ISSUE DATE:

May 22, 2025

CASE NO(S).:

OLT-24-000920

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

Appellant:

Charles Lesaux

Appellant:

Joni Porthouse

Owner:

1765616 Ontario Inc.

Respondent:

Niagara Escarpment Commission

Subject:

Conditions of Approval for a Development Permit Application

Description:

To appeal conditional approval of a Development Permit Application to establish an on-farm diversified use on an existing single dwelling

with private servicing

Reference Number.:

N/C/2022-2023/531

Property Address:

3870 Tintern Road

Municipality/UT:

Lincoln/Niagara

OLT Case No.:

OLT-24-000920

OLT Lead Case No.:

OLT-24-000920

OLT Case Name:

Lesaux v. Ontario (Niagara Escarpment Commission)

Heard:

April 25, 2025 in writing

APPEARANCES:

Parties

Counsel

Charles Lesaux

Tom Richardson

Joni Porthouse

Tom Richardson

1765616 Ontario Inc.

Meredith Baker

Nancy Smith

Town of Lincoln

Tom Halinski

REPORT DELIVERED BY A. SNOWDON

Link to Order

INTRODUCTION

1Tribunal Members constitute Hearing Officers for appeals under the Niagara Escarpment Planning and Development Act, R.S.O 1990, c. N.2 (“NEPDA”).

2The Hearing Officer convened an appeal Hearing brought by Charles Lesaux and Joni Porthouse (together “Appellants”) arising from a decision made by the Niagara Escarpment Commission (“NEC”) granting a conditional development permit to 1765616 Ontario Inc. (“Applicant”) relating to the lands located at 3870 Tintern Road (“Subject Property”), in the Town of Lincoln (“Town”).

3The Subject Property is located north of Moyer Road and West of Tintern Road. It is designated as Escarpment Protection Area (“EPA”). The Subject Property is 4.12 hectares with approximately 1.9 hectares of vineyard. Neighbouring properties on all sides are vineyards/wineries.

4On August 14, 2024, the conditional development permit was approved to:

1. allow for the establishment of an On-Farm Diversified Use (OFDU) in the form of an event venue;

2. recognize an as-built 85 m2 patio extension;

3. recognize an as-built 104 m2 sidewalk;

4. recognize an as-built 308 m2 parking area;

5. install a semi-permanent tent frame; and

6. use part (±182 m2) of the existing single dwelling for OFDU purposes.

ISSUES

5Under s. 25(12.1) of NEPDA, where the Parties have come to an agreement to add or alter terms and conditions to a NEC decision to issue a development permit, the Hearing Officer shall deem the NEC decision with the agreed terms and conditions to be confirmed, if the Hearing Officer finds that the NEC decision would be correct and should not be changed if it included the agreed terms and conditions. In making this determination, the Hearing Officer must determine whether the NEC decision with the agreed terms and conditions, is consistent with the Provincial Planning Statement 2024 (“PPS”) and conforms with the Niagara Escarpment Plan (“NEP”).

6The Appellants have raised several issues with the conditional development permit including:

1. Public Health and Environmental Risks

2. Noise Concerns

3. Increased Traffic and Safety Hazards

4. Litter and Environmental Degradation

5. Public Safety

6. Visual Blight of Storage and Garbage Bins

SUBMISSIONS

7The Parties submitted, and the Hearing Officer accepts, Minutes of Settlement, marked as Exhibit 1; the Affidavit of Carmen Jandu, marked as Exhibit 2; a Draft Order, marked as Exhibit 3; and, Schedule B – A Revised Site Plan, marked as Exhibit 4.

8Carmen Jandu, a Registered Professional Planner and a Senior Associate – Planning Manager with Arcadis Professional Services (Canada) Inc., provided an affidavit, dated April 17, 2025, with evidence in support of the application.

PPS

9Planner Jandu stated that the development permit is consistent with the PPS under s. 4.3 as OFDUs are a permitted use in prime agricultural areas including specialty crop areas provided that the proposed use is compatible with and does not hinder surrounding agricultural operations.

10Planner Jandu confirmed that the proposed OFDU has regard for Provincial Interests to protect and support agricultural lands and the agri-food network.

11Planner Jandu clarified that the addition of a temporary tent during colder months on an existing patio does not extend the built footprint nor alter the amount of land used in production.

12Planner Jandu explained that the addition of 18 parallel parking spaces does reduce the amount of landscaped area but this land is not used for production so does not impact the vineyard operation.

13Section 4.3.2.1 of the PPS explains the permitted uses within Prime Agricultural Areas (“PAAs”) based on provincial guidelines. Planner Jandu referred to Publication

851: Guidelines on Permitted Uses in Ontario’s Prime Agricultural Areas (“Pub851”) from the Ministry of Agriculture, Food and Rural Affairs (“OMAFRA”).

14Section 2.3.1 of Pub851 requires that OFDUs meet the following criteria:

1. Located on a farm. … Must be located on a farm property that is actively in agricultural use;

2. Secondary to the principal agricultural use of the property;

3. Limited in area … to minimize the amount of land taken out of agricultural production if any, ensure agriculture remains the main land use in prime agricultural areas and limit off-site impacts (e.g., traffic, changes to the agricultural-rural character) to ensure compatibility with surrounding agricultural operations…. These guidelines recommend that the standard for the acceptable area occupied by an on-farm diversified use is up to 2% of a farm parcel to a maximum of 1 ha (10,000 m2)… the gross floor area of buildings used for on-farm diversified uses is limited (e.g., 20% of the 2%);

4. Includes, but is not limited to, home occupations, home industries, agri- tourism uses and uses that produce value-added agricultural products; and

5. Shall be compatible with, and shall not hinder, surrounding agricultural operations.

15Planner Jandu pointed out that the revised application for the OFDU has a lot coverage of 1.98% and a gross floor area of 20.56%. Planner Jandu explained that the exceedance of 0.56% is minor and is reflective of the repurposing of areas within the existing building.

16It is Planner Jandu’s professional opinion that the proposed application is consistent with the PPS and has regard for the guidelines in Pub851.

NEP

17Planner Jandu explained that the NEP permits OFDUs on PAAs within EPAs.

18Section 2.8 of the NEP clarifies that permitted uses for agricultural lands are those that are compatible with farming and encourages uses that support continued agricultural uses.

19Planner Jandu highlighted that within s. 2.8, OFDUs are more stringently regulated by the NEP than under Pub851.

20It is Planner Jandu’s professional opinion that the proposed application conforms to the NEP.

Other Concerns

21Six conditions (1-6) were imposed by the NEC in the development permit’s conditional approval and are listed in Attachment 1. Discussions between the parties resulted in an agreement to include three additional conditions as part of the resolution of this matter. The three additional conditions (7, 8, and 9) are also found in Attachment 1. The conditions appear to be beneficial and help mitigate the Appellants concerns.

22The Applicant and the Town have also agreed to additional terms, found in

Attachment 3 and 4 respectively, as part of the resolution of this matter.

FINDINGS

23The Hearing Officer finds the proposed application along with the additional conditions and revised site plan is consistent with the PPS, has regard for Pub851, conforms to the NEP, is good planning and is in the public interest. Based on this, the Hearing Officer finds that, if the NEC’s decision included the terms and conditions agreed to by the Parties, the decision would be correct and should not be changed.

ORDER

24THE HEARING OFFICER CONCLUDES that the Niagara Escarpment Commission decision to issue Development Permit N/C/2022-2023/531, with the addition of the agreed terms and conditions set out in Attachment 1 to this Report and in conformity with the revised site plan as shown in Attachment 2 to this Report, is correct and should not be changed. The Niagara Escarpment Commission’s decision with the addition of the agreed terms and conditions is deemed to be confirmed, pursuant to s. 25(12.1) of the Niagara Escarpment Planning and Development Act. The appeal is dismissed.

“A. Snowdon”

A. SNOWDON 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

Conditions of Approval

3870 Tintern Road

1. Development shall occur in accordance with the Terms and Conditions of the Development Permit.

2. The Development Permit does not provide for any physical development (construction, ground disturbance, grading, etc.) beyond recognising the as-built patio extension, sidewalk, parking areas and tent frame.

3. The maximum permitted ground area and locations used permitted for OFDU purposes including building footprint and outdoor amenities (parking, walkways, tent pad, etc.) is 1382.7 m² (which represents a discounted ground area of 813.6 m²) and shall be located on the property as shown on the Final Site Plan prepared by Lanhack Consultants Inc. with revision by Arcadis July 9, 2024.

4. The maximum permitted indoor floor area permitted for OFDU purposes is 168.9 m² and shall only include the areas represented on the Final Floor Plan prepared by Lanhack Consultants, with revisions by Arcadis July 9, 2024.

5. Prior to the issuance of a Development Permit by the Niagara Escarpment Commission, the Landowner shall enter into an Agreement under Section 24(2.1) of the Niagara Escarpment Planning and Development Act, in a form acceptable to the Niagara Escarpment Commission. The agreement shall be registered on title of 3870 Tintern Road, Part Lot 7, Concession 5, Town of Lincoln, Region of Niagara Assessment Roll Number 262204000411000 at the Landowner’s expense and will clearly identify the indoor and outdoor areas that may be used for on-farm diversified uses, including totals not exceeding 1382.7 m² of ground area and 182.3 m² of indoor floor space. The Landowner shall provide proof satisfactory to the Niagara Escarpment Commission that the agreement has been registered against the lands (i.e., copy of the parcel registry extract and a letter from the Landowner’s solicitor that the registration is complete), and that the Landowner under this Development Permit is the Landowner of the lands at the

time of registration. The agreement does not preclude the owner, or subsequent landowners, from applying for further development permits in future in accordance with the NEP as amended from time to time. The agreement shall not be amended or removed from title to the Lands without the prior written consent of the Niagara Escarpment Commission. OFDU uses shall at all times be restricted to the indoor and outdoor areas identified on the site plan (Condition 3), floor plan (Condition 4) and in the agreement (Condition 5).

6. No overnight guest accommodations may be offered from the subject property.

7. The maximum occupancy of the tent and existing single dwelling shall be 150 persons plus staff.

8. The Landowner shall plant coniferous trees along the area indicated on the Final Site Plan prepared by Lanhack Consultants, with revisions by Arcadis March 7, 2025. The applicant and the appellants shall work together to determine plantings in this area, taking into account compatibility with a future planned septic field (permission to be sought through future Niagara Escarpment Commission Development Permit), and grapevines, landscaping and appropriate spacing of trees. Preferred trees are white cedars.

9. Garbage containers used for municipal pick-up shall be kept within the fenced area shown on the Final Site Plan prepared by Lanhack Consultants, with revisions by Arcadis March 7, 2025 and labeled as “approx. size and location of proposed garbage container with 1.8m high enclosure & gate”.

10. Condition 5 must be fulfilled within twelve (12) months from the date of confirmation of the Commission’s decision or this conditional approval shall lapse, and a Development Permit will not be issued.

Advisory Notes

a) A Development Permit does not relieve the permit holder of the requirement to obtain any other applicable permission (e.g., Ontario Building Code, Conservation Authorities Act, Endangered Species Act, etc.).

b) The Niagara Escarpment Commission supports the protection of the night sky from excessive lighting and recommends the applicant obtain information on the use and operation of appropriate lighting fixtures in keeping with dark sky approaches.

c) This Development Permit does not authorize the use of signage for advertising or any other purpose, unless such signage was approved under this Permit, is required by law (e.g., Ontario Building Code, municipal by-law) or is exempt under Section 5.35 or 5.36 of R.R.O. 1990, Regulation 828.

ATTACHMENT 2

ATTACHMENT 3

Applicant Additional Terms:

1. The Applicant will comply with the Town’s noise by-law and the Town’s nuisance by-law, which regulates lighting;

2. The Applicant will have noise metering devices on the Subject Property and will ensure there is active monitoring at regular intervals. The Applicant will make available documentation of the noise monitoring which may be utilized by the Town’s By-law Enforcement Officers when they attend the Subject Property;

3. The Applicant will provide a noise meter to each of the Appellants;

4. The Applicant will provide Town staff with the dates of specific events at the Subject Property where such information is requested by the Town staff for the purposes of the traffic monitoring provided for in Attachment 4 #5 hereof; and

5. In addition to the parking on the Subject Property, the Applicant will make available to patrons of the event venue overflow parking at Vineland Estates (3620 Moyer Road, Vineland) and will have shuttle services to and from the overflow parking to the Subject Property.

ATTACHMENT 4

Town Additional Terms:

1. Parking prohibition on both sides of Tintern Road for 100 metres on each side of the Subject Property entrance;

2. Appropriate directional and caution signs for traffic on Tintern Road indication that Tintern Road is a dead-end road;

3. “No exit” yellow warning signs on both sides on Tintern Road on the left side of the driveway at the Subject Property;

4. Recommendation to install a regulatory 50 km/h speed limit sign between the Subject Property driveway and the escarpment dead end; and

5. Traffic monitoring in the area of the Subject Property in terms of speeds and volumes. The Town will respond as necessary. To gather more information, Town staff can deploy a Black Cat Radar to collect data on this section. Town staff may contact the Applicant to obtain dates of scheduled events on the Subject Property in order to coordinate monitoring activities therewith.