ISSUE DATE:

December 05, 2024

CASE NO(S).:

OLT-23-001035

PROCEEDING COMMENCED UNDER subsection 25(8) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N. 2, as amended

Appellant:

John Leigh Daboll

Appellant:

Willi and Cheryl Werner

Applicant:

Norm Boucock

Subject:

Approval of a Development Permit Application

Description:

Purposes to recognize the work on an existing lot supporting an existing 1 storey

Reference Number:

N/R/2019-2020/141

Property Address:

2010 Hansler Street

Municipality/UT:

Pelham/Niagara

OLT Case No.:

OLT-23-001035

OLT Lead Case No.:

OLT-23-001035

OLT Case Name:

Daboll v. Ontario (NEC)

Heard:

July 2, 2024 by video hearing and July 22, 2024 by written submissions

Parties

Representative

Willi Werner and Cheryl Werner

Self-Represented

John Leigh Daboll

Self-Represented

Norman Boucock

Robin Smith

REPORT DELIVERED BY M.A. SILLS AND P. TOMILIN AND ORDER OF THE TRIBUNAL

Link to the Order

1This was the Hearing of the Appeals by Willi and Cheryl Werner (“Werners”) and J. Leigh Daboll from the partial conditional approval by the Niagara Escarpment Commission (“NEC”) of a Development Permit Application (“DPA”) for the property owned by Norman Boucock (“Applicant”) and located at 2010 Hansler Street, in the Town of Pelham (the “subject property/lands”).

2A Panel of the Ontario Land Tribunal (“OLT”) constitutes and functions as Hearing Officers for appeals under the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N. 2 as amended (“NEPDA”).

3The Parties in this Appeal were self-represented and did not call any expert or lay witnesses.

4At the start of the Hearing, the Tribunal acknowledged the request of Robin Smith, Mr. Boucock’s daughter, to speak on her father’s behalf, who was in attendance, but has difficulty hearing. The Tribunal notes that Ms. Smith is identified as the Agent on the NEC Development Permit Application Form, which effectively entitles her to engage in the hearing process. Moreover, Ms. Smith has knowledge of the matters in dispute, she is familiar with the topography of her father’s property and the adjacent lands, and can attest to the uses of the existing buildings and structures on the property, such that her participation in the Hearing will be of assistance to the Tribunal.

CONTEXT TO THE APPLICATION

5The subject property is approximately 1.73 hectares (“ha”) in area and was historically occupied with a single storey dwelling approximately 174.28 square metres (“sq m”) in area, and a 464.51 sq m accessory building typically used as a shop and storage area for Mr. Boucock’s collection of antique vehicles and equipment. Mr. Boucock has owned and resided on the property since 1979.

6The Provincial Policy Statement, 2020 (“PPS”) designates the subject property as Prime Agricultural Lands - Specialty Crop Area (“SCA”). Lands within the SCA are intended to be protected for long-term agricultural purposes and are given the highest priority for protection. Permitted uses within the SCA designation include agricultural uses, agricultural-related uses, and on-farm diversified uses.

7The subject property is also located within the Niagara Escarpment Plan Area

(“NEPA”) in accordance with the Greenbelt Plan, 2017 (“GP”), such that the policies of the NEPA also apply. The NEPA identifies that the subject property is within the “Escarpment Protection Area” (“EPA”) and is subject to development control.

8The GP and the Niagara Official Plan (“NOP”) both recognize that all existing uses prior to the GP coming into effect (December 16, 2004) are permitted. Policy 4.1.2.1 of the NOP establishes that within a SCA single-detached dwellings and accessory structures are permitted uses on existing lots zoned for such uses.

9The purpose of the DPA is to authorize work that had already been completed on the subject property, including: (1) the construction of a detached, pergola-style deck of approximately 63.91 sq m in area and a maximum height of approximately 3.65 metres (“m”) in the front portion of the lot; (2) a detached deck of approximately 103.8 sq m in area and a height of approximately 4.3 m in the backyard of the residence; (3) a walkway connecting the deck to the existing dwelling; and (4) the importation of Table 1 fill in the rear yard at a depth of 15 to 20 centimetres (“cm”).

REGIONAL STAFF REVIEW REPORT

10Staff of the Regional Growth Strategy and Economic Development Department reviewed the NEC DPA for the subject property and have provided the following commentary:

The subject lands are currently developed with a residential dwelling and an accessory dwelling building. The proposed development is for accessory structures to existing buildings and does not result in incompatible land uses with the adjacent SCA. As such, Regional staff does not object to the DPA as it meets the intent of the applicable Regional and Provincial policies and guidelines, subject to the comments that follow:

Archaeological Potential: The PPS and NOP provide direction for the conservation of significant cultural heritage and archeological resources. Section 2.6.2 of the PPS and Policy 6.4.2 of the NOP state that development and site alteration is not permitted on lands containing archeological resources or areas of archeological potential unless an archeological assessment and requirements from the aforementioned policies have been met. Staff recognize that the structures have been constructed and did not require a significant land disturbance. Regional staff note that any future Planning Act applications may be subject to a Stage 1 Architectural assessment and any recommended subsequent studies.

Environment: The subject property is impacted by the Region’s Natural Environment System consisting of significant woodland and a Provincially Significant Life Science ANSA. The property is within the NEP Area, and as such, these features are considered Key Natural Heritage Features

(“KNHF”). NOP policy 3.1.8.1 states that development and site alteration within and adjacent to a KNHF is subject to the policies of the NEP. Provided that the NEC finds the Application to be consistent with the environmental policies of the NEP, Regional staff have no objection.

Servicing: Regional records for the existing sewage system servicing the dwelling were not found. However, during a site visit staff was able to conduct an inspection of the existing septic tank. The tank was in the rear yard between the dwelling and walkway. The tank appeared to be plastic and no defects were observed. The exact size and location of the leaching bed could not be determined, however no visual defects were observed at the time of the inspection. The existing walkways do not impact usable land to replace the sewage system if required in the future. As a result, Regional staff have no objection to the application as submitted. However, in the future should the existing sewage system fail or future increases in sewage flows are being proposed the installation of a new system would be required on the property and it will be required to meet all minimum building code setbacks.

Conclusion: In conclusion, Regional Growth Strategy and Economic Development staff do not object to the Application as submitted.

11Planning staff of the Town of Pelham recommended approval of the DPA, subject to the condition that that the NEC refuse the application for the importation of fill.

12The NEC granted conditional approval for (1), (2), and (3), and refused the relief sought in (4).

SUBMISSIONS BY JOHN DABOLL – APPELLANT

13The Appeal Grounds listed on Mr. Daboll’s Appellant Form include:

1. tree cutting/fencing along property line and encroachment onto neighbouring properties;

2. future unpermitted events (weddings) and commercial use;

3. negative impact on neighbouring property values; and

4. unclean fill.

14The issues identified by Mr. Daboll and included in the approved Procedural Order (Schedule “A” - Statement of Issues: J. Leigh Daboll), are as follows:

1. In refusing to approve the Applicant’s Development Permit for importation of fill on the subject property, the NEC erred in failing to consider section 24(6) of the Niagara Escarpment Planning and Development Act (the

“NEPDA”) which reads:

Order to Demolish, etc.

(6) Where any person undertakes any development that is in contravention of subsection 24(6);

(1), the Minister may order such person to demolish any building or structure erected in connection with the development or to restore the site to the condition it was in prior to the undertaking of the development, or both, within such time as the order specifies, R.S.O. 1990, c. N, s. 24 (6).

2. The NEC Board, in stating that, “future speculation regarding the Applicant’s intended use of the accessory buildings and structures was not a factor to consider in it granting conditional approval of the Applicant’s proposed accessory outbuildings and structure”, erred in fact in failing to adequately consider the written and oral evidence of the Appellants.

3. In permitting the conditional approval of the accessory structures, the NEC erred in fact to consider the effect of its conditional approval on the Appellant’s properties.

4. The NEC erred in mixed fact and law in failing to consider that the

Applicant has demonstrated a complete disregard for preserving the natural environment and character of this unique neighbourhood in the NEC Natural zone.

15In his written closing submission, Mr. Daboll indicates the decision by the NEC to retroactively approve a DPA for the construction of the large patio deck was primarily appealed by his neighbours, Willi and Cheryl Werner. According to Mr. Daboll, “the Werners are alleging that the decision contravenes both statutory and common law planning principles in this sensitive natural area”, and further, that “Mr. Boucock had ulterior motives in that he was creating a non-conforming commercial venue with the proposed development”. Mr. Daboll alleges “Mr. Boucock’s real intended use is to create yet another commercial venue for weddings and/or an Air B’n’B operation, neither of which is a permitted use”.

16In his written closing submissions, Mr. Daboll acknowledges that Ms. Smith had indicated her father had disassembled the deck and was effectively withdrawing his application for that development permit, and as such, the development permit respecting the deck construction is now a moot issue.

17Mr. Daboll submits that although the NEC did not approve a retroactive DPA for the dumping of hundreds (or even thousands) of truckloads of fill on Mr. Boucock’s property, it was silent on imposing any sort of remedy regarding the unauthorized dumping of the fill. Mr. Daboll asserts “this omission is being appealed by both the Werners and John Leigh Daboll” as the representative of the Daboll family farm operation located to the immediate south of the Boucock’s property.

18Mr. Daboll claims the Werners have confirmed that seepage run-off from the fill has been discharging onto their property and has killed a number of trees in their commercial evergreen plantation. In his opinion, the photographs provided by the Werners clearly demonstrate that the fill covers a very significant portion of the total surface area of Mr. Boucock’s property; the fill contains construction waste, demolition debris and aggregates; and there is substantial run-off from the fill onto the Werner’s property that requires remedy

or rectification. Mr. Daboll confirmed the grounds for the appeal to the Tribunal is that the NEC was unfortunately silent on imposing any sort of remedy regarding the unauthorized dumping of the fill.

19Mr. Daboll claims to have witnessed years of landfill dumping on Mr. Boucock’s formerly pristine fruit farm. According to Mr. Daboll, several thousand dump truck loads of stumps, trash, rock, concrete, construction debris and heavy clay subsoil has been deposited on what was once prime sandy tender fruit land for more than five years until Mr. Werner threatened to report Mr. Boucock to the Town of Pelham. On some days, eight to ten truckloads of fill were deposited less than 20 m from the boundary of his family’s farm.

20Mr. Daboll contends that in accepting that the fill was purportedly clean based on soil samples taken from only the upper 12 inches of fill, the NEC did not order deeper core samples of the fill. In that regard, the NEC has failed to consider the adverse short- and long-term environmental impacts of the fill on the surrounding environment. It is his position that the NEC should have directed the Applicant to produce an independent environmental study prior to approving any retrospective or future development on the property, including the accessory outbuildings or structures.

21Mr. Daboll also asserts that the NEC erred in mixed fact and law in failing to consider that Mr. Boucock demonstrated a complete disregard for preserving the natural environment and character of this unique neighbourhood located in the NEC Natural Zone. In particular, the NEC failed to consider that the accessory outbuildings and structures are unsightly to a degree that they depress neighbourhood property aesthetics and values, and negatively impact the unique natural beauty of the area.

22Moreover, the NEC incorrectly failed to consider its obligations under its own Guidelines and Regulations. By refusing to approve the DPA for the importation of fill on the subject property, the NEC erred in law by failing to consider section 24(6) of the NEPDA, which reads, in part:

Order to Demolish, etc.

(6) Where any person undertakes any development that is in contravention of subsection (1), the Minister may Order such person to demolish any building or structure erected in connection with the development or to restore the site to the condition it was in prior to the undertaking of the development, or both, within such time as the order specifies. R.S.O. 1990. c. N.2, s. 24 (6).

[emphasis added]

23Mr. Daboll further alleges that Mr. Boucock has contravened s. 2.1 of the Provincial Policy Statement (PPS, 2020) since the unapproved dump site is in places less than 60 m from natural heritage features behind the property.

24In reference to s. 2.3 of the PPS, which speaks to the long term protection of prime agricultural areas, Mr. Daboll asserts that “none of this fill could reasonably be considered as required for a property zoned for agricultural use”. The fill contravenes Part 2.8 (Agriculture) of the NEPDA and will render any future agricultural use a nullity if it is not removed. The failure to couple the prior DPA refusal without a companion order to remove the fill renders the refusal of the DPA moot, and in fact, has no practical effect.

25Mr. Daboll is requesting that the fill be forthwith removed from the subject property at the cost of the Applicant, Mr. Boucock, pursuant to s. 24(6) of the NEPDA. In concluding, Mr. Daboll submits that “while the OLT might be tempted to consider this appeal to be, at best, NIMBY-ism or, at worst, a nasty neighbour dispute, it is not. This appeal to the OLT raises significant, identifiable land use planning and environmental issues, which require careful consideration by the OLT. Although it appears that the NEC reached an appropriate conclusion in that the fill importation was not accessory to what purports to be a single family residence, it failed to properly consider the statutory and real- world planning and social consequences in failing to preserve and restore this irreplaceable natural property. The only way this can be effectively accomplished is for the OLT to continue to decline approval of the development permit for the fill, and to additionally order that Mr. Boucock forthwith remove all of the fill he previously dumped on his property”.

SUBMISSIONS BY WILLI AND CHERYL WERNER - APPELLANTS

26The Appeal Grounds listed on the Appellant Form submitted by Willi and Cheryl Werner are identical to those identified by Mr. Daboll.

27The Werners operate a Tree Farm (“Werner Tree Farm”) from their property located at 2016 Hansler Street, a portion of which is parallel to the south border of the Applicant’s property.

28The Werners contend the landfill on Mr. Boucock’s property is blocking rainwater from seeping down through the concrete and heavy clay and directs drainage onto their property, which is affecting the survival of their tree nursery farm and has resulted in the loss of forty, sixty foot tall Red Pine Trees that were in the path of the landfill run-off. The standing Red Pine trees remaining need another twenty (20) years of growth before harvest; the survival of these trees is in doubt.

29The Werners are requesting that the Tribunal order Mr. Boucock to remove the illegal landfill and restore the natural depressions that allow rainwater down through the native soil without running off his property.

SUBMISSIONS BY ROBIN SMITH (on behalf of NORMAN BOUCOCK)

30Ms. Smith provided background information and documentary materials, photographs of the subject property and existing buildings, shop drawing and associated building permit (1985), engineering drawings and permit application for the pergola deck, and the sewage system report.

31Ms. Smith confirmed that 840 tests have been completed on the soil and it was found to be safe and was in fact very similar to the soil in the area. Contrary to Mr. Daboll’s statement that the soil samples were taken at a depth of 12 inches down, she confirmed that the samples were taken at a depth of two feet into the ground. Staff from

the NEC, the Ministry and others have inspected the infill soil and have not identified any concerns.

32In response to the allegation by Mr. Daboll that the outbuildings are being used as a commercial storage facility, Ms. Smith first pointed out that neither Mr. Werner or Mr. Daboll have been inside of the buildings, and in fact, Mr. Daboll’s property is not even visible from the Boucock’s property. Ms. Smith also provided photographs of the interior of the shop building which demonstrate that it is being used for the storage of her father’s antique vehicles and very old machinery that has not been used for years.

33Ms. Smith claims that Mr. Werner’s statement that someone was living in the shop, which does not even have running water or bathroom facilities, is totally baseless. Moreover, the allegation that it was her father’s intent to start a Wedding Venue business on his property “is completely untrue”.

34Ms. Smith confirmed that the deck has been removed and that it is her father’s intent to sell the subject property once these appeals are finalized.

ANALYSIS AND DISPOSITION

35In arriving at this disposition, the Tribunal accepts and relies on the Staff Report of the Regional Growth Strategy and Economic Development Department, the only expert evidence before the Tribunal, and therefore dismisses the appeals.

36On a point of clarification, Mr. Daboll’s standing in this hearing was that of a self- represented appellant. It is also noteworthy that Mr. Daboll was not legal counsel to, the representative of, or a witness for, the Werners for the purpose of this Hearing.

37The Tribunal has examined the grounds for appeal listed on Mr. Daboll’s Appellant Form and in Schedule “A” of the Procedural Order, and finds as follows: Issue 1; is not relevant to the approval of the DPA; Issue 2: is moot as the building Mr. Daboll alleges is

proposed to be used for commercial purposes (wedding venue) has been demolished; Issue 3: property evaluation is not a relevant factor in the consideration of the DPA; and Issue 4: there is no apparent or proven impact to the Daboll property resulting from the importation of the fill.

38The Tribunal also does not accept Mr. Daboll’s interpretation of s. 24(6) of the NEPDA. Albeit s. 24(6) clearly establishes that “the Minister may” issue an Order to Demolish any building or structure, it does not delegate that same authority to either the NEC or the Tribunal (emphasis added). When queried by the Tribunal in regard to the responsible Minister being referred to in s. 24(6) of the NEPDA, Mr. Daboll replied that “it is the same Minister under which the Chair derives her authority to adjudicate the Hearing”, which in fact is not the case. The Panel was not otherwise directed to any provision of the NEPDA that granted such authority, specifically, the authority to issue an Order to Demolish a building or structure, to either the NEC or the OLT. [emphasis added]

39In his written closing submissions, Mr. Daboll indicates “It should be noted that neither Ms. Smith nor Mr. Boucock issued an appeal of the NEC decision, nor did they, in fact, make any submission whatsoever that the NEC’s failure to approve the development permit for the fill should be reversed or modified. As such, especially in light of the Appellants’ submissions to the contrary, “the OLT is essentially precluded from any consideration of reversing the NEC’s failure to approve a development permit relating to the fill” [emphasis added].

40Contrary to Mr. Daboll’s assertion, this was a hearing de novo and as such the DPA in its entirety is before the Tribunal.

41Overall, the Tribunal did not find the submissions and opinions, or the appeal by Mr. Daboll to be credible or his submissions reliable. For example, Mr. Daboll indicated in his writing submission that the soil samples were taken at a depth of 12”, whereas Ms. Smith asserts, and the Tribunal accepts, that the numerous soil samples were taken at a depth 2

feet. More importantly, the Tribunal is satisfied that there are no adverse impacts to the Daboll property, and as such, his appeal is frivolous and without merit.

42Similarly, the Werners have not proven through the provision of any expert witnesses, reports, studies or evidence otherwise that their allegations in regard to the purported adverse impacts to their property, specifically their tree nursery farm, results from the imported fill placed on Mr. Boucock’s property.

ORDER

43THE TRIBUNAL ORDERS that the appeals are dismissed, and in accordance with

s. 25(8.1) of the Niagara Escarpment Planning and Development Act (“NEPDA”), the decision of the Niagara Escarpment Commission to issue a Development Permit subject to the provision for the importation of fill being refused, is confirmed.

“M.A. Sills”

M.A. SILLS HEARING OFFICER

“P. Tomilin”

P. TOMILIN 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.