Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
January 11, 2024
CASE NO(S).:
OLT-23-000009
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:
1876427 Ontario Inc.
Applicants:
146769 Ontario Inc. c/o Fabio and Pia Neri
Respondent:
Niagara Escarpment Commission
Subject of Appeal:
Approval of a Development Permit Application
to subdivide into single dwelling lots, and blocks containing townhouse units; to construct a local road network; to implement a stormwater management strategy including a drainage outlet; to connect to and install municipal services; to carry out grading; and to establish a park on an existing lot
Reference No.:
W/R/2021-2022/203
Property Address:
15 Ridgeview Drive
Municipality/UT:
City of Hamilton
OLT Case No:
OLT-23-000009
OLT Lead Case No.:
OLT-23-000009
OLT Case Name:
1876427 Ontario Inc. v. Ontario (Niagara Escarpment Commission)
Heard:
September 5 and 7, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel
1876427 Ontario Inc.
Raivo Uukkivi and Adrianna Pilkington
146769 Ontario Inc.
Denise Baker
REPORT DELIVERED BY Hugh S. Wilkins and d. chipman AND ORDER OF THE HEARING OFFICE
Link to the Order
INTRODUCTION
1This Report arises from a settlement hearing brought before the Ontario Land Tribunal in its role as the Niagara Escarpment Hearing Office (“Hearing Office”) regarding the appeal filed by 1876427 Ontario Inc. (“Appellant”) of a development permit issued by the Niagara Escarpment Commission (“NEC”) to 146769 Ontario Inc. (“Applicant”).
2The development permit facilitates the development of 25 single-dwelling lots and eight blocks containing 80 townhouse units at the property located at 15 Ridgeview Drive (“subject property”) in the City of Hamilton. The development permit includes the following conditions:
the development permit is conditional for three years;
a detailed final Site Plan is to be submitted to the NEC;
a final Landscape Plan is to be submitted to the NEC;
a monitoring plan is to be submitted to the NEC regarding Centennial Falls;
a drainage outlet design is to be submitted to the NEC regarding Centennial Falls;
erosion and settlement plans are to be implemented;
a reassessment of Butternut trees on site is required prior to starting development; and,
no tree removal is to take place between March 31st and August 31st.
3The brow of the Niagara Escarpment and Centennial Falls lie to the north of the subject property. Lands to the south of the subject property are planned for residential development and to have a stormwater management pond.
4The appeal was set for a hearing commencing on September 5, 2023. On September 1, 2023, the Parties informed the Hearing Office that they had reached a proposed settlement.
5The Hearing Office convened a short video hearing on September 5, 2023 at which it directed the holding of a settlement hearing on September 7, 2023.
6The NEC did not attend the settlement hearing.
ISSUES
7The issues that the Hearing Office must address when adjudicating a proposed settlement of a development permit appeal under s. 25(12.1) of the Niagara Escarpment Planning and Development Act are whether the NEC’s decision with the proposed settlement terms and conditions would be correct and should not be changed. In making this assessment, the Hearing Office must determine whether the development permit with the proposed modifications:
a) is consistent with policy statements issued by the Minister (in this case, the Provincial Policy Statement, 2020 (“PPS”)); and,
b) conforms with applicable provincial plans (in this case, the Niagara Escarpment Plan (“NEP”) and A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019, as amended (“Growth Plan”)).
EVIDENCE AND SUBMISSIONS
8Franz Kloibhofer presented evidence, on behalf of the Applicant, in support of the proposed settlement. No evidence was presented by the other Parties. Based on Mr. Kloibhofer’s experience and expertise, the Hearing Office qualified him to provide opinion evidence as an expert in land use planning.
9Mr. Kloibhofer described the neighbouring context around the subject property and the stormwater flows that would result from development in the area. He stated that the proposed development would ensure that there are adequate water flows to maintain the nearby Centennial Falls without causing erosion or flooding below the Falls.
10Mr. Kloibhofer opined that the development permit with the modifications proposed through the settlement is consistent with the PPS. He said the development permit with the proposed modifications promotes efficient development, accommodates residential development in a settlement area, and provides for a range and mix of housing. He said the proposed development would have full municipal water and sewage services and that infrastructure would be coordinated and integrated with land use planning and growth management so that it meets current and projected needs.
11Mr. Kloibhofer opined that the development permit with the proposed modifications conforms with the NEP. He stated that only part of the subject property is subject to the NEP. He said that section of the property is partially designated Escarpment Urban Area and partially designated Escarpment Natural Area under the NEP.
12Mr. Kloibhofer opined that the development permit with the proposed modifications conforms with the Escarpment Natural Area objectives in policy 1.3 of the NEP. He said there is no new residential development and only limited infrastructure proposed in the Escarpment Natural Area. He said infrastructure is a permitted use in this area.
13Mr. Kloibhofer opined that the development permit with the proposed modifications conforms with the objectives for the Escarpment Urban Area and applicable development criteria. He said the proposed development would be compatible with the local scenic resources with an 11 metre (“m”) height restriction on buildings and a 30 m buffer from the brow of the Escarpment to minimize visual impacts. He stated that a visual impact study was completed demonstrating no visual impacts to the Escarpment. He said the development permit with the proposed modifications also conforms with the lot creation requirements in policies 2.4.1 and 2.4.2 through the provision of infrastructure that will facilitate water flows to the nearby natural features, including Centennial Falls. He opined that it also conforms with policies 2.6.2, 2.6.3, and 2.6.4 of the NEP on criteria for development within and adjacent to hydrologic features. He said hydrologic, stormwater management, and vegetation protection studies are required and an environmental impact study has been completed in accordance with NEP policy 2.7 requiring 10 m vegetation and woodland buffers and a 30 m setback from the brow of the Escarpment.
14Mr. Kloibhofer opined that the development permit with the proposed modifications conforms with the Growth Plan. He stated that the subject property lies within the built boundary and the proposed development would provide for growth in an appropriate location within a settlement area. He said the development permit with the proposed modifications facilitates development in a compact form and uses land efficiently. He opined that appropriate infrastructure would be in place to support the proposed uses and that the development permit with the proposed modifications conforms with the infrastructure and water-related provisions in policies 3.2.5 and 3.2.6 of the Growth Plan.
15Mr. Kloibhofer stated that the proposed modifications to the development permit include a revised condition 15 requiring an updated functional servicing report and stormwater management report to be submitted to the Niagara Escarpment Commission. The Applicant submits that through the revisions to condition 15 of the proposed development permit, there will be coordination and consultations with neighbouring property owners in the finalization of stormwater management plans. Mr. Kloibhofer opined that this modification conforms with the NEP.
16Mr. Kloibhofer opined that the development permit with the proposed modifications is correct and should not be changed.
FINDINGS
17Based on Mr. Kloibhofer’s opinion evidence, the Hearing Office finds that the development permit with the proposed modifications is consistent with the PPS and conforms with the NEP and the Growth Plan. The Hearing Office finds that the development permit with the proposed modifications is correct and should not be changed.
ORDER
18The Hearing Office concludes that the Niagara Escarpment Commission’s decision to conditionally issue Development Permit W/R/2021-2022/203 with the proposed modifications agreed to by the Parties is correct and should not be changed. The Niagara Escarpment Commission’s decision, with the conditions set out in Attachment 1 to this Report, is deemed to be confirmed, pursuant to s. 25(12.1) of the Niagara Escarpment Planning and Development Act.
19The appeal is dismissed.
"Hugh S. Wilkins"
HUGH S. WILKINS
HEARING OFFICER
"D. Chipman"
D. CHIPMAN
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.
ATTACHMENT 1