Niagara Escarpment Hearing Office
Bureau des audiences sur l’escarpement du Niagara
ISSUE DATE: September 26, 2019
CASE NO.: 19-049
PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Appellant: Abigail Campbell (File No. 19-049)
Appellant: Mark Heaton (File No. 19-050)
Applicant: Anita Schenk
Respondent: Niagara Escarpment Commission
Subject of appeal: Approval of a Development Permit Application to sever an existing lot into a new lot and a retained lot, demolition of an existing dwelling and construction of a single dwelling on the proposed lot and a single dwelling on the retained lot, both with private water and septic services.
Reference No.: P/R/2018-2019/158
Property Address/Description: Part Lot 10, Concession 5 WHS
Municipality: Town of Caledon
Upper Tier: Region of Peel
NEHO Case No.: 19-049
NEHO Case Name: Campbell v. Ontario (Niagara Escarpment Commission)
Heard: August 28, 2019 by telephone conference call
APPEARANCES:
| Parties | Representative |
|---|---|
| Abigail Campbell and Mark Heaton | Self-represented |
| Anita Schenk | Alan Young |
| Niagara Escarpment Commission | Michael Baran |
REPORT DELIVERED BY LAURIE M. BRUCE
REASONS
Background
1The estate of Sylvia Schenk c/o Anita Schenk (“Applicant”) submitted a development permit application to the Niagara Escarpment Commission (“NEC”). The subject property, municipally known as 652 Bush Street, is located at Part Lot 10, Concession 5 WHS, Town of Caledon in the Regional Municipality of Peel.
2The Applicant is seeking to sever an existing 0.202 hectare (“ha”) lot into a new 0.0848 ha lot and a 0.0766 ha retained lot. In addition, 0.0406 ha of the existing lot will be merged with an abutting northern lot with frontage along 663 River Road owned by the Schenk family. This portion of the existing lot contains a woodland feature. No development is proposed for the River Road lands as part of this application.
3The proposal includes the demolition of an existing one-storey single dwelling and the construction of a two-storey +/- 425 square metres (“sq. m.”) single dwelling on the new lot and a two-storey +/- 382 sq. m. single dwelling on the retained lot. Both proposed lots will contain private water and septic services.
4The Niagara Escarpment Plan (“NEP”) land use designation applicable to the property is Escarpment Protection Area. The lot is within the Belfountain Minor Urban Centre.
5On May 17, 2019, the NEC approved the Applicant’s application P/R/2018-2019/158, subject to conditions (“Conditional Approval”).
6On May 31, 2019 Abigail Campbell and Mark Heaton (“Appellants”) appealed the decision of the NEC to conditionally approve the application for a development permit under s. 25(8) of the Niagara Escarpment Planning and Development Act (“NEPDA”).
7A Pre-hearing Conference (“PHC”) regarding the appeals was scheduled by telephone conference call (“TCC”) on August 28, 2019.
8On August 14, 2019, the Niagara Escarpment Hearing Office (“NEHO”) received an email from Land Use Planner Alan Young advising that an agreement had been signed by the Applicant and the Appellants which identified an additional condition which the parties agreed could be added to the NEC development permit approval and with the addition of this condition, Mr. Heaton and Ms. Campbell would withdraw their appeal. The NEHO was advised that Michael Baran had confirmed that the condition is acceptable to the NEC.
9The Hearing Officer heard submissions of the parties and evidence from Mr. Young. Upon review of the proposed revised conditions, the Hearing Panel confirms the decision of the NEC pursuant to s. 25(12.1) which will include the additional condition agreed to on consent.
Issue
10The issue before NEHO is whether the NEC’s decision to conditionally approve the application for a development permit, with revised conditions as proposed by the parties, would be correct and should not be changed.
Relevant Legislation and Rules
11The relevant legislation and rules of the Environmental Review Tribunal’s Rules of Practice (“Rules”), which apply to appeals under the NEPDA in this situation, are:
25(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 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.
Same
(12.2) If subsection (12.1) applies, the decision of the delegate shall be deemed to be a decision to issue the development permit with the terms and conditions referred to in clause (12.1) (b).
Rules
- Where the Parties agree to all the terms and conditions that should be included in a revised development permit, the Tribunal may confirm the decision of the Niagara Escarpment Commission pursuant to section 25(12.1) of the Niagara Escarpment Planning and Development Act and shall include the terms and conditions in its report.
Discussion, Analysis and Findings
12The Appellants indicated that they would withdraw their appeals provided that an additional condition establishing a Tree Preservation and Planting Plan is added to the Conditional Approval. The Agreement letter with the noted additional condition referenced as Condition 7(h) and the original Conditional Approval are attached to this Report as Appendices 1 and 2, respectively.
13Mr. Baran indicated he was not the planner that originally reviewed the application; however, he had reviewed the staff report and concurs with the conditions of approval and the modification of conditions to provide for a tree protection plan and additional plantings.
14The Applicant has also confirmed she agrees with the proposed additional condition as described above and attached to this Report.
15Mr. Young explained that the conditions will provide a planted screen between the Applicant’s property and the Appellants’ property. He confirmed that the application continues to be consistent with the objectives for Minor Urban Centres, conforms to the Niagara Escarpment Plan and is consistent with the Provincial Policy Statement.
16The Hearing Officer finds that the proposed additional condition set out in Appendix 1 serves to strengthen the protections for the subject Escarpment lands, set in place by the original conditions. Therefore, the Hearing Officer accepts that if the Conditional Approval is amended as proposed by the parties, with the additional condition, the decision would be correct and should not be changed. Consequently, pursuant to s. 25(12.2) of the NEPDA, the NEC’s decision shall be deemed to be a decision to issue the Conditional Approval with an additional condition providing for a Tree Protection Plan and additional plantings.
DECISION
17The NEC's decision to conditionally approve the Applicant’s development permit application P/R/2018-2019/158, with the additional condition referenced as Condition of Approval 7(h) in Appendix 1, is confirmed pursuant to s. 25(12.1) of the NEPDA.
NEC Decision Confirmed with Revisions
Appeal Dismissed
“Laurie Bruce”
LAURIE BRUCE
HEARING OFFICER
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