Neighbours on Centre Road v. Ontario (NEC), 2023 CanLII 66813

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 20, 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: May 3, 2023 by Video Hearing

APPEARANCES:

Parties

Representative

Tyler Bax

Self-represented

Neighbours on Centre Road

Carl Cosack

Niagara Escarpment Commission

Kim Peters

REPORT DELIVERED BY JENNIFER CAMPBELL AND ORDER OF THE TRIBUNAL

Link to Order

1This Decision arises from a hearing (the “Hearing”) 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 Road (the “Appellant”) concerning 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, Ontario.

2At a previous case management conference held on February 10, 2023, in respect of this matter (the “CMC”), Tyler Bax (the “Applicant”) was granted Party Status, and the Parties narrowed the issues to be adjudicated at this Hearing as follows:

(i) Whether the driveway, which had been conditionally approved by the Respondent, (the “Bax Proposed Driveway”) should be relocated in order to preserve the topography of the area, and specifically, whether the entrance to the driveway should be relocated closer to an existing entrance to a neighbouring gravel pit.

(ii) Whether the tree planting plan would be sufficient to protect views from neighbouring properties.

3At the commencement of the Hearing, the Appellant confirmed that it was now satisfied with the tree planting plan, and the only remaining matter to be considered at this Hearing was the relocation of the driveway at item (i) above.

4Carl Cosack was sworn in and provided direct testimony to the Hearing Office on behalf of the Appellant. Mr. Cosack summarized his proposal to relocate the Bax Proposed Driveway approximately 100 metres to the north (the “Relocated Driveway”) which, in his view, would require less change to the overall topography of the property. In support of the relocation, Mr. Cosack had calculated that approximately 81 trucks of aggregate would need to be removed to construct the Bax Proposed Driveway. Mr. Cosack also expressed concern with protection of a knoll in the vicinity, and submitted that the Relocated Driveway would better comply with Part 2.13 of the Niagara Escarpment Plan (the “NEP”) concerning landforms and scenic resources.

5The Applicant was then sworn in and provided direct testimony on his own behalf. While he agreed that aggregate would need to be removed to construct the Bax Proposed Driveway, he testified that he intended to reuse the aggregate for other purposes. The Applicant also raised concerns about the steep grade of the Relocated Driveway, as well as the site line from the driveway entrance down the road. More specifically, the Applicant testified that the Township requires a minimum site line of 135 metres, and the Bax Proposed Driveway provides for a site line of 209 metres. The Relocated Driveway would have a site line of approximately 159 metres, and accordingly, the Applicant submitted that the Bax Proposed Driveway would be significantly safer than the relocated alternative.

6Mr. Bax then called Kim Peters to provide expert testimony regarding several of the matters at issue in this Hearing. Ms. Peters reviewed her qualifications as an expert for the Hearing Office, which indicated significant experience in planning and development matters including a Masters degree in Environmental Studies (Planning), registration as a professional planner and extensive work experience including eleven years of employment with the Respondent. The qualification of Ms. Peters as an expert was on consent. After review, the Hearing Office found that Ms. Peters had sufficient expertise in planning matters and duly qualified her to provide expert testimony in this matter.

7Ms. Peters testified that following the CMC, she had agreed to review the Relocated Driveway proposed by the Appellant to determine if it was preferable to the Bax Proposed Driveway. Ms. Peters then summarized the reasons that the Appellant provided for preferring the Relocated Driveway and her analysis of such matters, as follows:

(i) The Appellant submitted that the Relocated Driveway is preferable as it would follow the natural topography of the land. Ms. Peters noted that planning staff of the Respondent had consulted with Karen Bannister, the Respondent’s landscape architect, in respect of this matter. Ms. Bannister is a registered member of the Ontario Association of Landscape Architects and regularly provides professional analysis of Development Permit Applications to determine if the policies in Part 2.13 of the NEP are met. Ms. Bannister agreed with the Appellant that the location of the Bax Proposed Driveway is not the best alternative as it will require significant cutting through the knoll, and she proposed a third alternative (the “Bannister Proposed Driveway”) located slightly to the south of the Relocated Driveway where an existing field access lane enters the property. Ms. Bannister was of the view that the Bannister Proposed Driveway would require less cut/fill and would provide better visual screening. Ms. Peters testified that while she concurred with Ms. Bannister’s analysis as it relates to the policies in Part 2.13 of the NEP, there are other NEP policy considerations that must also be addressed, as further detailed below.

(ii) The Appellants submitted that the Relocated Driveway would meet the Township’s criteria for sight lines. Ms. Peters noted that the Respondent is not familiar with the Township’s sight line criteria for road entrances, but that it had taken into account guidance from the Township in providing conditional approval for the Bax Proposed Driveway. Ms. Peters further advised that she was unaware of any existing analysis of either the Relocated Driveway or Bannister Proposed Driveway locations that demonstrates either of the revised proposals meets modern road safety standards, and would defer to the Township in that regard.

(iii) The Appellant submitted that the Relocated Driveway is easily maintained in the winter as the predominant west winds will clear snow off naturally. Ms. Peters testified that the Respondent has no opinion or expertise on this matter.

(iv) The Appellant submitted that the Relocated Driveway can easily accommodate construction equipment and vehicles required during the building process. Ms. Peters noted that the Relocated Driveway eliminates the lower driveway loop desired by the Applicant, and that the overall length of the Bax Proposed Driveway (with the lower loop) appears similar in this regard to the Relocated Driveway (entrance further to the north, but without a lower loop). However, Ms. Peters also noted that the Bannister Proposed Driveway, which maintains the lower driveway loop and moves the driveway entrance to the existing field access, appears to add to the overall length of the driveway.

(v) The Appellant submitted that the Relocated Driveway protects the knoll from further destruction and meets the Part 2.13 of the NEP regarding natural scenery. Ms. Peters again summarized the opinion of Ms. Bannister that both the Relocated Driveway and the Bannister Proposed Driveway require less cutting and filling than the Bax Proposed Driveway, and therefore have less impact on the knoll landform. In addition, the Relocated Driveway would result in less visibility and require less site alteration, both of which are consistent with the policies in Part 2.13 of the NEP.

8Ms. Peters then testified that while the locations of the Relocated Driveway and the Bannister Proposed Driveway both better achieve the objectives of Part 2.13 of the NEP, there are additional policy considerations to be taken into account, as follows:

(i) Enjoyment of the Property by the Landowner – Ms. Peters noted that an objective of Part 2.2 of the NEP is to permit reasonable enjoyment by the owners of all lots that can sustain development. To achieve this objective, staff of the Respondent works with applicants to achieve their desired uses on a property, provided they do not conflict with NEP policies. In this regard, Ms. Peters noted that staff would support removal of the lower loop of the driveway as it would further limit the development footprint, however it was assumed that the Applicant requires it as part of his reasonable enjoyment of the property. Further, removal of the lower loop does not lessen the overall cut and fill that is required to locate the driveway entrance per the Township’s policies, and the Bax Proposed Driveway minimizes the overall length of the driveway while allowing for the lower loop.

(ii) Agriculture - the property is designated as Escarpment Protection Area. In Part 1.4.1 of the NEP, the objectives of this land use designation include “to encourage agriculture and protect agricultural lands and prime agricultural areas.” To protect the agricultural integrity of the property, the development footprint should be minimized, and situated in a manner that preserves the best lands for agricultural purposes. Ms. Peters stated that in the Respondent’s opinion, the location of the development envelopment (including the Bax Proposed Driveway location), in the southwest quadrant of the property, better preserves the remainder of the property for agriculture, while the Relocated Driveway and the Bannister Proposed Driveway would have the effect of fragmenting the land that is most suitable for hay or other field crops.

(iii) Scenic Resources and Landform Conservation - As confirmed by Ms. Bannister, the Bannister Proposed Driveway would require less cutting and filling, and therefore, better meet the policies of the NEP related to protecting natural landforms. However, Ms. Peters testified that the Applicant has minimized the development footprint to a reasonable extent, and early in the review process, modified the location of the dwelling to improve its siting from a visual and landform perspective. Although the Bax Proposed Driveway does require changes to the existing topography, the impact is very localized and with restored vegetation, will have a minimal visual impact. Ms. Peters stated that, in the Respondent’s opinion, the most significant visual impacts of the site have been mitigated through appropriate means, and the cutting and filling required to accommodate the Bax Proposed Driveway are localized and do not require significant alteration of the landscape over a large area.

Legislation

9The following excerpts from the NEP are relevant to the matters at issue in this Hearing:

1.4 Escarpment Protection Area

Escarpment Protection Areas are important because of their visual prominence and their environmental significance, including increased resilience to climate change through the provision of essential ecosystem services. They are often more visually prominent than Escarpment Natural Areas. Included in this designation are Escarpment Related Landforms and natural heritage and hydrologic features that have been significantly modified by land use activities, such as agriculture or residential development, as well as lands needed to buffer Escarpment Natural Areas and natural areas of regional significance.

The policies aim to protect and enhance natural and hydrologic features and the open landscape character of the Escarpment and lands in its vicinity.

1.4.1 OBJECTIVES

1. To maintain and enhance the scenic resources and open landscape character of the Escarpment.

2. To provide a buffer to prominent Escarpment features.

3. To recognize, protect and where possible enhance the natural heritage system associated with the Niagara Escarpment Plan area and protect natural areas of regional significance.

4. To conserve cultural heritage resources, including features and areas of interest to First Nation and Métis communities.

5. To encourage forest management, compatible recreation, conservation and educational activities.

6. To encourage agriculture and protect agricultural lands and prime agricultural areas.

2.2 General Development Criteria

The objective is to permit reasonable enjoyment by the owners of all lots that can sustain development.

2.13 Scenic Resources and Landform Conservation

The objective is to ensure that development preserves the natural scenery and maintains Escarpment Related Landforms and the open landscape character of the Escarpment.

Scenic Resources

1. Development shall ensure the protection of the scenic resources of the Escarpment.

2. Where a visual impact on the scenic resources is identified as a concern by the implementing authority, a visual impact assessment shall be required.

3. A visual impact assessment shall:

a. establish a baseline for the existing conditions;

b. identify the proposed physical changes; and

c. assess the impact of the proposed change on the scenic resources of the Escarpment; and

d. propose measures to minimize any visual impacts.

4. Appropriate siting and design measures shall be used to minimize the impact of development on the scenic resources of the Escarpment, including:

a. establishing appropriate setbacks and maximum building heights;

b. changing the orientation and height of built form to reduce visibility and skylining;

c. clustering buildings where appropriate;

d. minimizing the development footprint and changes to the existing topography and vegetation;

e. using natural topography and vegetation as screening for visual mitigation; f) where there is minimal existing screening or vegetation that cannot be retained, providing new planting of native species to screen development;

f. using non-reflective materials on roofs and walls along with measures to reduce reflectivity associated with windows; and

g. minimizing the effect from exterior lighting (e.g., lighting directed downward).

Landform Conservation

5. Planning, design and construction practices shall ensure that Escarpment Related Landforms are maintained and enhanced, and that development is visually compatible with the natural scenery and open landscape character of the Niagara Escarpment.

Analysis and Findings

10The Hearing Office accepts the testimony of Ms. Peters that both the Relocated Driveway and the Bannister Proposed Driveway would better conform with Part 2.13 of the NEP as they each require less cutting and filling than the Bax Proposed Driveway. However, as noted by Ms. Peters, the NEP must be considered holistically, not for the purpose of identifying the singular best option to comply with one particular section of the NEP, but instead with a view to balancing all of the applicable criteria in the context of the development as a whole, including agricultural objectives, reasonable enjoyment of a property, and safe ingress and egress.

11In conclusion, the Hearing Office accepts the expert testimony of Ms. Peters, 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

12The Appellant has failed to provide sufficient evidence, rules, policy or other legal basis to satisfy the Hearing Officer that the Respondent’s decision was incorrect. Further, the Hearing Officer accepts the evidence presented by the Respondent.

13As such, the Hearing Officer finds that the Respondent’s decision to conditionally approve the Applicants’ Development Permit Application No. M/R/2021-2022/689 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 Respondent 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.