Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 02, 2022
CASE NO(S).: OLT-22-002116
PROCEEDING COMMENCED UNDER section 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.3
Appellant: Jonathon Bozanich
Applicant: Jamie Kristjanson and Elzbieta Andrejkow
Subject: Approval of a Development Permit Application
Description: To construct a second storey addition onto an existing one storey single dwelling, and replace a covered deck and porch on an existing lot that is municipally serviced
Reference Number: N/R/2021-2022/503
Property Address: 75 Melrose Drive
Municipality/UT: Niagara-on-the-Lake/Niagara
OLT Case No.: OLT-22-002116
OLT Lead Case No.: OLT-22-002116
OLT Case Name: Bozanich v. Ontario (Niagara Escarpment Commission)
Heard: July 28, 2022 by video hearing
APPEARANCES:
Parties Counsel/Representative*
Jonathon Bozanich George Radojcic*
Niagara Escarpment Commission Cheryl Tansony
Jamie Kristjanson and Elzbieta Andrejkow Self-Represented
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 Land Tribunal Act.
2The matter before the NEHO is an appeal of a development permit in regard to an addition to an existing residential structure at 75 Melrose Drive in the Town of Niagara-on-the-Lake (“NOTL”). The proposed addition consists of the construction of a ±1,883 square foot second storey addition with a height to peak of ±28.8 feet onto an existing single dwelling, to replace a ±336 square foot covered deck and a ±157 square foot covered porch, on a lot of 0.69 acres.
3The Niagara Escarpment Commission (“NEC”) conditionally approved the Development Permit Application on January 6, 2022.
4The concern expressed in the Appellant’s appeal was twofold. Firstly, the Appellant alleged that the Applicants were in contravention of both the Development Approval’s Conditions and a Town of NOTL by-law by removing large trees from the property. Secondly, the Appellant claims that the removal of trees coupled with the two-storey addition create a significant negative impact on his family’s privacy and quiet enjoyment of their neighbouring property.
ISSUES
5The issue is whether the NEC’s decision to conditionally approve the application for a development permit would be correct and should not be changed. More specifically, did the NEC properly consider:
i. the removal of trees, and
ii. the privacy concerns of the neighbouring property,
when granting the conditional approval of the development permit.
RELEVANT LEGISTLATION AND RULES
6The relevant legislation and rules of the 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) 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 section (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.
EVIDENCE AND SUBMISSIONS
Niagara Escarpment Commission
7At the hearing, the Hearing Officer noticed that only one person appeared on behalf of the NEC. As such, the Hearing Officer briefly described the general rule prohibiting an individual from acting as both advocate and witness in the same proceeding. The NEC representative was given the option of being an advocate on behalf of the NEC – providing argument and submissions only, without adducing evidence – or being a witness, providing evidence as “a friend to the Tribunal” by way of sworn testimony, but no delivery of argument/submissions. Cheryl Tansony, appearing on behalf of the NEC, chose to act as a witness.
8Ms. Tansony began her testimony by presenting her professional credentials with a view to being qualified as an Expert Witness in the field of planning and Niagara Escarpment Plan (“NEP”) policy. The Appellant consented to Ms. Tansony being qualified as an Expert Witness. The Tribunal qualified Ms. Tansony to provide opinion evidence in land use planning.
9Ms. Tansony filed the NEC Staff Report as Exhibit 1 and highlighted aspects of the report. It was noted that the property is located within the Minor Urban Centre designation of the NEP and that the residential use is permitted by both the local and regional official plans. The proposed development will take place within a manicured lawn area; thus the NEC staff does not anticipate any negative impact to the surrounding natural heritage features. It was Ms. Tansony’s opinion that the proposed development is consistent with the Escarpment Protection Area Objectives and Development Criteria in Part 2 of the NEP.
10Ms. Tansony testified that the Town of NOTL was consulted and had no objection to the development, subject to a requirement that if any trees be removed for the new construction, the Town’s urban tree by-law and permits for removal should be obtained.
11In response to cross-examination questioning, Ms. Tansony acknowledged the following: that the neighbour’s concerns were not considered in the NEC decision; that there was no tree inventory taken by the NEC; the NEC did not perform a site inspection but rather a desk review only; there was no analysis by the NEC of the trees affecting the neighbour’s property; there was not public consultation; there was no need for a landscape plan; the NEC has no privacy policy with respect to neighbouring properties; the NEC decision process would be no different for a new build on a vacant lot, although it could have required further study; that non-compliance with tree removal is outside the scope of her duties, but that the NEC does have a compliance department to deal with such complaints; that condition of site plan approval could require replacement/enhancement of the landscaping; and that when the NEC assesses the visual impact of a development, it considers the impact from public spaces, but not neighbouring private properties.
12Upon re-examination, Ms. Tansony clarified that at the time the development application was being considered for approval, the NEC was not aware of the alleged removal of six trees near the property border. It was only upon the receipt of the appeal that the NEC became aware of removal of trees. The NEC staff followed up with the owners in regard to the location and reason for the tree removal. Based on the response, the NEC was satisfied that there were three trees removed, and each was exempt from requiring an NEC Development Permit. One tree was removed due to its roots interfering with a sump pump. The other two trees were taken down due to the hazard they posed from damage sustained in a windstorm in December of 2021.
Appellant
13The Appellant’s counsel, George Radojcic, called upon the Appellant, Jonathon Bozanich, a neighbouring homeowner, to testify. Originally, Mr. Bozanich testified that the Applicants cut three trees on their property after the development permit was issued. In cross-examination, he clarified that he noticed the three trees missing in the fall of 2021. Mr. Bozanich filed the Applicants’ initial submission into evidence as Exhibit 2 and the Applicants’ supplemental submissions as Exhibit 3. Mr. Bozanich described how he purchased the property in 2017 and was attracted by the mature trees creating privacy for his property along the boundary with the subject property. Mr. Bozanich made reference to a number of photographs in Exhibit 3, all of which were taken between 2015 and 2018. The photographs show that there were a number of mature trees that appear to be just barely on the Applicants’ property and forming a natural barrier between the Appellant’s and Applicants’ lot line boundary, just beyond the Appellant’s tennis court fence. Mr. Bozanich testified that five of these trees are no longer there. He acknowledged that these five trees were removed prior to the Applicants’ purchase of the subject property in May of 2021, and prior to the Town of NOTL’s tree by-law.
14Mr. Radojcic, made submissions that his client’s primary goal was not to deprive his neighbour from proceeding with their development, but rather a good faith effort to address his client’s privacy concerns. Mr. Radojcic submitted that Condition 4 of the Development Permit stated that “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”. Mr. Radojcic submitted that his client will be impacted by the proposed development and should therefore have input into the Final Site Plan. His client is seeking the restoration of the removed trees to remediate the loss of privacy his client has suffered.
Applicants
15Jamie Kristjanson spoke on behalf of the Applicants. Mr. Kristjanson chose not to call any witnesses nor present any evidence, but rather relied on the evidence presented by the NEC.
16Mr. Kristjanson submitted that the allegations made by the Appellant in this appeal – that the Applicants had removed six mature trees along the lot line, and three additional trees closer to the house – was false and misleading. Mr. Kristjanson submitted that the evidence established that the removal of the six mature trees was done prior to the Applicants’ purchasing their home. The other three trees were properly removed as the Applicants notified the Town of NOTL and complied with the tree by-law. Mr. Kristjanson commented that it was unfortunate that his first contact with the Appellant on the tree issue consisted of receiving a lawyer’s business card from his neighbour. Finally, Mr. Kristjanson commented on costs, and specifically cited Rule 23.9(h) which references “…knowingly presenting false or misleading evidence…” as an example of potential unreasonable, frivolous, vexatious or bad faith conduct that may attract costs.
ANALYSIS AND FINDINGS
17The Hearing Officer is to determine whether the NEC’s decision to issue a Conditional Development Permit was correct, specifically with respect to whether the NEC gave proper consideration to i) the removal of trees at the subject property; and ii) the privacy concerns of the Appellant at an adjacent property.
Tree Removal
18Most of the evidence presented at the hearing pertained to the location of, and the timing of, tree removal on the subject property. The Appellant has raised concern about a number of mature trees, which for ease of reference will be referred to as the boundary trees and other trees closer to the subject home.
19The evidence presented in Exhibits 2 and 3, coupled with the submissions made by both the Appellant and the Applicants, make it very clear that the boundary trees were removed from the subject property significantly prior to the Applicants’ ownership of the subject property. Consequently, the removal of the boundary trees is in no way related to the proposed development permit. The Appellant cross-examination questions appear to infer that the NEC has an obligation to inspect properties, take inventory of trees, and/or ensure that remediation takes place in order to preserve/restore the natural landscape within the NEP area. The Hearing Officer finds no such obligation. The Appellant has failed to present evidence of any legislation, regulation, or policy that requires the NEC or the Applicants to remediate or restore/removed trees within a Minor Urban Centre designation of the NEP. As such, the Hearing Officer finds that the NEC’s issuance of the Conditional Development Permit is correct despite that the previously removed boundary trees were not considered.
20In regard to the other trees closer to the home on the subject property, the evidence is clear that these three trees were removed prior to the issuance of the Conditional Development Permit. Shortly after issuance, once the NEC was made aware of the removal of these three trees, the NEC took steps to investigate and satisfy itself that the removal of these trees was exempt from requiring an NEC Development Permit. The relevant regulation under NEPDA is Ontario Regulation 828/90, as amended in paragraph 13 (ii) and (iii) of Section 5, which exempts the application of legislation affecting tree cutting, where the tree constitutes a safety hazard or the tree is damaged by natural causes. The Hearing Officer accepts the expert evidence of the NEC representative and therefore finds that the removal of the other trees closer to the home were exempt, and therefore do not impact the correctness of the NEC decision to issue a Conditional Development Permit.
Privacy Concerns
21The Appellant’s submissions clearly indicate that his primary motivation to launching this appeal was to restore the tree screening he once had between his property and the subject property. In addition, the Appellant wishes to have input into the Final Site Plan (Condition 8 of the Development Permit) with the hope of regaining some of the tree screening that has been lost over the years. The Appellant claimed that the NEP requires the NEC to consider the visual impact of development and to maintain natural heritage. While it is correct the NEC is to consider visual impact of development, the Appellant failed to provide any legislation, regulation, or policy that requires the NEC or the Applicants to maintain privacy between neighbours for properties located within a Minor Urban Centre designation of the NEP. The expert evidence of the NEC was that the visual impact that the NEC is to consider is strictly from public vantage points and not from private properties such as the Appellant’s. The Hearing Officer accepts the evidence of the NEC and finds that the NEC’s failure to consider neighbour privacy does not render its decision as incorrect.
DECISION
22The Appellant has failed to provide sufficient evidence, rules, policy or other legal basis to satisfy the Hearing Officer that the NEC decision was not correct. Further, the Hearing Officer accepts the evidence presented by the NEC.
23As such, the Hearing Officer finds that the NEC's decision to conditionally approve the Applicants’ Development Permit Application No. N/R/2021-2022/503, is correct and should not be changed. This appeal is dismissed and pursuant to s. 25(12) of NEPDA, the decision of the NEC is deemed to be confirmed.
POSTSCRIPT RE: COSTS
24In their submissions, the Applicants make reference to Rule 23.9 and a claim for costs. In accordance with Rule 23.3, the Hearing Officer will not consider costs at this time as there was insufficient material to make a costs determination. The Hearing Officer will only consider a claim for costs if the procedure outlined in the rest of Rule 23 are followed. More specifically, if the Applicants wish to make a claim for costs, they must make the request in writing with proper notification (Rule 23.1) containing all the relevant details within 35 days (Rule 23.4 (b)).
25The Hearing Officer wishes to caution the Applicants that unlike civil legal proceedings in the court system, costs awards are not routinely granted to the successful party in the proceeding. For administrative tribunals, a costs award is an exception and reserved for the most egregious cases.
“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.