Niagara Escarpment Hearing Office

Bureau des audiences sur l’escarpement du Niagara

ISSUE DATE:

June 26, 2020

CASE NO.:

19-080

PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2

Appellant:

Lance Secretan

Applicant:

Bryce McEnery

Respondent:

Niagara Escarpment Commission

Subject of appeal:

Approval of a Development Permit Application to construct a 1 storey single dwelling with attached garage, unenclosed rear deck, septic system, well and driveway on vacant treed lot

Reference No.:

P/R/2018-2019/412

Property Address/Description:

Part Lot 13-14, Concession 4 WHS

Municipality:

Town of Caledon

Upper Tier:

Region of Peel

NEHO Case No.:

19-080

NEHO Case Name:

Secretan v. Ontario (Niagara Escarpment Commission)

APPEARANCES:

Parties

Representative/Counsel*

Lance Secretan

Self-represented

Bruce McEnery

Herbert Arnold*

Niagara Escarpment Commission

John Stuart

HEARD:

April 28, 2020 by telephone conference call

HEARING OFFICER(S):

Laurie Bruce, Member

REPORT

1This report addresses an appeal of the decision of the Niagara Escarpment Commission (the “Commission”) on an application for a Development Permit under s. 25 of the Niagara Escarpment Planning and Development Act (the “Act”). The subject property has not been assigned a street address and is municipally referenced as 0 Cataract Road at Part Lot 13-14, Concession 4 West of Hurontario Street in the Town of Caledon (the “Town”).

2The proposal by Bryce McEnery (the “Applicant”) is to construct a +/-322 square metre (“sq. m.”) single-family dwelling with attached garage, unenclosed rear deck, septic system, well and driveway on a vacant, treed 3.0-hectare lot.

3The Commission accepted staff recommendations and conditionally approved Development Permit Application P/R/2018-2019/412 subject to twelve conditions and three advisory notes. The Commission issued the Notice of Decision on October 26, 2019.

4Mr. McEnery’s neighbour, Lance Secretan (the “Appellant”), appealed the Commission’s decision to conditionally approve the application to the Niagara Escarpment Hearing Office (the “Hearing Office”) under s. 25(5.1) of the Act.

5The Hearing Office heard the appeal by telephone conference call on April 28, 2020.

6The Hearing Office confirms that the Commission’s decision is correct and should not be changed.

REASONS

Issues

7Dr. Secretan appealed the Commission’s decision due to concerns over the impact of tree removal on the woodlot that straddles his property and the subject property. Dr. Secretan believes there are other locations on the subject property where development could occur which would have less impact. Should the development go ahead, he is interested in ensuring the appropriate type and number of trees be replaced to minimize adverse impacts. This would include plantings on his property to protect the woodlot.

Discussion, Analysis and Findings

8All proposed development must accord with the purpose and objectives of the Niagara Escarpment Plan (the “NEP”), which mirror the purpose and objectives established in the Act. Any development must be a permitted use under Part 1 of the NEP and be in accordance with the development criteria found in Part 2 of the NEP.

9The Hearing Officer heard expert land use opinion evidence from John Stuart from the Commission. Mr. Stuart explained that the application was originally assigned to Senior Planner Sean Stewart and subsequently to Registered Professional Forester Bohdan Kowalyk, neither of whom were with the Commission at the time of this hearing. Arborist Owen Goltz was retained by Dr. Secretan and was qualified to provide expert opinion evidence.

10The subject property has two designations, Escarpment Protection Area and Escarpment Natural Area. All development has been proposed within the Escarpment Protection Area designation which is the upper table land area of the subject property. Mr. Stuart advised the Hearing Office that the final location of the dwelling on the subject property was predicated on siting the building footprint away from the Escarpment brow consistent with the findings of a Slope Stability Assessment study and for the protection of heritage Red Oak trees.

11Mr. Stuart testified that a single dwelling is listed as a permitted use within the Escarpment Protection Area (Part 1.4.3) land use designation of the NEP. It was his opinion that the development of a single dwelling on the subject property does not pose a conflict with the purpose and objectives of the NEP or with the objectives of the Escarpment Protection Area land use designation.

12Mr. Stuart stated that the proposed development addresses the General Development Criteria (Part 2.2), the Development Affecting Steep Slopes (Part 2.5), Cultural Heritage (Part 2.10) and Scenic Resources and Landform Conservation (Part 2.13) of the NEP. He stated that the proposal does not conflict with the Development Affecting Natural Heritage (Part 2.7) when accounting for the Conditions of Approval which mitigate impacts to the key natural heritage features (Conditions 5, 6, 8 and 12).

13Mr. Stuart stated that Part 2.7.6 of the NEP identifies the completion of a Natural Heritage Evaluation as a useful tool to assess the magnitude of impact of the proposed development. It was his opinion that while it is not a requirement, it “does put significant onus on the details and review of documents and plans that will be submitted to satisfy Conditions of Approval”.

14Mr. Stuart opined that the subject lands exhibit characteristics associated with areas of archaeological potential due to the proximity to the Escarpment and a navigable waterway. He stated that affixing the following advisory note to the conditions would result in better alignment with Part 2.10 of the NEP on cultural heritage:

Should deeply buried archaeological remains/resources be found on the property during construction activities, the Heritage Operations Unit of the Ontario Ministry of Heritage, Sport, Tourism and Culture Industries shall be notified immediately. In the event that human remains are encountered during construction, the owner shall immediately notify the police or coroner, the Registrar of Cemeteries of the Ministry of Small Business and Consumer Services, and the Ontario Ministry of Heritage, Sport, Tourism and Culture Industries.

15Mr. Stuart stated that he concurs with the staff report which finds that the proposal is consistent with the Provincial Policy Statement (“PPS”). The staff report stated that the proposed development avoids the most significant forested valley portions of the property and affects a small proportion of the overall natural features. Further, the conditions calling for plantings of native trees will mitigate impacts and serve as an enhancement when implemented. Commission staff concluded, and Mr. Stuart agreed, that the proposal is consistent with the Natural Heritage section 2.1 of the PPS. Mr. Stuart summarized that the proposed development is also consistent with the new 2020 PPS.

16The subject site is located on lands designated in the Regional Official Plan (“ROP”) as a Core Area of the Greenlands and within an area the ROP designates as Core Woodland. In the Town of Caledon Official Plan (“Town OP”), the subject property is designated Rural Lands, Open Space Policy Area and Environmental Policy Area. The Town has requested an Arborists Report, Tree Inventory and Preservation Plan to mitigate the impact from tree removal associated with the proposed development. This is one of the conditions of the Development Permit. It was Mr. Stuart’s evidence that the proposal conforms to the ROP and the Town OP.

17Dr. Secretan did not provide any evidence that counters Mr. Stuart’s evidence on the purpose and objectives of the NEP, permitted uses under Part 1 or development criteria found in Part 2 of the NEP. Further, he did not provide controverting evidence with respect to the PPS, the ROP of the Town OP.

18The Hearing Office accepts Mr. Stuart’s uncontested expert evidence that the proposed development appropriately addresses the requirements of the NEP, PPS, ROP and Town OP.

The Forest

19Dr. Secretan stated that the subject property contains part of a red pine forest that is also found on his property which he looks after with the help of Mr. Goltz. Dr. Secretan is concerned that the removal of ninety trees to facilitate the development of the new dwelling will have an adverse effect on this woodlot.

20Mr. Goltz described the forest management activities that have been ongoing on Dr. Secretan’s and the subject property for over twenty years. It was his opinion that the proposed dwelling will adversely affect the woodlot since it requires the removal of part of the forest edge. Mr. Goltz stated that the centre of the woodlot is in poor shape and exposing the edge to more winds exacerbates the problem in the interior.

21Mr. Goltz has developed a tree planting plan for Dr. Secretan to rehabilitate the woodlot. This plan would have additional trees planted on Dr. Secretan’s property.

22The Town has indicated that based upon the findings of the Arborists Report and Tree Preservation Plan that there may be a need for compensation plantings. Mr. Goltz suggests that if there is insufficient room on the subject property for additional tree plantings, they could be placed on Dr. Secretan’s property. The Hearing Office notes that how the Town implements their requirements for compensation plantings where there is insufficient space on the subject property is not a matter for the Hearing Office to adjudicate.

23Mr. Goltz acknowledged during cross examination by the Applicant’s counsel that Mr. McEnery can remove the trees now, even without the development permit.

24On cross examination, Mr. Goltz agreed that even with the proposed development Dr. Secretan can plant trees on his own property and that it would help stabilize the woodlot.

Conclusion

25The Hearing Office has carefully considered the expert evidence provided by Mr. Stuart and Mr. Goltz and the submissions from the Mr. McEnery and Dr. Secretan.

26Dr. Secretan took issue with the location of the proposed dwelling. Visual and documentary evidence was provided by Mr. Stuart which demonstrated that the final location of the building footprint was set to address slope stability considerations and the protection of historic oak trees. The lot configuration further constrained siting options. The Hearing Office accepts that the location of the building footprint was optimized despite the need to remove red pines from the woodlot straddling the Applicant’s and the Appellant’s properties.

27Mr. Stuart systematically walked through the relevant sections of the NEP and opined that the proposed residential development is a permitted use, and is consistent with relevant NEP, Objectives and Development Criteria. Further it was his evidence that it is consistent with the PPS and conforms to the ROP and Town OP. This evidence was uncontroverted and is accepted by the Hearing Office.

28Also at issue was what Development Permit conditions should be required to protect the woodlot that straddles the Applicant’s and Appellant’s properties. There was no dispute that the woodlot is in poor health in part due to past ice storms and disease. Further, there was agreement that a restoration plan would help ensure the future health of the woodlot.t The Hearing Office accepts Mr. Stuart’s opinion that Condition 8 (d through k) are appropriate conditions to address the impact of tree removal associated with the proposed development. Further restoration work to address the existing woodlot issue is not an appropriate condition for this Development Permit. Therefore, the Hearing Office finds no additional condition related to planting of trees is required.

29In light of Mr. Stuart’s evidence that appropriate consideration was given to the issues identified by the Appellant the Hearing Office concludes that the decision of the Commission issued October 26, 2019 to grant a Conditional Approval for Development Permit Application P/R/2018-2019/412, is correct. An additional note as set out in paragraph 14 should be added to the Development Permit as recommended by Mr. Stuart to better align with Part 2.10 of the NEP on cultural heritage.

DECISION

30The Commission’s decision is confirmed pursuant to s. 25(12) of the Act subject to the addition of a note referencing the discovery of archaeological resources as set out in paragraph 14 of this decision. The appeal is dismissed.

Appeal Dismissed

Niagara Escarpment Commission Decision Confirmed

“Laurie Bruce”

LAURIE BRUCE

HEARING OFFICER

Appendix 1 – 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 Environment and Land Tribunals Ontario

Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248