Johnston v. Ontario (NEC), 2022 CanLII 121053

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 16, 2022

CASE NO(S).: OLT-22-002118

PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.3

Appellant: Amanda Johnston

Applicant: Barbara Irek

Subject: Approval of a Development Permit Application

Description: Propose to construct a 2-storey single dwelling with attached garage

Reference Number: N/R/2015-2016/52

Property Address: 1760 Effingham Street

Municipality/UT: Pelham/Niagara

OLT Case No.: OLT-22-002118

OLT Lead Case No.: OLT-22-002118

OLT Case Name: Johnston v. Ontario (NEC)

Heard: August 2, 2022 by video hearing

APPEARANCES:

Parties

Representative

Amanda Johnston

Self-represented

Barbara Irek

Self-represented

REPORT DELIVERED BY HUGH S. WILKINS AND ORDER OF THE TRIBUNAL

INTRODUCTION

1On May 11, 2015, Barbara Irek (“Applicant”) applied to the Niagara Escarpment Commission (“Commission”) for a permit to facilitate development at the property located at 1760 Effingham Road (“subject property”) in Pelham.

2The subject property is located at the corner of Effingham Street and Moore Drive in the Town of Pelham. It is 10.8 hectare in size. Part of the subject property lies within the Fonthill Kame Delta Provincially Significant Earth Science Area of Natural and Scientific Interest (“ANSI”) and part includes a Significant Woodland. Presently, there is a single dwelling and commercial greenhouse located on the subject property. The surrounding area is characterized by rural residential dwellings and agricultural uses.

3Upon the request of the Applicant, the processing of the application was put on hold by the Commission for several years.

4On January 6, 2022, the Commission issued the requested development permit to the Applicant. The permit allows for the construction of a two-storey, ± 418.1 square metre (“m²”) single dwelling (including walkout basement), with a ± 139.35 m² attached garage, with a height to peak of ± 12.5 metres (“m”), the upgrading of the existing private sewage disposal system, and an extension of the existing driveway on the subject property.

5The development permit requires the demolition of the existing single dwelling and attached garage on the subject property upon the completion of the construction of the project.

6On or about January 20, 2022, Amanda Johnston (“Appellant”) appealed the Commission’s decision to issue the development permit. She owns lands adjacent to the subject property.

7The appeal was heard by the Ontario Land Tribunal (in its role as the Niagara Escarpment Hearing Office) (“Hearing Office”) on August 2, 2022 by video hearing.

ISSUE

8On an appeal of a development permit under s. 25 of the Niagara Escarpment Planning and Development Act, the Hearing Office must determine whether the Commission’s decision to issue the development permit was correct and should not be changed. In making this determination, the Hearing Office must consider whether the development permit conforms with the Niagara Escarpment Plan, 2017 (“Plan”) and is consistent with the Provincial Policy Statement, 2020 (“PPS”).

EVIDENCE AND SUBMISSIONS

9Cheryl Tansony, who is a planner with the Commission, attended the hearing and provided evidence. The Hearing Office qualified Ms. Tansony to provide opinion evidence in the area of land use planning and the Niagara Escarpment Plan. The Commission did not make any submissions at the hearing.

10The Appellant, Ms. Johnston, provided fact evidence and submissions at the hearing.

11The Applicant, Ms. Irek, also provided fact evidence and submissions at the hearing.

Cheryl Tansony’s Evidence

12Ms. Tansony opined that the development permit conforms with the Niagara Escarpment Plan. She stated that the subject property lies partly within the Escarpment Protection Area and partly within the Escarpment Natural Area of the Plan. She stated that the general development criteria in s. 2.2 of the Plan allow for one single dwelling on an existing lot of record and require that the development on lands with more than one designation under the Plan must be located in the least restrictive designation. She said the proposed development satisfies these criteria. She said that s. 2.7.2 of the Plan allows for a single family dwelling and accessory buildings within key natural heritage features such as ANSIs. She said the proposed development would not take lands out of agricultural use.

13Ms. Tansony opined that the development permit is consistent with the PPS. She said the proposed development lies within an ANSI, but given the disturbed nature of the development site and the ongoing existing uses, there will be no negative impacts on natural features or their ecological functions. She stated that portions of the subject property lie within a Significant Woodland, but that this feature is located 100 m from the site of the proposed development and would not be impacted by it. She said that although there are some protected plant species in the Significant Woodland, no species at risk would be impacted by the proposed development. She stated that the portion of the subject property on which development is proposed has been previously disturbed with a lawn and fruit trees. She said that the site of the proposed development is not on “adjacent lands”, which is defined in the PPS for the purposes of policy 2.1.8 as lands contiguous to a specific natural heritage feature or area where it is likely that development or site alteration would have a negative impact on the feature or area. She said that, in the present case, given the nature of the proposed development and the setbacks from the natural heritage features, it is not likely that the proposed development would have a negative impact on the Significant Woodland and therefore an environmental impact study under PPS policy 2.1.8 is not needed.

14Ms. Tansony stated that the Commission approved the development permit subject to the following conditions:

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

2. The Development Permit shall expire three (3) years from the date it has been issued or once the development has been completed in accordance with the Development Permit.

3. No site alteration of the existing contours of the property including the placement or stockpiling of fill (i.e., excess or imported soil) on the property is permitted with the exception of that identified within the development envelope in accordance with the Final Site Plan.

4. No vegetation shall be cut or removed from the development envelope except for that identified within the development envelope in accordance with the Final Site Plan.

5. If development has commenced under a Development Permit, any/all disturbed areas of land or soil shall be re-vegetated and stabilized to the satisfaction of the Commission on or before the date of expiry of the Development Permit.

6. Prior to the issuance of a Development Permit by the Commission, an accurate and detailed Final Site Plan shall be submitted for the Commission’s approval. The following stipulation shall be included directly on the Plan:

a. All drawings submitted must be drawn to scale (bar scale shown), reference the application number and address of the proposal, be dated (revisions as well), and include the name of the relevant individual or consultant who prepared the drawing;

b. Outline of the approved development envelope/extent of all disturbed areas;

c. Location of all existing and proposed structures, sewage disposal system, well/cistern, driveway, construction access/haul routes, exterior lighting, etc. showing setbacks from the property lines, any watercourses or water features, top/bottom of slope, wooded areas, etc.;

d. Grading, drainage, and fill management details including the areas of excavation and temporary or permanent fill placement. The type, quantity, quality and source location of any imported fill material must be accurately identified;

e. The location and design of erosion and sediment control measures (e.g., fencing, blankets, rip-rap, temporary mulch/seeding), and limit-of-work construction or eco-protection fencing;

f. Identify the areas of existing vegetation to be retained, areas of vegetation to be removed, and the location of proposed plantings; and

g. Development shall proceed in accordance with the details of the approved Final Site Plan.

7. Prior to the issuance of a Development Permit by the Commission, the landowner shall submit for the approval of the Commission, Final Construction Details for the proposed development, including exterior elevations, total floor area, floor plans, height to roof peak from lowest grade, and any exterior lighting.

8. The existing single dwelling shall be completely removed from the property, and the site rehabilitated as per the approved Site Plan, within ninety (90) days of issuance of an Occupancy Permit by the Chief Building Official for the new dwelling. The landowner shall notify the Commission in writing immediately upon receipt of an Occupancy Permit and shall provide a copy of the Occupancy Permit to the Commission.

9. Prior to the commencement of any development, erosion and sediment control measures (e.g., fencing, blankets, rip-rap), and vegetation protection fencing shall be implemented and maintained as shown on the Final Site Plan until all disturbed areas are stabilized. It is the responsibility of the landowner to implement, monitor and maintain all erosion and sedimentation control measures and vegetation protection fencing in good condition until vegetative cover has been successfully established and the development is completed.

10. All waste materials generated from the demolition shall be completely removed from the property and taken to an authorized receiving site (e.g., municipal landfill site, salvage/reclamation facility, re-used/recycled elsewhere) and not stored or buried on-site. All disturbed areas shall be immediately stabilized/rehabilitated as per the Final Site Plan.

11. Conditions No. 6 and 7 must be fulfilled within eighteen (18) months (1.5 years) from the date of confirmation of the Commission’s decision or this conditional approval shall lapse and a Development Permit will not be issued.

She opined that these conditions are appropriate.

15Regarding the issues raised by the Appellant, Ms. Tansony stated that a single dwelling and agricultural uses, including the cultivation of cannabis, is permitted on the subject property under the Niagara Escarpment Plan’s policies. With respect to drainage issues, she said grading, drainage, and fill management details must be assessed by a qualified professional and set out in the Applicant’s Final Site Plan as required in the conditions set out above. Regarding sewage and wastewater issues, she stated that there is sufficient space for a new septic system on the subject property and that the system will need to be approved by the Region of Niagara. She clarified that the new septic system would only be for the proposed dwelling and would not service the existing commercial greenhouse on the subject property. She stated that some fruit trees may be removed as a result of the proposed development, but these trees are not part of an agriculture use and do not support species at risk. She stated that the proposed development would be set back from the road and will not affect views of the Escarpment. She stated that the impacts of exterior lighting associated with the proposed development would be limited and would not impact the night sky or cause visual impacts. She stated that construction and demolition waste must be removed from the subject property at the conclusion of the project. She said non-compliance would be an enforcement issue.

The Appellant’s Evidence and Submissions

16Ms. Johnston stated that she owns land adjacent to the subject property. She stated that the Applicant has been operating a cannabis farm on the subject property and has disposed agricultural waste in the forest bordering her property. She expressed concern that the Applicant might also dump construction waste in the forest, which may cause impacts to her property. She stated that the colour of the water in her pond has changed, which she attributes to dumping and waste migrating from the subject property.

17Ms. Johnston expressed concerns that drainage of septic waste from the Applicant’s greenhouse and stormwater from the subject property may be running off onto her property and causing impacts. She said further study is needed in this regard.

18Ms. Johnston also expressed concerns regarding the current exterior lighting at the subject property. She stated that in the wintertime the Applicant’s lights may affect birds. She said trees should be planted to block these lights from the view of neighbours. She questioned whether the conditions in the development permit would ever be enforced.

The Applicant’s Evidence and Submissions

19Ms. Irek stated that the proposed development permit has nothing to do with the Appellant’s concerns. She stated that the Appellant is not happy with the Applicant’s cannabis operations, which are not directly related to the proposed development. She said septic issues associated with the greenhouse and waste issues associated with the agricultural operations on the subject property are separate issues from those associated with the proposed development. She said septic waste from the greenhouse is pumped to a holding tank. Regarding lighting concerns, she said there are shades that are used on the roof and sides of the greenhouse that are designed to protect the night sky.

ANALYSIS AND FINDINGS

20In her appeal form, the Appellant includes in her reasons for the appeal that the subject property is zoned as agricultural and not for a residential dwelling. She states that with the proposed walkout basement as part of the proposed development, there could be drainage issues which could affect neighbouring properties. She raises concerns regarding sewage disposal and drinking water contamination due to the Applicant’s agricultural operations on the subject property and the dumping of agricultural waste products on the subject property. She also raises issues relating to exterior lighting on the subject property and its impacts on the night sky and neighbouring residents.

21The subject property is designated as Escarpment Protection Area and Escarpment Natural Area under the Niagara Escarpment Plan. The proposed development would be located entirely within the Escarpment Protection Area in which a single dwelling and accessory uses are permitted, subject to the development criteria set out in Part 2 of the Niagara Escarpment Plan.

22Niagara Escarpment Protection Areas are designated because of their visual prominence and their environmental significance. The objectives of this designation, as set out in s. 1.4.1 of the Niagara Escarpment Plan, are to:

• maintain and enhance the scenic resources and open landscape character of the Escarpment;

• provide a buffer to prominent Escarpment features;

• recognize, protect and where possible enhance the natural heritage system associated with the Niagara Escarpment Plan area and protect natural areas of regional significance;

• conserve cultural heritage resources, including features and areas of interest to First Nation and Métis communities;

• encourage forest management, compatible recreation, conservation and educational activities; and

• encourage agriculture and protect agricultural lands and prime agricultural areas.

23The Tribunal finds that the development permit conforms with these objectives. It will facilitate development that maintains and enhances the character of the area, continues to provide a buffer, protects the natural heritage system and features, and co-exists with agricultural uses. Permitted uses in the Niagara Escarpment Protection Area include single dwellings and agricultural uses. Although the Appellant has expressed concerns regarding drainage, impacts of lighting, and dumping on the subject property, she provided no evidence that the proposed development would cause these problems. The conditions to the development permit include the requirement for a Final Site Plan to be approved by the Commission, which will address drainage, grading, erosion, and construction waste issues, and address specific details relating to the proposed development, such as exterior lighting.

24Among other general criteria, s. 2.2 of the Plan allows for one single dwelling on an existing lot of record and requires that development on lands with more than one designation under the Plan must be located in the least restrictive designation. These requirements have been satisfied in the present case. Regarding the policies in s. 2.7 of the Plan on development affecting natural heritage, their objectives are to protect and, where possible, enhance natural heritage features and functions to maintain the diversity and connectivity of the continuous natural environment. Ms. Tansony stated that the part of the subject property on which the development is proposed is a disturbed area that contains agricultural uses and the existing dwelling. Although the proposed development encroaches into the ANSI, a single dwelling and accessory facilities are permitted in these features under s. 2.7.2. Section 2.7.2 states that development is not permitted in key natural heritage features with the exception of, among other things, development of a single dwelling and accessory facilities outside a wetland on an existing lot of record, provided that the disturbance is minimal and, where possible, temporary. Based on the evidence before the Hearing Office, the proposed development satisfies these criteria.

25Regarding consistency with the PPS, the proposed development lies within an ANSI, but based on the evidence before the Hearing Office, there will be no negative impacts on natural features or their ecological functions. The evidence before the Hearing Office is that the Significant Woodland on the subject property is 100 m from the site of the proposed development and, based on Ms. Tansony’s uncontradicted evidence, there are not expected to be any negative impacts on the woodland or species at risk from the proposed development. The Hearing Office finds that the development permit is consistent with the PPS.

CONCLUSIONS

26The Hearing Office finds that the development permit conforms with the provisions of the Niagara Escarpment Plan, 2017 and is consistent with the PPS, 2020. The Hearing Office finds that the decision of the Commission to issue the development permit was correct and should not be changed. The Hearing Office finds that the Commission’s decision to conditionally approve the development permit is confirmed.

ORDER

27The Hearing Officer orders that:

1. The appeal is dismissed.

2. The decision of the Niagara Escarpment Commission to conditionally approve the Applicant’s Development Permit Application N/R/2015-2016/52 is deemed to be confirmed pursuant to s. 25(12) of the Niagara Escarpment Planning and Development Act.

“Hugh S. Wilkins”

hugh s. wilkins

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.