Baehre v. Ontario (Niagara Escarpment Commission), 2020 ONERT 7820

Niagara Escarpment Hearing Office

Bureau des audiences sur l’escarpement du Niagara

ISSUE DATE:

January 28, 2020

CASE NO.:

18-063

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

Appellant:

Gundula Baehre (File No. 18-063 – Closed)

Appellant:

Ted Stayshyn (File No. 18-064 – Closed)

Appellant:

Erin Stayshyn (File No. 18-065 – Closed)

Appellant:

Patrick Bermingham (File No. 18-066)

Applicant:

Ahmed Bilal

Respondent:

Niagara Escarpment Commission

Subject of appeal:

Approval of a Development Permit Application to demolish a dwelling, small shed and detached garage, to construct a single dwelling (including attached garage and walkout basement), to undertake associated site alterations for driveway access and retaining wall construction, and to install a new septic system

Reference No.:

W/R/2016-2017/118

Property Address/Description:

Part Lot 36, Concession 1

Municipality:

(Former) Town of Ancaster

Upper Tier:

City of Hamilton

NEHO Case No.:

18-063

NEHO Case Name:

Baehre v. Ontario (Niagara Escarpment Commission)

Heard:

June 26-27, 2019 in Stoney Creek, Ontario

August 14, 2019 Final Written Submissions

APPEARANCES:

Parties

Counsel/Representative⁺

Patrick Bermingham

Tim Bermingham

Pamela Kortmann

Self-represented

Ahmed Bilal

Jennifer Meader

Niagara Escarpment Commission

Jim Avram⁺

REPORT DELIVERED BY MARLENE CASHIN

REASONS

Background

1This Report relates to appeals of the decision of the Niagara Escarpment Commission (“NEC”) to conditionally approve a development permit application filed by Ahmed Bilal (“Applicant”).

2In April 2016, the Applicant applied to demolish an existing 117.1 square metre (“sq. m”) dwelling, small shed and garage, to construct a two-storey single dwelling with attached garage, to undertake associated site alterations for the driveway access and retaining wall construction, and to install a new septic system on a 0.7 hectare lot located at 1273 Mineral Springs Road in the former Town of Ancaster, City of Hamilton (“subject property”). The subject property is designated as Escarpment Protection Area in the Niagara Escarpment Plan.

3In July 2018, following a series of meetings with NEC staff and objectors to the development held between July and December 2017, the Applicant submitted a revised development proposal. The revised development proposal was initially characterized as including a reduction in the size of the structure, with the floor area stated as being approximately 838.3 sq. m and the maximum height reduced to approximately 12.5 metres. It was subsequently confirmed that the revised numbers were incorrect. At the time of the Hearing of the appeal of this matter, the size of the proposed structure was confirmed as being ±884 sq. m (±9,511 square feet (“sq. ft.”)). Details on the differing size estimates of the proposed development is provided later in this report.

4At its meeting on October 25, 2018, the NEC approved the revised development proposal subject to a set of conditions (“Conditional Approval”). Notice of the NEC decision was issued on November 6, 2018. As of November 20, 2018, appeals were received from Gundula Baehre, Ted Stayshyn, Erin Stayshyn and Patrick Bermingham. Those who appealed all reside in the immediate area of the subject property and opposed the NEC’s conditional approval of the revised development proposal. Mr. Bermingham is a member of the Dundas Valley Residents Association (“DVRA”), an unincorporated association of local landowners.

5On March 27, 2019, a Pre-hearing Conference (“PHC”) took place by telephone conference call, resulting in an order of the Niagara Escarpment Hearing Office (“NEHO”) dated April 16, 2019, which set out the dates for the hearing and the procedural steps leading up to the hearing. No requests for status were made at the PHC. However, on April 4, 2019, the NEHO received an email from Pamela Kortmann, a neighbour on an adjoining lot to the subject property, requesting party status. The NEHO provided Ms. Kortmann and the other parties an opportunity to make submissions regarding the request, and subsequently granted Ms. Kortmann status as a Party, subject to conditions. On April 26, 2019, Gundula Baehre withdrew her appeal and the NEHO closed her file in the matter. On April 30, 2019, Ted Stayshyn and Erin Stayshyn also withdrew their appeals, and their files with the NEHO were closed.

6The Hearing of the remaining appeal of Patrick Bermingham was held on June 26, 2019 and June 27, 2019 in Stoney Creek, Ontario. A Notice of Motion had been filed on behalf of the Applicant on June 19, 2019 requesting an order of the NEHO “disposing of Ms. Kortmann’s right to make submissions or submit evidence” on the appeal, as Ms. Kortmann had not complied with the procedural directions of the NEHO. The Motion, which had been scheduled to be heard at the outset of the Hearing on June 26, 2019, was withdrawn at the beginning of the Hearing.

7As the presentation of evidence and cross-examination of witnesses did not end until late in the afternoon on June 27, 2019, at the request of the parties, the Hearing Officer permitted the parties to provide written final submissions on dates suggested jointly by the parties, to be served on each other and filed with the NEHO by July 31, 2019, and reply submissions, if any, due by August 14, 2019. The Applicant and Appellant filed both final submissions and reply submissions on or before the deadlines set by the NEHO. Neither the NEC nor Ms. Kortmann filed final written submissions.

8The relevant NEP provisions are attached to this Report as Appendix 1.

Issue

9The issue in the appeal is whether the NEC’s decision to issue the Conditional Approval should be confirmed. This issue involves analysis of the following sub-issues:

1. whether the proposed development is a Permitted Use under the NEP; and

2. whether the proposed development is in accordance with the relevant Objectives and Development Criteria of the NEP.

Discussion, Analysis and Findings

Evidence of the NEC, Jim Avram

10The Hearing Officer qualified Jim Avram, NEC Senior Planner, as an expert in the field of land use planning.

11Mr. Avram testified that in January of 2017, he assumed responsibility for the processing of the subject Development Permit Application, which had previously been the responsibility of NEC planner Martin Kilian, who is now retired. Mr. Avram testified regarding the history of the Development Permit Application, including the steps leading up to the submission to the NEC of a revised application on July 31, 2018.

12Mr. Avram testified that when he took over the responsibility for the Development Permit Application, external comments from consulted agencies had been received from the City of Hamilton's Planning and Economic Development Department; the Hamilton Conservation Authority (“HCA”); and the Ministry of Natural Resources and Forestry (“MNRF”) District Office in Guelph. These comments, Mr. Avram said, indicated that the consulted agencies had no objection to the approval of the Development Permit Application, provided certain conditions of approval were applied.

13The comments from City of Hamilton Planning staff, Mr. Avram said, stated that the proposed development conforms to the Rural Hamilton Official Plan. Mr. Avram noted that additional correspondence was received from a City of Hamilton Natural Heritage Planner stating that the proposed setback between the proposed development and the boundary of a natural feature would be satisfactory.

14Mr. Avram testified that comments from the HCA stated the proposed construction and associated site alteration would not be within any area regulated by the HCA pursuant to the Conservation Authorities Act, 2007.

15Comments received from the MNRF, Mr. Avram explained, indicated that the proposed development location was within the habitat of an endangered species (Jefferson Salamander). Mr. Avram said, while MNRF staff stated that with appropriate conditions of approval, a contravention of the Endangered Species Act, 2007 was not anticipated, this information revealed that the Development Permit Application conflicted with the NEP, 2005 which was in effect at the time of the application. The NEP, 2005 prohibited all new development within the habitat of an endangered or threatened species. Mr. Avram explained that the NEP, 2017, which came into effect on June 1, 2017, permits the construction of a single dwelling and accessory uses within the habitat of an endangered species, provided such development is in compliance with the Endangered Species Act, 2007.

16Regarding the involvement of local residents, Mr. Avram testified that on June 16, 2017 he contacted representatives of the DVRA to notify them of a pending decision on the Development Permit Application, and that he anticipated that the NEC staff recommendation would be to grant conditional approval. He stated that by October of 2017, the NEC had received a total of four written objections to the development proposal.

17Mr. Avram said that he attended meetings with other NEC staff, the Applicant and his consultants, and some other nearby residents who were in opposition to the development proposal on July 26, 2017, September 11, 2017, November 3, 2017 and November 30, 2017. He noted that the meeting on November 30, 2017 was held at the subject property.

18Mr. Avram testified that, in response to the residents’ concerns regarding the potential for a negative visual impact resulting from the location, mass, height and finished grade of the development, the Applicant agreed to revise the Development Permit Application. After being provided with copies of the revised submission, Mr. Avram said, none of the individuals who were in opposition to the proposed development withdrew their objections, with two of the objecting parties confirming with Mr. Avram that having considered the revised proposal, their objections remained.

19Mr. Avram testified that as part of his review of the Development Permit Application, he also attended a site visit to the subject property on July 17, 2017, with NEC Landscape Architect, Linda Laflamme, in order to determine the level of visual impact that could result from the proposed development and whether such visual impact could be effectively minimized by tree protection and planting. Mr. Avram testified that he also consulted with Ms. Laflamme in order to identify areas on the property that should be targeted for tree planting in order to mitigate any visual impact.

20Mr. Avram went on to describe the process of preparing his staff report to be considered by the NEC at its October 25, 2018 meeting. He explained that the Development Permit Application was reviewed against the following parts of the NEP, 2017:

• Part 1.4 (Escarpment Protection Area);

• Part 2.2 (General Development Criteria);

• Part 2.6 (Development Affecting Water Resources);

• Part 2.7 (Development Affecting Natural Heritage);

• Part 2.10 (Cultural Heritage); and

• Part 2.13 (Scenic Resources and Landform Conservation).

21Mr. Avram pointed out that on October 25, 2018 when the Development Permit Application was presented to the NEC for a decision, he presented a review of his staff report, recommending that the Development Permit Application be conditionally approved. He noted that presentations were also made by representatives of two separate individuals who opposed the development proposal, and by the Applicant and his planning consultant.

22Mr. Avram testified that, in his opinion, the proposed development is a permitted use within the Escarpment Protection Area designation and does not conflict with the Escarpment Protection Area objectives. He stated: “the proposed development can be implemented in a manner that protects the hydrologic, natural, cultural, and scenic features on and adjacent to the property, and will not result in adverse impacts on surrounding land uses”. Mr. Avram said that he also believes the proposed development is consistent with the relevant sections of the Provincial Policy Statement, 2014 (“PPS”) and that the recommended conditions of approval are appropriate to ensure that the development occurs in a manner that does not conflict with the NEP and is consistent with the PPS.

23In his witness statement, Mr. Avram responded to issues to be addressed at the Hearing, as identified by the Appellant on April 30, 2019.

24In response to Mr. Bermingham’s questions regarding what, if any, modifications could be made to ensure the existing character of the area is preserved and whether the bulk of the proposed development, as currently configured, represents an overdevelopment of the site, Mr. Avram replied that in his opinion no further modifications are necessary to ensure the existing character of the area is preserved, and that it has been demonstrated that the site can support the proposed development.

25Mr. Avram also responded to a list of concerns from Ms. Kortmann received by the NEC on May 16, 2019.

Evidence and submissions of the Appellant, Patrick Bermingham

26The Appellant, Patrick Bermingham, lives in the area of the proposed development. He is a member of the DVRA.

27In giving his testimony, Mr. Bermingham was led by his counsel through a PowerPoint presentation which set out the basis of his evidence, including photos and maps of the area of the proposed development and Mineral Springs Road in particular.

28Mr. Bermingham provided a brief history of Mineral Springs Road and his view that it is a scenic resource as follows:

• Mineral Springs Road predates the arrival of Governor Simcoe (1793) and was part of a network of trails that date back to end of the last ice age.

• The road is listed on many web sites as one of the top ten scenic routes to drive in southern Ontario.

• It has maintained its pristine feel, due to the houses that defer to it, and do not try to dominate it with modern development.

• The road is a scenic resource and has been for many years and many generations of visitors. Whether traveling by foot, or by bicycle, motorcycle or automobile, Mineral springs is one of the top destinations in Southern Ontario to go for a ride in the country, to see fall colors, to watch birds.

• This issue affects many more people than just the existing residents of the Dundas Valley. The road is a scenic resource for thousands of visitors every year. A popular destination for people seeking a drive in the country.

29In general, Mr. Bermingham testified as to his belief that “the combination of height, bulk, and proximity to the road” of the proposed development is “utterly foreign to Mineral Springs Road”. He clarified that there is no opposition to the construction of a single-family dwelling on the site, either on his part or on the part of other DVRA members.

30Mr. Bermingham stated that in his opinion, the size of the proposed house is “equivalent to 4 or 5 average homes in the area, and therefore will have a greater visual impact than a typical single-family dwelling”.

31Mr. Bermingham testified that in his opinion, the proposed development does not accord with Objective 4 of the NEP, to maintain and enhance the open landscape character of the area. In his view, it also does not accord with Development Criteria 2.13 for Scenic Resources including, but not limited to 2.13.4.

Evidence and submissions of the Added Party, Pamela Kortmann

32Ms. Kortmann testified on her own behalf and presented no other witnesses. Her property is located adjacent to the subject property. As noted earlier, Ms. Kortmann did not provide final submissions for the Hearing Officer’s consideration nor did she reply to the final submissions of the other parties.

33As referenced in Mr. Avram’s witness statement, and above in this Report, Ms. Kortmann sent an email to the NEC on May 16, 2019 setting out her concerns with the proposed development as follows:

1st The sheer size of the home does not fit the character of the existing houses in this quaint country neighbourhood. Where house sizes are typically around 1500-2500 square feet, the proposal of this new development is just short of 10,000 square feet. We believe building an uncharacteristic house of this size will negatively impact the beautiful natural setting and existing nearby house values.

2nd We are concerned about the home being a multi-family home with the number of washrooms it has. The increased water usage will deplete water from an area that is already in short supply. With the number of bathrooms and people in the new dwelling, wastewater and sewage also pose a concern for neighbouring house's well water.

3rd Natural Environment - There are century old maples on the edge of the lot on the Binkley road side. The root system is already cut off by Binkley Road. We are concerned when digging occurs for the septic and foundation of the dwelling, the root system of these trees will be damaged. As a result, these trees would die, not only effecting the natural environment, but also endangering anyone walking or driving on Binkley Road. Having two young children who walk this area often, it poses a great concern to us. Also, the natural wetland that is on this property is home to many species of plants and animals. We are concerned that the construction of a dwelling of this size will have a negative effect on the flora and fauna of this abundant wetland.

34At the Hearing, Ms. Kortmann testified that her house is approximately 1,200 to 1,800 square feet. She said that it is a small house that is not connected to the city water supply but relies on a well for its water. Ms. Kortmann stated that she is concerned about the proposed development. Her concern, she said, stems from “the sheer size of such a multi-family home” and the impact that it could have on the availability of water for area residents, and she questioned “what sort of septic system can handle that?”

35During cross-examination, counsel for the Applicant, Ms. Meader, questioned Ms. Kortmann regarding the well. Ms. Kortmann testified that everyone runs out of water in the spring and summer. On further questioning from the Hearing Officer, she clarified that the water pressure is affected but that water is still available in spring and summer.

36Ms. Kortmann indicated that she also has concerns regarding the view that her family currently has, and that she believes that planting trees to screen the proposed development from view will not be successful as the area for planting “is a wetland and trees can’t live there”.

37When asked by Ms. Meader if she is aware that she has no right to the private view she now enjoys, Ms. Kortmann confirmed her submission that she believes the proposed house is too large for the area of the property where it is to be located, and that the Development Permit should be refused.

Evidence and submissions of the Applicant, Ahmed Bilal

Steven Fraser

38The first witness for the Applicant was Steven Fraser. Mr. Fraser is a Registered Professional Planner and Principal with A.J. Clarke and Associates Ltd. The Hearing Officer granted Mr. Fraser status as an expert in land use planning.

39Mr. Fraser testified that his company was retained by the Applicant in April 2016 in part to assist with the Development Permit Application, and that he took carriage of the file in 2017.

40Mr. Fraser described the subject property and outlined the general attributes of the surrounding neighbourhood. He also provided a chronology of the process of the Development Permit Application being prepared and submitted to the NEC, which included revisions and meetings with objecting parties and others, and the decision of the NEC on November 6, 2018 to approve the development with conditions.

41Mr. Fraser’s oral evidence and his written witness statement addressed the issues raised by the Appellant and Ms. Kortmann, as well as those raised by the NEC.

42Mr. Fraser then reviewed the relevant provisions of the PPS and the NEP. He noted that the NEP is to be read in conjunction with the PPS but shall take precedence over the policies of the PPS to the extent of any conflict. He explained that, as the subject property is located within the plan area of the NEP, the policies in the NEP take precedence over any other governing land use policies.

43Mr. Fraser stated that it is his opinion that the proposed development conforms to the NEP, as:

• The use proposed is permitted under Policy 1.4.3 of the NEP.

• The Proposal satisfies the development criteria in the NEP to permit reasonable enjoyment by the owners of all lots that can sustain development, and the general development criteria outlined in Section 2.2.

• The Proposal will not adversely impact the water or natural heritage resources, in conformity with Sections 2.6 and 2.7 of the NEP.

• The Proposal will conserve the Escarpment’s cultural heritage resources, including significant built resources, cultural heritage landscapes, and archaeological resources, in conformity with Section 2.10 of the NEP.

• The Proposal will preserve the natural scenery and maintains Escarpment Related Landforms and the open space character of the Escarpment, in conformity with Section 2.13 of the NEP.

Mario Patitucci

44Mario Patitucci, Principle in the firm Adesso Design Inc. also testified for the Applicant. The Hearing Officer qualified Mr. Patitucci as an expert in landscape architecture.

45Mr. Patitucci testified that Adesso Design Inc. was retained by the Applicant on April 28, 2017 to provide landscape architectural consulting services in relation to the subject property. Mr. Patitucci explained that he worked as part of a team of consultants for the proposed development, including the project planners, surveyors, and civil engineers (A.J. Clarke & Associates). The scope of work he completed included the preparation of a Vegetation Management Plan, a Landscape Plan, and a Visual Impact Assessment (“VIA)”. He noted that the VIA had not been required by the NEC but was prepared in the context of the appeal Hearing.

46Mr. Patitucci’s evidence related to landscape architectural items such as existing tree removal, planting of proposed trees, and the visual impact of the proposed dwelling on the escarpment landscape as it relates to the NEP.

47Mr. Patitucci outlined the steps taken in preparing the Vegetation Management Plan, the Landscape Plan and the VIA. He noted that these documents were revised and updated throughout the planning process to respond to comments and changing circumstances.

48The initial step in creating the VIA, Mr. Patitucci said, was to establish a baseline for the existing conditions, the second to identify the physical changes, and the third to assess the impact of the changes on the Escarpment visual, landscape and scenic resources in keeping with the NEP. Mr. Patitucci explained that first a viewshed map was created which was then field checked for accuracy, as dictated by the NEC guidelines for creating a VIA. Five field check points were chosen from which to verify and document the findings. Of the five field check points identified, it was then determined that two of the check points warranted further study due to the visibility of the proposed development at various points along Mineral Springs Road and Binkley Road.

49Mr. Patitucci explained that photographic simulations were then developed for the two field check points and were used in order to “effectively assess and evaluate the change to the landscape” and determine if the proposal is in keeping with the NEP and the NEPDA. Mr. Patitucci described the process as follows:

The simulations are developed by combining a three-dimensional model of the proposed residential dwelling and digital photographs taken from the identified field check points. The model of the dwelling was developed using the architectural floor plans and elevations provided by the architectural designer… The simulations take into consideration the height of the proposed dwelling which was field located with the use of a drone and the surveyed corners of the proposed dwelling.

50The initial simulation, Mr. Patitucci noted, includes the proposed vegetation at the time of planting (as per the NEC guidelines) and a second simulation shows the planting at approximately 80% of their mature height. He testified that in his view, the simulations demonstrate that, “from both field check points the proposed dwelling will be effectively screened by the existing vegetation being saved and the proposed vegetation as shown on the proposed landscape plan”.

51Mr. Patitucci stated that overall, in his opinion the proposed development will remove low value tree species and replace them with high value native species which will contribute to the overall health of the Niagara Escarpment and the City of Hamilton’s tree canopy cover. In his view, “the Visual Impact Assessment demonstrates that the change to the landscape is acceptable and in keeping with the Niagara Escarpment Plan…”

Sub-Issue No. 1: Whether the proposed development is a Permitted Use under the NEP

52The location of the proposed development is designated as Environmental Protection Area (“EPA”) under the NEP. Mr. Avram noted in his testimony that land uses that are permitted uses in an EPA area (under NEP, Section 1.4.3) include the construction of single dwellings. There was no disagreement on this point by the Appellant or Ms. Kortmann.

53Section 1.4.3 of the NEP states in part:

Subject to Part 2, Development Criteria, the following uses may be permitted:

1. Agricultural uses.

2. Agriculture-related uses and on-farm diversified uses, in prime agricultural areas.

3. Existing uses.

4. Single dwellings.

54Based on a review of the evidence and legislation, the Hearing Officer concludes that the proposed development is a permitted use, subject to the relevant Development Criteria in Part 2 of the NEP.

Sub-Issue No. 2: Whether the proposed development is in accordance with the relevant Objectives and Development Criteria of the NEP

55At the outset of this portion of the analysis, the Hearing Officer notes that there were numerous mentions in the written submissions of the Applicant that certain evidence and submissions of the Appellant did not relate to issues on the Appellant’s “Issues List”. The Applicant also refers directly to the role of an issues list as allowing parties “to know the case they must meet as a matter of natural justice”. The Hearing Officer, having considered all of the evidence and submissions in the case, finds that there is no evidence of a disadvantage, element of surprise or unfairness present in the manner in which evidence was presented or submissions were made in this case. Where evidence is irrelevant to the appeal it has been disregarded. At both the Hearing itself, and in the manner by which written submissions were allowed, the Hearing Officer is satisfied that each of the parties was allowed considerable leeway in presenting their evidence and making their submissions, in order that the Hearing Officer would have as much relevant information as possible upon which to base her decision.

56Despite being urged to do so by the Applicant, the Hearing Officer makes no adverse inference on the basis that the Appellant did not call a witness, Alan Ramsay, that he had previously indicated he would be calling. The Appellant did not request that the Hearing Officer draw an adverse inference from the fact that the Applicant did not call a witness, Ms. Laflamme, that he had previously indicted he would be calling; nonetheless the Hearing Officer confirms that none has been drawn. Both parties informed the NEHO of these changes to the witness lists prior to the Hearing.

57There was considerable discussion at the Hearing and in written submissions regarding the differences in the stated size of proposed development, as referenced earlier in this Report. The Appellant characterizes the discrepancies in the description of the size of the house throughout the process as an important “lack of transparency and coordination in processing”. Mr. Avram, in his oral testimony, addressed the discrepancies at the outset of his testimony. Under cross-examination by counsel for the Appellant, Mr. Avram agreed that the comments received from the three consulted agencies were in response to a description of the proposed development that read in part, “…to construct a two storey, +473.65 sq. m dwelling (includes attached garage and enclosed porch) …” [emphasis added by Hearing Officer]. Mr. Avram confirmed that he did not recontact the agencies to clarify that there was a different square foot figure for the proposed development, when it came to his attention. Mr. Avram agreed under questioning during cross-examination and from the Hearing Officer, that the 873 sq. m described in the revised Development Permit Application is approximately twice as much floor area as that which the City of Hamilton, MNRF, and the Hamilton Conservation Authority were told the proposed development would contain. Mr. Avram also confirmed that the actual size of the proposed development is not the 873 sq. m described in his staff report to the NEC and in the revised Development Permit Application, but is in fact, 884 sq. m (±9,511 sq. ft.), as reflected in the revised description of the proposed development as follows:

The demolition of a ±117.1 sq. m dwelling, a small shed, and a ±42.67 sq. m detached garage; the construction of a 2 storey,

±884 sq. m (±9,511 sq. ft.) single dwelling (includes an attached garage and walkout basement level) with a maximum height of ±12.5 m (±41.0 ft.); and to undertake associated site alteration including the establishment of a driveway access, retaining wall construction, and install a new septic system.

58Mr. Avram testified that he considered it unnecessary to contact the commenting agencies when the discrepancy came to his attention, as in his opinion it would not have impacted the comments and signoff from the commenting agencies. He testified that reviewing agencies are not as interested in the floor area of a building as they are in the building envelope and lot coverage relative to the features and constraints of the property. While there is no other evidence to support that opinion, there is also no opposing evidence that a change of comments from the commenting agencies would have changed Mr. Avram’s recommendation to the NEC, nor the decision of the NEC. The Hearing Officer accepts, as per Mr. Avram’s testimony, that the NEC was aware of the actual size of the proposed development when it decided to conditionally approve the Development Permit Application. This was not disputed by the Appellant or Ms. Kortmann.

59The main thrust of the Appellant’s evidence and submissions relate to the visual impacts of the proposed development and the NEP policies regarding the preservation and maintenance of the “open landscape character” and the “scenic resources” in the Niagara Escarpment Protected Area. He submits that the Development Permit should be refused.

60In the Appellant’s opinion, the proposed development does not accord with Objective 4 of the NEP, to maintain and enhance the open landscape character of the area. In his view, it also does not accord with Development Criteria 2.13 for Scenic Resources including, but not limited to, 2.13.4 which reads in part:

[a]ppropriate siting and design measures shall be used to minimize the impact of development on the scenic resources of the Escarpment, including:

(a) establishing appropriate setback and maximum building heights;

(b) changing the orientation and height of built form to reduce visibility and skylining… (emphasis in the original)

61The Appellant relies upon the NEC staff report (Exhibit 2, Tab 19, Pages 160 and 161) to submit that the requirement to develop setbacks and maximum heights for a proposed development have been ignored.

62However, Mr. Fraser’s evidence is that the proposed development incorporates,

appropriate setbacks from the public-right-of-way, and is proposed at a building height of 10.62 along the front façade of the building, 13 metres along the rear of the building, and 11.35 meters as an average of all sides, …which is an appropriate building height”. Mr. Avram, in his witness statement also stated, “[a]dditional correspondence was received from a City of Hamilton Natural Heritage Planner stating that the proposed setback between the proposed development and the boundary of a natural feature would be satisfactory.

63While the proposed building height has not been expressed as a “maximum”, it can hardly be said that the requirements imposed by 2.13(a) and (b) have been ignored in the preparation of the development proposal.

64Regarding the NEP policies relating to the preservation and maintenance of the open landscape character and the scenic resources in an EPA, the Appellant submits that “new development must be informed by, and sited and massed so as to reflect the character of the existing homes in the area”. The Applicant argues that nowhere in the NEP does it indicate that this is so, but that in any case, the evidence of the expert witnesses at the hearing was that the proposal does fit with the existing character of the surrounding area.

65As the definition of “open landscape character” includes the phrase “rural features, both natural and human-made”, and the definition of “scenic resource” includes the phrase “human developments”, it is clear that existing homes in an area are features which must be taken into account when considering siting and design measures to minimize the impact of development on scenic resources as per Section 2.13.4. of the NEP. However, the character of existing homes in an area, should homes exist, is but one type of feature that must be considered. As well, in this case, the witnesses, including the Appellant, agree that the existing houses represent a number of styles and sizes, although the Appellant says that all of the houses on Mineral Springs Road (with one exception) “defer to the road, rather than seeking to dominate the beauty of the area [the] landscape”.

66The approach of Mr. Avram, Mr. Fraser and Mr. Patitucci is characterized by the Appellant as being limited to establishing that there are other dwellings in the area of comparable size. However, Mr. Avram for example, in response to Ms. Kortmann’s concern that the size of the proposed development would be uncharacteristic for the area stated, “[P]rior to finalizing my recommendation on the Development Permit application, I observed that dwellings along Mineral Springs Road vary greatly in terms of size and style”. [emphasis added]

67The Hearing Officer accepts that both the size and style of the homes in the area have been considered.

68Regarding Ms. Kortmann’s concerns about the proposed development being a “multi-family home”, and the effects regarding septic system operation and the well from which she gets her water, the uncontested evidence of Mr. Avram is that “the Development Permit application proposes to construct a single dwelling. A multi-unit dwelling is not permitted on the subject property”. Mr. Avram went on to explain:

[t]he proposed dwelling is to be serviced by an existing groundwater well and a proposed private sewage disposal system (septic system). City of Hamilton Source Protection Planning staff reviewed and provided comment on the Development Permit Application in terms of groundwater quality and quantity. After reviewing additional materials (a well record and soil sample), Source Protection Planning staff stated that their conditions of approval had been cleared. A copy of this correspondence is found at tab 8. If a Niagara Escarpment Development Permit is issued for the proposed development, the applicant will be required to obtain a Building Permit. The proposed septic system also must conform to the Ontario Building Code.

69Ms. Kortmann did not provide any evidence to dispute Mr. Avram’s evidence on these matters.

70With respect to the VIA prepared by Mr. Patitucci, he conceded that there were errors in the VIA, as identified during the Hearing through cross-examination by the Appellant. As an example, at page 4 of the VIA document (Exhibit 2A) locations of field check photographs were disputed by the Appellant. Mr. Patitucci concurred with the Appellant’s assertion that some of the locations were incorrectly place on the Google Map photograph. Mr. Patitucci subsequently provided revised VIA documents (Exhibit 11 and 11A) with corrections. Mr. Patitucci testified that the errors, which he characterized as minor in nature, did not change his opinion on the outcome of the VIA.

71The Hearing Officer accepts that the errors were minor in nature and the Applicant’s submission based on the opinions of Messrs. Avram, Fraser and Patitucci, that a house of any size will have a localized impact on the public realm.

72As one of the issues to be addressed by the Hearing, on April 30, 2019, the Appellant questioned whether or not the proposed dwelling complies with the policies of the NEP “including the General Development Criteria in section 2.2 which require the preservation of the character of this part of the Niagara Escarpment and its scenic resources including the character of the historic Mineral Springs Road”.

73Mr. Avram responded to the question as follows:

Construction of the proposed dwelling and associated site alteration can be undertaken in a manner that protects the Escarpment environment. This position is substantiated by my staff report (Tab 4).

Part 2.2 .1 of the NEP states that "the Escarpment environment shall be protected, restored and where possible enhanced for the long-term having regard to single, multiple or successive development that have occurred or are likely to occur".

In order to protect key natural heritage features on and adjacent to the subject property, conditions of approval have been included that require the proposed dwelling to be situated within the front portion of the property, near Mineral Springs Road. This situation of the dwelling is what has been proposed by the applicant. Key natural heritage features are part of the Escarpment environment referenced in Part 2.2.1 of the NEP.

Scenic resources are also part of the Escarpment environment. I am satisfied that with the recommended conditions of approval, the proposed development will protect scenic resources and therefore does not conflict with Part 2.13 or 2.2.1 of the NEP. The objective of Part 2.13 is to ensure that development preserves the natural scenery and maintains Escarpment related landforms and the open landscape character of the Escarpment.

74Having reviewed again the relevant conditions of approval (Appendix A to the Notice of Decision, attached to this Report as Appendix 2), and all relevant evidence, including that of Mr. Bermingham and Ms. Kortmann, the Hearing Officer accepts Mr. Avram’s opinion, concurred with by Mr. Fraser and Mr. Patitucci, that the proposed development accords with the relevant provisions of Part 2 of the NEP regarding protection of the Escarpment generally, protection of natural heritage features, and protection of the scenic resources of the Escarpment. Similarly, the Hearing Officer accepts Mr. Avram’s evidence that the proposal is consistent with Sections 1.1.5, 1.2.6, 2.1, 2.2, and 3.1 of the PPS.

Conclusion

75The Hearing Officer concludes that the proposed development is a permitted use and that it accords with the relevant Objectives and Development Criteria of the NEP.

76For these reasons, the Hearing Officer concludes that the requirements of the NEP have been met in relation to the proposed development, and that the decision of the NEC should be confirmed.

DECISION

77The Hearing Officer finds that the proposal to demolish a dwelling, small shed and detached garage, to construct a two-storey single dwelling (including attached garage and walkout basement level), to undertake associated site alterations for driveway access and retaining wall construction, and to install a new septic system, is a permitted use, and that it accords with relevant NEP Development Criteria and Objectives. Therefore, the Hearing Officer concludes that the decision of the NEC to grant a Conditional Approval for Development Permit Application No. W/R2016-2017/118, is correct and should not be changed. The NEC’s decision is confirmed pursuant to Section 25(12) of the NEPDA. The appeal is dismissed.

Appeal Dismissed

NEC Decision Confirmed

“Marlene Cashin”

MARLENE CASHIN

HEARING OFFICER

Appendix 1 – Relevant Provisions of the Niagara Escarpment Plan

Appendix 2 – 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