Ministry of Natural Resources Office of the Minister 99 Wellesley Street West Room 6630, Whitney Block Toronto ON M7A 1W3 Tel: 416-314-2301
Ministère des Richesses naturelles Bureau du ministre 99, rue Wellesley Ouest Bureau 6630, Édifice Whitney Toronto ON M7A 1W3 Tél.: 416 314-2301
93-2024-1181
September 12, 2024
Kevin Bambrough kbambrough@me.com
DECISION
made pursuant to subsection 25(14) of the Niagara Escarpment Planning and Development Act
Niagara Escarpment Hearing Office Case No. OLT-22-004713
NEC File No.: G/R/2022-2023/25
Dear Kevin Bambrough:
RE: An appeal by Paul Szymanski of the Niagara Escarpment Commission’s approval of an application for a development permit made by Kevin Bambrough to construct an accessory structure and install a new private sewage system and water supply line on the property located at 569649 6th Sideroad, Part Lot 7, Concession 2, Collingwood Township, Town of the Blue Mountains, County of Grey.
Pursuant to section 25 of the Niagara Escarpment Planning and Development Act, a Hearing Officer of the Ontario Land Tribunal conducted a hearing at which representations were made respecting the NEC’s decision on the above-noted application. The Hearing Officer has reported to me a summary of the representations together with the Hearing Officer’s opinion on the merits of the decision.
After considering the Hearing Officer’s report (copy attached), I vary the decision of the Niagara Escarpment Commission and approve a Development Permit to construct a two-storey accessory structure with a maximum area of 900 square metres and a maximum height of 11 metres and install a new private sewage system and a 48.8 metre water supply line, subject to the attached conditions, and direct the Niagara Escarpment Commission to issue same.
Sincerely,
The Honourable Graydon Smith Minister of Natural Resources
Attachment
c: Shawn Carey, Director, Niagara Escarpment Commission - shawn.carey@ontario.ca
Paul Szymanski - p.szymanski@sympatico.ca Anne-Marie Widner - amwidner14@gmail.com Jasper Group Inc. - shalea@jaspergroup.ca
Conditions of Approval-- 569649 6th Sideroad, G/R/2022-2023/25
Development shall occur in accordance with the Terms and Conditions of the Development Permit.
The Development Permit shall expire three (3) years from the date it has been issued or once the development has been completed in accordance with the Development Permit.
No site alteration of the existing contours of the property including the placement or stockpiling of fill (i.e., excess or imported soil) on the property is permitted with the exception of that identified within the development envelope in accordance with the Final Site Plan.
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.
If development has commenced under this Development Permit, any/all disturbed areas of land or soil shall be re-vegetated and stabilized to the satisfaction of the Niagara Escarpment Commission on or before the date of expiry of the Development Permit.
Prior to the issuance of a Development Permit by the Niagara Escarpment Commission, an accurate and detailed Final Site Plan prepared by a qualified person shall be submitted for Niagara Escarpment Commission approval. The following stipulation shall be included directly on the Plan:
a) The Final Site Plan shall be prepared by a qualified professional;
b) All drawings submitted must be drawn to scale (bar scale shown), reference the application number and address of the proposal, be dated (revisions as well), and include the name of the relevant individual or consultant who prepared the drawing;
c) Outline of the approved development envelope / extent of all disturbed areas;
d) Location of all existing and proposed structures, sewage disposal system, well/cistern, driveway, construction access / haul routes, exterior lighting, etc. showing setbacks from the property lines, wooded areas, etc.;
e) Grading, drainage, and fill management details including the areas of excavation and temporary or permanent fill placement. The type, quantity, quality and source location of any imported fill material must be accurately identified.
f) Identify the areas of existing vegetation to be retained, areas of vegetation to be removed, and the location of proposed plantings.
Development shall proceed in accordance with the details of the approved Final Site Plan.
Prior to the issuance of a Development Permit by the Niagara Escarpment Commission, the landowner shall submit for the approval of the Niagara Escarpment Commission, final construction details for the proposed development, including exterior elevations, total floor area, floor plans, height to roof peak from lowest grade, and any exterior lighting. Development shall proceed in accordance with the details of the approved Final Construction Details.
Prior to the issuance of a Development Permit, the landowner shall (at the landowner’s expense), enter into an Agreement (to be registered on title) with the Niagara Escarpment Commission pursuant to Section 24(2.1) of the Niagara Escarpment Planning and Development Act, that shall include terms confirming that the new accessory structure approved in this Development Permit (maximum area of 900 square metres and maximum height of 11 metres) shall be used only in a manner that is incidental and subordinate to the single dwelling residential use on the property, shall not contain full kitchen facilities, shall not be used as secondary dwellings or short or long-term vacation rentals, and shall not be used for commercial, industrial, institutional, or livestock purposes.
Conditions 6, 7 and 8 must be fulfilled within eighteen (18) months from the date of the Minister’s decision to approve this development permit or this conditional approval shall lapse, and a Development Permit shall not be issued.
Advisory Notes
a) A Development Permit does not relieve the permit holder of any other permission (e.g., Ontario Building Code, Conservation Authorities Act, Endangered Species Act, etc.). A Niagara Escarpment Commission Development Permit is required prior to the issuance of any other permission.
b) The Niagara Escarpment Commission supports the protection of the night sky from excessive lighting and recommends the applicant obtain information on the use and operation of appropriate lighting fixtures in keeping with dark sky approaches.
c) Should deeply buried archaeological remains/resources be found on the property during construction activities, the Heritage Operations Unit of the Ontario Ministry of Tourism, Culture and Sport (MTCS) shall be notified immediately. In the event that human remains are encountered during construction, the owner shall immediately notify the police.
ISSUE DATE:
July 15, 2023
CASE NO(S).:
OLT-22-004713
PROCEEDING COMMENCED UNDER subsection 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Appellant:
Paul Szymanski
Applicant:
Kevin Bambrough
Respondent:
Niagara Escarpment Commission
Subject of appeal:
Approval of a Development Permit Application to construct an accessory structure, a new private sewage system, and water supply line on existing lot with existing single dwelling
Reference Number:
G/R/2022-2023/25
Property Address:
569649 6th Sideroad
Municipality/Upper Tier:
Town of The Blue Mountains, County of Grey
OLT Case No.:
OLT-22-004713
OLT Lead Case No.:
OLT-22-004713
OLT Case Name:
Szymanski v. Ontario (Niagara Escarpment Commission)
Heard:
March 16, 2023 by video hearing
APPEARANCES:
Parties
Representative
Paul Szymanski
self-represented
Anne-Marie Widner
self-represented
Kevin Bambrough
self-represented
REPORT DELIVERED BY HUGH S. WILKINS AND ORDER OF THE TRIBUNAL
Link to Recommendations
INTRODUCTION
1This proceeding consists of an appeal brought by Paul Szymanski (“Appellant”) regarding the conditional approval by the Niagara Escarpment Commission (“NEC”) of a development permit issued to Kevin Bambrough (“Applicant”) regarding a proposed development on the property located at 569649 6th Sideroad (“subject property”), in the Town of The Blue Mountains (“Town”).
2The NEC conditionally approved the proposed development permit on October 26, 2022. The proposed development permit would allow for the construction of a 1,263.7 square metre (“m2”) accessory structure with a maximum height of 15 metres (“m”) on the subject property along with a new private sewage system and a 48.8 m water supply line. The subject property is 10.1 hectares (“ha”) in size with a 1,640 m2 dwelling located on it. The dwelling is 11.5 m tall. The subject property is designated Escarpment Rural Area and Escarpment Natural Area under the Niagara Escarpment Plan, 2017 (“NEP”). The site of the proposed structure is solely within the Escarpment Rural Area designation.
3At the hearing, Marie-Anne Widner, who is the Appellant’s spouse, requested Party status. The Applicant did not oppose Ms. Widner’s request and I granted her Party status as requested.
4The NEC did not attend the hearing.
ISSUES
5The issue to be determined in an appeal of a development permit approval is whether the NEC’s decision to approve the permit is correct and should not be changed. In considering this issue, the Hearing Officer must determine whether the proposed development permit conforms with the NEP, is consistent with the Provincial Policy Statement, 2020 (“PPS”), and complies with the applicable statutory and regulatory requirements under the Niagara Escarpment Planning and Development (“NEPDA”).
EVIDENCE AND SUBMISSIONS
Evidence and Submissions of the Appellant and Ms. Widner
6The Appellant and Ms. Widner submit that the proposed development permit should not be confirmed because: (1) the proposed structure is not an accessory structure permitted under the NEP’s Escarpment Rural Area designation; (2) the proposed development permit is not consistent with the objectives of the NEP and PPS; (3) a condition to the proposed development permit requiring the execution of a restrictive covenant would not be an effective tool for controlling the use of the proposed structure; and (4) the water usage at the proposed structure has not been assessed and would impact the local aquifer.
Permitted Uses
7Ms. Widner stated that NEP policy 1.5.3.11 lists the permitted uses of accessory structures in Escarpment Rural Area designated areas. It is proposed that the accessory structure would facilitate multiple uses including pickleball, recreational vehicle (RV) storage, a gym and yoga studio, and volleyball change rooms and storage areas. Ms. Widner said this variety of uses goes beyond those listed in the NEP. She said “accessory use” is defined in the NEP as “the use of any land, building, structure or facility that is naturally and normally incidental, subordinate, and exclusively devoted to the principal use located on the same lot”. She stated that the proposed structure would be excessively large and would not be naturally and normally incidental, subordinate, and exclusively devoted to the dwelling on the subject property.
Objectives of the NEP and PPS
8Ms. Widner submitted that the proposed development permit is not consistent with the objectives of the NEP and PPS. She submitted that NEP Objective 4 is to maintain and enhance the open landscape character of the Niagara Escarpment in so far as possible. She stated that “open landscape character” is defined in the NEP as “the system of rural features, both natural and human-made, that makes up the rural environment, including forests, slopes, streams, valleylands, hedgerows, agricultural fields, agricultural buildings and other features of similar character and scale”. She said the scale and height of the proposed structure is not consistent with the existing local features or similar in scale to agricultural buildings in the area. Similarly, she stated that NEP policy 1.5.1 on the general objectives for the Escarpment Rural Area includes the maintenance of open landscape character of the Escarpment and the provision of compatible rural land uses. She said “compatible” is defined in the NEP as “where the building, structure, activity or use blends, conforms or is harmonious with the Escarpment environment”. She stated that the proposed structure would not be a typical rural land use and it should not be permitted.
9Ms. Widner stated that NEP Objective 7 is to support municipalities within the NEP area in the exercise of their planning functions. She stated that the Town’s Zoning By-law No. 2018-65 restricts the height of accessory buildings to 4.5 m (5 m for garages). She stated that the proposed structure would be 15 m tall and would contravene this zoning requirement.
10Ms. Widner also referred to NEP policy 2.2.1, which states that “the Escarpment environment shall be protected, restored and where possible enhanced for the long term having regard to single, multiple or successive development that have occurred or are likely to occur”. She said the proposed development permit would set a precedent for the development of other large accessory buildings in the area, which should be avoided.
11Regarding consistency with the PPS, Ms. Widner stated that PPS policy 1.1.4 sets out objectives for rural areas and policy 1.1.5.4 addresses compatibility. She stated that policy 1.1.4.1(a) states that healthy, integrated and viable rural areas should be supported by building upon rural character, and leveraging rural amenities and assets. She said PPS policy 1.1.5.4 states that development should be promoted that is compatible with the rural landscape and can be sustained by rural service levels. She stated that large buildings such as the proposed structure are more appropriate in urban areas and not on the subject property. She stated that the road on which the subject property is located is gravel and is not designed for the heavy traffic associated with large events. She said that such use of the road and the subject property are not compatible with the rural landscape character of the area.
Restrictive Covenant
12The Appellant stated that the proposed development permit includes a condition, which states:
Prior to the issuance of a Development Permit, the landowner shall (at the landowner’s expense), enter into an Agreement (to be registered on title) with the Niagara Escarpment Commission pursuant to Section 24(2.1) of the Niagara Escarpment Planning and Development Act, that shall ensure that all accessory buildings shall be used in a manner that is incidental and subordinate to the single dwelling residential use on the property, shall not contain full kitchen facilities, shall not be used as secondary dwellings or short or long-term vacation rentals, and shall not be used for commercial, industrial, institutional, or livestock purposes.
13He stated that the Applicant has in the past promoted commercial operations at his spouse’s property adjacent to the subject property, including catering and DJ services and the use of that site as a wedding venue. He said the proposed structure would make the subject property attractive for a range of commercial uses, which would be difficult to monitor and enforce.
Water Issues
14The Appellant stated that the proposed structure would include a sewage system and water line, which could have impacts on the local water supply. He said a water usage assessment should have been required as part of the development permit approval process.
Evidence and Submissions of the Applicant
15The Applicant stated that the proposed structure would have minimal impacts. He said that no environmental concerns were raised by the agencies that commented on the proposed development permit. He said much of the subject property is forested and noted that the site of the proposed structure would be in an old gravel pit and hidden from public view. He said water usage would be limited to bathroom uses and there would be no commercial uses permitted in the proposed structure. He stated that he applied for permission to build a large building so that he could negotiate down the size of the structure with the NEC. He said that he would be happy with a smaller structure that is 900 m2 in area and 11 m in height.
ANALYSIS AND FINDINGS
16When adjudicating a development permit appeal under s. 25 of the NEPDA, the Hearing Officer must determine whether the NEC’s decision granting the permit is correct and should not be changed. When making this determination, the Hearing Officer must assess whether the proposed permit conforms with the NEP, is consistent with the PPS, and complies with any other applicable statutory and regulatory requirements.
17The site of the proposed development on the subject property is designated as Escarpment Rural Area under which accessory uses are permitted. Examples of accessory uses listed in NEP policy 1.5.3.11 include a garage, a swimming pool, tennis courts, ponds, or signs. This is not an exhaustive list. I find that the Applicant’s proposed uses align well with those listed in policy 1.5.3.11. RVs are stored in garages, pickleball is often played on tennis courts, change rooms often accompany swimming pools, and storage is a common use for accessory buildings. All of the proposed uses are activities linked to the principal use of the subject property, which is residential. Although the Appellant alleges that commercial activities have occurred on an adjacent property owned by the Applicant’s spouse, I find that unpermitted uses on a neighbouring property with a different landowner do not form the basis for denying a development permit. I note that commercial uses are prohibited under the proposed development permit and the occurrence of any such uses would be an enforcement issue to be addressed by the NEC.
18NEP Objective 4 is to maintain and enhance the open landscape character of the Escarpment. The proposed structure would be 1,263.7 m2 in size with a height of 15 m. I agree with Ms. Widner that the scale and height of the proposed structure is not consistent with the existing local features or similar in scale to most other buildings in the area. An accessory building of this size would not blend, conform or be harmonious with the Escarpment environment or character of forests, slopes, streams, agricultural buildings and other features of similar character and scale. The Applicant stated at the hearing that he is willing to reduce the size and height of the proposed structure to 900 m2 in area and 11 m in height (to the building’s peak) (“revised proposal”). This is a substantial reduction in the massing and height of the proposed structure and, accordingly, would better blend-in with existing local features and would be more consistent with the scale of most other buildings in the area. The site of the proposed structure is a former gravel pit lying 5 m below the existing dwelling on the subject property and 8 m to 9 m below the driveway entrance from 6th Sideroad. The subject property and the site of the proposed structure also are well screened from the road by vegetation. I find that the Applicant’s revised proposal would be compatible with the local area and, located in a former gravel pit, the proposed smaller and shorter structure would blend in and be harmonious with the Escarpment environment.
19Regarding the application of NEP Objective 7 on supporting municipalities within the NEP area in their exercise of their planning functions, Policy B2.13 of the Town’s Official Plan sets an 11 m maximum height for accessory buildings and policy 4.3(j) of Zoning By- law No. 2018-65 restricts the height of garages in Rural zones to 5 m. The Town’s Official Plan and Zoning By-law do not apply to the subject property; however, based on NEP Objective 7, the Hearing Officer should take into account the Official Plan policies and zoning standards for the Town’s comparable areas. The revised proposal of a 11 m tall structure should conform with the Official Plan’s policies regarding height. It would still exceed the height standards set out in the zoning by-law; however, the evidence before me is that such a structure would have minimal impacts on the environment and neighbours and would be largely hidden from public view. Given these factors, I find that the approval of the Applicant’s revised proposal would support the Town in the exercise of its planning functions.
20Regarding the possibility of setting a precedent and the application of NEP policy 2.2.1, I note that each development permit application is assessed based on its own merits. The location and impacts of each proposed development are unique and the consideration of a NEP development permit should not be focused on whether similarly sized structures have been or could be permitted nearby. The Tribunal finds that based on the limited projected impacts of the revised proposal and the unique characteristics of the site, the revised proposal should not create a precedent for future development in the area.
21Regarding consistency with the PPS, PPS policy 1.1.4.1(a) states that healthy, integrated and viable rural areas should be supported by building upon rural character and leveraging rural amenities and assets. Policy 1.1.5.4 states that development that is compatible with the rural landscape and can be sustained by rural service levels should be promoted. Given the evidence before me that the proposed structure contemplated by the Applicant’s revised proposal would be located in a former gravel pit and largely hidden from public view, the limited environmental and other impacts of the project, and the lack of impacts on rural services, I find that a development permit allowing the Applicant’s revised proposal is consistent with PPS policies 1.1.4.1 and 1.1.5.4.
22As noted above, the activities at neighbouring properties with different landowners generally have little bearing on the determination of whether a development permit should be granted. If an applicant has a confirmed history of non-compliance with NEP requirements, this could be taken into account, but in the present case there is no compelling evidence of non-compliance by the Applicant in his use of the subject property. Should there be non-compliance with the proposed development permit’s conditions, this would be an enforcement issue to be addressed by the NEC.
23Regarding the Appellant’s concerns that the proposed structure would cause impacts to the local water supply, these concerns were not substantiated with evidence. I note that the NEC and the commenting agencies did not raise water supply concerns. The Appellant did not present any studies to substantiate his water supply concerns or point to any policy requirements in this regard.
RECOMMENDATIONS
24The opinion of the Hearing Officer on the merits of the Niagara Escarpment Commission’s (“NEC”) decision regarding the proposed development permit is that the NEC decision should not be confirmed.
25The Hearing Officer recommends approval of a revised conditional development permit for an accessory structure of no more than 900 square metres in area and 11 metres in height. The Hearing Officer recommends that all of the other conditions be applied as approved by the NEC in its decision.
“Hugh S. Wilkins”
HUGH S. WILKINS HEARING OFFICER
Ontario Land Tribunal
Website: 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.