Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 19, 2024

CASE NO(S).: OLT-23-001262

PROCEEDING COMMENCED UNDER section 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2

Appellants: See Attachment 1 – Appellant List

Applicants: Alexis Brenner and Andrew Duncan

Respondent: Niagara Escarpment Commission

Subject: Conditions of Approval for a Development Permit Application

Description: To appeal the conditional approval of a Development Permit Application for recognizing the existing use of various activities occurred on the subject property

Reference Number.: G/A/2023-2024/259

Property Address: 576799 Concession 9

Municipality/UT: Chatsworth/Grey

OLT Case No.: OLT-23-001262

OLT Lead Case No.: OLT-23-001262

OLT Case Name: Brough v. Ontario (Niagara Escarpment Commission)

Heard: October 21 to 25, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
Ange and Brad Torrie, Beatrice and Veronica Balogh, Linda Hyder, Shirley Torrie, Susan Reeve and Donald Brough (“Appellants”)	John Goudy
Paul Dreossi	Not present
Armand and Barbara Labute	Not present
Alexis Brenner, Andrew Duncan (“Applicants”)	Eric K. Gillespie

DECISION DELIVERED BY JEAN-PIERRE BLAIS AND ORDER OF THE HEARING OFFICE

INTRODUCTION

1A Tribunal Member constitutes a Hearing Officer for appeals under the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.3 (“NEPDA”).

2By Notice of Decision dated November 22, 2023, the Niagara Escarpment Commission (“NEC”) conditionally approved the Applicants’ application for a Development Permit for a property municipally known as 576799 Concession 9 in the municipality of Chatsworth (“Subject Property”) (“NEC Decision”). Essentially, the NEC recognized the existing use of Ridgewood Organic Farm and Retreat Centre, which was renamed Bubble Grove by the Applicants.

3The Appellants and Paul Dreossi and Armand and Barbara Labute appealed the approval of the Development Permit pursuant to section 25(5.1) of the NEPDA.

4Paul Dreossi, as well as Armand and Barbara Labute, did not appear at the Hearing in person but sent written submissions. Counsel for the Applicants did not object.

BACKGROUND

5The Applicants are the registered owners of the Subject Property, which they purchased from Norman and Bonnie Weber (“the Webers”) on March 2, 2022. The Webers purchased the Subject Property on September 17, 1982, from Gordon and Armintha Belbeck (“the Belbecks”).

6Both the Belbecks and the Webers referred to the Subject Property as Ridgewood Springs Farm.

7The Subject Property is approximately 34.8 hectares (86 acres) and is designated in part as Escarpment Natural Area and in part as Escarpment Protection Area under the Niagara Escarpment Plan (“NEP”).The Escarpment Natural Area imposes more restrictive constraints under the NEP framework than Escarpment Protection Area. Those parts of the Subject Property included in the Escarpment Natural Area include woodlands and trails. Those parts within the Escarpment Protection Area include apple orchards, a vineyard, a farmhouse, a barn, ponds, hedgerows, uncultivated fields and open space, woodland, a root cellar for apple storage and one bubble dome suite.

8The proposed development is located within the Escarpment Protection Area.

9The area surrounding the Subject Property consists of rural residential dwellings and farmlands with active agricultural operations in both crop production and livestock.

10On February 6, 2023, the Applicants applied to the NEC for a Development Permit to recognize the use of the Subject Property for group retreats, camping, events, and commercial outdoor activities, as well as to expand the use to allow for additional camping and associated facilities.

11A Notice of Violation was issued by the NEC on May 18, 2023 for the operation/establishment of a commercial enterprise on the Subject Property that advertised the renting out of domes and tents for use on the property and the establishment of a commercial enterprise that advertised a multi-day festival to occur in August, 2023 that offered on-site accommodation. The Notice of Violation stated that a development permit had not been issued for these commercial uses and that one is required when there is a change or expansion of a use.

12By Notice of Decision dated July 26, 2023, the NEC refused the Applicants’ first application for a Development Permit for the following reasons:

a) The previously established religious retreat function on the property fails to meet the NEP definition of an Existing Use;

b) notwithstanding the failure of the previously established use to meet the definition of an Existing Use, the proposed development cannot meet the development criteria associated with the change or expansion of an Existing Use in Part 2.3 of the NEP;

c) on-Farm Diversified Uses and Agriculture-Related Uses are not permitted in Escarpment Protection Area unless they are in a Prime Agricultural Area;

d) unserviced camping is only permitted on public and institutional lands in Escarpment Protection Area;

e) the intent of the County of Grey Official Plan is to not allow camping as an On-Farm Diversified Use; and,

f) there is significant opposition to the proposal due to concerns about the intensity of the proposed development and land use compatibility.

13On September 15, 2023, the Applicants submitted a new application to the NEC for a Development Permit for the Subject Property to recognize the use of the Subject Property for group retreats, camping, events, and commercial outdoor activities (“Proposed Retreat Use”/“Retreat Use”), but without the proposal to expand the use to allow for additional camping and associated facilities.

14In a laconic Decision of November 2023, this second application for a Development Permit was conditionally approved by the NEC using the following description of the proposed development:

To recognize the Existing Use of Ridgewood Springs Organic Farm and Retreat Centre (renamed Bubble Grove) that historically included the following activities:

• Hosting group retreats and providing short-term accommodations.

• Events:

o Workshops and classes (farming & spiritual classes)

o Tours (farm tours, wagon rides apple picking, etc.)

o Celebrations (honeymoons, weddings, family reunions)

o Camps (youth groups)

o Retreats (multi day and week-long retreats for groups)

• On-site sales (apples, produce, honey, books & spiritual items)

• Offering recreational, fitness, and educational experiences including trail hikes,

• swimming, volleyball and cross-country skiing on the property.

15The November NEC Decision is the sole decision which is subject to this Appeal.

POSITION OF PARTIES

16The Parties agree that this is a Hearing de novo and the Hearing Officer decides the matter anew “as if the matter had not been heard before and as if no decision had been previously rendered”.¹ They also concur that the Hearing Officer reviews the NEC Decision considering the evidence and submissions at the Hearing. The sufficiency of the NEC’s reasons need not be addressed. The Parties are also ad idem that the Appellants, not the Applicants, must establish that the NEC decision is not correct and that it should be changed. They also agreed that, if the Hearing Officer concludes that the NEC Decision is not correct and should not be changed, a recommendation in that sense would be made to the Minister of Natural Resources and Forestry (“Minister”). If the Hearing Officer is not convinced by the Appellants that the NEC decision is incorrect, then the NEC decision stands.

17The Appellants submit that the NEC Decision is not correct and cannot be salvaged through adjustment to the conditions. Firstly, the Appellants submit that the Applicants’ Retreat Use is not a permitted use. Secondly, the Appellants argue that the Applicants’ Retreat Use is not an “existing use” as that term is defined under the NEP framework. With respect to the latter, the Appellants submit that the use must meet a three-part test: (a) the use must be legally established; (b) the use must have existed on June 12, 1985 (i.e., the day of the approval of the NEP); and (c) the use must continue without interruption. For them, the NEC Decision is not correct and a recommendation to the Minister should be made to change the Decision.

18The Applicants argue that the Appellants have not met their onus of establishing that the NEC Decision was not correct. They submit that the Retreat Use existed before June 12, 1985, that it was a legally established use, and that it continued without interruption. They also contend that the NEC is estopped from claiming that the use is not an existing legal use. For them, the NEC decision should stand.

EVIDENCE

19In addition to an Agreed Statement of Facts, the Hearing Officer considered the oral evidence of the following witnesses:

a) Donald Brough, as a lay witness;

b) Norman Weber, as a lay witness;

c) Brandon Henderson, a senior planner with the NEC, who was qualified by the Hearing Officer to provide expert evidence in land use and environmental planning with specific expertise on the NEP;

d) Brad Torrie, as a lay witness;

e) Alexis Brenner, one of the Applicants, as a lay witness;

f) Nicholas Hayward, who had previously been a planner with the NEC (and who is currently on secondment with the Ministry of Natural Resources and Forestry) and who was qualified by the Hearing Officer to provide expert evidence in planning with specific expertise on the NEP; and

g) Pat Helder, as a lay reply witness.

Admissibility of Expert Witness Evidence

20Immediately before Mr. Henderson was to be called as a witness, Mr. Gillespie, Counsel for the Applicant, objected to hearing from Mr. Henderson. He did so without any prior notice to either the Hearing Officer or Mr. Goudy, even though the proposed evidence of Mr. Henderson was clearly set out in the Hearing Plan. Mr. Gillespie argued, based on the Ontario Court of Appeal decision in Niagara River Coalition v. Niagara-on-the-Lake (Town)², that the planning evidence of Mr. Henderson was inadmissible as the proper interpretation of the NEP is not a factual matter to be based on opinion evidence from planners; rather, it is a question of law. Mr. Goudy emphasized that he was being taken by surprise even though Mr. Gillespie had had ample opportunity to raise his concerns earlier, and that this issue could be fully addressed in closing submissions.

21Given section 12 of the Ontario Land Tribunal Act, S.O. 2021, Ch. 4 (“OLT Act”), the Hearing Officer ruled at the Hearing that Mr. Henderson’s evidence could be heard, and that Mr. Gillespie’s numerous and repetitive objections were taken under reserve and could be fully argued in closing submissions with respect to admissibility, weight and relevance. For the Hearing Officer, this was a fair, just and expeditious way of proceeding given that it was an administrative law Hearing.

22In closing arguments, Mr. Gillespie reiterated his position.³ Mr. Goudy conceded that the proper interpretation of an official plan is a question of law but submitted that not all issues about how an official plan applies or how to resolve conflicts between provisions of an official plan are questions of law. He added that, in most cases, the question of conformity with an official plan is a planning decision based on fact and policy or mixed law and fact. For Mr. Goudy, considering land use planning opinions does not derogate from the rightful assertion by the Hearing Officers of their jurisdiction in the determination of planning questions before them as matters of law.

23The Hearing Officer agrees with Mr. Goudy’s arguments. However, as discussed below, the determination of this matter turns largely on questions of fact, and the opinions of both planners qualified to provide expert evidence was not germane to the ultimate outcome of this Appeal. The Hearing Officer notes that the NEP is not an official plan.

Whether to Hear from Reply Witness

24Mr. Goudy requested that Pat Helder be called as a Reply Witness, to respond to the evidence of Ms. Brenner. Mr. Gillespie objected to Ms. Helder being called. He argued that the proposed evidence was not appropriate as it did not flow from the Applicants’ evidence, that it would amount in case splitting, that it was contrary to the collateral fact rule and that it was hearsay. The Hearing Officer allowed Ms. Helder to testify given that the Hearing Officer would have the opportunity to rule on the weight that should be given to her evidence. Having heard her evidence, the Hearing Officer finds that very little if any weight should be given to her evidence. Although Ms. Helder resided in the farmhouse from March 28, 2020 to February 2022, and may have been present when Ms. Brenner visited the property before purchasing it from the Webers, her recollection of conversations is imperfect and of little probative value.

Objection as to Qualification of a Proposed Expert

25Mr. Goudy objected to the qualification of Mr. Hayward as an expert. The Hearing Officer qualified him as an expert while acknowledging that his expertise was on the “light end” of the spectrum of expertise. Mr. Hayward is clearly less experienced than Mr. Henderson. Globally, the Hearing Officer put less weight on his expert testimony to the limited extent that the Hearing Officer relied on such evidence to make determinations in this matter. The outcome of this appeal turns principally on factual matters which the Hearing Officer was able to assess through the evidence of the lay witnesses, as well as on legal matters flowing from the NEC planning framework itself.

ISSUES

26The fundamental issue in this Appeal is whether the NEC decision is correct and should not be changed given the provisions of the NEPDA and the NEP. If not, the Hearing Officer must consider whether a conditional development permit with revised or additional conditions of approval would render the decision correct. Specifically, the NEHO must consider:

a) Is the Proposed Retreat Use a listed permitted use on the Subject Property?

b) Is the Proposed Retreat Use otherwise a permitted use as being an existing use on the Subject Property, namely:

i) did the Proposed Retreat Use exist before June 12, 1985;

ii) did the Proposed Retreat Use continue without interruption after June 12, 1985; and,

iii) was the Proposed Retreat Use an established legal use before June 12, 1985?

ANALYSIS

27When the Webers purchased the Subject Property on September 17, 1982 from the Belbecks, it was subject to development control by the NEC, even though the NEP was only first approved on June 12, 1985.

Listed Permitted Use

28Under the 2017 NEP, which is the relevant version for this Appeal, a permitted use must be listed. If it is not listed, it is deemed to be prohibited. In 1982, when the Webers purchased the property from the Belbecks, there were two permitted uses: (a) agricultural use related to the farm; and (b) single dwelling use related to the farmhouse. Agricultural use and dwelling use are defined terms. Through the definitions of dwelling unit and household, it is apparent that single dwelling use contemplates a single housekeeping unit. This is the starting point for this Appeal.

29The Hearing Office finds that the Proposed Retreat Use is not a listed permitted use for the Subject Property.

30Accordingly, one must consider whether the Proposed Retreat Use is an existing use.

Existing Use before June 12, 1985

31For both the Escarpment Natural Area and the Escarpment Protection Area, existing uses is a defined term under the NEP. The phrase “existing use” under the NEP framework is like legal non-conforming use under the general planning framework.

32The phrase “existing use” under the NEP means:

the legal use of any land, building or structure for a purpose that is not otherwise listed as a permitted use under the applicable designation in the NEP, and that was: (a) existing on the day of approval of the NEP, June 12, 1985; or (b) approved in accordance with the provisions of the NEP since June 12, 1985 but prior to the date of any amendment to this Plan under which the use ceased to be a permitted use; or (c) existing, in an area added to the NEP at the date of the approval of the amendment to this Plan that added the lands to this Plan. This is provided that the existing use has continued without interruption after the effective date as set out under (a), (b), or (c). [Emphasis added]

33To say the least, Mr. Weber’s oral evidence and his previous written statements are inconsistent with respect to when Retreat Use began on the Subject Property. This is unfortunate because, of all the witnesses, he was in the best position to establish when Retreat Use was present on the Subject Property. Having heard his oral evidence, including under cross examination, his recollection of past events seemed imperfect.

34On a balance of probabilities, the Hearing Officer finds that there was a Retreat Use on the Subject Property on or before June 12, 1985. The following facts support the conclusion that a Retreat Use was occurring prior to its sale to the Applicants in 2022 and that it is more likely than not that the retreat use began after the Webers purchased the Subject Property in 1982 and before June 12, 1985:

a) The Webers have generally been involved in youth and Christian retreats since the 1970s, held elsewhere than on the Subject Property;

b) when the Webers purchased the Subject Property, Mr. Weber had a vision to develop an organic apple orchard and to make the farm available for groups to use for retreats;

c) in his pamphlet entitled A Christian Story Book, Mr. Weber wrote that, before the 1982 purchase, he had intended to turn Ridgewood Spring Farms into a retreat centre;

d) the Webers, unlike the Belbecks, never resided on the Subject Property except occasionally on weekends or on a part-time basis;

e) the farmhouse includes numerous bedrooms and was furnished for up to 21 individuals;

f) various brochures were put into evidence describing the available retreat services and their costs;

g) in 1984 and 1985, Mr. Weber attempted to get Development Permits from the NEC to construct additional guest cabins but was unsuccessful;

h) the MLS for the sale of the Subject Property by the Webers states that the farm was “enjoyed as a retreat and loved by many over the years”;

i) in a handwritten note dated May 26, 2023, Mr. Weber stated that during the 39 years he and his wife owned the Subject Property they “made the house available as a retreat centre and rented it out for retreats for most of this time” [emphasis added];

j) in a handwritten letter dated May 28, 2023, Mr. Weber wrote that he “worked on getting the farmhouse ready as a retreat centre and began renting it out in 1987.” He added: “As with anything, it started out slowly and then built up to 15-20 retreats a year during the 90’s”; and,

k) in his book entitled What It’s Like to Walk with the Holy Spirit, Mr. Weber wrote in 2023 or 2024 that “within a couple of years after we purchased the farm [i.e., 1982 + 2 or 3 years = 1984 or 1985], we turned the large farmhouse into a retreat centre with seven bedrooms and the ability to sleep twenty-three people”. [Emphasis added]

35The Hearing Officer’s conclusion is on a balance of probabilities because Mr. Weber’s affidavits and viva voce evidence were to the effect that the retreat use did not begin on the Subject Property until 1987. He adopted the content of his two affidavits at the start of his oral testimony. In his affidavits, he stated that he gave up on the idea of three proposed cabins that were refused by the NEC a second time in July 1985 and turned instead to the idea of using the existing farmhouse as a space to accommodate retreat guests. His affidavit states that it was not until 1987 that the farmhouse was ready to serve as a retreat, presumably because preparation work was required.

36However, by contrast, in the context of the sale of the Subject Property to the Applicants, and through exchange between real estate agents, Mr. Weber wrote in December 2021 that the “retreat centre ran from 1985 to 2015”. This statement is in direct contradiction to what he subsequently stated in his Affidavits. From a real estate law perspective, those representations did not get incorporated into the final Agreement of Purchase and Sale. That Agreement states that the Subject Property’s “present use [is] farm with residential home on NEC”, that the Agreement “constitute the entire Agreement” and that there “is no representation, warranty, collateral agreement or condition, which affects this Agreement other than expressed herein”.

37It may very well be that the representations made in the December 2021 statement are not part of the contractual lis between the Webers and the Applicants and could not be relied upon in potential future litigation between the Webers and the Applicants. That issue is not before the Hearing Officer. However, in the context of this Appeal, which is not based on that Agreement, the Hearing Officer may look at that statement as a very relevant factual declaration.

38The Hearing Officer finds that more weight ought to be placed on the December 2021 statement than on the exact content of his subsequent Affidavits. Under cross-examination, Mr. Weber admitted that he wrote the December 21 statement, and that Mr. Goudy contributed significantly more to the drafting of the Affidavit, as is normally the case with the preparation of Affidavits generally when litigation is involved. His written statements noted above at paragraph 34 provides further corroboration that the retreat use likely began before June 1985.

39Given his evidence under cross examination, the Hearing Officer, on balance, prefers to rely on the written statements of Mr. Weber that indicated a likelihood of retreat use prior to June 12, 1985, and so finds.

40On the issue of historical retreat use, the evidence of Donald Brough was not particularly useful to the key factual determination in this Appeal. Mr. Brough testified as to his knowledge of the use that was made of the Subject Property. Mr. Brough began to reside on a neighbouring property with his wife Susan Reeve concurrently with the purchase of the Webers of their property. His evidence was not particularly probative as he admitted that he “had not been on the property very much”, this likely having occurred “three or four times” and some time ago. Similarly, Mr. Torrie also made limited visits to the Subject Property prior to its sale to the Applicants. The Hearing Officer took note that the lands in this area are very large rural tracts and knowledge of what is going on one’s neighbour’s property is unlike the knowledge of what is happening on neighbouring property in an urban or suburban setting.

41The evidence of Ms. Brenner came across as very defensive, argumentative, and self-serving and was of very little use to the Hearing Officer. Fortunately, very little turned on this evidence, as she had very little first-hand knowledge of the Subject Property’s past use as a retreat centre.

Continued Use Without Interruption

42With respect to the second part of the “existing use” test, the Hearing Officer concludes, on a balance of probabilities, that the retreat use continued without interruption.

43There is convincing evidence of retreat use existing prior to 2018. In his affidavit, Mr. Weber states he made the decision to stop hosting groups on the Subject Property by 2018. He stated that business was falling off as many of the Pentecostal churches were building their own retreat facilities. However, retreat use did not immediately end.

44Commencing in March 2017 until 2019, and then from April 2020 to early 2022, the Webers rented out the farmhouse to two consecutive single-family tenants, the Michauds and the Helders respectively. The first rental agreement with Gilbert and Ruth Michaud contemplated that groups might continue to use the property on occasion and that the Michauds would stay with the Webers on those occasions. Bookings gradually wound down. Yet, a last retreat was held in February 2020, just before the new month-to-month tenancy of the Helders. A retreat booking for May 2020 was cancelled due to the start of the global Covid pandemic.

45The Covid hiatus, which prevented many forms of gatherings, is sufficient for the Hearing Officer to conclude that there was no interruption in use from May 2020 to the eventual sale of the Subject Property to the Applicants in March of 2022. To decide otherwise would have broad and significant consequences on both existing use and legal non-conforming use due to the extraordinary impact of this unprecedented global pandemic on land use.

46The Hearing Officer disagrees with the submission of the Appellants that the retreat use was discontinued.

Was the Retreat Use a “legal use”?

47Pursuant to the NEP definition, existing use must be “legal use”. Between 1975 and 1985, the Subject Property was subject to development control and the NEC would have issued development permits. In that period, the establishment of retreat use by the Webers prior to June 12, 1985 would have required approvals from land use authorities.

48Both Mr. Hayward and Mr. Henderson agree that planners would have normally considered such things as the Minister’s draft NEP before its adoption, the lower tier municipality’s Official Plan, and the higher tier municipality’s Official Plan. At the very least, for Mr. Henderson, a development permit would be required and alignment with municipal planning documents may also have been required.

49The Appellants maintain that a legal use must be legally established use,⁴ that the sole way to establish legal use is an approved development permit, and that no NEC development permit has previously been obtained to authorize a change in use.

50The Applicants claim that contrary to the position of the Appellants, there are two ways to establish an existing use namely: (a) obtaining a development permit; and (b) establishing recognized legal use through other legislation. They submit that both Mr. Henderson and Mr. Hayward agreed that this second means is a way to establish legal use. However, the Applicants argue that the onus was on the Appellants to explore this second avenue through their evidence, and they did not do so upon examination in chief of Mr. Henderson.

51The evidence concerning legally established use prior to the NEP coming into effect in 1985 is imperfect. For instance, the two NEC development permit applications on the record from the 1980s for the establishment of three guest cabins, referred to in the Agreed Statement of Facts, make no mention of on-going group retreats nor expansion to an already established use being proposed.

52The Hearing Officer agrees with the Applicants. The Appellants’ argument is merely speculative. Mr. Hayward’s evidence is that he did not research the second means to establish legal use through legislation other than the NEC framework.

Overall Conclusion on Existing Legal Use

53Given the above, the Hearing Officer finds that the Appellants have, on a balance of probabilities, failed to meet the case to establish that the NEC decision was incorrect and should be changed. Based on the evidence before the Hearing Officer, there was legal existing Retreat Use on the Subject Property prior to June 1985 which continued uninterrupted. Accordingly, pursuant to section 25(12) of the NEPDA, the NEC’s decision is deemed to be confirmed.

Estoppel by Representation

54The Applicants argue that there were no compliance issues raised by the NEC for four decades with respect to retreat use and that this should have impact on this Appeal. They also argue that the Property Information Report, dated February 1, 2022, stated that “we are not aware of an existing non-compliance matter under the [NEPDA] on this property”. Similarly, an email from Mr. Hayward on May 29, 2023, indicated that certain uses on the Subject Property were “permitted and can continue” including “using the existing dwelling for small-scale retreats.” The Appellants also referred to an email from an NEC staff to the Applicant, Ms. Brenner, dated June 13, 2023. Based on this, the Applicants submit that the NEC was estopped from arguing that the use was not legal due to representations made by the NEC to their detriment.

55The Hearing Officer finds that the position of the Applicants on this matter is completely without merit. Firstly, the cases cited by Counsel for the Applicants are completely irrelevant to the case at hand.⁵ Secondly, the alleged representations were made by NEC staff and not the NEC itself. Thirdly, the alleged representations were not made by the Appellants. Fourthly, the alleged representations had caveats including that that the “application is under review”, “no decision has been made” and that the conclusions are “interim”. Fifthly, on questioning from the Hearing Officer, Mr. Gillespie acknowledged that estoppel is a discretionary remedy. Mostly, however, the Hearing Officer agrees with the Appellants that the passage of time and the failure by the NEC to enforce unauthorized changes in use without an NEC Development Permit would not, in itself, render the change in use legal.⁶

Potential Changes to the Conditions

56Mr. Gillespie, in his closing arguments, sought to have the Hearing Officer recommend to the Minister an expansion of the permitted uses to include camping.

57Mr. Goudy objected to this. He contended that unserviced camping is not a permitted use. He also argued that what the Applicants are seeking was essentially an appeal of the denial of the NEC decision of 2023, which is not under appeal, and the Applicants’ appeal of the NEC Decision. The Applicants appealed neither of those decisions and it is now too late to do so.

58The Hearing Officer concludes above that the NEC Decision is correct and should not be changed. This is not a case where a condition is recommended to be changed to make an otherwise incorrect decision correct. In those circumstances, the Applicants’ request fails.

59Accordingly, the NEC decision under appeal should not be changed.

PROCEDURAL MATTER

60After the close of the Hearing and the presentation of final arguments, Mr. Goudy sought to file an authority which he inadvertently omitted from his Brief of Authorities. Mr. Gillespie objected, arguing that it was highly unusual to attempt to put additional materials before a decision maker while the decision is under reserve.

61The Hearing Officer denied Mr. Goudy’s request to file a copy of the development regulations made under the 1980 NEPDA. The Appellants were not solely providing a copy of a document omitted from the Brief of Authorities; they were seeking to supplement their arguments. That opportunity had passed at the end of the Hearing when Mr. Goudy had had the opportunity to argue his clients’ case and reply to Mr. Gillespie’s arguments. Given section 12 of the OLT Act, the Hearing Officer must favour finality of pleadings.

ORDER

62Considering the above findings, the Hearing Officer concludes that the decision of the Niagara Escarpment Commission to conditionally issue a Development Permit in file No. G/A/2023-2024/259 is correct and should not be changed. The Niagara Escarpment Commission’s decision is deemed to be confirmed pursuant to section 25(12) of the Niagara Escarpment Planning and Development Act. The appeal is dismissed.

“Jean-Pierre Blais”

JEAN-PIERRE BLAIS

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

Appellant List

Appellant Name	Appeal No.
Susan Reeve and Donald Brough	009583
Linda Hyder	009584
Armand and Barbara Labute	009585
Shirley Torrie	009586
Ange and Brad Torrie	009587
Beatrice and Veronica Balough	009588
Paul Dreossi	009589

Footnotes

1. 1Renchko and Hunter v. NEC, 2007 NEHO, p. 18.
2. 22010 ONCA 173 paragraphs 43-45; [2010] O.J. No.937
3. 3See also 1000758840 Ontario Ltd. (c.o.b. as Niagara Neighbours for Community Safety) v. Toronto (City) (Ont.S.C.), [2024] O.J. 1488 paragraph 32.
4. 4Stark v. Niagara Escarpment Commission; 2006 NEHO; D.G. Bawtinheimer v. NEC, 2014 NEHO.
5. 5Bilkszto v. Niagara Escarpment Commission [2011] O.E.R.T.D. No. 15 (Ont. Environmental Review Tribunal); Ryan v. Moore 2005 SCC 38, [2005] 2 S.C.R. 53 (SCC); Universal Am-Can Ltd. V. Ontario Municipal Board [2001] O.J. No. 3615 (Ont. S.C.J.); Reclamation Systems Inc. v. Rae, 1996 CanLII 7950 (Ont. SC).
6. 6Stoss v. Niagara Escarpment Commission, 1999 NEHO, pages 9 to 11.