 a.m. in:
Council Chambers
Stoney Creek City Hall
777 Hamilton Regional Road 8
Stoney Creek, ON L8E 5J4
Procedural Directions Ordered
Hearing Scheduled
“Marcia Valiante”
MARCIA VALIANTE
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