Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 13, 2022
CASE NO(S).: OLT-21-001740
PROCEEDING COMMENCED UNDER section 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2
Appellant: Johnnie Nielsen (File No. 003216)
Applicant: Don MacDow
Respondent: Niagara Escarpment Commission
Subject of appeal: Approval of a Development Permit Application to undertake interior renovations to an existing accessory building to convert it into a washroom facility for an on-farm diversified use (event venue) on an existing lot
Reference No.: P/C/2020-2021/415
Property Address/Description: 16847 Heart Lake Road
Municipality: Town of Caledon
Upper Tier: Region of Peel
OLT Case No.: OLT-21-001740
OLT Case Name: Nielsen v. Ontario (Niagara Escarpment Commission)
Heard: June 15, 2022 by video hearing
APPEARANCES:
Parties
Counsel
Johnnie Nielsen
Jona Kuner
Niagara Escarpment Commission
Demetrius Kappos
Don MacDow
Self-represented
REPORT DELIVERED BY J. CAMPBELL AND HUGH S. WILKINS AND ORDER BY THE TRIBUNAL
1This Decision arises from a hearing brought before the Ontario Land Tribunal (in its role as the Niagara Escarpment Hearing Office) (“Hearing Office”) regarding the appeal brought by Johnnie Nielsen ("Appellant") regarding the approval by the Niagara Escarpment Commission (“NEC”) of Development Permit Application P/C/2020-2021/415 (the “Development Permit”) issued to Don MacDow to undertake interior renovations to an existing accessory building to convert it into a washroom facility for an on-farm diversified use (event venue) on an existing lot.
2At a prior case management conference held on May 6, 2022, the following matters were identified as the issues to be determined by the Hearing Office in this appeal:
Is the applied-for proposed development in conformity with the purpose, objectives and policies of the Niagara Escarpment Plan (2017), in particular the following Development Criteria: General Development Criteria (2.2), Natural Heritage (2.7), Agriculture (2.8), Scenic Resources (2.13), and Water Quality and Quantity (2.6.9)?
Is the applied-for proposed development consistent with the Provincial Policy Statement (2020), in particular sections 2.1 and 1.1.4.1(g)?
3The subject property is a 24.3 hectare (“ha”) (59.9 acre) existing lot located on the east side of Heart Lake Road, between Grange Sideroad and Escarpment Sideroad. The lands consist primarily of gently rolling fields, with elevated and rolling topographic conditions concentrated along the north part of the property. A watercourse, with associated wetland and woodland features, extends through the most easterly part of the property. An additional watercourse is located near the southern boundary of the property.
4The existing development at the subject property is comprised of a single dwelling, a large barn (approved as an event facility), several small accessory buildings and a small hobby farm component. A centralized sewage treatment system is located in an open grassed area due east of the dwelling and south of the barn. The Applicant is proposing to renovate an existing detached accessory building on the subject property (the “Existing Structure”) to convert the structure into usable washroom facilities for guests of the commercial event venue.
5Brandon Henderson, a planner with the NEC, was qualified by the Hearing Office to provide opinion evidence as an expert in land use planning, without opposition by any of the Parties. Mr. Henderson provided an overview of the Development Permit, and explained that a previously issued Development Permit No. 11786P/C/2018-2019/263 (the “2020 Development Permit”) approved the Existing Structure and voided a prior Development Permit No. 11408/P/C/2015-2016/162.
6Mr. Henderson further explained that a portion of the subject property is designated as Escarpment Protection Area and the adjacent portion is designated as Escarpment Rural Area. The proposed development is to occur within the Escarpment Rural Area, which is the less restrictive designation and allows for on-farm diversified use subject to the development criteria specified in Part 2 of the Niagara Escarpment Plan (2017) (the “NEP 2017”).
7Mr. Henderson then reviewed the staff report of the NEC dated April 20, 2021 (the “Staff Report”), of which he is the author. The Staff Report stated that the proposal does not conflict with the relevant provisions of the NEP 2017 and is consistent with the Provincial Policy Statement, 2020 (“PPS, 2020”), stating more particularly as follows:
the proposed development will utilize the Existing Structure which is distanced approximately 190 m from the key natural heritage features on the easterly portion of the property. Given the distance, NEC staff do not anticipate any negative impacts to key natural heritage features or Species-at-Risk habitat;
the total area of the on-farm diversified use is presently 3,626 square metres and through this proposal will expand to 3,665 square metres, which is less than 2 per cent of the farm lot as mandated by Part 2.8.7 of the NEP 2017;
as the proposal will utilize an existing building within an already developed farm cluster, NEC staff do not anticipate any visual impacts as a result of the proposal; and
the proposed work will be limited to the re-use of an historical barn as an event venue with the provision for accessory facilities, and will not extend any closer to surrounding key natural heritage features.
Mr. Henderson also testified that conditions 9 to 18 in the 2020 Development Permit limit the intensity of use of the event facility by restricting the frequency, size and nature of events to be held thereat. He concluded that the proposed development is consistent with sections 1.1.4.1(g) and 2.1 of the PPS, 2020, and that the Development Criteria of Parts 2.2 (General Development Criteria), 2.7 (Natural Heritage), 2.8 (Agriculture) and 2.13 (Scenic Resources) of the NEP 2017 have been addressed.
8Mr. Henderson advised that the NEC had not included reference to section 2.6.9 (Water Quality and Quantity) in the Staff Report due to the distance of the proposed development to nearby key hydrologic features. The nearest mapped watercourse is approximately 145 metres (“m”) south of the proposed development, while the watercourse with associated wetland and woodland features near the eastern part of the property is located more than 300 m northeast of the development envelope. He stated that the proposed development would not impact these features.
9He noted that the proposed upgrade to the sewer system associated with the proposed development is exempt from the requirement to obtain an NEC development permit pursuant to section 5.14 of Ontario Regulation 828/90, as amended, but is subject to approval of the Ministry of the Environment, Conservation and Parks (“MECP”). The Applicant provided a letter dated October 9, 2020 from Vincent Bulman, M.S.c., P.Geo. who acts as a Senior Hydrogeologist at the MECP. The letter reviewed the subject property, existing private sewage treatment system, and the proposed private sewage treatment system, and provided an opinion that the discharge from the proposed upgraded sewage treatment system would be an improvement over the current system, and the nitrate-N concentration at the downgradient property boundary would decrease from ~20mg/L to ~12mg/L. Ultimately, the recommendation from MECP staff was to issue the requisite approval for the septic system.
10Taking into consideration the letter from Mr. Bulman, Mr. Henderson is of the opinion that the proposed new septic system will result in an improvement to the existing system and no negative impacts are anticipated, given the distance to key hydrological features on the subject property. Mr. Henderson concluded that the proposed development has met the Development Criteria of Part 2.6.9 (Water Quality and Quantity) of the NEP 2017.
11Mr. Henderson further testified that he is of the view that the conditions and advisory notes set forth in the Development Permit are appropriate.
Relevant Legislation and Rules
12The relevant provisions in s. 25 of the Niagara Escarpment Planning and Development Act are as follows:
Hearing officer
25 (6) Where the Minister receives notice of a decision under subsection (5), the Minister may, within 14 days after the notice of the decision is sent by regular or registered mail or by email or is served personally, request the Lieutenant Governor in Council to appoint an officer for the purpose of conducting a hearing at which representations may be made respecting the decision.
Report
(11) Within 30 days after the conclusion of the hearing or within such longer period as the Minister may permit, the officer appointed shall report to the Minister a summary of the representations made, together with his or her opinion on the merits of the decision.
Deemed confirmation
(12) The decision of the delegate shall be deemed to be confirmed if,
(a) the opinion of the officer expressed in his or her report under subsection (11) is that the decision of the delegate was correct and should not be changed; and
(b) the decision of the delegate was not appealed by a municipality.
Power of Minister
(14) If the decision of the delegate has not been deemed to be confirmed under subsection (8.3), (9), (10.2), (12) or (12.1), the Minister, after giving consideration to the report of the officer, may confirm the decision or may vary the decision or make any other decision that in his or her opinion ought to have been made and the decision of the Minister under this section is final.
Discussion, Analysis and Findings
13Based on Mr. Henderson’s uncontested opinion evidence, the Hearing Officers find that the Development Permit does not conflict with the provisions of the NEP 2017 and is consistent with the PPS, 2020. Mr. Henderson’s testimony was uncontested and the Tribunal did not receive any evidence from either the Appellant or Mr. MacDow. The Hearing Officers are of the opinion that the decision of the NEC in issuing the Development Permit was correct and should not be changed and the decision of the NEC to conditionally approve the Development Permit should be confirmed.
ORDER
14The Hearing Officers order that:
The appeal is dismissed.
The decision of the Niagara Escarpment Commission to conditionally approve the Applicant’s Development Permit Application P/C/2020-2021/415 is deemed to be confirmed pursuant to s. 25(12) of the Niagara Escarpment Planning and Development Act.
“J. Campbell”
J. campbell
HEARING OFFICER
“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.