Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 09, 2022
CASE NO(S).: OLT-21-001795
PROCEEDING COMMENCED UNDER section 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Appellant: Richard Fogler
Applicant: Jamie Besner
Respondent: Niagara Escarpment Commission
Subject of appeal: Appeal of a Development Permit Application to construct a two storey plus walkout single dwelling
Reference No.: D/R/2021-2022/227
Property Address/Description: 835128 4th Line EHS
Municipality: Town of Mono
Upper Tier: Dufferin County
OLT Case No.: OLT-21-001795
OLT Case Name: Fogler v. Ontario (Niagara Escarpment Commission)
Heard: April 27, 2022 by video hearing
APPEARANCES:
| Parties | Representative |
|---|---|
| Jamie Besner | Self-represented |
| Niagara Escarpment Commission | Kim Peters |
| Richard Fogler | No one appeared |
REPORT BY WARREN MORRIS DELIVERED BY THE TRIBUNAL
1The Tribunal Member constitutes as Hearing Officer and the Tribunal functions as the Niagara Escarpment Hearings Office (“NEHO”) for appeals under the Ontario Tribunal Act.
2The matter before the NEHO is an appeal of a Development Permit issued to:
- demolish an existing 242 square metres (“m2”) (2,605 square feet (“ft2”)) single dwelling;
- construct a two storey plus walkout ± 744 m2 (± 8,008 ft2) single dwelling (including attached garage), having a maximum height of ± 13.1 metres (“m”) (± 43 feet (“ft’)), plus porches/decks/terraces totaling ± 90 m2 (970 ft2);
- restore an existing ± 341 m2 (3,670 ft2) accessory building (barn) having a maximum height of ± 10 m (33 ft), including repairing walls and roof, insulating, and undertaking safety upgrades for personal recreational use;
- construct a ± 61 m2 (660 ft2) deck addition to the existing barn;
- construct a ± 74 m2 (800 ft2) swimming pool with a ± 81 m2 (872 ft2) deck;
- construct a ± 744 m2 (8,008 ft2) driveway extension, measuring ± 49 m (160 ft) in length; and,
- install a new private sewage disposal system.
3The NEC conditionally approved the Development Permit Application on November 4, 2021.
4The concern expressed in the Appellant’s appeal was that the height permitted (+/- 43 m (sic)) was not consistent with the Niagara Escarpment Plan (“NEP”) in that the visual impact was not being minimized as required by the NEP.
5The scheduled event before the NEHO was a Case Management Conference (“CMC”). Both the Applicant and the NEC Representative appeared on the video conference at the appointed time of 10 a.m. No one appeared on behalf of the Appellant. The Hearing Officer held down the matter awaiting the Appellant and requested the Tribunal Case Coordinator attempt to contact the Appellant. The Case Coordinator informed the Hearing Officer that contact had been made and that the Appellant would not be attending. The Hearing Officer reconvened the CMC at 10:30 a.m.
6Once the CMC reconvened, the Appellant still had not appeared. With the consent of the parties, the event was converted to a Hearing.
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 LEGISTLATION AND RULES
8The relevant legislation and rules of the Ontario Land Tribunal’s Rules of Practice and Practice Directions (“Rules”), which apply to appeals under the Niagara Escarpment Planning and Development Act (“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 of 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.
(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).
EVIDENCE
9At the hearing, Kim Peters, Manager and Senior Strategic Advisor for the NEC, was called to testify under oath. Ms. Peters provided details of her professional qualifications as a planner and provided a copy of her Curriculum Vitae, which is entered as Exhibit 1. Ms. Peters presented her credentials as a professional land use planner with a particular expertise in the policies and practice related to the NEP. The Hearing Officer accepted Ms. Peters’ credentials and found her qualified as an expert in the field of planning with expertise in the NEC. Since Ms. Peters had not been expecting to testify, the usual Acknowledgement of Expert’s Duty form had not been signed. The Hearings Officer reviewed with Ms. Peters the expert’s duties as set out in the form and Ms. Peters agreed to all its terms.
10Ms. Peters testified that she and a former NEC Senior Planner signed off on the NEC Director’s Approval for the development permit based on the NEC staff report. Ms. Peters stated that although there is no specific height limitation set out in the NEP, visual impact of a development is a consideration. In instances where there are concerns with visual impact of a development, the NEC may require a visual impact study. Ms. Peters reviewed the 43-foot height of the proposed development and did not see anything unusual and therefore opined that the NEC decision was consistent with the NEP. She did note that had the proposed height been 43 metres as opposed to 43 feet, she may well have required a visual impact study. Ms. Peters further testified that relevant partner agencies, including the Town of Mono, were contacted and had no objection to the requested development permit as the approval was consistent with its zoning and other requirements. Ms. Peters clarified how the structures height is calculated from its lowest point of grade to peak, such that for the subject property with a walkout basement, the actual height of the front of the structure would be considerably less than the maximum 43 feet allowed in the development permit.
11Ms. Peters concluded by stating it was her opinion that the approval of the development permit was reasonably correct and noted that the approval was still conditional on the Applicant satisfying the site plan, design details and other items listed in the approval.
12The Applicant agreed with the testimony of the NEC and chose not to present additional evidence. There was no evidence on behalf of the Appellant as the Appellant failed to attend the hearing.
DECISION
13The Hearings Officer accepts the evidence presented by the NEC.
14The Hearing Officer finds that the NEC's decision to conditionally approve the Applicant’s Development Permit Application No. D/R/2021-2022/227, is correct and should not be changed. This appeal is dismissed and pursuant to s. 25(12.1) of NEPDA, the decision of the NEC is deemed to be confirmed.
“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.