Fast v. Niagara-on-the-Lake (Town), 2022 CanLII 112719

Ontario Land Tribunal

Issue Date: November 23, 2022 Case No.: OLT-21-001826

PROCEEDING COMMENCED UNDER section 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Jonathan and Kathy Fast Subject: Consent - refused by Approval Authority Description: To create two new lots for residential development Reference Number: B-14/21 Property Address: 9 Dee Road Municipality/UT: Niagara-on-the-Lake/Niagara OLT Case No: OLT-21-001826 OLT Lead Case No: OLT-21-001826 OLT Case Name: Fast v. Niagara-on-the-Lake (Town)

PROCEEDING COMMENCED UNDER section 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Jonathan and Kathy Fast Subject: Consent - refused by Approval Authority Description: To create two new lots for residential development Reference Number: B-15/21 Property Address: 9 Dee Road Municipality/UT: Niagara-on-the-Lake/Niagara OLT Case No: OLT-21-001827 OLT Lead Case No: OLT-21-001826

BEFORE: STEVEN COOKE, VICE-CHAIR Wednesday, the 23rd day of November, 2022

THE TRIBUNAL ORDERS that the Procedural Order set out as Attachment "A" to this Order shall be in full force and effect for the purposes of governing the required procedure leading up to and including the hearing scheduled to commence on March 27, 2023.

"Euken Lui" EUKEN LUI ACTING 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 ("Tribunal"). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

ATTACHMENT "A"

ONTARIO LAND TRIBUNAL

PROCEEDING COMMENCED UNDER section 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: Jonathan and Kathy Fast Subject: Consent – refused by Approval Authority Description: To create two new lots for residential development Reference Number: B-14/21 Property Address: 9 Dee Road Municipality/UT: Niagara-on-the-Lake/Niagara OLT Case No.: OLT-21-001826 OLT Lead Case No.: OLT-21-001826 OLT Case Name: Fast v. Niagara-on-the-Lake (Town)

PROCEEDING COMMENCED UNDER section 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: Jonathan and Kathy Fast Subject: Consent – refused by Approval Authority Description: To create two new lots for residential development Reference Number: B-15/21 Property Address: 9 Dee Road Municipality/UT: Niagara-on-the-Lake/Niagara OLT Case No.: OLT-21-001827 OLT Lead Case No.: OLT-21-001826

PROCEDURAL ORDER

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties' request or its own motion.

Organization of the Hearing

2. The video hearing will begin on March 27, 2023 at 10:00 a.m.

3. The parties' initial estimation for the length of the hearing is five (5) days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties' consent, subject to the Tribunal's approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative's name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal's Video Hearing Guide, available on the Tribunal's website.

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal 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 January 31, 2023 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness' Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. After Witness Statements have been provided as referenced in paragraph 11, expert witnesses in the same field shall have a meeting on or before March 3, 2023 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 OLT case co-ordinator on or before March 10, 2023.

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert's testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert's evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness' evidence, as in paragraph 13 below.

13. On or before February 10, 2023, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

14. On or before February 20, 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before February 20, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before March 17, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within ten (10) days after the evidence is received and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before March 17, 2023.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal's Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

20. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before March 20, 2023 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22. All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal's Rule 17 applies to such requests.

This Member is [not] seized.

So orders the Tribunal.

BEFORE: Name of Member: Date: TRIBUNAL REGISTRAR

ATTACHMENT "1"

List of Parties and Participants

Parties:

Anthony Vani (Jr.) (substituted Applicant/Appellant)

Thomas Hanrahan Email: thanrahan@sullivan-mahoney.com Direct Dial: (905) 688-0494

Andrea Mannell Email: AMannell@sullivan-mahoney.com Direct Dial: (905) 688-9410

SULLIVAN MAHONEY LLP 40 Queen Street, P.O. Box 1360 St. Catharines, Ontario L2R 6Z2 Facsimile: (905) 688-5814

Town of Niagara-on-the-Lake

Art Zuidema, B.E.S., LL.B., M.P.A., M.B.A. Barrister & Solicitor Art Zuidema Professional Office 96 St. Andrews Drive Brantford, ON N3T 6H4 519-771-1898 (cell) 519-751-7575 art.zuidema@gmail.com

Participants:

1. David Jakobi E: davidjakobi@outlook.com
2. John Hughes E: jjhughes@golden.net
3. Allan Killin E: allan@akarchitect.ca
4. Karin Jahnke-Haslam E: karin.haslam@gmail.com
5. Rebecca Golding E: rlgolding@gmail.com
6. Queenston Residents' Association E: douglas.stewart2@sympatico.ca
7. The Willowbank School of Restoration Arts E: fracioppo@rzcdlaw.com

ATTACHMENT "2"

Issues List

TOWN OF NIAGARA-ON-THE-LAKE ISSUES LIST CASE NO.: OLT-21-001826

1. Does the proposed consent application for the subject property have regard for the matters of provincial interest set out in Section 2 of the Planning Act, and in particular, 2 (a), 2 (d), 2 (f), 2 (h), 2 (j), 2 (n), 2 (o), 2 (p)?

2. Is the proposed consent application consistent with the relevant policies of provincial interest in Provincial Policy Statement 2020 ("PPS 2020"), and in particular, 1.1.3.1 (Settlement Areas) 1.5.1 (a) (Healthy, Active Communities) 2.6 (Cultural Heritage and Archaeology)?

3. Is the proposed consent application in conformity with, or does not conflict with, the provincial interest in A Place to Grow: Growth Plan for the Greater Golden Horseshoe 2019, as amended ("Growth Plan 2019"), and in particular, 1.2.1 (Guiding Principles) 2.2.1.2 (c) (Managing Growth) 2.2.6.1 (Housing Intensification)?

4. Is the proposed consent application in conformity with the provincial interest in the Niagara Escarpment Plan 2017 ("NEP 2017"), and in particular, 1.6.5 (Minor Urban Centres) 1.6.8.9 (Development and Growth Objectives) 2.4.1 and 2.4.2 (Lot Creation)?

5. Does the proposed consent application conform with the regional interest in Region of Niagara Official Plan 2014 ("Niagara Region OP"), and in particular, 4.A.1 (Growth Management Objectives) 4.C.2.1 (Local Municipally Designated Intensification Areas) 4.G.4 (Regional Urban Structure Objectives) 4.G.5.1 (Urban Structure) 4.G.6 (Settlement Areas) 4.G.7 (Urban Areas) 4.G.8 (Built-up Areas) 4.J (Urban Design and Public Realm) 11.A.2 (Residential Areas and Housing)?

6. What weight should be given to the policies of the Region of Niagara Official Plan 2022 that was adopted on June 23, 2022, and in particular: 2.1.1 (Regional Growth Forecast) 2.2.1 (Managing Urban growth) 2.2.2 (Strategic Intensification and Higher Densities) Schedule "B" (Regional Structure)?

7. Does the proposed consent application conform with the municipal interest in the Town of Niagara-On-The-Lake Official Plan 1998 ("NOTL OP 1998"), and in particular, Part 2: 6.32.1 (Special Policy Area A-1 Queenston) 4.0 (Living in the Village - Residential Areas) 4.1 (Policies Pertaining to All Residential Designations) 4.3 (Established Residential) 7.3 (Infrastructure Improvements Dee Road) 7.10 (Infrastructure Improvements Dee Road) Part 2: (Special Policy Area 5 (Managing the Waterfront) 10.6.7 (Dee Road) Part 2: 6A (Growth Management Policies) 3.4 (Growth Management - Housing Mix) Part 3: 9.2 (Residential Goals and Objectives 6 & 7) 9.3 (Land Use Designations) 9.3.3 (Established Residential) 9.4 (General Residential Policies) 9.4.4 (Residential Density) Part 3: 17.1, 17.2 (Niagara Escarpment) Part 4: 18 (Heritage Conservation) Schedule "E" (Queenston) Schedule "E1" (Queenston Secondary Plan Boundary)?

8. What weight should be given to the policies of the Town of Niagara-on-the-Lake Official Plan 2019 that was adopted on October 22, 2019, and in particular, 1.1.7 (Queenston stable residential community) 1.1.11 (Agricultural Irrigation System) Appendix 1 (NOTL Agricultural Infrastructure System) 2.4.2 (Growth Strategy Objectives) Table 2 (Population Queenston Settlement Area) Table 4 (Residential Supply Queenston) 4.5 (Intensification Strategy) 4.7.2 (Compatibility) 4.7.3 (Conflicts between Built Form and Intensification) 4.10.4 (Established Residential Designation) Schedule "B5" (Land Use Plan - Queenston) Schedule "E2" (Transportation Network Dee Road)?

9. Does the proposed consent application conform with the municipal interest in the Village of Queenston Secondary Plan (OPA 37) 2009 ("Secondary Plan"), and in particular, Figure 1 (Study Area) Part 3: 3.2 (Village Character and Structure) Part 3: Figure 3 (Village Structure Plan/District Character Areas) Part 4: 1.1 (Community Structure and Urban Form) 2.2 (Community Development Principles) Schedule 2 (Land Use Designation) 4.0 (Living in the Village - Residential Areas) 4.3 (Established Residential) Figure 5 (Movement and Transportation Network) 7.0 (Infrastructure Improvements - Dee Road) Figure 6 (Drainage) 10.4 (Special Policy Area 3: Willowbank) Figure 17 (The Public Realm) 15.3 (Cultural Heritage Landscape)?

10. Does the proposed consent application conform to the Town of Niagara-On-The-Lake Zoning By-law 4316-09, as amended, and in particular, Section 6 (General Provisions) Section 8 (Queenston Community Zoning District)?

11. According to subsection 53 (1) of the Planning Act, Is a plan of subdivision not necessary for the proper and orderly development in the municipality?

12. Under subsection 53 (12) of the Planning Act, does the proposed consent application have regard to the matters of the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality under subsection 51(24) of the Planning Act and in particular the following matters, 24 a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2; 24 b) whether the proposed subdivision is premature or in the public interest; 24 c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any; 24 d) the suitability of the land for the purposes for which it is to be subdivided; 24 e) the number, width, location and proposed grades and elevations of highways, and the adequacy of them, and the highways linking the highways in the proposed subdivision with the established highway system in the vicinity and the adequacy of them; 24 f) the dimensions and shape of the proposed lots; 24 g) the restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land; 24 h) conservation of natural resources and flood control; 24 m) the interrelationship between the design of the proposed plan of subdivision and site plan control matters relating to any development on the land, if the land is also located within a site plan control area designated under section 41(2) of this Act?

13. If the Tribunal considers and approves the consent for the subject property under subsection 53 (12) of the Planning Act, what reasonable and relevant conditions should be imposed under subsection 51(25) of the Planning Act and that the conditions are to be fulfilled within two years after notice of provisional consent is given?

14. If the Tribunal considers and approves the consent for the subject property under subsection 53 (12) of the Planning Act, what agreements with the municipality is imposed as a condition under subsection 51 (26) of the Planning Act?

15. If the Tribunal considers and approves the consent for the subject property under subsection 53(12) of the Planning Act, what condition of parkland dedication is imposed as a condition under subsection 51.1 of the Planning Act?

16. What are the significant attributes of existing Dee Road in the context of the cultural heritage character of the Village of Queenston and is the proposed creation of two additional residential lots and dwellings sensitive to the community context and are these proposed lots compatible with the common characteristics of the community?

17. Does the proposed consent represent good planning and is it in the public interest?

18. Is the proposed creation of two residential lots for two dwellings compatible with the existing and planned cultural heritage character of the Queenston community or does this development change the character of the community?

19. Is there a policy balance between the provincial interests and the municipal interests?

ATTACHMENT "3"

Order of Evidence

1. Applicant/Appellant Vani – Case-in-Chief
2. Any other Party or Participant in support of Applicants/Appellants
3. Respondent Municipality – Response Case
4. Any other Party or Participant in support of Respondent Municipality
5. Applicant/Appellant Vani – Reply Case if required

Key Dates:

Date:	Task:	Party Responsible:	Reference to PO:
January 31, 2023	Witness List	All Parties	Para. 9
March 3, 2023	Expert Witness Meeting	All Parties	Para. 10
March 10, 2023	Statement of Agreed Facts and Issues	All Parties	Para. 10
February 10, 2023	Exchange Witness Statements	All Parties	Para. 13
February 20, 2023	Exchange Participant Statements	Participants	Para. 14
February 20, 2023	Confirmation of Hearing Dates to OLT	All Parties	Para. 15
March 17, 2023	Exchange Visual Evidence	All Parties	Para. 16
10 days following receipt	Response to Evidence	All Parties	Para. 17
March 17, 2023	File Joint Document Book with OLT	All Parties	Para. 18
March 20, 2023	Hearing Plan to OLT	All Parties	Para. 21