Ontario Land Tribunal
Tribunal ontarien de l’aménagement
du territoire
ISSUE DATE:
July 19, 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
NEHO Case No.:
21-018
NEHO Case Name:
Lange v. Ontario (Niagara Escarpment Commission)
Heard:
June 23, 2021 by telephone conference call
APPEARANCES:
Parties
Counsel*/Representative
1980971 Ontario Inc.
Steven O’Melia*
Birgit Lange and Bert Wasmund
Self-represented
Gordon West
Self-represented
Niagara Escarpment Commission
Kim Peters
DECISION DELIVERED BY LAURIE BRUCE AND PROCEDURAL 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 matter before the NEHO is the appeal of a Development Permit issued to 1980971 Ontario Inc. 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 (“Commission”) conditionally approved this Development Permit application.
3This Procedural Order arises from a telephone conference call (“TCC”) held on June 23, 2021. The purpose of the TCC was to assist the parties with the identification of an issues list. While there had been some productive discussions between the parties, there continued to be an unresolved matter related to the inclusion of surface and groundwater issues associated with the quarry lake. While the paving of the driveway on the quarry property is identified in the application, there are no components of the development approval associated with the quarry. Further, there are no elements of the residential development that are directly or indirectly linked to the quarry lake. Therefore, it is not an issue that is properly before the NEHO and as a result, the use of water in the quarry lake can not be adjudicated as part of this appeal.
4As indicated in the first PHC, the quarry property is still designated as an extraction area. The Commission is required to redesignate the property now that it will no longer be used as a quarry. This redesignation process may provide the opportunity for the Commission and possibly, the appropriate Conservation Authority to address the role of the quarry lake in the hydrologic and hydrogeologic environment.
5The original draft list of issues is included as Attachment 1. Where there has been a resolution of the issue, it is noted. The one remaining issue to be addressed in the hearing is the location of the septic bed. This is also described in Attachment 1. Due to the limited number of issues, only a single day is required for the hearing. Therefore, the two-day hearing originally scheduled to commence on Thursday, August 12, 2021 will now be for one day only.
ORDER
6The NEHO orders that:
a. A one-day hearing will be held by video conference commencing at 10 a.m. on Thursday, August 12, 2021. The information for connecting to the video conference will be provided to the parties by the Case Coordinator.
b. The Issues List that will guide the hearing is included as Attachment 1.
“Laurie Bruce”
LAURIE BRUCE
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.
ATTACHMENT 1
Gordon West Issues
- The natural stream bed that crosses the former Inn land that was used for dewatering of the HCS quarry must be recognized as the essential path for storm runoff. Especially, this watercourse must not be filled with soil, because that fill will be transported downstream in any flood event and sent over the escarpment edge.
The applicant has agreed to this request and does not object to a condition of approval that would implement it.
- In determining a final location for the development’s septic disposal bed, the risk of rapid transport of effluent along fractures of the dolostone bedrock near the escarpment cliffs must be properly taken into account. Preferably, the bed should be sited substantially farther from the escarpment cliffs than the location shown in the Application. The proposed site may only be used if its bedrock has been investigated by a competent person familiar with fracture transport who can certify an absence of hazard.
This is a remaining issue for the hearing.
- Consideration be given to creating a delay pond for storm flow below the escarpment cliff on the applicant’s land at the Lot 6 and 7 boundary. This could be executed by the applicant, or might better be achieved by deeding of the small corner of his property at sixth line and below the escarpment edge to Conservation Halton. There, the area would be contiguous with their parcel along the Hydro HV power right of way on Hawkhill farm, and where they are already responsible for water management.
This requested relief is beyond the jurisdiction of the Hearings Office at this hearing.
Ms. Lange and Mr. Wasmund Issues
- We have no objection to the occupancy and use of the property by a Single Family, as this normally meant. But an anonymous corporation is not a single family. Is there clear evidence that this corporation is not intending much larger range of activities? Noise from frequent gatherings and or events is something that we have often had to put up with in the past.
The Hearing Officer was advised that the use of the land will be controlled and restricted through an agreement registered on title, which is described below, which addresses this concern.
Pursuant to Condition # 11 of the NEC’s decision to approve the Development Permit, the Owner agrees as follows:
That the principal dwelling on the Lands shall only contain one dwelling unit;
That the accessory buildings shall not contain kitchen facilities and shall not be used as: dwelling or apartment units; for short-term or long-term vacation rentals; or for commercial, institutional, home business, industrial or livestock purposes.
The development and use of the Lands shall be limited by this Agreement, the conditions of approval set out in the Development Permit and all Plans and other information submitted by the Owner in order satisfy the said conditions and obtain the Development Permit.
- Drainage from near the base of the escarpment cliffs has been a valuable resource for our farm in the past. As one example, there is a large pond on what is now owned by Conservation Halton land that drains to a smaller pond next to our lane and then to Kelso. Since the quarry was cut southeast near to the lot line between Lots 6 and 7, new small water flows have appeared at several sites. I don’t see anything in the studies you sent us to indicate why this might be happening and will not grow larger. It makes it hard to feel confident that pollution from a large septic system not far above us might not reach our property.
This relates to the location of the septic bed, and can be consolidated with Mr. West’s issue #2 noted above
- We share Mr. West’s about cessation of water flow to the part of our property near 6th line. Is it fair that this should be shut off after Half a Century? Does your client own the water?
This concern is beyond the authority of the Hearings Officer at this hearing, as it relates to the former quarry that was decommissioned 6 years ago. Nothing proposed in this application affects the existing natural water flow.