Niagara Escarpment Hearing Office
Bureau des audiences sur l’escarpement du Niagara
ISSUE DATE:
May 27, 2019
CASE NO.:
19-014
PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Appellant:
Islam Abu-Halimeh (File No. 19-014)
Respondent:
Niagara Escarpment Commission
Subject of appeal:
Conditions of Approval of a Development Permit Application to demolish an existing two storey dwelling and to construct a new single storey dwelling, installation of a private sewage disposal system, and widen an existing driveway, on an existing lot
Reference No.:
H/R/2018-2019/313
Property Address/Description:
Part Lot 5, Concession 5 NS
Municipality:
City of Burlington
Upper Tier:
Region of Halton
NEHO Case No.:
19-014
NEHO Case Name:
Abu-Halimeh v. Ontario (Niagara Escarpment Commission)
Heard:
May 8, 2019 by telephone conference call
APPEARANCES:
Parties
Representative
Niagara Escarpment Commission
Michael Baran
Islam Abu-Halimeh
Self-represented
REPORT DELIVERED BY GRAHAM REMPE
REASONS
Background
1Finding his residence too small, the Appellant/Applicant, Islam Abu-Halimeh, applied to the Niagara Escarpment Commission (NEC) for a development permit to demolish his existing two-storey dwelling and to construct a new single storey dwelling, install a private sewage disposal system, and widen an existing driveway, on his existing lot at 4208 Britannia Road in the City of Burlington.
2Under the Niagara Escarpment Plan (NEP), the land is designated Escarpment Rural Area; however, single dwelling residential uses are permitted, provided they meet the development objectives and criteria of the plan.
3Comments from the NEC staff were supportive of the proposal as conforming to the NEP, and a report supporting approval of the development permit, with conditions, was considered by the NEC, which issued the permit with conditions on March 4, 2019.
4Key to NEC staff was Condition 12, which required an agreement, as provided for in s. 24(2.1) of the Niagara Escarpment Planning and Development Act (NEPDA) to be registered on title, precluding use of the property as a business premises. This requirement had been inserted as the NEC staff had observed construction equipment on the site, bearing a business name, which was, upon investigation, found to be using 4208 Britannia Road as its business address. The sole issue under appeal was the imposition of Condition 12.
5Yet, in spite of their differences, prior to the Pre-hearing Conference (“PHC”) of this matter, the NEC Senior Planner dealing with this appeal sent an email to the case coordinator advising as follows:
NEC staff and the appellant/applicant have agreed to settle the appeal matter through a minor amendment to Condition 12 that would remove the requirement for registering the agreement on title. This change would be consistent with Section 24(2.1) of the Niagara Escarpment Planning and Development Act, as an agreement’s registration on title is optional. NEC staff are satisfied that an agreement without a registration on title requirement would still address NEC interests in this instance. As such, it is requested that the NEHO consider the following proposed revision to Condition 12 as follows:
- Prior to the issuance of a Development Permit, the owner/applicant shall at their expense, enter into an Agreement with the Niagara Escarpment Commission pursuant to Section 24(2.1) of the Niagara Escarpment Planning and Development Act, which shall be subject to the following:
- The new single dwelling (including attached garage), existing accessory structures and property/grounds shall not be used for any commercial, home business, industrial or institutional purposes
6On May 8, 2019, a PHC was held by telephone conference call. Michael Baran, on behalf of the NEC, reviewed the application, and the discussions that had taken place with the Appellant. He and Mr. Abu-Halimeh confirmed that they were in agreement with the modification of Condition 12, that is, the deletion of the requirement that an agreement be registered on title. Mr. Abu-Halimeh indicated that his company had a separate property which was used for his business, but as he was sub-leasing the property, a mailbox was not available. He had proposed that an agreement be entered, but did not wish to have that agreement registered on title. He indicated that he understood the restriction and had no intention of using the property for business purposes.
7Under s. 25(12.1) of NEPDA, a Hearing Officer may confirm an amended permit where the parties agree (as here) and the Hearing Officer is of the opinion that the decision would be correct with the revised condition. In this case, it is my view that the decision of the NEC issued with the amendment is correct. The NEC has the security of an enforceable agreement respecting use by the Appellant, while the Appellant avoids the need to encumber title.
DECISION
8The NEC’s decision of March 3, 2019, as amended by the deletion of the words ”(to be registered on title)” in Condition 12, is confirmed pursuant to s. 25(12.1) of the NEPDA and attached as Appendix “A”.
NEC Decision Confirmed with Revised Conditions
“Graham Rempe”
GRAHAM REMPE
HEARING OFFICER
Appendix A – Revised Conditions of Approval
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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