Urbaniak v. Ontario (Niagara Escarpment Commission), 2021 CanLII 63301

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

July 14, 2021

CASE NO(S).:

15-176 20-036

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

Appellant:

See Appendix 1 – Appellant List

Respondent:

Niagara Escarpment Commission

Subject of appeal:

Refusal of a Development Permit Application to reconstruct 26/27 Sideroad from seasonal to year round open road

Reference No.:

S/T/2013-2014/9152

Property Address/Description:

Lots 25 to 31, Concession 10 & 11

Municipality:

Township of Clearview

Upper Tier:

County of Simcoe

NEHO Case No.:

15-176

NEHO Case Name:

Urbaniak v. Ontario (Niagara Escarpment Commission)

PROCEEDING COMMENCED UNDER section 10(3) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended

Applicant:

Township of Clearview

Subject of hearing:

Proposed Amendment to the Niagara Escarpment Plan to add policy exceptions to permit infrastructure improvements on Sideroad 26/27

Reference No.:

Proposed Niagara Escarpment Plan Amendment No. PS 215 18

Municipality:

Township of Clearview

Upper Tier:

County of Simcoe

NEHO Case No.:

20-036

NEHO Case Name:

Plan Amendment No. PS 215 18 (Re)

BEFORE:

DAVID LANTHIER

Wednesday day, the 14th

VICE-CHAIR

day of July, 2021

WHEREAS the Tribunal previously issued, on June 9, 2021, the Procedural Order governing pre-hearing procedural matters relating to this proceeding;

AND WHEREAS the Tribunal has received a request, which is not opposed by any other party to these proceedings, that paragraph 8 of the Procedural Order be amended or supplemented to accommodate the requirements for same-expert meetings and the filing of a Statement of Agreed Facts and Issues, with respect to one expert who is unable to attend such meeting and comply with filing requirements;

NOW THEREFORE

THE TRIBUNAL ORDERS that in response to the request of the Niagara Escarpment Commission, and with no objection from the parties to these proceedings, supplemental paragraph 8a shall be added to the Procedural Order issued on June 9, 2021. The amended Procedural Order is attached hereto as Appendix “1”.

“Becky Fong”

BECKY FONG

REGISTRAR

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.

Appendix 1

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

CASE NO(S).:

15-176

20-036

PROCEEDING COMMENCED UNDER sections 25(5.1) and 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2

Appellant:

See Appendix 1 – Appellant List

Respondent:

Niagara Escarpment Commission

Subject of appeal:

Refusal of a Development Permit Application to reconstruct 26/27 Sideroad from seasonal to year round open road

Reference No.:

S/T/2013-2014/9152

Property Address/Description:

Lots 25 to 31, Concession 10 & 11

Municipality:

Township of Clearview

Upper Tier:

County of Simcoe

NEHO Case No.:

15-176

NEHO Case Name:

Urbaniak v. Ontario (Niagara Escarpment Commission)

PROCEEDING COMMENCED UNDER section 10(3) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2

Applicant:

Township of Clearview

Subject of hearing:

Proposed Amendment to the Niagara Escarpment Plan to add policy exceptions to permit infrastructure improvements on Sideroad 26/27

Reference No.:

Proposed Niagara Escarpment Plan Amendment No. PS 215 18

Municipality:

Township of Clearview

Upper Tier:

County of Simcoe

NEHO Case No.:

20-036

NEHO Case Name:

Plan Amendment No. PS 215 18 (Re)

PROCEDURAL ORDER

1. A twenty-eight-day (28) hearing is scheduled for November 8, 2021 to December 17, 2021, starting at 10 a.m. The hearing location or platform is to be determined. The Tribunal will not be sitting November 11, 2021 or December 9, 2021. The hearing is governed by the Ontario Land Tribunal (“OLT”) Rules of Practice and Procedure, effective June 1, 2021.

Organization of the Hearing

2. The parties and participants are listed in Appendix “1” to this Order and shall present evidence in the order set out in Appendix “3”.

3. The issues for the hearing will be as set out in Appendix “2” to this Order.

4. The parties will provide without charge to all other parties a copy of every relevant document in their possession, control or power by June 11, 2021, except for those documents that are privileged. This disclosure is between the parties and does not need to be filed with the NEHO. The parties agree that documents may be exchanged electronically.

5. A party who intends to call witnesses, whether by summons or not, shall provide to the NEHO and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before August 2, 2021. If a party intends to call an expert witness to give opinion evidence, the witness must sign an Acknowledgement of Expert’s Duty form (see OLT Rules of Practice and Procedure, June 1, 2021) and the party must file this with the NEHO.

6. The parties and participants will serve and file the documents they intend to rely on at the hearing and their witness statements or participant statements with each other and the NEHO, by Wednesday, September 8, 2021. Each witness statement shall include, where applicable:

(a) the name, address and telephone number of the witness;

(b) whether the evidence will be factual evidence or, if the witness is qualified, opinion evidence;

(c) a resume of the witness’ qualifications, where the witness is to give opinion evidence;

(d) a signed Acknowledgement of Expert’s Duty, where the witness is to give opinion evidence;

(e) whether or not the witness has an interest in the application or appeal and, if so, the nature of the interest;

(f) a summary of the opinions, conclusions and recommendations of the witness;

(g) reference to those portions of other documents which form an important part of the opinions, conclusions and recommendations of the witness;

(h) a summary of answers to any interrogatories to or from other parties that will be relied upon at the Hearing;

(i) where applicable, a discussion of proposed conditions of approval that are in controversy among the parties or agreed upon conditions that may be related to issues in dispute;

(j) the date of the statement; and

(k) the signature of the witness.

7. The parties and participants will serve and file any supplementary witness statements or supplementary participant statements for any previously identified witness who will be providing reply evidence with each other and the NEHO, as described above in item 6, by Wednesday, September 22, 2021.

8. Subject to paragraph 8a below, expert witnesses in the same field shall have a meeting on or before Wednesday, September 30, 2021 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the NEHO on or before Friday, October 8, 2021.

8a. Expert witnesses in the field of cultural heritage planning shall have a meeting on or before October 18, 2021 and use best efforts to try to resolve or reduce the issues for the hearing pertaining to that subject. Following their meeting, the parties must prepare and file a Supplemental Statement of Agreed Facts and Issues Specific to Cultural Heritage Planning with the NEHO on or before Friday, October 22, 2021.

9. The NEHO will consider an evening session to allow participants to provide their evidence. The scheduling of an evening session is to be determined at the time the hearing plan is developed or at the commencement of the hearing, at the discretion of the Hearing Officer presiding over the merits hearing, and in consideration of the changes to the hearing process resulting from the new legislation.

10. The parties shall prepare and file a preliminary hearing plan with the NEHO on or before Monday, October 25, 2021 with a proposed schedule for the hearing that identifies, at a minimum, the parties participating in the hearing, the anticipated order of evidence, the hearing location or platform, the date and anticipated length of time required for each witness, timing for the participant statements, and the expected length of time for closing submissions. The NEHO may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

Appendix 1 – List of Appellants, Parties and Participants

Appendix 2 – Consolidated Issues List

Appendix 3 – Order of Evidence

APPENDIX 1

LIST OF APPELLANTS, PARTIES AND PARTICIPANTS

Appellant Name

File No.

Eleonore Urbaniak

15-176

Harry Urbaniak

15-177

Richard Young

15-178 (File Closed)

Marilyn Young

15-179 (File Closed)

Melksham Holdings Ltd.

15-180

Alan Sampson

15-181 (File Closed)

Allan Fisher

15-182

Walker Aggregates Inc.

15-183

Township of Clearview

15-184

Parties

File No.

Niagara Escarpment Commission

15-176, 20-036

Blue Mountain Watershed Trust Foundation

15-176, 20-036

Wendy Franks and David Stevenson

15-176, 20-036

Walker Aggregates Inc.

15-176, 20-036

Margaret (Peggy) Hutchison

20-036

Participant Name

File No.

Town of the Blue Mountains

20-036

Municipality of Grey Highlands

15-176, 20-036

Doug Dingeldein

15-176, 20-036

Ray Mueller

15-176, 20-036

Clearview Community Coalition

15-176

Mark Bell

15-176

APPENDIX 2

CONSOLIDATED ISSUES LIST

The identification of an issue does not mean that all parties agree that such issue, or the manner in which the issue is expressed, is appropriate or relevant to the determination of the matters before the Hearing Officer(s). The extent to which these issues are appropriate or relevant to the determination of the Hearing Officer(s) at the hearing will be a matter of evidence and argument at the hearing.

PART I - NEP Amendment

1. Is the proposed amendment to the Niagara Escarpment Plan (2017), (the “NEP”) (the “Proposed Amendment”) consistent with the purpose and objectives of the Niagara Escarpment Planning and Development Act and the NEP?

2. Is the Proposed Amendment justified and accompanied by research material, reports, plans and the like that were used in the preparation of the Proposed Amendment?

3. Have the applicable Development Criteria been considered in the Proposed Amendment, in particular Development Criteria 2.2, 2.5, 2.6, 2.7, 2.10, 2.12, 2.13, 2.14 and Part 3?

4. Is the proposed project (the “Proposed Project”) on Sideroad 26/27 “infrastructure”, within the meaning of NEP sections 1.3.3.7, 1.4.3.10, 1.5.3.10 and 2.12?

5. Do the definitions of “development” and “infrastructure” in the Provincial Policy Statement (2020) (the “PPS”) include the Proposed Project?

6. Is the Proposed Amendment consistent with the PPS, in particular policies 1.1, 1.2, 1.3, 1.6, 2.1, 2.2, 2.5 and 2.6?

7. Does the Proposed Amendment conform with the County of Simcoe Official Plan (2016), in particular section 4.8?

8. Does the Proposed Amendment conform with the Township of Clearview Official Plan (2002), in particular sections 2.2.2, 5.0 and 6.0?

9. In areas of key hydrologic features (NEP 2.6), is it appropriate to deem the Proposed Project to be “necessary to the public interest after all other alternatives have been considered”?

10. In areas of key natural heritage (NEP 2.7), is it appropriate to deem the Proposed Project to be “necessary to the public interest and there is no other alternative”?

11. In Escarpment Natural Areas (NEP 2.12), is it appropriate to deem the Proposed Project to be “necessary to the public interest after all other alternatives have been considered”?

12. Is the Proposed Amendment consistent with sections 3 and 6 of the Growth Plan for the Greater Golden Horseshoe (2019) and section 3.3 of the Greenbelt Plan (2017)?

13. Would approval of the Proposed Amendment raise a concern over precedent?

14. Does the Proposed Amendment represent good planning?

PART II - Development permit

1. Does the Proposed Project offend the objectives of the NEP’s applicable land use designations: Escarpment Natural Area and Escarpment Protection Area?

2. Would the Proposed Project cause significant adverse environmental effects on the Blue Mountain watershed ecosystem and to features that are protected under the NEP, where such effects would be contradictory to the NEP’s purpose and objectives, including but not limited to impacts to: “key hydrologic features”, including a provincially significant wetland (Rob Roy Swamp), seepages, springs and intermittent and permanent streams that support cold water fish habitat; steep Escarpment slopes; and “key natural heritage features”, including habitat for species of concern, such as bats?

3. Would the Proposed Project cause harm to fish and fish habitat?

4. If significant adverse environmental impacts are likely, has the Township of Clearview appropriately identified all species of concern and adequately described and committed to specific mitigation and habitat compensation measures that are consistent with the purpose and objectives of the NEP?

5. Is the public interest in a safe and viable arterial road in this vicinity served by the Proposed Project, including with respect to the potential closure of County Road 91?

APPENDIX 3

ORDER OF EVIDENCE

1. Township of Clearview

2. Walker Aggregates Inc.

3. Niagara Escarpment Commission

4. Blue Mountain Watershed Trust Foundation

5. Wendy Franks and David Stevenson

6. Margaret (Peggy) Hutchison

7. Participant Statements

8. Township of Clearview (Reply)