Altobelli-Murray v. Ontario (Niagara Escarpment Commission), 2021 CanLII 135930

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 17, 2021

CASE NO(S).: OLT-21-001440

PROCEEDING COMMENCED UNDER section 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended

Appellant: Anna Altobelli-Murray

Applicant: Michael Smith

Respondent: Niagara Escarpment Commission

Subject of appeal: Approval of a Development Permit Application to identify a building envelope, including sewage system, accessory structures and driveway, for a single dwelling, an accessory building (garage/workshop) on an existing lot

Reference No.: P/R/2019-2020/197

Property Address/Description: 0 Mountainview Road

Municipality: Town of Caledon

Upper Tier: Region of Peel

OLT Case No.: 21-001440

OLT Case Name: Altobelli-Murray v. Ontario (Niagara Escarpment Commission)

Heard: December 3, 2021 by Telephone Conference Call

APPEARANCES:

Parties	Representative
Niagara Escarpment Commission	Kim Peters
Michael Smith ("Applicant")	James C. Dyment
Anna Altobelli-Murray	Not in Attendance

REPORT DELIVERED BY G.C.P. BISHOP AND WARREN MORRIS ON DECEMBER 3, 2021 AND ORDER OF THE TRIBUNAL

1This matter is before the Ontario Land Tribunal ("OLT" or "Tribunal"). Members of the OLT are appointed Hearing Officers under the Niagara Escarpment Planning and Development Act ("NEPDA"). 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 Caledon Mercantile Limited. Michael Smith is an officer of the company and the Applicant in this case. The property, subject to this appeal, is a vacant lot with frontage on Mountainview Road being Part of Lots 6 and 7, Concession 6 (EHS), in the Geographic Township of Albion, now in the Town of Caledon. Since the subject property is vacant, there has yet to be an assignment of a 911 address number to the property and therefore, is currently assigned "0" to the location of the subject property until such time a building permit is issued and a 911 number is assigned.

3The matter before the Tribunal is the appeal of a Development Permit issued for the subject property to identify a building envelope, including sewage system, accessory structures and driveway, for a two storey, ± 600.0 square metres ("sq m") (± 6,458.3 square feet ("sq ft")) single dwelling, with a maximum height to peak of ± 10.0 metres ("m") (± 32.8 feet ("ft")), a one storey, ± 80.0 sq m (± 861.1 sq ft) accessory building (garage/workshop), with a maximum height to peak of ± 5.0 m (± 16.4 ft), on an existing ± 6.9 hectares ("ha") (17.0 acres ("ac")) lot, proposed to be reduced in size to 5.8 ha. The Niagara Escarpment Commission ("NEC") conditionally approved this Development Permit application.

4The Tribunal was informed that a settlement has been reached and the parties requested that this scheduled Case Management Conference ("CMC") be converted to a Settlement Hearing. In accordance with Rule 19.6 of the OLT Rules of Practice and Procedure, the Tribunal converted this CMC to a Settlement Hearing.

ISSUE

5The issue is whether the NEC's decision to conditionally approve the application for a development permit, with a revised condition and the addition of a more detailed site plan, in the area of the Development Envelope, as agreed upon by the parties, would be correct and should not be changed.

6The Tribunal heard from James Dyment, a Registered Professional Planner, who is the agent for the Applicant. Mr. Dyment noted that Anna Altobelli-Murray was not in attendance and is satisfied with the Settlement. Prior to swearing in of Mr. Dyment, the Tribunal received and marked as Exhibits the following:

• Exhibit 1 – Notice of this Hearing event
• Exhibit 2 – Curriculum Vitae ("CV") of James Dyment
• Exhibit 3 – Minutes of Settlement
• Exhibit 4 – Original Notice of Decision from the NEC

7The Tribunal reviewed Mr. Dyment's CV and read aloud the Acknowledgment of Expert's Duty as one was not provided. Mr. Dyment was qualified to give opinion evidence in the discipline of Planning.

8Mr. Dyment reviewed the application with the Tribunal and focused in on the proposed amendments. The last page of the Notice of Decision ("Notice") has a site plan attached. This site plan illustrates the whole of the subject property, which includes the location of the development envelope. The site plan also illustrates the location of the proposed driveway, in the same location as a former driveway existed, for access to the subject lands. It is proposed to add the more localized site plan, dated November 26, 2021, to the Notice, to specifically delineate the area of the development envelope and illustrate setbacks from the eastern lot line of the subject lands and the distance from the closest residence. The parties are in agreement that the more detailed site plan of the development envelope will be attached to the Notice to augment and further define some of the criteria that are not on the face of the current site plan already appended to the Notice.

9There are a series of notes on the face of this localized site plan, one of which will be incorporated into the Notice as an added condition. The added condition of approval reads as follows:

The applicant (current landowner) shall plant a minimum of 20 native-species conifers, each having a minimum height of 1.2 metres, as illustrated on the site plan dated November 26, 2021. The list of species, photographs and confirmation of planting from a qualified professional are to be provided to the Niagara Escarpment Commission and Town of Caledon prior to the Town of Caledon approving the consent to sever. 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 similar to this approval.

10There are currently three conditions of approval in the Notice that was issued on September 14, 2021. The proposed condition, as stated in paragraph nine above, will be inserted into the conditions of approval and numbered as Condition 3. The current condition number 3 will become Condition 4. Condition 1 will remain the same and a small alteration is required to Condition 2 to correspond with this new proposed condition. Condition 2 reads as follows:

2. No construction or site alteration is permitted by this Development Permit. A subsequent Development Permit Application must be submitted and approved by the Niagara Escarpment Commission prior to any construction and/or site alteration on the reconfigured lot.

11This condition will be amended to allow the site alterations, contemplated in the added Condition above, prior to the subsequent Development Permit Application required for construction and further site alteration. The amended Condition 2 will read as follows:

2. No construction or site alteration is permitted by this Development Permit other than the site alterations contemplated in Condition 3 below. A subsequent Development Permit Application must be submitted and approved by the Niagara Escarpment Commission prior to any construction and/or further site alteration on the reconfigured lot.

RELEVANT LEGISLATION

12When there is an agreement on the 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).

13The OLT finds that the proposed development, as modified by the agreed amendments to the conditions of approval stated above and the revised and augmented site plan, dated November 26, 2021, appended to this Decision as Attachment 1, would be correct and should not be changed.

DECISION

14The OLT accepts the opinion evidence of Mr. Dyment, that the proposed amendments to the Notice represent good planning and finds that the appeals should be allowed in part. The revised and augmented site plan, appended to this Decision as Attachment 1, will be attached and will form part of the Notice. The Notice is also revised to include the modified NEC's conditions of development approval. The final form of these conditions are as follows:

1. Development shall occur in accordance with the Terms and Conditions of the Development Permit.

2. No construction or site alteration is permitted by this Development Permit other than the site alterations contemplated in Condition 3 below. A subsequent Development Permit Application must be submitted and approved by the Niagara Escarpment Commission prior to any construction and/or further site alteration on the reconfigured lot.

3. The applicant (current landowner) shall plant a minimum of 20 native-species conifers, each having a minimum height of 1.2 metres, as illustrated on the site plan dated November 26, 2021. The list of species, photographs and confirmation of planting from a qualified professional are to be provided to the Niagara Escarpment Commission and Town of Caledon prior to the Town of Caledon approving the consent to sever. 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 similar to this approval.

4. The landowner shall obtain a consent to sever under the Planning Act for the proposed lot configuration in accordance with this Development Permit, and, provide proof of registration/establishment of the new lot to the Niagara Escarpment Commission.

15The decision of the NEC is deemed to be confirmed with the addition of the new/amended conditions stated above, including the addition of the appended Attachment 1. Any remaining elements of the appeal is hereby dismissed.

"G.C.P. Bishop"

G.C.P. BISHOP HEARING OFFICER

"Warren Morris"

WARREN MORRIS 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.

ATTACHMENT 1

Notes to Site Plan:

1. The building envelope shall maintain a 10 m setback from top of bank as shown on the Updated Site Plan.

2. Prior to the development within the building envelope, the developer shall move the existing Red or Austrian Pines from proposed building site to the area between the top of bank and 10 m setback, providing 4 m spacing and a double row of trees as shown on a revised site plan.

3. The applicant (current landowner) shall plant a minimum of 20 native-species conifers, each having a minimum height of 1.2 metres, as illustrated on the final site plan dated November 26, 2021. The list of species, photographs and confirmation of planting from a qualified professional are to be provided to the Niagara Escarpment Commission and Town of Caledon prior to the Town of Caledon approving the consent to sever. 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 similar to this approval.

4. The proposed septic system shall be located in the eastern portion of the Development Envelope.

5. The dwelling shall be located in the central portion of the Development Envelope.