Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 04, 2023
CASE NO(S).: OLT-22-004714
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: Cathy and Jeremy Wentworth-Stanley
Applicant: 1864288 Ontario Inc.
Respondent: Niagara Escarpment Commission
Subject of appeal: Approval of a Development Permit Application to demolish seasonal dwelling, construct new dwelling, accessory building, and new driveway on existing lot
Reference Number: G/R/2018-2019/9031
Property Address: 689035 Sideroad 18
Municipality/UT: Town of The Blue Mountains, County of Grey
OLT Case No.: OLT-22-004714
OLT Lead Case No.: OLT-22-004714
OLT Case Name: Wentworth-Stanley v. Ontario (Niagara Escarpment Commission)
Heard: March 9, 2023 via video hearing
APPEARANCES:
Parties
Counsel/Representative*
Cathy and Jeremy Wentworth-Stanley (“Appellants”)
Self-represented*
1864288 Ontario Inc. (“Applicant”)
Frederick Shaw
REPORT DELIVERED BY N. Eisazadeh AND hugh s. wilkins and order of the Tribunal
INTRODUCTION
1Tribunal Members constitute Hearing Officers and the Tribunal functions as the Niagara Escarpment Hearing Office (“NEHO”) for appeals under the Niagara Escarpment Planning and Development Act (“NEPDA”).
2The matter before the NEHO is an appeal brought by Cathy and Jeremy Wentworth-Stanley (“Appellants”) regarding the conditional approval by the Niagara Escarpment Commission (“NEC”) of development permit application G/R/2018-2019/9031 (“Development Permit”) issued to 1864288 Ontario Inc., pertaining to the property municipally known as 689035 Sideroad 18 (“Subject Lands”), located in the Town of The Blue Mountains, County of Grey.
3The Development Permit allows the demolition of an existing 30.2 square metre- (“sq m”) seasonal dwelling, construction of a new two-storey (651 sq m) dwelling with a maximum height of 7.3 metre (“m”), retention and incorporation of an existing observatory building into the new dwelling, construction of a one-storey (465 sq m) accessory building (barn/storage building) having a maximum height of 7.3 m, utilization of the existing private sewage disposal system and well, and the construction of a new driveway with an entrance from 6th Line, on a 40-hectare existing lot (“Proposed Development").
4In addition to the Subject Lands, the Applicant also owns an abutting property to the east of the Subject Lands, located at 689073 18th Sideroad, Clarksburg, Ontario, where she resides (“Abutting Lands”).
5The Appellants own and reside on an approximately 200-acre property located at 556281 6th Line, Clarksburg, Ontario, that also abuts, at least in part, the Subject Lands (“Appellant Lands”).
6The NEC conditionally approved the Development Permit pursuant to a notice of decision dated November 2, 2022.
ISSUES
7Pursuant to s. 25(12) and (14) of the NEPDA, the issue to be determined in this appeal is whether the NEC’s decision to conditionally approve the application for a development permit is correct and should not be changed.
8Determining the correctness of the NEC’s decision, and any required changes, necessitates an analysis as to whether the Development Permit conforms with the Niagara Escarpment Plan, 2017 (“NEP 2017”), is consistent with the Provincial Policy Statement, 2020 (“PPS”) and complies with the applicable statutory and regulatory requirements under Niagara Escarpment Planning and Development Act.
EVIDENCE AND SUBMISSIONS
Evidence of Mr. Sandy Dobbyn
9In order to assist the NEHO in its analysis and deliberations, it requested the attendance of NEC Senior Strategic Advisor and Senior Planner, Sandy Dobbyn. Mr. Dobbyn was called in the capacity as a Friend of the NEHO, to provide fact evidence on his Staff Report dated October 31, 2022, which recommends the conditional approval of the Proposed Development. Mr. Dobbyn testified that he adopts the information and recommendations set out in his Staff Report, which was filed as Exhibit 1.
10Mr. Dobbyn stated that the Subject Lands are designated under the NEP 2017 as an Escarpment Protection Area and an Escarpment Natural Area. He said the site of the Proposed Development is located in the Escarpment Protection Area, which is the least restrictive designation of the two. He said the Proposed Development is a permitted use under this designation, subject to satisfying the applicable development criteria of the NEP 2017. Specifically, the applicable criteria are those set out in sections 2.2 (general development), 2.6 (water resources), 2.7 (natural heritage) and 2.13 (scenic resources and landform conservation) of the NEP 2017.
11In reviewing the aforementioned NEP 2017 criteria, the NEC consulted with the following agencies: Town of The Blue Mountains Planning and Building Services Department, County of Grey Planning and Development, Grey Sauble Conservation Authority (“GSCA”), and the Bruce Trail Conservancy.
12With respect to the general development criteria, Mr. Dobbyn testified that the NEC’s consultation with the GSCA identified portions of the Subject Lands as hazard areas, specifically associated with watercourses, steep slopes and karst topography. The GSCA recommended that the Applicant undertake a karst assessment, which was subsequently completed by Whitewater Hydrology on December 11, 2020 (“Karst Assessment”) to the satisfaction of the GSCA. The Karst Assessment identified a groundwater spring to the north of the building envelope, however, concluded that the locations for the Proposed Development are outside of the karst features, which would not be impacted if minimum 30 m setbacks are maintained.
13Regarding the water resources criteria, Mr. Dobbyn noted multiple watercourses on the property which are identified as hazards and regulated by the GSCA under the Development, Interference with Wetlands and Alteration to Shoreline and Watercourses Regulation, O.Reg 151/06. A GSCA permit is required for demolition and new development. Additionally, the Development Permit is subject to conditions requiring a final Grading, Drainage and Site Plan to define the building envelope, setbacks, and sediment and erosion control measures (Condition 11 of approved Development Permit).
14In terms of natural heritage issues, Mr. Dobbyn highlighted that construction of the driveway within the Proposed Development would require adherence to s. 23.2 of O. Reg 242/08 under the Endangered Species Act, which may require registration with the Ministry of the Environment, Conservation and Parks, and adherence to applicable rules for the protection of grassland birds. He testified that the land on which the development is proposed is small and its vegetation is not attractive to species of at-risk birds. Other natural heritage features include significant woodland to the west of the Subject Land, and fish habitat associated with watercourses. Mr. Dobbyn said these key natural heritage features were found to be adequately protected through setbacks and conditions of approval requiring a defined building envelope with limit-to-work fencing (Condition 13) and timing restrictions for site preparation (Condition 7).
15Mr. Dobbyn’s overview of the scenic resources and landform conservation criteria noted a Landscape Evaluation Study which identified the Subject Lands as “attractive” and “average”. The Proposed Development would be located near the middle of the Subject Lands on a terrace of the Escarpment slope, below the brow and in an existing disturbed location with other existing structures. While visible from several locations along 21st Sideroad, he said it would be well set back from the roads at a scale and exterior finishing which would allow it to blend into the surroundings. Some landscape planting in the foreground would be required pursuant to the Landscape Plan and Lighting Plan requirements under conditions of approval (Conditions 12 and 15).
16Mr. Dobbyn testified that the PPS was also considered. The Proposed Development is outside of significant woodlands in accordance with Policy 2.1.5. He said a minimum 30m setback would be maintained from the karst feature in accordance with Policy 2.2 and development would occur outside of known hazards in accordance with Policy 3.1.1.
Evidence and Submissions of the Appellants
17In support of their appeal, Mr. and Ms. Wentworth-Stanley submitted a Visual Evidence Book of the Appellants filed as Exhibit 4 (“Visual Book”) and an Appeal Letter of the Appellants filed as Exhibit 5. Their six stated grounds of appeal are paraphrased and summarized as follows:
i. Previous infractions of the NEPDA by the Applicant on the Abutting Lands, including alleged unauthorized habitation within the barn, maintaining unauthorized livestock, unauthorized excavation into the Escarpment and transfer of materials, unauthorized construction of a pond, and unauthorized clear-cutting, raising enforcement issues respecting the proposed conditions of approval.
ii. Insufficient regard to ecological damage, specifically, watercourses and potential erosion necessitating an appropriate environmental review.
iii. Insufficient regard to proper fencing and nutrient management regulations.
iv. Insufficient setback requirements of the new proposed driveway.
v. Efficacy of NEC enforcement, remedying violations, and indemnity.
vi. Optical blight and luminescence issues with the Proposed Development.
18A significant portion of the testimony of both Mr. and Ms. Wentworth-Stanley, along with the evidence referenced within their Visual Book, regarded issues (i) concerning alleged previous infractions of the NEPDA by the Applicant on the Abutting Lands, (v) efficacy of NEC enforcement and (vi) optical blight and potential improper luminescence from existing structures and the new Proposed Development. The balance of Mr. and Mrs. Wentworth-Stanley’s evidence regarded predominantly water erosion and fencing concerns.
19Mr. Wentworth-Stanley testified that as a result of the Applicant’s activities on both the Abutting and Subject Lands, the Appellants have suffered injurious damage to their property. Mr. Wentworth-Stanley stated that portions of the Appellant Lands have turned into marshland from flooding caused by the Applicant’s cutting of trees, pond excavations and other activities on the Abutting Lands. Mr. Wentworth-Stanley testified that the Appellants now require a backhoe to rehabilitate their fields. On cross-examination, Mrs. Wentworth-Stanley corroborated this by testifying that the Appellant Lands had not experienced such flooding issues prior to the approximate 10-year period that the Applicant has owned the Subject and Abutting Lands.
20Mrs. Wentworth-Stanley referenced an article regarding light pollution within the Visual Book, as well as an evening photo taken of the existing structures on the Applicant’s Subject and Abutting Lands, lit up with indoor lighting. Mrs. Wentworth-Stanley submitted that the existing structures on the Subject Lands are too bright in the evening which poses risks to not only the visibility of the nighttime sky, but also to potential ecological and environmental systems in the surrounding area.
21Mr. Wentworth-Stanley added that regard to optical blight concerned the visibility of the existing and proposed structures on the Escarpment, affecting how well they blend into the surrounding environment.
22In summation, Mr. and Mrs. Wentworth-Stanley stated the Proposed Development is injurious to the whole image of the Escarpment and inconsistent with view-scapes and landscapes. The Appellants submitted that the Proposed Development must be stopped as it is not good planning. The Appellants added that they seek a full comprehensive environmental assessment as it relates to watercourses and whether the Proposed Development is suitable for the terrain and infrastructure of the Escarpment.
Evidence and Submissions of the Applicant
23Nina Duras testified on behalf of the Applicant corporation as its sole officer and director, and submitted a Document Brief of the Applicant, filed as Exhibit 3.
24Much of the testimony of Ms. Duras responded to the allegations of previous infractions of the NEP 2017. However, Ms. Duras also testified that the Proposed Development would be constructed in compliance with the requirements of relevant agencies and authorities, permit requirements and approval conditions.
25The Applicant submits that the Appellants have failed to put forward any planning grounds necessary on this appeal to oppose the Development Permit. It argues that the grounds for appeal are either irrelevant, inappropriately relate to the Abutting Lands and not the Subject Lands, and/or are adequately addressed by the conditions of permit approval.
26The Applicant contends that any issue with NEC enforcement or its mandate are not properly put before this Hearing Office. The Applicant submits that the proposed development conforms with the NEP 2017 and is consistent with the PPS. It submits that the decision of the NEC is correct and should not be changed.
DISCUSSIONS, ANALYSIS AND FINDINGS
27When adjudicating a development permit appeal under s. 25 of the NEPDA, the Hearing Office must determine whether the NEC’s decision granting the permit is correct and should not be changed. When making this determination, the Tribunal must assess whether the proposed permit conforms with the NEP 2017, is consistent with the PPS, and complies with any other applicable statutory and regulatory requirements.
28Based on the uncontradicted evidence of Mr. Dobbyn, the Hearing Officers find that the Development Permit conforms with the NEP 2017.
29The Subject Lands are designated as Escarpment Protection Area and Escarpment Natural Area under the NEP 2017. In conformity with Part 2.2.5 of the Plan, the development is proposed within the Escarpment Protection Area, which is the less restrictive designation.
30The Proposed Development is a permitted use and satisfies the applicable development criteria under the NEP 2017. Based on Mr. Dobbyn’s evidence, the Hearing Officers find that the site of the Proposed Development is set back at least 30m from the watercourses, slopes and karst topography on the Subject Land and is not prone to natural hazards in conformity with development criterion 2.2.2.
31The Hearing Officers find that the Development Permit conforms with Part 2.6 of the NEP 2017 in that the sewage system for the Proposed Development will be located at least 30m from nearby watercourses and spring headwaters and a grading, drainage, and site plan is required as a condition of the proposed permit.
32Mr. Dobbyn stated that habitat for grassland birds will not be adversely affected by the Proposed Development in conformity with natural heritage requirements in Part 2.7 of the NEP 2017 and that a condition of the proposed permit restricts the timing of site preparation for the proposed driveway to protect the breeding of grassland birds.
33Based on Mr. Dobbyn’s evidence, the Hearing Officers also find that the proposed permit conforms with the scenic resources and landform conservation requirements in Part 2.13 of the NEP 2017. Mr. Dobbyn stated that the height of the Proposed Development is modest and similar to existing structures and, with required design elements and exterior finishing and required landscaping as a condition of the proposed permit, the Proposed Development will blend into the area.
34The Hearing Officers also find that the proposed permit is consistent with the PPS. Based on Mr. Dobbyn’s uncontradicted evidence:
the site of the Proposed Development is outside of significant woodlands and there will be a 30m setback from groundwater features in accordance with PPS Policies 2.1.5 and 2.2. The site of the Proposed Development is outside of hazard areas and is consistent with PPS Policy 3.1.1.
35Many of the concerns raised by the Appellants are addressed in the conditions to the proposed permit. These include conditions regarding the removal of vegetation, rehabilitation and re-vegetation of disturbed areas, the inclusion of only one dwelling unit, erosion and sediment control measures, grading and drainage requirements, and landscaping and vegetation protection measures. The conditions also require NEC approval regarding exterior elevations, floor area, height above existing and proposed grades, and the number of storeys to address issues regarding views of the Niagara Escarpment. There are also conditions requiring NEC approval of exterior lighting in accordance with Dark Sky principles.
36The Hearing Officers note the Appellants’ concerns regarding past activities on the Abutting Lands, however, find that these are enforcement issues to be addressed by the NEC through its enforcement process.
37The Hearing Officers are of the opinion that the decision of the NEC in issuing the Development Permit is correct and should not be changed, and the decision of the NEC to conditionally approve the Development Permit is confirmed.
ORDER
38THE HEARING OFFICERS CONCLUDE that the Niagara Escarpment Commission decision to conditionally issue Development Permit G/R/2018-2019/9031 is correct and should not be changed. The Niagara Escarpment Commission’s decision is deemed to be confirmed, pursuant to s. 25(12) of the Niagara Escarpment Planning and Development Act. The appeal is dismissed.
“N. Eisazadeh”
N. EISAZADEH
HEARING OFFICER
“Hugh S. Wilkins”
HUGH S. WILKINS
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.