Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 06, 2022
CASE NO(S).: OLT-21-001430
PROCEEDING COMMENCED UNDER section 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2
Appellant: Isabel Holmes (File No. 001568)
Appellant: Jeff Holmes (File No. 001569)
Applicants: Kevin and Donna Walter
Respondent: Niagara Escarpment Commission
Subject of appeal: The Approval of a Development Permit Application, with conditions, to construct a single dwelling including attached garage and porch, install a private sewage disposal system, a driveway, and temporary construction access on an existing vacant lot
Reference No.: M/R/2020-2021/672
Property Address/Description: 706329 County Road 21
Municipality: Township of Mulmur
Upper Tier: County of Dufferin
OLT Case No.: OLT-21-001430
NEHO Case Name: Holmes v. Ontario (Niagara Escarpment Commission)
Heard: March 15, 2022 by Video Hearing
APPEARANCES:
| Parties | Representative |
|---|---|
| Isabel and Jeff Holmes | Jeff Holmes, Self-represented |
| Kevin and Donna Walters | Self-represented |
| Jane Pepino | Self-represented |
| Niagara Escarpment Commission | Jenna Skinner, Ken Hare, and Rachel McPherson-Duncan |
REPORT DELIVERED BY warrEN MORRIS AND ORDER OF THE TRIBUNAL
1Tribunal Members constitute Hearing Officers and the Tribunal functions as the Niagara Escarpment Hearing Office (“NEHO”) for appeals under the Niagara Escarpment Planning and Development Act (“NEPDA”).
2The matter before the NEHO is an appeal of a Development Permit issued to construct a one-and-a-half storey (plus walk-out), ± 423 square metres (“m²”) (4,550 square feet (“ft²”)) single dwelling including attached garage and porch, with a height-to-peak of ± 11.5 metres (“m”) (37.5 feet (“ft”)), install a private sewage disposal system, a driveway, and a temporary construction access, on a 0.72 hectares (“ha”)(1.79 acres (“ac”)) existing vacant lot (“subject property”). The Niagara Escarpment Commission (“NEC”) conditionally approved the Development Permit Application in August of 2021.
3The Appellants’ property is on the south side of County Road 21, directly opposite the subject property. The Appellants are concerned about the discrepancy in building size and how this also compares to past development permit applications. It is the Appellants’ position that the Application does not maintain and enhance the open landscape character of the Niagara Escarpment and the proposal will create a visual impact onto County Road 21.
4At the first Case Management Conference (“CMC”) held before the Tribunal on December 2, 2021, Jane Pepino a neighbouring property owner was granted party status in the appeal proceeding. At the CMC, the presiding Members and parties agreed that the primary concerns of the Appellants and Ms. Pepino relating to visual impacts and site design could potentially be addressed through Tribunal-led mediation.
5A confidential mediation session was held on March 1, 2022. A second mediation session was scheduled for March 15, 2022. Prior to the March 15, 2022, mediation session, the Parties communicated to the NEHO that they were near settlement and would likely be requesting that the March 15, 2022 event be converted into a settlement hearing.
6At the March 15, 2022, mediation session, the lone minor outstanding issue was quickly resolved and the Parties requested that the event be converted into a settlement hearing. The mediator advised the Parties that he had been exposed to confidential settlement discussions and therefore, could not assume the role of NEHO Hearing Officer unless all the Parties consented. All the Parties consented to the mediator, as a member of Ontario Land Tribunal, acting as the Niagara Escarpment Hearing Officer.
ISSUE
7The issue is whether the NEC’s decision to conditionally approve the application for a development permit would be correct and should not be changed.
RELEVANT LEGISLATION AND RULES
8The relevant legislation and rules of the Ontario Land Tribunal’s Rules of Practice and Procedure (“Rules”), which apply to appeals under the NEPDA in this situation, are:
25(12.1) The decision of the delegate shall be deemed to be confirmed if,
(a) the decision of the delegate was a decision to issue a development permit;
(b) the parties who appeared at the hearing have agreed on all the terms and conditions that should be included in the development permit and all of these terms and conditions are set out in the report of the officer under subsection (11); and
(c) the opinion of the officer expressed in his or her report under subsection (11) is that, if the decision of the delegate included the terms and conditions referred to in clause (b), the decision would be correct and should not be changed.
Same
(12.2) If subsection (12.1) applies, the decision of the delegate shall be deemed to be a decision to issue the development permit with the terms and conditions referred to in clause (12.1) (b).
Ontario Land Tribunal’s Rules of Practice and Procedure
12.1. Procedure if Settlement Before Hearing Event The Tribunal may hold a hearing on the terms of a settlement if the parties in the proceeding agree to a settlement prior to a hearing event. The Tribunal may issue any directions to the parties necessary to ensure compliance with all statutory requirements, or to assist the Tribunal, prior to convening the settlement hearing. If all the statutory requirements and the public interest are satisfied, the Tribunal may issue an order approving the settlement, with any necessary amendments.
EVIDENCE
9At the settlement hearing, counsel for the NEC, Rachel McPherson-Duncan, called NEC Senior Planner, Jenna Skinner, to testify. Ms. Skinner provided details of her professional qualifications as a planner, including a review of her signed Acknowledgement of Expert Duty. Ms. McPherson-Duncan requested that Ms. Skinner be qualified as an expert. The other Parties did not oppose. The Hearing Officer found Ms. Skinner to be a qualified expert in the field of planning.
10In her testimony, Ms. Skinner opined that the NEC appropriately considered the Provincial Policy Statement, the NEC policy and the Official Plan. Ms. Skinner stated that relevant partner agencies, including the City of Dufferin, the Township of Mulmur and the Nottawasaga Conservation Authority, were contacted and had no objection to the requested development permit. Ms. Skinner reviewed the conditions of approval attached to the development permit indicating that several of the conditions had been satisfied. Minutes of Settlement that included the Development Permit with conditions were filed as Exhibit 1. Ms. Skinner concluded that the decision of the NEC to issue the conditional development permit was correct and should not be changed.
11The Appellants, the Applicants and the other Party chose not to present evidence since they were all in general agreement.
DECISION
12The Hearing Officer finds that the NEC's decision to conditionally approve the Applicant’s development permit application No. M/R/2020-2021/672, is correct and should not be changed. Pursuant to section 25(12.1) of the Niagara Escarpment Planning and Development Act, the decision of the NEC is deemed to be confirmed.
13It should be noted the terms and conditions set out in the Minutes of Settlement (Exhibit 1) constitute a private agreement among the Parties, and are attached to the Decision at the request of the Parties.
“Warren Morris”
warrEN MORRIS
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.