Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 07, 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
Applicant: Alexis Brenner and Andrew Duncan
Respondent: Niagara Escarpment Commission
Subject: Conditions of Approval for a Development Permit
Description: To appeal the conditional approval of a Development Permit Application to recognize existing uses 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: April 16, 2024 by Video Hearing
APPEARANCES:
| Parties | Counsel*/Representative |
|---|---|
| Alexis Brenner and Andrew Duncan | self-represented |
| Susan Reeve, Donald Brough, Shirley Torrie, Beatrice and Veronica Balogh, Linda Hyder, And Ange and Brad Torrie | John Goudy* |
| Paul Dreossi | self-represented |
| Armand and Barbara Labute | John Goudy, acting as agent |
MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON APRIL 16, 2024 AND ORDER OF THE HEARING OFFICE
1This Decision arises from the second Case Management Conference (“CMC”) regarding appeals brought by Susan Reeve, Donald Brough, Shirley Torrie, Beatrice and Veronica Balogh, Linda Hyder, Ange and Brad Torrie, Paul Dreossi, and Armand and Barbara Labute (together, “Appellants”) of the decision made by the Niagara Escarpment Commission (“Commission”) granting a development permit to Alexis Brenner and Andrew Duncan (“Applicants”) relating to the lands located at 576799 Concession 9 (“subject lands”), in the Municipality of Chatsworth (Holland), in the County of Grey.
2The Tribunal acts in its role as the Niagara Escarpment Hearing Office (“Hearing Office”) in these proceedings.
3The Commission has previously indicated that it does not plan to engage in the proceedings. It did not attend the CMC.
4A key question in the proceedings is whether various activities that have been undertaken on the subject property constitute legal existing uses. The proposed development permit would allow the continuation of these activities. They include hosting group retreats and providing short-term accommodations; hosting events; on-site sales; and recreational, fitness, and educational activities.
5At the CMC, the Hearing Office addressed the identification of issues to be adjudicated, the finalization of a draft Procedural Order, the scheduling of a motion to dismiss, and the scheduling of a further CMC.
6Subsequent to the CMC, on May 1, 2024, the Applicants wrote to the Hearing Office indicating that they no longer wish to have the development permit and would not be bringing a motion to dismiss.
Identification of Issues
7The Appellants filed a draft Procedural Order and Issues List prior to the CMC. The Applicants were opposed to several of the proposed issues on the basis that once the uses of the subject property have been established as legal existing uses, the remaining issues will become irrelevant. They submitted that issues relating to conformity with the Provincial Policy Statement, 2020 (“PPS”) and the County of Grey Official Plan (“County’s Official Plan”) are of lesser importance and do not need to be included. They also submitted that only the 1983 version of the Niagara Escarpment Plan, and not the current version, is relevant and questioned the relevancy of issues relating to unserviced camping and On-Farm Diversified Uses on the subject property.
8The threshold for issues to be included on an issues list is low. The proposed issues must simply appear to be relevant and to be within the jurisdiction of the Hearing Office to adjudicate. In the present case, the Hearing Office found that all of the issues proposed by the Appellants appear to be relevant, are within the Hearing Office’s jurisdiction to adjudicate, and should not be struck from the Issues List.
9Regarding issues relating to the PPS and Niagara Escarpment Plan, the Hearing Office notes that under s. 3(5) of the Planning Act, a decision of a commission or agency of the government, including the Hearing Office, in respect of the exercise of any authority that affects a planning matter, must be consistent with the PPS and must conform with the provincial plans, including the Niagara Escarpment Plan. Although the consistency test for applying PPS policies is different from the conformity test for applying Niagara Escarpment Plan policies, both must be applied by the Hearing Office when adjudicating a development permit appeal.
10Under s. 14 of the Niagara Escarpment Planning and Development Act (“NEPDA”), where the Niagara Escarpment Plan is in effect and there is a conflict between any provision of the Plan and any provision of a local plan covering any part of the Niagara Escarpment Planning Area, then the provision of the Niagara Escarpment Plan prevails. This does not necessarily exclude the consideration of Official Plan policies in a development permit appeal under s. 25 of the NEPDA. Also, Objective 7 of the Plan is to support municipalities within the Niagara Escarpment Plan Area in their exercise of the planning functions conferred upon them by the Planning Act. Based on this, the Hearing Office found that issues relating to the application of the County’s Official Plan may be relevant. Based on the context of the appeals, the Hearing Office also found that issues relating to On-Farm Diversified Uses and to unserviced camping may be relevant and may be included in the Issues List.
11Regarding which version of the Niagara Escarpment Plan should be applied, the Hearing Office found that consideration of the 1983 version of the Plan may be relevant to the issue of determining legal existing uses, while the current version of the Plan may be relevant to the consideration of all the issues to be adjudicated. The Hearing Office notes that conformity under s. 3(5) of the Planning Act requires consideration of the version of the provincial plan in effect on the date of the decision.
Finalization of the Draft Procedural Order
12The Parties identified the witnesses that they plan to call at the hearing and the amount of time that will be needed. It was determined that a three-day hearing would be required.
13The final item to be addressed regarding the draft Procedural Order is the scheduling of the hearing. This was postponed so that the Applicants can serve and file a motion to dismiss and have the motion adjudicated before hearing dates are set.
Status of the Appellants - Armand and Barbara Labute, and Paul Dreossi
14The Applicants submitted that because the Appellants Armand and Barbara Labute have not personally appeared at either CMC, their status should be changed from Appellant to Participant. John Goudy, acting as agent for Mr. and Ms. Labute at this CMC, responded that these Appellants have been represented at each CMC and there is no requirement for them to appear personally. The Hearing Office agrees with Mr. Goudy.
15The Applicants also submitted that because the Appellant Paul Dreossi does not plan to call any witnesses, his appeal should be dismissed. Mr. Dreossi responded that his issues overlap with those of the other Appellants and that he plans to rely on their evidence. The Hearing Office encourages Parties to engage in a proceeding in an efficient manner. It supports Mr. Dreossi’s approach in that it would avoid the calling of duplicative evidence and will help ensure an efficient hearing. Mr. Dreossi is an Appellant with a genuine interest in these proceedings and he has the right to make submissions, call evidence, and cross-examine witnesses at a hearing. The Hearing Office also notes that the Applicants did not bring a motion to dismiss Mr. Dreossi’s appeal, which would be needed for such a request from a Party to succeed.
Scheduling a Motion to Dismiss
16At the CMC, the Applicants indicated their intention to bring a motion to dismiss on the basis that the Commission did not have the jurisdiction to require the Applicants to apply for a development permit to recognize existing uses on the subject property and, as a result, the Appellants did not have the legal ability to file their appeals. On this basis, they argued that the Hearing Office does not have the jurisdiction to hear the appeals.
17Subsequent to the CMC, on May 1, 2024, the Applicants wrote to the Hearing Office and indicated that they no longer wish to bring the motion to dismiss and now seek to withdraw their application for the development permit.
18The Hearing Office acknowledges the Applicants’ decision to not bring a motion to dismiss and it rescinds the due dates that were orally directed by the Hearing Office at the CMC regarding the hearing of the motion and the exchange of motion materials.
Next CMC
19At the CMC, the Hearing Office scheduled a further CMC for Friday, June 7, 2024, at 10 a.m. to be heard by video hearing, at which a pathway forward for these proceedings would be determined. With the current expressed intention of the Applicants to withdraw their application for the development permit, the Hearing Office finds that the CMC on June 7, 2024 is still required in order to receive submissions from the Parties on the way forward based on the statutory provisions in s. 25 of NEPDA.
20Parties and Participants are asked to log in to the CMC at least 15 minutes before the start of the event to test their video and audio connections:
GoTo Conference: https://global.gotomeeting.com/join/927921077
Access code: 927-921-077
21Parties 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 GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html
22Persons 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) 497-9391 or Toll-Free 1-888-299-1889. The access code is as indicated above.
23Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the Video Hearing to ensure that they are properly connected to the event at the correct time. Questions prior to the Hearing event may be directed to the Hearing Office’s Case Coordinator having carriage of this case.
24There will be no further notice.
25This Hearing Officer is not seized.
“Hugh S. Wilkins ”
HUGH S. WILKINS
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 |