Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
October 13, 2021
CASE NO(S).:
21-018
PROCEEDING COMMENCED UNDER section 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2
Appellant:
Birgit Lange (File No. 21-018)
Appellant:
Bert Wasmund (File No. 21-019)
Appellant:
Gordon West (File No. 21-020)
Applicant:
Ayub Shikh
Respondent:
Niagara Escarpment Commission
Subject of appeal:
Approval of a Development Permit Application to construct a single dwelling, septic system bed, indoor swimming pool, sports building, tennis court, detached garage, solar panel array, power transformer, extended asphalt drive, and precast concrete cistern for private use only
Reference No.:
H/R/2019-2020/201
Property Address/Description:
9196 Sixth Line Nassagaweya; Part Lot 6 & 7, Concession 6
Municipality:
Town of Milton
Upper Tier:
Region of Halton
OLT Case No.:
21-018
OLT Case Name:
Lange v. Ontario (Niagara Escarpment Commission)
Heard:
August 12, 2021 by video hearing
APPEARANCES:
Parties
Counsel*/Representative
Ayub Shikh
Steven O’Melia*
Birgit Lange and Bert Wasmund
Self-represented
Gordon West
Self-represented
Niagara Escarpment Commission
Kim Peters
REPORT DELIVERED BY WARREN MORRIS AND M.A. SILLS AND ORDER OF THE TRIBUNAL
1This matter is before the Ontario Land Tribunal (“OLT”) as the successor tribunal to the Environmental Review Tribunal (“ERT”), which was amalgamated with other tribunals and continued as the new consolidated OLT pursuant to s. 2 of the Ontario Land Tribunal Act, 2021, proclaimed in force on June 1, 2021 (“OLTA”). By virtue of a prior appointment of Members of the ERT as Hearing Officers under the Niagara Escarpment Planning and Development Act (“NEPDA”) and pursuant to s. 2 of the OLTA, the OLT now functions as the Niagara Escarpment Hearings Office (“NEHO”) to hear all development permit appeals and applications under the NEPDA. This matter is accordingly governed by the OLT Rules of Practice and Procedure.
2The subject property is owned by 1980971 Ontario Inc. The matter before the OLT/NEHO is the appeal of a Development Permit issued to Ayub Shikh for the construction of a 27,000 square foot (“sq. ft.”) dwelling with an indoor pool, separate sports building, and a solar panel array at 9196 6th Line (the “subject property”), in the Town of Milton. An adjacent property will have a paved entrance with a driveway, which will access a body of water, which was a former quarry. The Niagara Escarpment Commission (“NEC”) conditionally approved this Development Permit application.
3This matter was the subject of two Case Management Conferences (“CMCs”) held on April 20 and June 23, 2021. The purpose of the CMCs was to assist the parties with the identification of an issues list. In combination with productive discussions between the parties, the issues list was scoped to the Appellants’ concern about the septic bed that will be installed. The parties were subsequently able to arrive at an agreed amendment to the language of the NEC’s conditional approval, and presented it on consent to the OLT/NEHO for approval.
ISSUE
4The issue is whether the NEC’s decision to conditionally approve the application for a development permit, with a revised condition as agreed upon by the parties, would be correct and should not be changed.
RELEVANT LEGISLATION
5When there is agreement on revised conditions to a development permit that was approved by the NEC, as is the case in this appeal, s. 25(12.1) and s. 25(12.2) of the NEPDA apply, as noted below:
Agreement on terms and conditions
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).
6The OLT/NEHO finds that the proposed development, as modified by the agreed amendments to the conditions of approval (see Appendix to this Report), would be correct and should not be changed.
DECISION
7The OLT/NEHO finds that the appeals should be allowed in part by modifying the NEC’s conditions of development approval as follows:
- The following words are added to the end of Condition No. 4:
…For greater clarity this shall include, without limitation, no placement of fill in the natural stream bed that crosses the subject property.
The following additional condition shall be added as Condition No. 14, with the current Condition No. 14 being renumbered as Condition No. 15:
The Applicant will ensure that the final septic bed design will be reviewed and certified by one or more recognized professionals with competence in both septic bed design and in hydrogeology, and that these professional(s) will have received the document prepared by Prof. West that describe the basis for the Appellants’ reservations, and also a document describing the water supply on Hawkhill Farm.
The decision of the NEC is deemed to be confirmed with the addition of the new/amended conditions. The remaining elements of both appeals are hereby dismissed
“Warren Morris”
WARREN MORRIS
HEARING OFFICER
“M.A. Sills”
M.A. SILLS
HEARING OFFICER
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
APPENDIX
9196 Sixth Line Nassagaweya
CONDITIONS OF APPROVAL H/R/2019-2020/201
Development shall occur in accordance with the Site Plan, Development Permit and Conditions as approved.
The Development Permit shall expire three years from its date of issuance unless the development has been completed in accordance with the Development Permit.
The landowner shall advise the Niagara Escarpment Commission in writing of the start and the completion date of the development. This notice shall be provided to the NEC 48 hours prior to the commencement of development, and within 14 days upon completion.
stockpiling of fill on the property is permitted except for that identified within the development envelope in accordance with the approved Site Plan. For greater clarity this shall include, without limitation, no placement of fill in the natural stream bed that crosses the subject property.
No vegetation shall be cut or removed from the development envelope except for that identified within the development envelope in accordance with the approved Site Plan.
All disturbed areas shall be re-vegetated and stabilized, in accordance with the approved Site Plan, by the end of the first growing season following the completion of site grading and building construction. All trees, shrubs and nursery stock shall be native to Ontario except those where approved under the Development Permit. Native plant material should be sourced from local plant nurseries when available; bush dug plant material is not acceptable.
Appropriate erosion/sediment controls and tree protection measures (e.g., heavy- duty silt fencing and tree hoarding) shall be installed around the development site, prior to commencing development. Photographs verifying the installation of the silt fencing and tree hoarding shall be submitted to the Niagara Escarpment Commission prior to commencing construction. The controls shall be maintained until the works are completed and the site is stabilized.
Prior to the issuance of a Development Permit by the Niagara Escarpment Commission, an accurate and detailed final site plan shall be submitted for Niagara Escarpment Commission approval. The Plan shall include but not be limited to the following:
a) All drawings submitted must be drawn to scale (bar scale shown), reference the application number and address of the proposal, be dated (revisions as well) and denote the relevant consultant;
b) An accurate delineation of the approved development envelope with temporary fencing;
APPENDIX
9196 Sixth Line Nassagaweya
CONDITIONS OF APPROVAL H/R/2019-2020/201
Condition 8 Continued:
c) The accurate location and size of all buildings and structures, including the sewage disposal system, tennis court, driveway and solar panel array within the development envelope showing setbacks from the property lines, wooded areas, etc.;
d) Extent of all disturbed areas;
e) Extent and amount of fill removal or placement. Grading and drainage design including the areas of excavation and temporary or permanent fill placement. The type, quantity, quality and source location of any imported fill material must be accurately identified. Any fill material approved for importation under this Permit shall conform to the definition of “inert fill” per Ontario Regulation 347 and Table 1 of the Soil, Groundwater and Sediment Standards for use per Part XV.1 of the Environmental Protection Act, dated March 9, 2004;
f) Erosion and sediment control measures.
The approved Final Site Plan shall form the Site Plan referred to in Condition #1 and development shall proceed in accordance with the details of the approved Final Site Plan.
- Prior to the issuance of a Development Permit, the applicant shall submit final construction details for the dwelling and accessory buildings and structures, including:
a) exterior elevations, floor area, height above existing and proposed grades, and number of storeys for the dwelling and all accessory buildings;
b) roofing materials and colour;
c) exterior cladding and colour;
d) all exterior lighting related to the dwelling and accessory buildings (i.e., detached garage, transformer building, indoor pool, and sports building), which shall be designed to be minimal, subdued, of low height and downward facing. No soffit lighting to be used above the first storey of the dwelling or accessory buildings.
e) All fenestration on the dwelling and accessory buildings, which shall consist of bird-friendly glass, the specifications of which are to be noted on the construction drawings; and
f) final construction drawings shall note that blasting is not permitted. Excavation is to be done by mechanical means only.
Upon approval, these plans will be stamped “NEC Approved” and shall form part of the Development Permit referred to in Condition # 1.
APPENDIX
9196 Sixth Line Nassagaweya
CONDITIONS OF APPROVAL H/R/2019-2020/201
- Prior to the issuance of a Development Permit, a final landscape plan shall be prepared by a qualified person. The Plan shall address all landscape lighting (including tennis court), planting, screening requirements associated with screening and mitigation as well as amenity areas and details. Stipulations:
a) The lighting plan shall be prepared by a qualified person in accordance with Dark Sky principles. The lighting design goal is minimal use of exterior lighting and lighting fixtures that are consistent with dark sky principles.
b) All new tree and shrub species shall be native to Ontario except where otherwise approved by the Niagara Escarpment Commission. Plant material shall be sourced from local plant nurseries; bush dug plant material is not acceptable.
c) Planting and the rehabilitation of all disturbed areas shall be completed, by the end of the first growing season following the completion of site grading, servicing and building construction to the satisfaction of the Niagara Escarpment Commission.
d) All plant material shall be guaranteed for 24 months following installation. All plant material found during this time to be dead or dying must be replaced with a size and species to the satisfaction of the Niagara Escarpment Commission.
e) Subsequent to the completion of the works a letter certifying the work has been completed in accordance with the approved plan shall be provided to the Niagara Escarpment Commission by a qualified person.
The approved Final Landscape Plan shall form part of the Site Plan referred to in Condition # 1 and development shall proceed in accordance with the details of the Final Landscape Plan.
- Prior to the issuance of a Development Permit, the landowner shall (at the landowner’s expense), enter into an Agreement (to be registered on title) with the Niagara Escarpment Commission pursuant to Section 24(2.1) of the Niagara Escarpment Planning and Development Act, that shall: i) ensure that the principal dwelling shall only contain one dwelling unit, and shall not be used for commercial, institutional, or industrial purposes, and ii) ensure that all accessory buildings shall be used in a manner that is incidental and subordinate to the single dwelling residential use on the property, shall not contain full kitchen facilities, shall not be used as secondary dwellings or short or long-term vacation rentals, and shall not be used for commercial, industrial, institutional, or livestock purposes.
APPENDIX
9196 Sixth Line Nassagaweya
CONDITIONS OF APPROVAL H/R/2019-2020/201
Site preparation (i.e., grubbing, tree and vegetation clearing, excavation) shall not occur between March 1 and August 15 inclusive, of any given year, within the migratory and breeding season of avian species at risk to ensure protection of breeding habitat. These details shall be noted on the final construction drawings and landscaping plans. If tree removal is necessary within this timing window, a survey shall be conducted by a qualified biologist within two days of tree removal activities to determine if any nesting birds or roosting bats are present. The results of this survey and any necessary mitigation plans shall be provided to Niagara Escarpment Commission staff prior to the removal of trees.
Development shall occur in accordance with the Vegetation Protection Plan prepared by Terrastory Environmental Consulting Inc., dated October 8, 2020. The Vegetation Protection Plan shall form part of the Site Plan referred to in Condition #1.
The Applicant will ensure that the final septic bed design will be reviewed and certified by one or more recognized professionals with competence in both septic bed design and in hydrogeology, and that these professional(s) will have received the document prepared by Prof. West that describe the basis for the Appellants’ reservations, and also a document describing the water supply on Hawkhill Farm.
This conditional approval expires eighteen months (1.5 years) from the date of confirmation of the decision to approve the Development Permit Application. Condition Nos. 8, 9 10 and 11 of this conditional approval shall be fulfilled before the expiry date.