Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
December 11, 2024
CASE NO(S).:
OLT-22-004372
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
Nelson Aggregate Co.
Property Owner:
546958 Ontario Limited
Property Owner:
Bestway TV and Appliances Limited
Subject:
Failure of Approval Authority to announce a decision respecting a Proposed Official Plan Amendment
Description:
To permit the expansion of the Nelson Quarry
Reference Number:
505-04-20
Property Address:
2226, 2232, 2244, 2280, 2292, 2300, 2316, 2330 No. 2 Side Road and 5235 Cedar Springs Road
Municipality/UT:
Burlington/Halton
OLT Case No.:
OLT-22-004372
OLT Lead Case No.:
OLT-22-004372
OLT Case Name:
Nelson Aggregates Co. v. Burlington (City)
PROCEEDING COMMENCED UNDER subsection 11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.10
Applicant:
Nelson Aggregate Co.
Objector:
Alejandra Calle
Objector:
Alex Brock
Objector:
Anna Denvir et al
Description:
Proposed extension to its Burlington Quarry on lands located to the south and west of the existing Burlington Quarry
Reference Number:
License No. 626477
Property Address:
2226, 2232, 2244, 2280, 2292, 2300, 2316, 2330 No. 2 Side Road and 5235 Cedar Springs Road
Municipality/UT:
Burlington/Halton
OLT Case No.:
OLT-22-004888
OLT Lead Case No.:
OLT-22-004372
OLT Case Name:
Nelson Aggregate Co. v. Natural Resources and Forestry (Ministry)
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
Nelson Aggregate Co.
Subject:
Failure of Approval Authority to announce a decision respecting a Proposed Official Plan Amendment
Description:
The purpose of the application is to amend the Maps of the Halton Region Official Plan to permit the expansion of the existing quarry
Property Address:
2226, 2232, 2244, 2280, 2292, 2300, 2316, 2330 No. 2 Side Road and 5235 Cedar Springs Road
Municipality/UT:
Burlington/Halton
OLT Case No.:
OLT-22-004886
OLT Lead Case No.:
OLT-22-004372
OLT Case Name:
Nelson Aggregates Co. v. Halton (The Regional Municipality)
PROCEEDING COMMENCED UNDER subsection 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2
Applicant/Appellant:
Nelson Aggregate Co.
Subject of appeal:
Refusal of a Development Permit Application to expand the existing aggregate resource extraction operation
Reference Number:
H/E/2020-2021/108
Property Address:
2226, 2232, 2244, 2280, 2292, 2300, 2316, 2330 No. 2 Side Road and 5235 Cedar Springs Road
Municipality/UT:
Burlington/Halton
OLT Case No.:
OLT-23-000541
OLT Lead Case No.:
OLT-22-004372
OLT Case Name:
Nelson Aggregates Co. v. Ontario (Niagara Escarpment Commission)
PROCEEDING COMMENCED UNDER subsection 10(3) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2
Applicant/Appellant:
Nelson Aggregate Co.
Respondent:
Niagara Escarpment Commission
Subject of appeal:
Referral of the application to amend the Niagara Escarpment Plan to redesignate the lands from Escarpment Rural Area to Mineral Resource Extraction Area to expand the existing aggregate resource extraction operation
Reference Number:
PH 219 20
Property Address:
2226, 2232, 2244, 2280, 2292, 2300, 2316, 2330 No. 2 Side Road and 5235 Cedar Springs Road
Municipality/UT:
Burlington/Halton
OLT Case No.:
OLT-23-000631
OLT Lead Case No.:
OLT-22-004372
OLT Case Name:
Nelson Aggregates Co. v. Ontario (Niagara Escarpment Commission)
BEFORE:
M.A. SILLS
Wednesday, the 11th,
VICE-CHAIR
day of December, 2024
THE TRIBUNAL ORDERS that the Procedural Order, as agreed to between the parties and attached hereto as Attachment “A” to this Order, shall be in full force and effect for the purpose of governing the required procedures leading up to and including the hearing scheduled to commence on March 4, 2025.
“Euken Lui”
EUKEN LUI
REGISTRAR (A)
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 A
Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
December 11, 2024
CASE NO(S).:
OLT-22-004372
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
Nelson Aggregate Co.
Property Owner:
546958 Ontario Limited
Property Owner:
Bestway TV and Appliances Limited
Subject:
Failure of Approval Authority to announce a decision respecting a Proposed Official Plan Amendment
Description:
To permit the expansion of the Nelson Quarry
Reference Number:
505-04-20
Property Address:
2226, 2232, 2244, 2280, 2292, 2300, 2316, 2330 No. 2 Side Road and 5235 Cedar Springs Road
Municipality/UT:
Burlington/Halton
OLT Case No.:
OLT-22-004372
OLT Lead Case No.:
OLT-22-004372
OLT Case Name:
Nelson Aggregates Co. v. Burlington (City)
PROCEEDING COMMENCED UNDER subsection 11(5) of the Aggregate Resources Act, R.S.O. 1990, c. A.10
Applicant:
Nelson Aggregate Co.
Objector:
Alejandra Calle
Objector:
Alex Brock
Objector:
Anna Denvir et al
Description:
Proposed extension to its Burlington Quarry on lands located to the south and west of the existing Burlington Quarry
Reference Number:
License No. 626477
Property Address:
2226, 2232, 2244, 2280, 2292, 2300, 2316, 2330 No. 2 Side Road and 5235 Cedar Springs Road
Municipality/UT:
Burlington/Halton
OLT Case No.:
OLT-22-004888
OLT Lead Case No.:
OLT-22-004372
OLT Case Name:
Nelson Aggregate Co. v. Natural Resources and Forestry (Ministry)
PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant:
Nelson Aggregate Co.
Subject:
Failure of Approval Authority to announce a decision respecting a Proposed Official Plan Amendment
Description:
The purpose of the application is to amend the Maps of the Halton Region Official Plan to permit the expansion of the existing quarry
Property Address:
2226, 2232, 2244, 2280, 2292, 2300, 2316, 2330 No. 2 Side Road and 5235 Cedar Springs Road
Municipality/UT:
Burlington/Halton
OLT Case No.:
OLT-22-004886
OLT Lead Case No.:
OLT-22-004372
OLT Case Name:
Nelson Aggregates Co. v. Halton (The Regional Municipality)
PROCEEDING COMMENCED UNDER subsection 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2
Applicant/Appellant:
Nelson Aggregate Co.
Subject:
Refusal of a Development Permit Application to expand the existing aggregate resource extraction operation
Reference Number:
H/E/2020-2021/108
Property Address:
2226, 2232, 2244, 2280, 2292, 2300, 2316, 2330 No. 2 Side Road and 5235 Cedar Springs Road
Municipality/UT:
Burlington/Halton
OLT Case No.:
OLT-23-000541
OLT Lead Case No.:
OLT-22-004372
OLT Case Name:
Nelson Aggregates Co. v. Ontario (NEC)
PROCEEDING COMMENCED UNDER subsection 10(3) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2
Applicant/Appellant:
Nelson Aggregate Co.
Respondent:
Niagara Escarpment Commission
Subject of appeal:
Referral of the application to amend the Niagara Escarpment Plan to redesignate the lands from Escarpment Rural Area to Mineral Resource Extraction Area to expand the existing aggregate resource extraction operation
Reference Number:
PH 219 20
Property Address:
2226, 2232, 2244, 2280, 2292, 2300, 2316, 2330 No. 2 Side Road and 5235 Cedar Springs Road
Municipality/UT:
Burlington/Halton
OLT Case No.:
OLT-23-000631
OLT Lead Case No.:
OLT-22-004372
OLT Case Name:
Nelson Aggregates Co. v. Ontario (Niagara Escarpment Commission)
PROCEDURAL ORDER
- The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.
Organization of the Hearing
- The video hearing will begin on Tuesday, March 4, 2025 at 10 a.m. through the following video link:
https://global.gotomeeting.com/join/692665589
Access code: 692-665-589
Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at https://global.gotomeeting.com/install or a web application is available: https://app.gotomeeting.com/home.html
Persons who experience technical difficulties accessing the GoToMeeting application, or who only wish to listen to the event, can connect to the event by calling in to an audio-only telephone line: +1 (647) 497-9373 or Toll-Free 1-888-299-1889. The access code is 692-665-589
The parties’ initial estimation for the length of the hearing is 60 days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.
The parties and participants identified at the case management conference are set out in Attachment 1.
The issues are set out in the Issues List attached as Attachment 2. Subject to any opportunities to narrow or reduce the issues list (e.g. on consent of the parties, through a motion, through meetings of like experts), there will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.
The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.
Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.
Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.
Requirements Before the Hearing
A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before October 1, 2024 and in accordance with paragraph 23 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.
If the applicant intends to seek approval of a revised proposal at the hearing, the applicant shall provide details of the revised proposal, including revised plans and drawings, supporting studies, and revised draft instruments of which the applicant is seeking approval on or before September 30, 2024 unless otherwise agreed to by the parties. If the applicant provides a revised proposal containing major changes, the parties shall have the right to request a further case management conference in order to address changes to procedural or hearing dates, the Procedural Order, and revise and/or augment the Issues List. This paragraph does not apply to minor changes to the Site Plans or to a revision that is the result of a settlement or a meeting of experts.
Expert witnesses in the same field shall have a meeting on or before December 20, 2024 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the experts in the same field must prepare and sign a Statement of Agreed Facts and Issues identifying areas of agreement, dispute and the outstanding issues in their field that will be addressed at the hearing. All documents prepared/exchanged and all discussions between expert witnesses are confidential and without prejudice, with the exception of the Statement of Agreed Facts and Issues which becomes part of the record when it has been signed by the experts. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT Case Coordinator on or before January 17, 2025.
An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 14 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.
Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 14 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 14 below.
On or before November 29, 2024, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT Case Coordinator and in accordance with paragraph 23 below.
On or before November 29, 2024, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 23 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before January 31, 2025, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before February 14, 2025, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 23 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
On or before January 31, 2025, the parties shall provide to all other parties and the OLT Case Coordinator a response to any written evidence that has been received and in accordance with paragraph 23 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT Case Coordinator on or before February 7, 2025.
A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.
A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before February 14, 2025 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.
All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.
Any party may request that the presiding Tribunal Member conduct a site visit and in accordance with Rule 22.4, if the Tribunal determines that a site visit would be of benefit in obtaining a fair understanding of any evidence which is the subject of the proceeding, the Tribunal may conduct a site visit on such terms as the presiding Tribunal Member establishes to facilitate and to govern the conduct of the site visit and the participation of the parties to the proceeding in the visit.
This Member is not seized.
So orders the Tribunal.
Meaning of terms used in the Procedural Order
A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.
NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.
A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.
A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.
Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.
Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.
A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss; and a list of reports or materials that the witness will rely on at the hearing.
An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.
A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.
Additional Information
A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.
The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:
direct examination by the party presenting the witness;
direct examination by any party of similar interest, in the manner determined by the Tribunal;
cross-examination by parties of opposite interest;
re-examination by the party presenting the witness; or
another order of examination mutually agreed among the parties or directed by the Tribunal.
ATTACHMENT 1
LIST OF PARTIES AND PARTICIPANTS
A. PARTIES
Applicant/Appellant:
Nelson Aggregate Co.
David S. White, Q.C.
Devry Smith Frank LLP
100-95 Barber Greene Road
Toronto, ON M3C 3E9
Email: david.white@devrylaw.ca
Tel: (416) 449-1400
Kim Mullin and Sean Ovas
Woodbull LLP
65 Queen Street West, Suite 1400
Toronto, ON M5H 2M5
Email: kmullin@woodbull.ca
Email: sovas@woodbull.ca
Tel: (416) 203-5633
Tel: (416) 203-7306
City of Burlington
Rodney Northey and Jessica Boily
Gowling WLG
1First Canadian Place
100 King Street West, Suite 1600
Toronto, ON M5X 1G5
Email: rodney.northey@gowlingwlg.com
Email: jessica.boily@gowlingwlg.com
Tel: (416) 369-6666
The Regional Municipality of Halton
David Germain
Thomson Rogers 390 Bay Street, Suite 3100
Toronto, ON M5H 1W2
Email: dgermain@trlaw.com
Tel: (416) 868-3162
Chris Barnett
Osler
100 King Street West
1 First Canadian Place
Suite 6200, P.O. Box 50
Toronto, ON M5X 1B8
Email: cbarnett@osler.com
Tel: (416) 862-6651
Kelly G. Yerxa
Halton Region
Legal Services, Legislative & Planning Services 1151 Bronte Road
Oakville, ON L6M 3L1
Email: kelly.yerxa@halton.ca
Tel: (905) 825-6000
4.
Niagara Escarpment Commission
Demetrius Kappos
Ministry of Natural Resources
Legal Services Branch – Civil Law Division
99 Wellesley Street West
3rd Floor, Room 3420
Toronto, ON M7A 1W3
Email: demetrius.kappos@ontario.ca
Tel: (416) 254-7258
Protecting Escarpment Rural Land (PERL)
Conserving Our Rural Ecosystems of Burlington Inc. (CORE Burlington)
David Donnelly
Donnelly Law
276 Carlaw Avenue, Suite 203
Toronto, ON M4M 3L1
Email: david@donnellylaw.ca
Tel: (416) 572-0464
B. PATICIPANTS
Cameron & Jaime Duguid
Mike Myers
Jeff Jaesup Yoon &
Joanne Joowon Cho
Alejandra Calle
Janet Myers
Dr. Brian Helstrom
Karen Brock
Diane Gregg
Mike Koster
Eric Trask
Matt Welland
Scott & Lyn Patterson
Doug Christilaw & Donna Millar
Mary-Ann Welland
Linda Jolly
Lisa Maria Loaicono
Bernard Dutka and
Helene Keller-Dutka
Jean Wilkinson
Buddy Ledger
Christopher Gregg
Kim Addison
Trish Moraghan
David Bettencourt
Camilla Mehler
Mate Saric
Maureen & John Downey
Ella Myers
Roger Goulet
Kathryn Nicholson
Shari Mann
Marcel Gamon
Tereza Kalac
tkalac@coordinate-industries.com
Julie Rubinoff
Ken Richards
Damir Kalac
Dr. Mira Saric
Tony Sevelka
Nicole Hepburn
Judith Murray
Todd Jarrett
Julien & Joanne Brosseau
Marinko Saric
msaric@coordinate-industries.com
Alex Brock
Sue Godfrey
Katie Krelove
Burlington Green Environmental Association
Terence Denvir
Gord & Marlene Pinard
Janice & Karl-Heinz Hoefert
Wendy Diaz & Boni Millar
Paul Chan
Anne Markey Browne
Susan G. Blake
James P. Blake
John Furtado
Brian & Andrea Long
Michelle Witterick
Cally Ly
Lee Hartwell
Karen Moorse
Ritch Ford
Scott Patterson
Hans Goetze
Lorretta Bailey
Jane Jenner
Aaron Laing
ATTACHMENT 2
ISSUES LIST
Note: The identification of an issue on the Issues List does not constitute an acknowledgement by the Tribunal or any Party that the issue is relevant or appropriate, or that the Tribunal has jurisdiction over it. The identification of an issue by a Party indicates that Party’s intent to tender evidence and/or make submissions on it, for the purpose of fairly identifying to the other Parties the case they need to meet.
Applicable Legal & Policy Tests
Does Nelson’s Proposal (or the “Proposal”)1 have appropriate regard for the matters of provincial interest set out in section 2 of the Planning Act, in particular, subsections 2(a), 2(b), 2(c)?
Is the Proposal consistent with the Provincial Planning Statement, 2024 (the “PPS”), as required by s.3(5(a) of the Planning Act, including but not limited to the following policy sections and their related definitions:
a) 2.1.6 (Planning for People and Homes);
b) 2.5.1 (Rural Areas in Municipalities);
c) 2.6.1, 2.6.2, 2.6.5 (Rural Lands in Municipalities);
d) 6.2.1, 3.5.1 (Coordination & Compatibility);
e) 3.9.1 (Public Spaces, Recreation, Parks, Trails and Open Space);
f) 3.6.8 (Sewage, Water and Stormwater);
g) 2.9 (Energy Conservation, Air Quality and Climate Change);
h) 4.1.1, 4.1.2, 4.1.3, 4.1.4, 4.1.5, 4.1.6, 4.1.7, 4.1.8 (Natural Heritage);
i) 4.2.1, 4.2.2, (Water);
1 Means the proposal to expand its quarry operation on the Mount Nemo Plateau, and includes its applications for (a) redesignation of the lands in the Niagara Escarpment Plan from Escarpment Rural Area to Mineral Resource Extraction Area, (b) a Development Permit covering the existing and expanded quarry site, (c) an amendment to the Halton Regional Official Plan to allow mineral aggregate extraction uses, (d) for an amendment to the City of Burlington Official Plan to allow mineral aggregate extraction uses, (e) a Class A, Category 2 quarry license under the Aggregate Resources Act for the quarry expansion, and (f) proposed changes to the existing quarry.
j) 4.3.1, 4.3.2, 4.3.5, (Agriculture);
k) 4.5.2.1, 4.5.2.2, 4.5.3.1, 4.5.3.2, 4.5.4.1, 4.5.4.2 (Mineral Aggregate Resources);
l) 4.6.1, 4.6.4 (Cultural Heritage and Archaeology);
m) 5.2.4 (Natural Hazards);
n) 5.3.1 (Human-Made Hazards); and
o) Chapter 6 (Implementation and Interpretation).
Does the Proposal conform and/or avoid conflict with the Greenbelt Plan, 2017, as required by s.3(5) of the Planning Act, including but not limited to the following policy sections and their related definitions: 1.4.3.1, 2.2, 3.3.1, 3.3.2?
Does the Proposal comply with the Niagara Escarpment Planning and Development Act (“NEPDA”), including but not limited to its purpose (s. 2), objectives (s. 8), and sections 6.1, 10 and 24?
Does the Proposal conform and/or avoid conflict with the Niagara Escarpment Plan, 2017 (“NEP”) as required by s.3(5) of the Planning Act and s. 13 of NEPDA, including but not limited to:
a) the Purpose and Objectives (pg.7);
b) Part 1 Land Use Policies – Policy 1.2.1; Policy 1.2.2.3; Policies 1.2.2.4(b) and (c); and Policy 1.9.1; and,
c) Part 2 Development Criteria – Criteria 2.2.1; Criteria 2.2.8; Criteria 2.6.3(a) and (b); Criteria 2.6.9; Criteria 2.6.10; Criteria 2.7.1; Criteria 2.7.2; Criteria 2.7.3; Criteria 2.7.6; Criteria 2.8.1; Criteria 2.9.2; Criteria 2.9.3 (a),(b),(d),(e),(g),(h),(i), and (j); Criteria 2.9.9; Criteria 2.9.11(a),(b),and (j); and, Criteria 2.10.2.
Does the Proposal conform with the Region of Halton (“ROH”) Official Plan (“ROP”), as required by s.24(1) of the Planning Act, including but not limited to the following policy sections and their related definitions: 57, 58, 61, 62, 64, 101, 109, 110, 114, 116.1, 118, 139.9.2, 145, 147, 167, and 173?
Does the Proposal conform with the 1997 COP, as required by s.24(1) of the Planning Act, including but not limited to the following policy sections and their related definitions:
a) Part II, sections 2.6, 2.8, 3.2, 3.8, 3.9, 8.1, and 13.2;
b) Part IV, sections 2.2 and 2.3; and
c) Part VI, section 1.3(i)?
- To what extent should consideration of the Proposal be informed by the 1997 COP including but not limited to the following policy sections and their related definitions
a) Part I, Sections 3.0(b), 5.3;
b) Part II, sections 2.0, 2.1, 2.2, 2.3, 2.4, 2.5, 2.7, 2.10, 2.11, 8.0, 8.2, 8.3, 8.4, 13.1, 13.3,
c) Part IV, sections 2.0, 2.1, 2.5 and 2.8;
d) Part VI, section 1.3(f) and (h)?
To what extent should consideration of the Proposal be informed by the COP adopted by City Council in 2018 and approved by the Region of Halton in 2020 (“2020 COP”)?
Does the Proposal consider and address all applicable guidance (e.g. laws, regulations, plans, policies, standards and guidelines) in compliance with the applicable legal principles of conflict and paramountcy?
Does the Proposal for the integrated operation of the extensions with the existing Burlington Quarry comply with applicable law and policy?
General Principles
Does the Proposal give rise to an undue impact on the surrounding area and its character?
Does the Proposal represent good planning and is it in the public interest?
Has Nelson appropriately addressed the cumulative impact of the existing Burlington Quarry with Proposal and satisfied the precautionary principle?
Is all or any portion of the Proposal premature given the information available to the Tribunal at this time?
Has Nelson adequately identified all impacts on specific land uses within the community and proposed sufficient mitigation measures?
Does the Proposal conform to climate change and greenhouse gases policy objectives as required?
Applicable Guidance
- Does the Proposal address ROH’s Aggregate Resources Reference Manual, and associated guidelines (Agricultural Impact Assessment Guidelines, Air Quality Guidelines, Environmental Impact Assessment Guidelines, Land Use Compatibility Guidelines, Transportation Impact Study Guidelines)?
Water Resources Impacts
Does the Proposal adequately assess the potential impacts to groundwater and surface water resources, in terms of both water quality and quantity?
Is Nelson’s hydrologic and hydraulic modelling adequate in that it:
a) uses an appropriate baseline condition informed by all relevant data;
b) includes appropriate and sufficient data;
c) is capable of reliably predicting future conditions; and
d) is sufficiently reliable to provide a basis for approval of the Proposal?
- Has Nelson demonstrated that there will be no unacceptable impacts on surface water or groundwater resources, in terms of both water quality and quantity, as a result of the Proposal, and in particular, has Nelson adequately demonstrated that there will be no unacceptable impacts to the following:
a) private wells, including those with predicted impacts of 10% or less;
b) adjacent and downstream wetlands;
c) adjacent and downstream watercourses;
d) groundwater and karstic systems; and
e) the overall water budget from the watershed including existing and planned municipal drinking water systems.
Are the wetlands setbacks proposed by Nelson appropriate?
Has Nelson adequately considered the findings of the Halton-Hamilton Drinking Water Source Protection Program regarding the location of highly vulnerable aquifers?
Has Nelson adequately studied and addressed the impact on water resources of Nelson’s long- term proposal to take and pump water in perpetuity?
Natural Heritage Impacts
Has Nelson adequately studied and demonstrated the Proposal will not have any unacceptable impacts on endangered and threatened species or their habitat, including the Jefferson’s salamander, butternut tree and Blanding’s Turtle, and that the Proposal complies with the Endangered Species Act (“ESA”)?
Has Nelson adequately identified all relevant natural heritage and hydrologic features and functions and are its studies complete and thorough, including any necessary consideration of its previous reforestation efforts?
Has Nelson undertaken sufficient work, analysis and site characterization to adequately assess the Proposal’s potential impacts on natural heritage and hydrologic features and functions?
Has Nelson demonstrated that the Proposal will not result in any unacceptable impacts to natural heritage and hydrologic features and functions, their diversity and connectivity, including during active quarrying and through rehabilitation?
Are the woodlands setbacks proposed by Nelson appropriate?
Will the proposed monitoring, mitigation and enforcement measures, including in the AMP, adequately protect natural heritage and hydrologic features and functions, including appropriately maintaining diversity and existing connectivity and corridors?
Has Nelson adequately studied fish habitat on-site and downstream, including the relationship between groundwater upwellings and surface water, and adequately characterized the fish community?
Has Nelson demonstrated that fish habitat in on-site golf course ponds and downstream will be protected during active quarrying and enhanced through rehabilitation, particularly considering the water management system proposed?
Will the Proposal comply with the Fisheries Act?
Mitigation – AMP
Has Nelson conducted sufficient study to inform an appropriate Adaptive Management Plan (“AMP”) for impacts on water and natural heritage or has Nelson placed too great a reliance on developing these measures as issues arise through the AMP?
Has Nelson incorporated sufficient, accurate and complete assumptions and data into its AMP?
Has Nelson appropriately addressed impacts due to climate change based on the available climate model predictions in the AMP?
Is the AMP appropriate and sufficiently precise so that for all areas of impact, the AMP will provide for:
a) an adequate monitoring program that will:
i. verify assumptions;
ii. appropriately confirm the accuracy of predicted changes in all areas of potential impact; and
iii. appropriately identify potential and actual unacceptable impacts in the future;
b) an appropriate mitigation program that will:
i. verify assumptions;
ii. provide for adequate, appropriate and sufficient triggers for action;
iii. provide an appropriate methodology for the setting and updating of targets, thresholds and triggers;
iv. be enforceable in light of the instruments to which Nelson is subject;
v. appropriately address all potential operational risks, including emergency measures and procedures?
Has the AMP been appropriately designed to reduce or avoid dependence on an active water management system?
Is Nelson’s Proposal to take and pump water in perpetuity appropriate?
a) If so, does Nelson’s AMP achieve its stated objective for Nelson to bear all costs and risks associated with its proposal to take and pump water in perpetuity or are additional enforcement or other mechanisms required?
Air Quality, Noise, Blasting and Human Health Impacts
Has Nelson adequately studied and addressed all sources of emissions, particularly considering the cumulative nature, extent and intensity of existing operations at the Burlington Quarry, including by third parties?
Has Nelson adequately studied air quality impacts, including in all potential operational scenarios?
Does the Proposal comply with Ministry of the Environment, Conservation and Parks (“MECP”) guidance as it relates to emissions?
Will the Proposal result in unacceptable air quality impacts to nearby sensitive uses, sensitive receptors or human health?
Will the Proposal result in unacceptable noise impacts to nearby noise-sensitive uses?
Has the Proposal appropriately addressed potential impacts of blasting, including negative impacts of flyrock?
What operational restrictions, mitigation, monitoring and enforcement measurements should be imposed to address emissions?
Will all required mitigation measures be implemented in an enforceable manner, including through approvals, instruments, agreements and site plans?
Traffic Impacts
Has Nelson adequately studied traffic, transportation and safety impacts, including the nature, extent and intensity of the use of No. 2 Side Road set out in the Proposal?
Will the Proposal result in any unacceptable traffic, transportation and safety impacts, including as a result of inbound and outbound truck traffic?
Has appropriate provision been made for the dedication of all required road widenings and daylight triangles?
What operational restrictions, mitigation, monitoring and enforcement measurements should be imposed to address potential traffic and transportation impacts, including but not limited to consideration of an alternative haul route?
Agricultural Impacts
Has Nelson adequately studied impacts on all types, sizes and intensities of agricultural uses within the appropriate study area?
Will the Proposal adequately protect prime agricultural areas and lands including on the proposed extraction lands, adjacent lands and lands along the proposed haul route?
Cultural Heritage Impacts
Has Nelson adequately investigated, studied and evaluated cultural heritage resources, including built heritage resources on the existing golf course and cultural heritage landscapes, in light of the location of the Proposal in an identified Cultural Heritage Landscape Study Area as set out in policy 3.5.2(5.1) of the 2020 COP?
Will the Proposal conserve significant cultural heritage resources?
Will the Proposal minimize negative impacts on parks, open space and the existing and optimum routes of the Bruce Trail?
Aggregate Resources
Does the Proposal address the quality and quantity of aggregate available at the existing and proposed sites?
Does the Proposal adequately address the depth of the resource and the implications of the availability of the resource at greater depths?
Is the proposed extraction footprint in each of the two proposed extensions appropriate?
Is the Aggregate Resources Act (“ARA”) license application, including its site plan, consistent with the "matters to be considered" under section 12 of the ARA, in particular sections 12(b), (d), (e), (f), (h), (i) and (j) and the Aggregate Resources of Ontario: Provincial Standards (Category 2)?
Are all necessary technical details and conditions appropriately addressed in the proposed new and amended site plans under the ARA?
Are the proposed ARA site plan drawings and notes accurate, comprehensive and appropriate?
Does the Proposal contravene the ARA’s purposes at section 2 and Nelson’s obligations to undertake progressive and final rehabilitation?
Progressive and Final Rehabilitation
Does the rehabilitation plan in the Proposal appropriately consider and apply the planning objectives of each of the relevant planning instruments, including as it relates to agricultural rehabilitation, opportunities to include rehabilitated land in the Niagara Escarpment Parks and Open Space System, restoration and enhancement of natural heritage and hydrologic features and functions, provision of recreational use, protection and strengthening of the rural community, and conservation of cultural heritage resources?
Is the Proposal’s use of off-site material for rehabilitation appropriate and what, if any, mitigation measures may be required as a result?
Has Nelson adequately studied the proposal to take and pump water in perpetuity, including alternatives to, and is it appropriate?
Has Nelson demonstrated that all long-term operational, monitoring, mitigation and other measures necessary for its rehabilitation plan will be appropriately addressed by Nelson and not result in a financial liability to the public?
Can the existing and proposed integrated quarries can be considered “interim” not permanent land uses given that the extraction and subsequent rehabilitation of the quarries will take several decades and is this appropriate?
Is it appropriate to significantly delay the rehabilitation of the existing Burlington Quarry as a result of the Proposal?
Are the Proposal and Nelson’s actions to date consistent with the ARA requirement for progressive rehabilitation as it relates to the existing Burlington Quarry?
Have the impacts of the proposed after-use in the Proposal been fully studied, including its impact on natural heritage?
Implementation
- If the Proposal complies, conforms, does not conflict with and is consistent with applicable law and policy:
a) what is the appropriate form and content and conditions of the NEP Amendment, NEPDA development permit, Planning Act instruments, ARA licence and site plans, including the site plans for the existing Burlington Quarry; and
b) what legal agreement is necessary between or among Nelson, the municipalities and agencies to:
(a) enforce the requirements of an AMP to ensure that any and all impacts of the proposed quarry are addressed and borne by Nelson to ensure the public, municipalities and agencies are not put at any financial or other risk;
(b) enforce the requirements of a rehabilitation plan including progressive and timely rehabilitation;
(c) enforce any other commitment made by Nelson or requirement of its Proposal; and if so, what are the appropriate terms of any such agreement(s)?
ATTACHMENT 3
ORDER OF EVIDENCE
Evidence in Chief
Nelson Aggregate Co.
City of Burlington
The Regional Municipality of Halton
Niagara Escarpment Commission (NEC)
PERL
CORE Burlington
REPLY:
- Nelson Aggregate Co.
ATTACHMENT 4
SUMMARY OF PROCEDURAL DATES
DATE
EVENT
September 30, 2024
Applicant to provide revised proposal, if necessary
October 1, 2024
Exchange of list of witnesses and the order in which they will be called
November 29, 2024
Exchange of Participant Statements
November 29, 2024
Exchange of Expert Witness Statements
December 20, 2024
Meetings of expert witnesses to be completed
January 17, 2025
Filing of agreed statements of facts and issues from meetings of various expert witness groups
January 31, 2025
Responses to any written evidence
January 31, 2025
Confirm with the Tribunal if all the reserved hearing dates are still required
February 7, 2025
File Joint Document Book
February 14, 2025
Exchange of Visual Evidence
February 14, 2025
File Hearing Plan
March 4, 2025 (60 days) 10:00 a.m.
Hearing commences