Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 21, 2023
CASE NO(S).: OLT-22-004392
PROCEEDING COMMENCED UNDER subsection 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2
Appellant: Joan McDonald
Applicants: Dave and Suzanne Kochan
Respondent: Niagara Escarpment Commission
Subject: Conditions of Approval of a Development Permit
Description: Demolish existing accessory facility shed, to construct a new accessory facility including storage loft with deck/porch, bathroom and garage/workshop, construct laneway extension, removal of existing vegetation to facilitate construction on existing lot
Reference Number: D/R/2022-2023/39
Property Address: 833542 4th Line EHS
Municipality/Upper Tier: Township of Mono, County of Dufferin
OLT Case No.: OLT-22-004392
OLT Lead Case No.: OLT-22-004392
OLT Case Name: McDonald v. Ontario (NEC)
Heard: January 26, 2023 by Video Hearing
APPEARANCES:
| Parties | Representative |
|---|---|
| Joan McDonald | Self-represented |
| Dave and Suzanne Kochan | Self-represented |
| Niagara Escarpment Commission | Janet Sperling |
REPORT DELIVERED BY JENNIFER CAMPBELL AND ORDER OF THE TRIBUNAL
1This Decision arises from a hearing (“Hearing”) brought before the Ontario Land Tribunal (in its role as the Niagara Escarpment Hearing Office (“Hearing Office”)) regarding the appeal brought by Joan McDonald (the “Appellant”) relating to the conditional approval by the Niagara Escarpment Commission (“NEC”) of a development permit application for the demolition of an existing accessory facility shed, the construction of a new accessory facility shed including a storage loft with a deck/porch, bathroom and garage/workshop, the construction of a laneway extension and the removal of vegetation to facilitate the construction, at the property located at 833542 4th Line EHS in the Township of Mono, Ontario (the “Subject Property”).
2At the Hearing, Dave and Suzanne Kochan (collectively, the “Applicants”) requested Party status. The Applicants are the applicants for the development permit in question. Their request for Party status was on consent. The Hearing Office found that the Applicants have 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 the Applicants as a Party and granted them Party status, as requested.
3The Appellant called Kirsten Chapman as her first non-expert witness. Ms. Chapman resides north of the Subject Property. Through her testimony, Ms. Chapman raised concerns regarding (i) the removal of trees to facilitate the proposed construction at the Subject Property, and its impact on the scenery protection criteria set forth in the Niagara Escarpment Plan (the “NEP”); (ii) noise pollution from a generator maintained on the Subject Property; and (iii) whether the new accessory structure would be used for human habitation, particularly with reference to the inclusion of bathroom facilities in the new structure.
4The Appellant was then sworn in and provided direct testimony to the Hearing Office regarding concerns over the removal of vegetation, much of which had been previously planted and maintained by the Appellant.
5The Appellant then called Janet Sperling to provide expert testimony regarding several of the matters at issue in this Hearing. Ms. Sperling reviewed her qualifications as an expert for the Hearing Office, which indicated significant experience in planning and development matters including her registration as an Ontario Landscape Architect and work experience as a planner with the Respondent. The qualification of Ms. Sperling as an expert was on consent. After review, the Tribunal found that Ms. Sperling had sufficient expertise in planning matters and duly qualified her to provide expert testimony in this matter.
6Ms. Sperling reviewed the conditional development permit issued for the Subject Property, and testified that the Subject Property was located within the region designated by the NEP as the Niagara Escarpment Protection Area (“NEPA”). She confirmed that the proposed development is located within an existing development envelope, and that it constitutes a permitted use within the NEPA.
7Ms. Sperling also confirmed that human habitation in the accessory structure is not a permitted use, as stipulated by one of the conditions of the development permit. She also confirmed this condition prohibits short or long term rentals of the structure for human habitation purposes.
8With regard to the removal of vegetation, Ms. Sperling testified that vegetation may only be removed within the building envelope, which is located some distance from the road, and that sufficient visual buffering had been incorporated into the development plan. She further testified that the removal of vegetation permitted by the conditional approval complies with the NEP, and also noted that further permissions are required to be obtained by the Applicant with respect to (i) a tree protection plan to provide fencing protection around trees that will not be removed; and (ii) a soil and erosion plan to address sediment control matters. Ms. Sperling confirmed that in her view, the conditions set forth in the conditional development permit were appropriate.
9The Applicants then provided testimony to the Hearing Office concerning the vegetation to be removed, noting that most of the vegetation consisted of overgrowth and trees with trunks measuring less than 6 inches in diameter. Mr. Kochan also indicated willingness to work with the Appellant to select the trees to be removed in accordance with the proposed development plan, and to discuss the use of his generator which he estimated incurred a run time of approximately 1.5 hours per day.
10The Hearing Office accepts the expert testimony of Ms. Sterling, which was almost entirely unchallenged. As a result and upon review, the Hearing Office is unable to identify any elements of the conditional approval permit which do not adequately conform to the applicable provisions of the NEP. Accordingly, the Hearing Office concludes that the conditional development permit issued by the Respondent conforms with the applicable provisions of the NEP, and the appeal should be dismissed.
ORDER
11The Appellant has failed to provide sufficient evidence, rules, policy or other legal basis to satisfy the Hearing Officer that the Niagara Escarpment Commission’s (“NEC”) decision was incorrect. Further, the Hearing Officer accepts the evidence presented by the NEC.
12As such, the Hearing Officer finds that the NEC's decision to conditionally approve the Applicants’ Development Permit Application No. D/R/2022-2023/39 is correct and should not be changed. The Hearing Officer orders that the appeal is dismissed and pursuant to s. 25(12) of Niagara Escarpment Planning and Development Act, the decision of the NEC is deemed to be confirmed.
“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.