Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 21, 2023
CASE NO(S).: OLT-22-004275
PROCEEDING COMMENCED UNDER subsection 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2
Appellant: Neighbours on Centre Road
Applicant: Tyler Bax
Respondent: Niagara Escarpment Commission
Subject: Approval of a Development Permit Application
Description: Single dwelling construction, installation of a private disposal system, and construction of a driveway and parking area
Reference Number: M/R/2021-2022/689
Property Address: Part Lot 22, Concession 1 W
Municipality/Upper Tier: Township of Mulmur, County of Dufferin
OLT Case No.: OLT-22-004275
OLT Lead Case No.: OLT-22-004275
OLT Case Name: Neighbours on Centre Road v. Ontario (NEC)
Heard: February 10, 2023 by Video Hearing
APPEARANCES:
| Parties | Representative |
|---|---|
| Tyler Bax | Self-represented |
| Neighbours on Centre Rd. | Carl Cosack |
| Niagara Escarpment Commission | Kim Peters |
MEMORANDUM OF ORAL DECISION DELIVERED BY JENNIFER CAMPBELL ON FEBRUARY 10, 2023 AND ORDER OF THE TRIBUNAL
1This Decision arises from a Case Management Conference (“CMC”) brought before the Ontario Land Tribunal (in its role as the Niagara Escarpment Hearing Office (the “Hearing Office”)) regarding the appeal brought by Neighbours on Centre Rd. (the “Appellant”) in regards to the conditional approval by the Niagara Escarpment Commission (the “Respondent”) of a development permit application providing for single dwelling construction, installation of a private disposal system and construction of a driveway and parking lot area at the property located at Part Lot 22, Concession 1 W in the Township of Mulmur (“Township”), County of Dufferin (“County”), Ontario.
2At the CMC, Mr. Bax (the “Applicant”) requested Party Status, and the Parties discussed the identification of issues to be adjudicated at a hearing as well as opportunities for settlement discussions and potential hearing dates.
3Mr. Bax is the Applicant for the development permit. His request for Party status was on consent. The Hearing Office found that the Applicant 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 the Applicant as a Party and granted him Party status, as requested.
4The Parties discussed the identification of the issues to be adjudicated at a hearing. No draft Procedural Order (“PO”) had been submitted to the Tribunal in advance of the CMC and the Parties had not prepared an Issues List. With the assistance of the Hearing Office, the Parties proceeded to discuss and narrow the issues, as follows:
i) The Applicant confirmed that it has no objection to the size of the proposed parking lot and circular driveway, however it does have concerns with respect to the use of hard surface paving. Kim Peters confirmed that any potential paving of the area had not yet been assessed by the Respondent and if the Applicant wishes to proceed with paving, he would need to apply for a separate development permit. As a result, the Applicant agreed that hard surface paving was not an issue to be addressed at a hearing in this matter.
ii) The Applicant then provided submissions concerning the proposed relocation of the driveway in order to preserve the topography of the area, and specifically requested that the entrance to the driveway be relocated closer to an existing entrance to a neighbouring gravel pit. The Applicant did not concur with the relocation. The Respondent submitted that (i) the Township had identified the current location of the driveway as the safest option; (ii) a landscape architect had been engaged to review the grading and scenic resources and although some changes to the topography will be required, the changes are not considered excessive; and (iii) the relocation proposed by the Applicant would require a significantly longer driveway entailing more fill and potentially more paving, thereby having a greater impact on the agricultural land. As the Parties were not in agreement with respect to this matter, it remains outstanding as an issue to be addressed at the hearing.
iii) The Parties discussed the tree planting plan, and the Applicant confirmed that he was in agreement, and would comply, with the conditions of the development permit which prescribe restrictions regarding tree height. The Appellant expressed concern regarding views from a neighbouring property, and the Applicant agreed to provide a copy of his landscaping plan to the Appellant within approximately two weeks, with a view to addressing any concerns in this regard. The Parties were optimistic that they could resolve this issue prior to the hearing.
iv) The Applicant then noted certain comments from the County making reference to policies of the Nottawasaga Conservation Authority that may apply to the proposed development, and inquired why they were not included in the conditions specified by the Respondent. The Respondent advised that this was standard language, and the Nottawasaga Conservation Authority had not identified any of their policies that needed to be addressed in the development permit. In addition, the Respondent confirmed that it had conducted its own analysis and confirmed that no natural heritage features would be adversely impacted by the proposed development, so no Environmental Impact Statement would be required. Accordingly, the Parties agreed this was not an issue to be adjudicated at a hearing.
v) The Parties then discussed several potential areas of environmental concern raised by the Ministry of Environment, Conservation and Parks relating to subsurface sewage disposal systems, water quality, private wells, the neighbouring gravel pit and species at risk. The Respondent reviewed its policies and the results of its review with respect to each of these items, and the applicable conditions which had been incorporated into the conditional development permit in relation to such matters. Following the discussion, the Applicant confirmed it would not be pursuing this matter as an issue to be adjudicated at a hearing.
vi) The Appellant then raised an issue regarding an insufficient berm surrounding the neighbouring gravel pit. The Applicant indicated that the berm in the original site plan will be restored. The Respondent referenced legislation which requires adequate separation between gravel pits and developments (which may include a berm), but noted that it was inapplicable, in this instance, as the neighbouring gravel pit predates the Applicant’s residence and the Applicant is well aware of the existence of the berm. Further, the Respondent noted that the neighbouring gravel pit is a “low use” operation, and a notation will be placed on title to the property to advise future owners of its existence. Accordingly, the Parties agreed that this was not an issue to be adjudicated at a hearing.
5Accordingly, after discussion, the Parties agreed that the issues to be adjudicated at a hearing could be narrowed to those set forth in paragraph 4(ii) above, and paragraph 4(iii) if agreement could not be reached on the tree planting plan prior to a hearing.
ORDER
6The Hearing Office orders that Tyler Bax is a Party in this proceeding.
7The Hearing Office orders that a final Procedural Order and Issues List be filed by the Parties by April 21, 2023.
8The Hearing Office orders that a hearing will be held by video hearing on Wednesday, May 3, 2023 commencing at 10 a.m.
9Parties are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
https://global.gotomeeting.com/join/719383509
Access code: 719-383-509
10Parties are asked to set up the video hearing application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.
11Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: Toll-Free 1-888-299-1889 or +1 (647) 497-9373. The Access Code is as indicated above.
12Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Hearing Office’s Case Coordinator having carriage of this case.
13There will be no further notice.
14This Hearing Officer is not seized.
“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.