Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 17, 2021

CASE NO(S).: 20-041

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

Appellant: Adam Novak (File No. 20-041)

Appellant: Heidy Novak (File No. 20-042)

Appellant: Jesse Pace (File No. 20-043)

Appellant: Jessica Pace (File No. 20-044)

Applicant: John Harsevoort

Respondent: Niagara Escarpment Commission

Subject of appeal: Approval of a Development Permit Application to demolish an existing one-storey dwelling and construct a new, two-storey dwelling and privately serviced lot

Reference No.: W/R/2020-2021/49

Property Address/Description: 544 Evans Road

Municipality: (Former) Town of Flamborough

Upper Tier: City of Hamilton

OLT Case No.: 20-041

OLT Case Name: Novak v. Ontario (Niagara Escarpment Commission)

Heard: December 2, 2021 by video hearing

APPEARANCES:

Parties	Representative
Jesse Pace and Jessica Pace (“Appellants”)	Self-represented
Karen Bonanno, Trevor Bonanno (“Applicants”) and John Harsevoort (“Agent”)	Self-represented
Niagara Escarpment Commission (“NEC”)	Nancy Mott

REPORT DELIVERED BY S. TOUSAW AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Ontario Land Tribunal (“Tribunal”) heard this matter as the successor tribunal to the Environmental Review Tribunal as of June 1, 2021. Tribunal Members constitute Hearing Officers and the Tribunal functions as the Niagara Escarpment Hearings Office for appeals under the Niagara Escarpment Planning and Development Act. Hearings are guided by the Tribunal’s Rules of Practice and Procedure.

2This hearing addressed an appeal to the Director’s Conditional Approval for a Development Permit Application (“DPA”) at 544 Evans Road (“site”) in the City of Hamilton (“City”).

3The Applicants received NEC approval, subject to conditions, to replace the existing one-storey dwelling with a larger two-storey dwelling on the site.

4The Appellants, owners of 542 Evans Road, being the abutting property to the southeast of the site, do not oppose the house replacement but raised concerns with drainage and related matters.

5An appeal was also filed, but later withdrawn, by Adam Novak and Heidy Novak, owners of the abutting property to the northwest of the site.

6All of the Parties were self-represented at the hearing. Submissions were received from the Appellants and Applicants, and, on the Tribunal’s invitation, each asked the other questions for clarification. Nancy Mott, Registered Professional Planner with the NEC, was qualified by the Tribunal to provide planning opinion evidence, which included her reliance on the NEC staff report prepared by Jim Avram, Senior Planner. The Parties’ written submissions were marked as Exhibits.

7As set out below, the Tribunal finds that the Director’s Approval, with conditions, grants approval for a DPA that satisfies all legislative requirements, and which adequately addresses the relevant concerns of the Appellants. The appeal is therefore dismissed.

PROCEDURAL MATTER

8In the course of the hearing, Karen and Trevor Bonanno realized that they were not in possession of certain hearing documents as pre-filed by the NEC and the Appellants. It was determined that two factors contributed to this situation: first, the original Applicant to the NEC for this site was John Harsevoort as agent for the site owners, who was in receipt of the circulated documents, but did not realize his clients were not in receipt of same; and second, Mr. and Ms. Bonanno had been added as a Party to the proceeding at an earlier pre-hearing telephone conference call, for which no written decision was issued.

9The Parties immediately forwarded the documents to the Applicants and the hearing proceeded on the Tribunal’s commitment to return to this issue at the close of proceedings. After a thorough review of the appeal issues through the course of the hearing, all Parties, including the Applicants, agreed that no issues of fairness resulted from the circulation oversight and that the Tribunal may proceed to make its decision and issue its Report.

PHYSICAL AND POLICY SETTING

10The site is located to the northeast of the community of Waterdown in the City, being one of several long, narrow properties fronting onto Evans Road and used primarily for residential purposes. This site of 0.8 hectares contains a dwelling close to the road, and an accessory building, water well and septic system further back.

11Like neighbouring properties, the site is largely cleared of trees and comprises relatively flat land approximately one-kilometre northwest of the escarpment. A tributary of Grindstone Creek traverses the abutting lot to the northwest of the site, and its wide floodplain and a smaller tributary extend onto a small portion of this site, all of which represent key hydrologic features warranting protection by the Niagara Escarpment Plan (“NEP”). The site does not contain and is not located near a significant woodland or an Area of Natural and Scientific Interest (“ANSI”).

12The area, including this site, is designated as Escarpment Rural Area in the NEP, which permits a single dwelling subject to various development criteria. The site is designated as Rural in the Rural Hamilton Official Plan, which references the legislative authority of the NEP. Municipal zoning does not apply to areas regulated by the NEP.

ISSUE SUBMISSIONS AND EVIDENCE

13The Appellants identified their primary issue as drainage, along with secondary issues of the existing septic system, side yard setback, trees, and privacy. They do not object to a new house being built on the site, and consider it in character with the area.

14The Appellants’ overall concern is that the development must not alter or worsen the drainage conditions of their property. Stormwater travels from the Appellants’ lot to and through the Applicants’ site, and should be addressed fully and carefully. With the proposed rise in elevation of the building site, they seek assurance that adequate drainage will continue and that no ponding results on their lot. The Appellants ask that grade corrections and accuracy be achieved on the drainage and site plans to ensure that the final buildout and grading will function well and as intended. Careful attention should be given to the swale intended to run adjacent to their common lot line and facilitate drainage towards the road, including any necessary improvements to the driveway and culverts.

15The Applicants respond that the final grading and drainage plans, as required by the Conditions to Approval, will reflect their shared goal with the neighbours on both sides that drainage will not result in negative effects. It is not their intention to inhibit the natural flow of water but to direct it appropriately while not creating upslope and downslope problems.

16Ms. Mott explained the NEC’s process whereby participating agencies, such as the City and Conservation Halton (“CH”), will have subsequent approvals of their own, such as a building permit or a related CH permit that may also relate to issues of drainage. Along with the NEC, these agencies review the final site plans and clear same before approval is granted. Ms. Mott opines that these agencies are satisfied with the Conditions for drainage given the requirement for final, specific and accurate plans.

17Ms. Mott reviewed the requirements of the Conditions with reference to how the concerns of the Appellants will be addressed fully. While the Appellants’ engineer recommended certain specific changes to plans and drawings, Ms. Mott cautions that the final plans could slightly change such that, if Conditions are worded too specifically, they may impose a barrier to final approval. Ms. Mott prefers the general requirements of the NEC standard conditions while assuring that the specific and necessary drainage matters will be addressed on plans and checked on completion.

18Specifically, Ms. Mott noted Condition 7, which requires “an accurate and detailed Final Site Plan” for approval by the NEC and the City, including such matters as the “top/bottom of slope” (7c), “fill removal or placement” (7e), and the final “Note” preventing drainage “on to adjacent private lands.” In addition, Condition 8 requires “final construction details” including “height above existing and proposed grades” and such plans “shall form part of the Development Permit.”

19On the secondary issues, the Appellants have no objection to the proposed continued use of the existing septic tile field but ask that its location be shown accurately on the plan. They do not oppose the side yard setback of the proposed dwelling provided it is sufficient to accommodate the needed drainage without negative effects on the Appellants’ property. The Appellants ask that trees be preserved where possible, given that a few large trees were removed from the front of the site along the road. On privacy and sight lines from one rear yard to the other, the Appellants acknowledge that they can make fence or landscape improvements to their own property if desired, but also ask the Applicants to give similar consideration to privacy.

20To these secondary issues, the Applicants respond that the raised tile bed was installed upon approval in 2001 and will be shown accurately on the final drawings. The side yard is established with drainage in mind and is anticipated to not change on final plans. Three pine trees were removed from the property on account of their poor health and the only tree removal anticipated is that necessary for the building location. On privacy, the Applicants will consider further landscaping after final grades are in place.

21Ms. Mott provided helpful opinion evidence on these secondary issues, as follows. These issues have not raised concern or response from the City, and do not affect the NEC conclusions on the application. Final plans will be prepared by a surveyor and/or a professional engineer with attention to the accurate plotting of buildings, features and topography. The City regulates tree cutting and Ms. Mott is not aware of any prohibition to the owner’s removal of the individual trees noted. Privacy was not addressed specifically, although Ms. Mott opined that the house size and location maintain the character of the residential uses along Evans Road.

22As a summary recommendation in support of Conditional Approval, Ms. Mott opined that the Conditional Approval is appropriate given that the replacement dwelling is an acceptable use on the site, and which, subject to the specified conditions, is consistent with the Provincial Policy Statement, does not conflict with the NEP, reflects the requirements of and is not opposed by the City and CH, and sufficiently addresses the concerns of the Appellants.

FINDINGS

23On the submissions of the Parties and the uncontested planning evidence provided by Ms. Mott, the Tribunal finds as follows.

24The Appellants pursued their appeal on the basis of concerns that their issues may be overlooked or not fully addressed. They note various discrepancies on plans and evolving designs as their rationale for continued uncertainty for a desired end result. In summary, they simply want the drainage to work when finally graded and built. These are reasonable concerns for landowners in an area where drainage is a challenge.

25To their credit, the Applicants seek a similar result. They do not intend to impair the natural drainage of stormwater enroute toward the northwest through their property. They agree with the Conditions and anticipate a successful result.

26The Tribunal accepts the evidence of Ms. Mott that the Conditions of Approval adequately require final plans at a level of detail that will ensure the shared goals of the Parties are achieved. Competent experts in surveying and/or drainage engineering will develop and oversee the construction of necessary drainage features. As explained by Ms. Mott, in the unlikely event that a feature is subsequently identified as not performing as intended, the NEC Compliance Officer may be engaged to find a solution.

27To the secondary issues, the Tribunal observes that the Appellants accept that these matters have been reasonably addressed. The size and location of the replacement dwelling is not out of character for properties along Evans Road. Area dwellings, including the proposed house, have a similar setback from the road, such that adjacent side and rear yards are common, and can be enhanced by owners in such usual manners as landscaping and fencing. As confirmed by Ms. Mott, such matters as the location of the existing tile field, tree removal, and property line privacy considerations do not rise in this case to the level of affecting the decision or warranting conditions, when evaluated against the requirements of the NEP or involved agencies.

28To complete the review, the Tribunal finds as follows on general matters of consideration on such DPAs. The setbacks of the proposed replacement dwelling from watercourses and their associated floodplain are sufficient to ensure no negative effect. The Conditions require sediment and erosion controls to protect both neighbouring lands and the Grindstone Creek floodplain. Sufficient separation is maintained between the development and protected natural features and functions including an ANSI.

29The Tribunal finds the proposed development to be consistent with the Provincial Policy Statement and to not conflict with all relevant requirements of the NEP, including the protection of water resources and natural heritage, regard for cultural heritage, conservation of scenic resources and landforms, and general development criteria. The requested conditions from commenting agencies, being the City and CH, are contained in the approval.

DECISION

30The Hearing Officer concludes that the Niagara Escarpment Commission decision to grant Conditional Approval to Development Permit Application No. W/R/2020-2021/49, as contained in Appendix A, is correct and should not be changed.

31The Niagara Escarpment Commission’s decision is deemed to be confirmed pursuant to s. 25(12) of the Niagara Escarpment Planning and Development Act.

32The appeal is dismissed.

“S. Tousaw”

S. TOUSAW

HEARING OFFICER

Ontario Land Tribunal

Website: www.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.