Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 06, 2022
CASE NO(S).: OLT-22-002854
PROCEEDING COMMENCED UNDER section 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2
Appellant: Peter Chant
Appellant: Shari Mann
Applicant: Hong Peng Zhang
Subject: Approval of a Development Permit Application
Description: To construct a one storey structure accessory to the single dwelling (metal frame greenhouse with plastic sheeting placed on existing raised garden beds/boxes)
Reference Number: H/R/2021-2022/568
Property Address: 2471 No. 1 Side Road
Municipality/UT: Burlington/Halton
OLT Case No.: OLT-22-002854
OLT Lead Case No.: OLT-22-002854
OLT Case Name: Chant v. Ontario (Niagara Escarpment Commission)
Heard: July 26, 2022 by video hearing
APPEARANCES:
| Parties | Representative |
|---|---|
| Peter Chant | Self-represented |
| Shari Mann | Self-represented |
| Hong Peng Zhang | Self-represented |
| Niagara Escarpment Commission | Amaraine Laven |
REPORT BY JENNIFER CAMPBELL DELIVERED BY THE TRIBUNAL
INTRODUCTION
1This Decision arises from a hearing (the “Hearing”) before the Ontario Land Tribunal (in its role as the Niagara Escarpment Hearing Office) (the “Hearing Office”) regarding an appeal by Peter Chant and Shari Mann (the “Appellants”) concerning the conditional approval by the Niagara Escarpment Commission (the “Respondent”) of a development permit application by Hong Peng Zhang (the “Applicant”) to construct a one-storey accessory structure consisting of a metal frame greenhouse at 2471 No. 1 Sideroad, in the City of Burlington (the “Subject Property”).
2Mr. Zhang is the Applicant for the development permit. His request for Party status was on consent. The Hearing Office found that Mr. Zhang has a genuine and direct interest in the proceeding, will be impacted by the Hearing Office’s decision, and will assist the Hearing Office in making its decision. The Hearing Office found that there are reasonable grounds to add Mr. Zhang as a Party and granted him Party status, as requested.
3The Appellants Mr. Chant and Ms. Mann own properties which are located across the street and next door to the Subject Property, respectively. Mr. Zhang is the owner of, and resides at, the Subject Property. Mr. Zhang is a computer engineer by trade, and engages in gardening on the Subject Property as a hobby.
4Mr. Zhang maintains a small vegetable garden in the side yard of the Subject Property, and wishes to erect a metal frame greenhouse with plastic sheeting over the garden to protect the vegetables from seasonal frost (the “Proposed Development”). Mr. Zhang indicated that he occasionally sells products from his garden at a small stand located at the Subject Property.
5The Niagara Escarpment Commission (the “NEC”) conditionally approved the Proposed Development pursuant to a notice of decision dated February 24, 2022 (the “Development Permit”).
ISSUES
6The issues to be addressed are whether the Proposed Development meets the requisite development criteria set forth in the Niagara Escarpment Plan (2017) (the “NEP 2017”) and the Ontario Provincial Policy Statement, 2020 (the “PPS”).
EVIDENCE AND SUBMISSIONS
7In support of the Proposed Development, the Applicant filed (i) a staff report prepared by Amaraine Laven on behalf of the NEC, dated February 2, 2022 (the “Staff Report”); and (ii) photographs of the Subject Property illustrating its proximity to the properties of each of the Appellants and the site of the Proposed Development.
Submissions
8Mr. Chant testified that although he was not strictly opposed to the Proposed Development, he was concerned that its location to the side of the Subject Property would create an eyesore, particularly if the greenhouse employed excessive lighting. He further expressed concern that the Applicant may begin selling product more frequently at the Subject Property, thereby increasing traffic on No. 1 Sideroad. Mr. Chant also queried whether the Proposed Development would have any impact on local well water.
9Ms. Mann expressed many of the same concerns as Mr. Chant, notably that the erection of the Proposed Development would be in full view of her abutting property and any glare from the greenhouse would impact upon the enjoyment of her property. Ms. Mann also expressed concern with the potential for increased traffic on No. 1 Sideroad as a result of the sale of produce at the Subject Property, and noted that there had been previous compliance issues at the Subject Property relating to a former horse farm located at the property.
10Mr. Zhang testified that the Proposed Development will consist of a metal framed greenhouse, with plastic sheeting and no excessive lighting. Accordingly, he did not anticipate any negative impact as a result of either glare or lighting issues. Mr. Zhang also presented photographs of the Subject Property, which illustrated the distance between the Proposed Development and the Appellants’ properties, as well as related views between such properties which were partially obstructed by brush and trees. Mr. Zhang testified that although he occasionally sells produce from his garden, it is primarily a hobby garden for personal use.
11Ms. Laven, a senior strategic advisor 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. Ms. Laven provided an overview of the Development Permit, noting that the Subject Property is located in an area designated as an Escarpment Protection Area pursuant to the NEP 2017.
12Ms. Laven noted that the Applicant had indicated that the greenhouse is for personal use at this time, however, he also indicated a possible intention to sell items in the future. Ms. Laven advised that the cultivation of soil is exempt from the requirement for a Development Permit further to paragraph 8 of section 5 of Ontario Regulation 828/90, and the installation of a portable, seasonal farm produce stand or market structure accessory to general agricultural development is also exempt under paragraph 5.11 subject to specific criteria. Accordingly, Ms. Laven confirmed that should the Applicant wish to grow items for sale to the public in the future at a farm stand within this greenhouse, he would not require additional approvals. However, because of the immediate proposed use, the Proposed Development was classified as accessory to a single dwelling. Ms. Laven further confirmed that the development of a structure accessory to a single dwelling is permitted within the Escarpment Protection Area in accordance with the NEP 2017.
13Ms. Laven then reviewed the Staff Report, of which she is the author. The Staff Report stated that the Proposed Development is minor in nature, is not located within 30 metres of any key hydrologic or natural heritage feature and will be constructed with no foundation or grading required. Accordingly, Ms. Laven testified that the Proposed Development was unlikely to have any negative impact on groundwater. She further testified that the Subject Property is not within an area regulated by a conservation authority, and the prior compliance issue with respect to the Subject Property has been treated as resolved. Ms. Laven also confirmed that one of the conditions of the Development Permit required that any exterior site lighting associated with the Proposed Development be minimal, subdued, of low height and downward facing, to ensure there was no resulting infringement of the enjoyment of neighbouring lands.
14Ms. Laven advised that the NEC had not given consideration to traffic matters in the Staff Report, as they were not relevant planning considerations for a small greenhouse being erected on an existing garden bed for personal use.
15In conclusion, Ms. Laven confirmed that the Proposed Development does not conflict with the relevant provisions of the NEP 2017 and is consistent with the PPS.
16Ms. Laven further testified that she is of the view that the conditions set forth in the Development Permit are appropriate.
Relevant Legislation and Rules
17The 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.
Findings
18Based on Ms. Laven’s uncontested opinion evidence, the Hearing Officer finds that the Development Permit does not conflict with the provisions of the NEP 2017 and is consistent with the PPS. The Hearing Officer is 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.
DECISION
19The Hearing Officer directs that:
The appeals are dismissed.
The decision of the Niagara Escarpment Commission to conditionally approve the Applicant’s Development Permit Application H/R/2021-2022/568 is deemed to be confirmed pursuant to s. 25(12) of the Niagara Escarpment Planning and Development Act.
“Jennifer Campbell”
jennifer campbell
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.