Niagara Escarpment Hearing Office
Bureau des audiences sur l’escarpement du Niagara
ISSUE DATE: July 15, 2019
CASE NO.: 19-025
PROCEEDING COMMENCED UNDER section 10(3) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Applicant: Niagara Escarpment Commission
Subject of hearing: Proposed Amendment to the Niagara Escarpment Plan to change the designation of properties on Dyer’s Bay Road (941-943 Dyer’s Bay Road and 953 Dyer’s Bay Road) from Mineral Resource Extraction Area to Escarpment Natural Area and Escarpment Rural Area, as the licence for the former pit has been surrendered
Reference No.: Proposed Niagara Escarpment Plan Amendment No. PB 208 15
Municipality: Municipality of Northern Bruce Peninsula
Upper Tier: County of Bruce
NEHO Case No.: 19-025
NEHO Case Name: Plan Amendment PB 208 15 (Re)
Heard: June 24, 2019 in Wiarton, Ontario
APPEARANCES:
| Parties | Representative |
|---|---|
| Niagara Escarpment Commission | Nancy Mott and Jenna Skinner |
| Dyer’s Bay Association | Laurie Cochrane and Jim Wadleigh |
| Barb Rabicki | Self-represented |
| Participants | Representative |
|---|---|
| Lee Bartley | Self-represented |
| Wendy Brown | Self-represented |
| Laurie Canning | Self-represented |
ORDER DELIVERED BY MARLENE CASHIN AND JUSTIN DUNCAN
REASONS
Background
1On April 15, 2019 the Niagara Escarpment Commission (“NEC”) notified the Niagara Escarpment Hearing Office (“NEHO”) that it had received written objections to the proposed Niagara Escarpment Plan Amendment PB 208 15 (“NEPA”), initiated by the NEC. In accordance with section 10(3) of the Niagara Escarpment Planning and Development Act (“NEPDA”), the NEC requested that the NEHO appoint hearing officers to conduct a hearing.
2The purpose of the NEPA is to change the Mineral Resource Extraction Area (“MREA”) designation on two lots located at 943 and 953 Dyer’s Bay Road (“Subject Lands”) in the Municipality of Northern Bruce Peninsula, Bruce County, Ontario (“Municipality”), to Escarpment Natural Area (“ENA”) and Escarpment Rural Area (“ERA”). One of the lots is owned by the Municipality and the other is owned by Barb Rabicki. The Subject Lands are partly designated MREA based on a former licence (“Licence No. 4798”) granted under the Aggregate Resource Act, R.S.O. 1990, c. A.8. The change in designation on the Subject Lands is proposed as Licence No. 4798 has been surrendered by the Municipality following cessation of gravel extraction and the completion of rehabilitation activities.
3On June 24, 2019 the NEHO held a Pre-hearing Conference (“PHC”) in Wiarton, Ontario. At that time, the Hearing Officers heard and decided on requests for party and participant status and scheduled dates related to the hearing. These are the reasons for those decisions.
Relevant Legislation and Rules
4The relevant legislation and rules that apply to the matters addressed by the NEHO during the PHC are attached at Appendix 1.
Issues
5The following three matters were addressed during the PHC:
a. The procedure to be followed in this case;
b. Whether requests for party and participant status should be granted; and
c. Establishing a schedule for service and filing documents and hearing dates.
Discussion, Analysis and Findings
1. Applicable Procedure
6In accordance with s. 10(3) of the NEPDA, if written objections to proposed NEP amendments are received by the NEC within the allotted time, the NEC shall,
appoint one or more hearing officers for the purpose of conducting one or more hearings within the Niagara Escarpment Planning Area or in the general proximity thereof for the purpose of receiving representations respecting the proposed amendments by any person desiring to make representations.
7In the current situation, objections were received within the allotted time, and the NEC requested that the NEHO appoint hearing officers to conduct a hearing.
8The NEPDA does not specify the procedure that should be used in conducting a hearing commenced in accordance with s. 10(3). However, s.10(6) says that when a hearing is called under subsection (3):
the persons proposing the amendments or their representatives shall present the proposed amendments and the justification therefor and shall make available for public inspection research material, reports, plans and the like that were used in the preparation of the amendments and, subject to the rules of procedure adopted by the hearing officers for the conduct of the hearing, the persons presenting the amendments and any other persons who make presentations at the hearing may be questioned on any aspect of the amendments by any interested person. [Emphasis added]
9In this situation, the Hearing Officers have determined that the rules of procedure to be applied for the conduct of the PHC and the hearing, are the Rules of Practice of the Environmental Review Tribunal (the “Rules”) with any necessary modifications required to recognize that the hearing relates to a NEP amendment. No objections were raised during the PHC to the Rules being applied in this manner.
2. Status Requests
a. Requests for Party Status
10In addition to the NEC, one organization and one individual participating in the PHC on June 24, 2019, expressed interest in having party status at the hearing.
Dyer’s Bay Association
11The Dyer’s Bay Association (“Association”) is an incorporated organization that requested party status in opposition to the NEC’s NEPA to redesignate the Subject Lands. The Association, represented by Laurie Cochrane and Jim Wadleigh, submits that it wishes to raise nine issues with the proposed redesignation of the Subject Lands, including the failure of the new designations to describe the character of the lands, lack of adequate environmental protection and endangered species protection specifically, consistency with other designations in the Dyer’s Bay area, and consistency between the objectives of the NEPA and the ERA designation proposed. The Association explained that it is generally content with the ENA designation proposed but that the ERA designation areas and the former pit area ought to be placed in the Environmental Protection Area (“EPA”) designation. The Association submits that it satisfies all three criteria under Rule 63 and thereby meets the requirements for party status. There were no objections to the granting of party status to the Association.
Barb Rabicki
12Ms. Rabicki is the owner of one of the properties located on the Subject Lands which is proposed to be redesignated. She requested party status in the proceeding to support the NEC’s NEPA to redesignate the Subject Lands from MREA, to ENA and ERA. Ms. Rabicki submits that, if permitted to participate as a party in the proceeding, she will call witnesses to support her position that the NEPA is an appropriate solution to the issue of the redesignation of the Subject Lands. Ms. Rabicki submits that she meets the requirements for party status set out in Rule 63. There were no objections to the request for party status.
Findings on Party Requests
13The Hearing Officers are satisfied that the Association and Ms. Rabicki meet the requirements for party status under Rule 63, as each of their interests may be directly and substantially affected by the hearing, each has a genuine interest in the subject matter of the proceeding and each is likely to make a relevant contribution to the Hearing Officers' understanding of the issues in the proceeding.
b. Requests for Participant Status
14Four individuals, Lee Bartley; Wendy Brown; Laurie Canning; and Christian Nold requested participant status in the hearing.
Lee Bartley
15Ms. Bartley requested participant status in support of the NEC’s position to redesignate part of the Subject Lands as ENA, but believes that areas that have already been disturbed should be designated EPA as opposed to ERA. There were no objections to the granting of participant status to Ms. Bartley.
Wendy Brown
16Ms. Brown, a resident of Dyer’s Bay, requested participant status. She explained that, if granted status, she would like to present information at the hearing regarding species at risk in the area of the Subject Lands. There were no objections from the parties to Ms. Brown’s request for participant status.
Laurie Canning
17Mr. Canning is the husband of Ms. Rabicki and resides with her on a lot of the Subject Lands which is proposed to be redesignated. Mr. Canning submits that he will be directly affected by the outcome of the hearing and that he agrees with the redesignation of the Subject Lands as proposed by the NEC. There were no objections to Mr. Canning’s request for participant status.
Christian Nold
18Mr. Nold was not able to attend the PHC but sent a request in writing to the NEHO in advance of the PHC, requesting status in the hearing. Mr. Nold is a resident of Dyer’s Bay and his property is abutting Ms. Rabicki’s lot on the Subject Lands. In his written statement, Mr. Nold stated that his main concern is that the NEPA’s proposed redesignation of parts of the Subject Lands as ERA should not occur due to the potential that spring flooding of the Subject Lands being exacerbated by any future development on the Subject Lands.
19Mr. Nold did not request a specific type of status in the hearing, but just expressed his wish to participate. The Hearing Panel canvassed the parties for their submissions on whether Mr. Nold should be granted participant status in the hearing and there were no objections to Mr. Nold being granted participant status.
Findings on Participant Requests
20The Hearing Officers are satisfied that Ms. Bartley, Ms. Brown, Mr. Canning and Mr. Nold all meet the requirements for participant status under Rule 66, in that each of their interests may be directly and substantially affected by the hearing, each has a genuine interest in the subject matter of the proceeding and each is likely to make a relevant contribution to the Hearing Officers' understanding of the issues in the proceeding.
3. Scheduling
21The Hearing Officers canvassed the parties and participants for their availability for the scheduling of the hearing and for the procedural steps leading up to the hearing. Subsequent to the PHC, the parties were canvassed again with alternative hearing dates that would allow the hearing to occur entirely during the same week. With the consent of all parties and participants, the Hearing Officers schedule the dates set out in the Order below.
ORDER
22The Dyer’s Bay Association and Barb Rabicki are granted party status.
23Lee Bartley, Wendy Brown, Laurie Canning and Christian Nold are granted participant status.
24The Hearing Officers direct that the following schedule shall apply to this proceeding:
July 12, 2019 Parties and participants to exchange all documents relevant to the proceeding and in their possession, control or power.
July 26, 2019 Meeting of like experts to occur if the parties consent to such a meeting.
August 9, 2019 Witness statements and documents to be relied on at the hearing, to be served on the other parties and participants and filed with the NEHO.
August 15, 2019 Reply witness statements and documents to be relied on at the hearing, if any, to be served on the other parties and participants and filed with the NEHO.
August 19 – 23, 2019 Hearing commencing at 10 a.m. at a venue to be determined.
Requests for Party and Participant Status Granted
Procedural Directions Ordered
“Marlene Cashin”
MARLENE CASHIN HEARING OFFICER
“Justin Duncan”
JUSTIN DUNCAN HEARING OFFICER
Appendix 1 – Excerpts from the [Niagara Escarpment Planning and Development Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-n2/latest/rso-1990-c-n2.html), and the Rules of Practice of the Environmental Review Tribunal
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 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