Torrie v. Ontario (Niagara Escarpment Commission), 2019 ONERT 67601

Niagara Escarpment Hearing Office

Bureau des audiences sur l’escarpement du Niagara

ISSUE DATE: July 16, 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: May 15, 2019 in Thornbury, Ontario and in writing

APPEARANCES:

Parties	Counsel/Representative
Tiana Koffler Boyman and Mark Boyman	Self-represented
Judi Frost, Ian Brown, Megan McIlroy, Steven Young and Paul Richards	Deborah Howden
Niagara Escarpment Commission	Judy Rhodes-Munk
Doug and Erin Grace	Denise Baker

Participant	Counsel/Representative
Greg Brown	Self-represented

REPORT DELIVERED BY MARLENE CASHIN AND MARCIA VALIANTE

REASONS

Background

1On October 16, 2018, the Niagara Escarpment Commission (“NEC”) issued a Notice of Decision conditionally approving Development Permit Application G/R/2016-2017/9173, submitted by Doug and Erin Grace (“Applicants”), to demolish an existing two-storey chalet and replace it with a 498 square metre two-storey single dwelling with walkout, with a maximum height to peak of 9.34 metres (“m”) on the walkout side, and to construct a driveway, on a property located at Lot 15, Grey Vacant Land Condominium Corporation Plan No. 94 (“GVLCC 94”), Town of The Blue Mountains, in the County of Grey (“Proposed Development”). The subject property is part of the Craigleith Ski Club condominium village.

2By letter dated October 22, 2018, Desiree Torrie filed a notice of appeal of the NEC decision with the Niagara Escarpment Hearing Office (“NEHO”). Appeals were also filed by Tiana Koffler Boyman, Judi Frost, Ian Brown, Steven Young and Megan McIlroy (“Appellants”). All of the Appellants own units within GVLCC 94.

3The NEHO acknowledged receipt of the correspondence from Ms. Torrie, but informed her 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. After considering 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 1208 (ON ERT)).

4On 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 to narrow the issues for a hearing. The reasons for those decisions were set out in the Order of Hearing Officer Cashin dated March 6, 2019 (see: Torrie v Ontario (Niagara Escarpment Commission), 2019 18854 (ON ERT)).

5At 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. She informed Hearing Officer Cashin that progress was made but no settlement had been reached. The Hearing Officer was told that the Applicants’ planner, Gordon Russell, had circulated to the Parties a document summarizing the areas where agreement had 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 this proposal on or before March 22, 2019.

6The Parties then requested that the PHC be adjourned until March 29, 2019 to allow for further settlement discussions to take place. Hearing Officer Cashin 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 were agreed upon, and which were not, at the continuation of the PHC. Two blocks of time 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 directed that, unless all Parties agreed that more time for settlement discussions was necessary, dates for the hearing and for the steps leading up to the hearing would be set at the continuation of the PHC on March 29, 2019.

7At the continuation of the PHC on March 29, 2019, Hearing Officer Cashin heard oral submissions regarding requests for a site visit and for a change in 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. Dates were scheduled for the hearing of the appeals and for the steps leading up to the hearing. By Order issued on April 10, 2019, the Hearing Officer ordered a site visit, and provided reasons for that and the other decisions (see: Torrie v Ontario (Niagara Escarpment Commission), 2019 32426 (ON ERT)).

8On May 1, 2019, the NEHO received a letter from J. Robert Gardiner, counsel to the Board of Directors of the GVLCC 94, requesting that his opinion, attached to his letter, interpreting provisions of the Declaration and Condominium Agreement, be provided to the Hearing Officers for their consideration. The NEHO wrote back to Mr. Gardiner as follows:

As you are aware, GVLCC 94 has not been granted status in this proceeding. Because these materials are not evidence or submissions that will be provided by a Party or Participant in this proceeding, they will not be considered by the Hearing Officers. This does not preclude any Party or Participant from making submissions on matters contained in the materials that are relevant to the determination that the Hearing Officers must make.

9Also on May 1, 2019, Denise Baker, counsel to the Applicants, wrote to the NEHO requesting a TCC to discuss the admissibility of some parts of the Appellants’ witness statements and the Appellants’ failure to provide witness statements from the experts identified on their witness lists. The Hearing Officers denied the request, informing the Parties that the issue of admissibility of evidence would be addressed as needed at the hearing and directing the Appellants to confirm the expert witnesses they would be calling by May 3, 2019 and to serve and file their witness statements by May 6, 2019.

10The hearing was scheduled to commence on May 15, 2019 in Thornbury. On May 14, 2019 at 4:32 p.m., Ms. Koffler Boyman wrote to the NEHO stating that she and Mr. Boyman had reached an agreement with the Applicants and that Ms. Koffler Boyman was withdrawing her appeal and she and Mr. Boyman intended no further involvement in the proceeding. A letter dismissing Ms. Boyman’s appeal and closing her file was sent by the NEHO on May 16, 2019. Later on May 14, 2019, Mr. I. Brown wrote to the NEHO advising that he had reached agreement with the Applicants on some of the issues on his Issues List and was withdrawing those issues from consideration at the hearing. The NEHO was also advised late that afternoon that the remaining Appellants, Ms. Frost, Mr. I. Brown, Ms. McIlroy and Mr. Young, and the added Party, Mr. Richards (“Remaining Parties”), all of whom had been self-represented up to that point, would be represented by counsel Deborah Howden at the hearing.

11At the commencement of the hearing on May 15, 2019, the Hearing Officers were advised that the Applicants and the Remaining Parties and their counsel were in settlement discussions. The Hearing Officers delayed the start of the hearing and were later advised that these Parties had reached agreement to revise certain conditions of approval. Ms. Baker presented proposed revised conditions of approval to the Hearing Officers orally and evidence was heard in support of those revisions.

12The Applicants and the Remaining Parties requested more time to finalize the wording of the revised conditions, so the Hearing Officers cancelled the second day of the hearing but gave those Parties until 3 p.m. that second day to work out the final wording or the hearing would recommence on the following day. This deadline was later extended at the request of those Parties, and at 4:30 p.m. on May 16, 2019, Ms. Baker advised the NEHO as follows: “I can advise that we are resolved and there is no need for a hearing tomorrow. Thank you again for your patience.” Ms. Howden emailed shortly thereafter: “I also wish to extend my thanks for your patience, and to apologize for the delay in confirming settlement.” As a result, the Hearing Officers vacated the third hearing date. On May 17, 2019, Ms. Baker provided the NEHO with the Revised Conditions of Approval.

13Despite this, on the evening of May 17, 2019 (which was received by the Hearing Officers on May 21, 2019), Ms. Howden wrote to the NEHO requesting an addition to the wording of Condition 1 in the Revised Conditions of Approval. This was surprising, as the Hearing Officers would have expected Ms. Howden not to have advised them of her clients’ agreement if there was in fact still some disagreement on the exact final wording of the Revised Conditions of Approval. The hearing could have proceeded and the unresolved matters addressed in that forum. Nevertheless, given the Hearing Officers’ understanding of the substantive concerns implied by the proposed addition to the wording of Condition 1 and both the Applicants’ and Remaining Parties’ general agreement on how to resolve the issues, the Hearing Officers do not consider it necessary to re-open the hearing.

Issue

14The issue is whether, if the Development Permit issued by the NEC included the Revised Conditions of Approval agreed to by the Parties, the NEC decision would be correct and should not be changed.

Relevant Legislation

15The Niagara Escarpment Planning and Development Act provides:

Delegate’s power of decision

25 (4) Where the Minister has delegated his or her authority under subsection (1), the delegate, on receiving an application for a development permit and, after giving consideration to the merits of the application, may make a decision in accordance with the Niagara Escarpment Plan to issue the development permit or to refuse to issue the permit or to issue the permit subject to such terms and conditions as the delegate considers desirable.

Report

(11) Within 30 days after the conclusion of the hearing or within such longer period as the Minister may permit, the officer appointed shall report to the Minister a summary of the representations made, together with his or her opinion on the merits of the decision.

Deemed confirmation

(12) The decision of the delegate shall be deemed to be confirmed if,

(a) the opinion of the officer expressed in his or her report under subsection (11) is that the decision of the delegate was correct and should not be changed; and

(b) the decision of the delegate was not appealed by a municipality.

Agreement on terms and conditions

(12.1) The decision of the delegate shall be deemed to be confirmed if,

(a) the decision of the delegate was a decision to issue a development permit;

(b) the parties who appeared at the hearing have agreed on all of the terms and conditions that should be included in the development permit and all of these terms and conditions are set out in the report of the officer under subsection (11); and

(c) the opinion of the officer expressed in his or her report under subsection (11) is that, if the decision of the delegate included the terms and conditions referred to in clause (b), the decision would be correct and should not be changed.

Discussion, Analysis and Findings

Modifications to the Proposed Development

16The Proposed Development would replace an existing dwelling with a new, and substantially larger, dwelling. The Appellants opposed the new dwelling on several grounds, including the height, massing and footprint of the building, building materials, drainage, landscaping, and light pollution. Under the terms of the settlement, the Applicants agreed to: modify the materials, replacing some glass panels on the upper storey facing the road with non-reflective and earth-toned cladding; add a berm and additional vegetation to the front yard; and modify the grading of swales around the berm.

17The Hearing Officers heard the evidence of Mr. Russell in support of the modifications. The Hearing Officers qualified Mr. Russell, a Registered Professional Planner and principal of Gordon Russell Planning and Development Services, to give opinion evidence in the area of land use planning. Mr. Russell adopted the opinions in his witness statement that the Proposed Development is in accordance with the Niagara Escarpment Plan (“NEP”), is consistent with the Provincial Policy Statement, 2014 (“PPS”), and conforms with the official plans of the County of Grey and the Town of The Blue Mountains. With respect to the proposed changes to the Proposed Development under the settlement terms, Mr. Russell testified that the change in materials, the berm and the additional vegetation would reduce the visual impact of the front façade of the dwelling. He noted that the grading changes would be minor and have no adverse impact. He stated that, in his opinion, the Proposed Development as modified is in accordance with the NEP, is consistent with the PPS, and conforms with the applicable official plans.

18The Hearing Officers also heard the evidence of Ms. Rhodes-Munk. They qualified her to give opinion evidence in the area of land use planning. She noted that she had not been part of the settlement discussions and had not reviewed the terms of the settlement but did hear Ms. Baker’s description of the modifications to the Proposed Development and the revised conditions, and Mr. Russell’s evidence. Ms. Rhodes-Munk stated that the modifications to the dwelling appear to address only architectural details and do not appear to affect the dwelling’s height or massing. In her opinion, these changes would reduce the visual impact of the dwelling, both the near impact for the Appellants and that from a distance for the public. She stated her view that the new berm and associated grading changes appear to be minor changes with no appreciable stormwater impacts. It was her opinion that these modifications are in accordance with the NEP. Ms. Rhodes-Munk further stated that the revised conditions of approval, as read out by Ms. Baker, are in keeping with what the NEC would ordinarily include in an approval.

19Mr. G. Brown, the Participant, stated that he stood by his Participant Statement and did not consider that the revised Conditions were relevant to any of his concerns with the Proposed Development. His Participant Statement refers to his desire to correct certain allegedly inaccurate information put forward by the Appellants.

The Revised Conditions of Approval

20As presented to the Hearing Officers at the hearing, the Applicants and the Remaining Parties stated that they agreed to: delete Condition 1 and replace it with a new version; retain Conditions 2 through 8; and add two new Conditions. New Conditions 9 and 10 would reflect the need for the Applicants to revise the site plan and final construction details and submit them to the NEC for final approval prior to issuance of the Development Permit. Ms. Baker also identified a technical error in the description of the Proposed Development; specifically, the maximum height to peak of 9.34 m was stated as being 30 feet (“ft”) in Imperial measurement, when in fact 9.34 m is equivalent to 30.64 ft.

21Subsequent to the hearing, Ms. Rhodes-Munk requested another new Condition, Condition 11, which requires fulfillment of the Conditions of Approval within 18 months of the confirmation of the NEC’s decision by the Hearing Officers, failing which the NEC’s conditional approval would expire. She noted that this form of sunset clause is usually included in NEC approvals where final drawings must be submitted for NEC approval. The Applicants do not oppose inclusion of this new condition.

22The Remaining Parties take no issue with the correction of the technical error or with Ms. Rhodes-Munk’s proposed sunset clause. However, after confirming a settlement to the NEHO, which resulted in the remainder of the hearing time being released, Ms. Howden then requested an addition to the version of new Condition 1 that had been presented orally at the hearing and in writing to the NEHO.

23The version of new Condition 1 that was presented orally at the hearing and provided in writing to the NEHO by Ms. Baker read: “Development shall occur in accordance with the Site Plan, Development Permit Application and Conditions as approved.” The Remaining Parties’ request to add the following, after “as approved”: “which shall be generally consistent with the construction details (Drawings A2 to A10) by Abbott Design Ltd. as revised 10.04.18, subject to any settlement between the Applicants and Appellants in NEHO Case No. 18-056.”

24In support of this addition, Ms. Howden by email stated that although Ms. Baker had read out the new Condition 1 to the Hearing Officers, Ms. Howden had not been provided with a copy of what was read. Further, she stated, the Remaining Parties agreed to replace Condition 1 with language that would reflect the terms of their settlement with the Applicants. Those terms, she noted, contemplated changes in the building design that were outlined in a revised architectural drawing provided to the Hearing Officers. It is now her clients’ concern that the new Condition 1 may not fully reflect the terms of the settlement. Ms. Baker indicated that the Applicants do not consider it appropriate in the circumstances, where the form of the new condition was presented to the Hearing Officers, evidence was heard in support of that new condition, and the hearing was concluded, to adjust the wording of new Condition 1.

25Condition 1 in the original Conditions of Approval, as approved by the NEC, reads as follows:

Development shall occur in accordance with the Lot Grading/Site Plan (Drawing LG-1, prepared by CC Tatham & Associates Ltd., as revised July 30/18), Tree Protection and Landscape Plans (Drawing TP-1, TP-2, Lp-1, LD-1&2, prepared by Envision Tatham, as revised July 31/18) and construction details (Drawings A2 to A10, prepared by Abbott Design Ltd., as revised 10.04.18) and in accordance with the Conditions of Approval.

26With respect to the addition to new Condition 1 proposed by the Remaining Parties, the Hearing Officers note that the drawings referred to (i.e., “Drawings A2 to A10 by Abbott Design Ltd. as revised 10.04.18”) were the architectural drawings submitted to the NEC on which it based its decision to issue the conditional approval. At the hearing, the Applicants presented a revised Drawing A5, identified as the “Front (NE) Elevation” with a revision date of 15.05.19. The only apparent difference between this drawing and the 10.04.18 version of Drawing A5 is in the replacement of some glass panels on the upper storey with solid panels. This would bring the front elevation in line with the settlement between the Applicants and the Remaining Parties.

27It is not clear why the Remaining Parties seek to include reference to the 10.04.18 drawings, rather than to the 15.05.19 revision, which was presented to the Hearing Officers and was the subject of Mr. Russell’s and Ms. Rhodes-Munk’s evidence.

28The larger question is whether it is necessary to include reference to specific architectural drawings in new Condition 1 in order to give effect to the agreement between the Applicants and the Remaining Parties. The concern of the Remaining Parties appears to be to ensure that the Applicants submit the 15.05.19 version of Drawing A5, and not the earlier version, to the NEC for final approval. The original wording of Condition 1 made reference to specific sets of plans and drawings and, because the NEC based its approval on those specific plans and drawings, there were no additional conditions requiring further submissions to the NEC. The Revised Conditions of Approval would operate differently. Specifically, two additional conditions have been included to require further submission of plans and drawings to the NEC for final approval to reflect the modifications to the Proposed Development presented at the hearing and to respect the fact that the NEC has not yet reviewed the modifications in detail. New Condition 9 requires submission of “an accurate and detailed Final Site Plan” and new Condition 10 requires submission of “Final Construction Details for the dwelling, including exterior elevations, floor area, height above existing and proposed grades and the number of storeys”. New Condition 10 further provides that these Final Construction Details will “form part of the Development Permit Application referred to in Condition 1”. For both the Final Site Plan and Final Construction Details, the NEC will stamp them “NEC Approved” and development shall proceed in accordance with the final approved versions.

29The Hearing Officers find that the Applicants and the Remaining Parties have agreed that the Final Construction Details will include the 15.05.19 modification to Drawing A5, and that this agreement is captured within the wording of new Condition 10 and incorporated into the meaning of “Development Permit Application” in Ms. Baker’s version of new Condition 1. Thus, the Hearing Officers find that there does need to be additional reference in new Condition 1 to a specific set of drawings for the Remaining Parties’ objective to be attained. In other words, the Hearing Officers make their final determination in this proceeding based on their understanding, as communicated to them, that the Final Construction Details that will be submitted to the NEC by the Applicants for final approval will substantially conform with the modifications to the dwelling found in the revised 15.05.19 version of the front elevation, Drawing A5, as well as the 10.04.18 version of the other architectural drawings. Given this understanding, the Hearing Officers find that all of the Parties have agreed on all of the terms and conditions that should be included in the Development Permit and, therefore, that s. 25(12.1) of the NEPDA applies.

30The Hearing Officers further find that the Proposed Development, as modified by the Revised Conditions of Approval, is in accordance with the NEP. The Hearing Officers also find that, if the decision of the NEC to conditionally approve the Development Permit Application included the Revised Conditions of Approval set out in Appendix 2 to this Decision, the NEC decision would be correct and should not be changed.

DECISION

31The Hearing Officers confirm the decision of the NEC to conditionally approve Development Permit Application G/R/2016-2017/9173, with Revised Conditions of Approval as set out in Appendix 2 of this decision.

NEC Decision with Revised Conditions of Approval Confirmed

“Marlene Cashin”

MARLENE CASHIN

HEARING OFFICER

“Marcia Valiante”

MARCIA VALIANTE

HEARING OFFICER

Appendix 1 – Appellants List

Appendix 2 – Revised Conditions of Approval

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