Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 18, 2025

CASE NO(S).: OLT-24-001157

PROCEEDING COMMENCED UNDER subsection 10(3) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2.

Objector: Andrew Lauder

Objector: Anita Lorelli

Objector: Antonio Rodrigues and Tara Burns et al.

Subject: Proposed Amendment to the Niagara Escarpment Plan

Description: To amend the Niagara Escarpment Plan to allow for the development of on-farm diversified uses and agricultural-related uses outside of prime agricultural areas.

Reference Number: Niagara Escarpment Plan Amendment PC 225 22

Property Address: The entire Niagara Escarpment Plan (NEP) Area

Municipality/UT: Niagara/Niagara

OLT Case No: OLT-23-001157

OLT Lead Case No: OLT-23-001157

OLT Case Name: Plan Amendment (PC 225 22)

Heard: March 24-27 to April 1-3, 2025 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
Niagara Escarpment Commission	Zachary D’Onofrio, Margaret McCloskey
City of Burlington	Hannah Ruby
Regal Point Elk Farm	Erroll Treslan (March 24-27, and April 2, 2025 only)
Jill Kantelberg	David Bronskill (March 24 and 31, and April 1-3, 2025 only), Cristin Hunt (March 24 and 31, and April 1-3, 2025 only), Alexa Guerra (articling student) (April 1, 2025 only)
Mark and Michael Krapez	Mark Krapez*
Peter Blaiklock	self-represented*
Jim Muzyka	self-represented* (March 24 and 31, and April 1-3, 2025 only)

REPORT DELIVERED BY HUGH S. WILKINS AND A. SNOWDON

INTRODUCTION

1Tribunal Members constitute Hearing Officers for appeals under the Niagara Escarpment Planning and Development Act (“NEPDA” or “Act”).

2The Hearing Officers convened a public inquiry prompted by multiple objections to proposed Niagara Escarpment Plan Amendment No. 225 22 (“proposed amendment”), which is a Plan-wide amendment proposed by the Niagara Escarpment Commission (“NEC” or “Commission”).

PHASES

3The public inquiry proceeded in five phases:

• Phase 1 consisted of the presentation of background information as well as an overview of the proposed amendment;
• Phase 2 addressed the proposed addition of policy 2.7.2.13 to the Niagara Escarpment Plan (“NEP”) to allow Agricultural Uses, Agriculture-Related Uses (“ARUs”) and On-Farm Diversified Uses (“OFDUs”) in Earth Science Areas of Natural and Scientific Interest (“ANSIs”) and a new definition of “earth science values” in NEP Appendix 2. It was uncontested;
• Phase 3 addressed proposed changes to NEP policy 2.7.2 relating to development in key natural heritage features. It was uncontested;
• Phase 4 addressed proposed changes to NEP policy 1.3.3 relating to maple sugar harvesting in the Escarpment Natural Area. It involved the following parties:
  • NEC;
  • City of Burlington (“Burlington”);
  • Regal Point Elk Farms (“Regal Point”); and
  • Jim Muzyka;
• Phase 5 addressed proposed changes to NEP policy 1.4.3.2 relating to ARUs and OFDUs outside of prime agricultural areas (“PAAs”) in the Escarpment Protection Area. It involved the following parties:
  • NEC;
  • Burlington;
  • Mark Krapez and Michael Krapez;
  • Jim Muzyka;
  • Jill Kantelberg (“Kantelberg”); and
  • Peter Blaiklock.

PLAN AMENDMENT PROVISIONS

4Under the NEP, changes in policy or land use designation require an amendment to the text and/or appendices and maps of the Plan.

5Section 10(3) of the Act states that when written objections to a proposed amendment are received, the Commission shall appoint hearing officers to receive representations on the proposed amendment by any person desiring to make them. It states:

10(3) If written objections to the proposed amendments are received by the Commission before the expiration of the time for making comments, the Commission shall, and if no written objections are received within that time the Commission may, appoint one or more hearing officers for the purpose of conducting one or more hearings within the Niagara Escarpment Planning Area or in the general proximity thereof for the purpose of receiving representations respecting the proposed amendments by any person desiring to make representations.

6Section 10(6) of the Act sets out how the hearing is to be conducted. It states:

10(6) At a hearing under subsection (3), the persons proposing the amendments or their representatives shall present the proposed amendments and the justification therefor and shall make available for public inspection research material, reports, plans and the like that were used in the preparation of the amendments and, subject to the rules of procedure adopted by the hearing officers for the conduct of the hearing, the persons presenting the amendments and any other persons who make presentations at the hearing may be questioned on any aspect of the amendments by any interested person.

7Section 10(8) of the Act sets out the role of Hearing Officers. They are to report to the Commission with a summary of the representations made at the hearing and provide recommendations with reasons on whether the proposed amendments should be accepted, rejected, or modified. Section 10(8) states:

10(8) Not more than 60 days after the conclusion of any hearings conducted under subsection (3), or within such extended time as the Commission may specify, the hearing officers shall report to the Commission a summary of the representations made at the hearings together with a report stating whether the proposed amendments should be accepted, rejected or modified, giving their reasons therefor, and shall at the same time furnish the Minister with a copy of the report.

8This Report summarizes below the evidence and submissions that were presented on each of the components of the proposed amendment and provides analysis and recommendations.

THE ISSUES TO BE CONSIDERED

9When making recommendations on proposed amendments to the NEP, Hearing Officers are required to consider four main issues. They must consider whether:

1. the proposed amendment would result in the purpose and objectives of the Act and the Plan being met;
2. the proposed amendment would have impacts that adversely affect the purpose and objectives of the Act or the Plan;
3. the proposed amendment is consistent with other relevant Provincial policies; and,
4. the proposed amendment is justified.

When considering these main issues, the Hearing Officers must also consider the relevant development criteria in Part 2 of the Plan.

10In this regard, NEP policy 1.2.1 states, in relevant part:

1.2.1 […] The following provisions apply to applications to amend the Niagara Escarpment Plan:

• Planning policies and land use designations may be changed as long as the Purpose and Objectives of the Niagara Escarpment Planning and Development Act and the Niagara Escarpment Plan are met. The Purpose Statement and Objectives in the Introduction of the Plan shall not be changed outside of the context of a full review of this Plan.
• Sections 6.1(2.1) and 10(6) of the Niagara Escarpment Planning and Development Act require that amendments to the Niagara Escarpment Plan be justified. The justification for a proposed amendment to the Niagara Escarpment Plan means the rationale for the amendment, as well as reasons, arguments or evidence in support of the change to this Plan proposed through the amendment.
• It must be demonstrated that the proposed amendment and the expected impacts resulting from the proposed amendment do not adversely affect the purpose and objectives of the Niagara Escarpment Planning and Development Act. The proposed amendment must be consistent with the purpose and objectives of the Niagara Escarpment Planning and Development Act and the Niagara Escarpment Plan and shall be consistent with other relevant Provincial policies.
• Development Criteria set out in Part 2 of the Niagara Escarpment Plan will be considered in the assessment of any amendment to the Niagara Escarpment Plan.

These four issues will be addressed below in the context of each component of the proposed amendment.

EVIDENCE AT THE HEARING

11Sandy Dobbyn provided evidence on behalf of the NEC regarding the proposed changes to each of the policies in question. He was qualified by the Hearing Officers to provide opinion evidence in matters related to the interpretation of the NEP.

12Kelly Cook is a planner with Burlington. She was qualified by the Hearing Officers to provide opinion evidence in the area of land use planning. She gave evidence regarding the third component of the proposed amendment on maple sugar harvesting and the fourth component on ARUs and OFDUs in the Escarpment Protection Area.

13Donald Scott and Linda Sober provided evidence on behalf of Regal Point. Mr. Scott is a planner. The Hearing Officers qualified him to provide opinion evidence in the field of land use planning. Linda Sober is a biologist. The Hearing Officers qualified her to provide opinion evidence in the field of biology with respect to natural heritage policies. They provided evidence regarding the third component on maple sugar harvesting.

14Michael Wynia, who is a land use planner, testified on behalf of Jill Kantelberg during the fourth component. Mr. Wynia was qualified by the Hearing Officers to provide opinion evidence on land use planning matters.

15Mark Krapez, Peter Blaiklock, and Jim Muzyka each provided fact evidence on the fourth component of the proposed amendment on ARUs and OFDUs in the Escarpment Protection Area.

A. FIRST COMPONENT – EARTH SCIENCE ANSIs

16Mr. Dobbyn stated that NEP Part 2 sets out development criteria that are to be applied to all development within the area governed by the Plan (“Plan area”) in conjunction with other Plan policies. He stated that the objective of NEP policy 2.7 is to protect and enhance the natural features of the Niagara Escarpment (“Escarpment”). He stated that policy 2.7.1 lists key natural heritage features, including Earth Science ANSIs, in which development is prohibited, subject to exceptions. He said that Agricultural Uses, ARUs, and OFDUs are not permitted in these areas.

17Mr. Dobbyn stated that the proposed amendment to policy 2.7 would add a new exception that would allow Agricultural Uses, ARUs, and OFDUs in Earth Science ANSIs. He said they would be permitted where it can be demonstrated that any adverse impacts would be minimal. The proposed amendment would add a new paragraph 2.1.13, which would state:

2.7.13 Notwithstanding Part 2.7.2, Agricultural Uses, Agriculture-Related Uses, and On-Farm Diversified Uses may be permitted in Earth Science Areas of Natural and Scientific Interest, which is not also identified as any other Key Natural Heritage Feature, provided it has been demonstrated that the earth science values can be maintained and protected. Planning, design, and construction practices shall be identified that will keep disturbance to landform character to a minimum and ensure the protection of the geological or geomorphological attributes.

18Mr. Dobbyn stated that Earth Science features are non-living features formed by geological processes, such as erosion, glaciers, and river run-off. He said examples include drumlins, eskers, moraines, and the Escarpment itself. He said Agricultural Uses can be compatible with and do not harm many of these features. He stated that a new definition of “earth science value” would be added to NEP Appendix 2. The new definition would state:

Earth Science Value: values that relate to the geological, soil, and landform features of the environment.

19Mr. Dobbyn opined that the proposed amendment would comply with the Act, as it would continue to protect Earth Science ANSIs and would only permit Agricultural Uses, ARUs, and OFDUs where it is demonstrated that they will not adversely impact the Earth Science ANSI in question. He said that, in most cases, these uses would be subject to development control. He stated that Ontario Regulation 828 on Development within the Development Control Area (“Regulation 828”) exempts agricultural development in Earth Science ANSIs. He said Earth Science ANSI features are often large and resilient and development on them is common. He said the NEP’s current policies regarding development in Earth Science ANSIs is not consistent with those in policy 4.1 of the Provincial Planning Statement, 2024 (“PPS”) or the Oak Ridges Moraine Conservation Plan. He said PPS policy 4.1 allows development in Earth Science ANSIs, provided that it is demonstrated that there will be no negative impacts on the environment. He said the Oak Ridges Moraine Conservation Plan does not consider an Earth Science ANSI to be a key natural heritage feature. He said it designates landform conservation areas in which development may occur subject to conditions, including the condition that any impacts must be minimal. He said the Greenbelt Plan includes Earth Science ANSIs as a key natural heritage feature only in the Protected Countryside designation and only restricts development there. He said that no other Provincial policies prohibit, without exceptions, development in Earth Science ANSIs. He reiterated that the proposed new uses would be subject to development control and require studies to ensure that there would be no negative impacts that damage the feature.

20Mr. Dobbyn described the consultations that were undertaken regarding the proposed amendment, including with Provincial ministries and municipalities, civil society groups, and stakeholders. He said none opposed the proposed amendment.

21Mr. Dobbyn opined that the proposed amendment is consistent with the PPS and conforms to all other applicable Provincial policies. He opined that it should be recommended.

22Ms. Cook stated that Burlington supports the proposed amendment.

ANALYSIS

23As described above, when making recommendations on proposed amendments to the NEP, Hearing Officers are required to consider four main issues. These are (1) whether the proposed amendment would result in the purpose and objectives of the Act and the Plan being met; (2) whether the proposed amendment would have impacts that adversely affect the purpose and objectives of the Act or the Plan; (3) whether the proposed amendment is consistent with other relevant Provincial policies; and (4) whether the proposed amendment is justified. When considering these issues, the Hearing Officers must consider the relevant development criteria in Part 2 of the Plan.

1. Meeting the Purpose and Objectives of the Act and the Plan

24The purpose of the Act and the Plan are the same. It is to provide for the maintenance of the Escarpment and neighbouring lands substantially as a continuous natural environment and to ensure only environmentally compatible development. This is set out in s. 2 of the Act, which states:

2. The purpose of this Act is to provide for the maintenance of the Niagara Escarpment and land in its vicinity substantially as a continuous natural environment, and to ensure only such development occurs as is compatible with that natural environment.

25The purpose and objectives of the Plan are set out in its Introduction. The Plan’s objectives are to protect the Escarpment’s environment and water resources, provide recreation opportunities, maintain and enhance the Escarpment’s open landscape character, ensure compatible development, provide public access to the Escarpment, and support local municipalities in exercising their planning functions. Specifically, the Plan’s Introduction states:

Purpose

The purpose of this Plan is to provide for the maintenance of the Niagara Escarpment and land in its vicinity substantially as a continuous natural environment, and to ensure only such development occurs as is compatible with that natural environment.

Objectives

The objectives of the Niagara Escarpment Plan are:

1. To protect unique ecologic and historic areas;
2. To maintain and enhance the quality and character of natural streams and water supplies;
3. To provide adequate opportunities for outdoor recreation;
4. To maintain and enhance the open landscape character of the Niagara Escarpment in so far as possible, by such means as compatible farming or forestry and by preserving the natural scenery;
5. To ensure that all new development is compatible with the purpose of the Plan;
6. To provide for adequate public access to the Niagara Escarpment; and,
7. To support municipalities within the Niagara Escarpment Plan Area in their exercise of the planning functions conferred upon them by the Planning Act.

26Earth Science ANSIs are listed as a type of key natural heritage feature under NEP policy 2.7.1. It generally prohibits development within a key natural heritage feature, subject to exceptions in policy 2.7.2, such as limited residential development, forest, fisheries and wildlife management, the Bruce Trail, limited conservation and flood or erosion control projects, and necessary infrastructure projects where there is no alternative.

27Regulation 828 exempts Agricultural Uses from the requirement for a development permit, subject to minimum setbacks. In situations where the minimum setbacks are established, new Agricultural Uses and associated structures are permitted without a development permit in Earth Science ANSIs. The proposed amendment would apply where the Agricultural Use or structure would not meet the exemptions and it would allow new ARUs and OFDUs (including new structures to support them) in Earth Science ANSIs, provided that a development permit is obtained.

28Allowing new ARUs and OFDUs, subject to the issuance of a development permit, requires such proposed uses to be reviewed by the NEC and be subject to an environmental impact study demonstrating to the NEC that the environment-related purposes and objectives of the Act and the Plan are met. Through this mechanism, the proposed amendment would ensure the maintenance of the applicable lands as a continuous natural environment and ensure that only environmentally compatible development occurs. It would provide a tool to protect the Escarpment’s environment and maintain and enhance its open landscape character. Moreover, these uses would facilitate, among other things, recreation opportunities and provide public access to the Escarpment. Based on these considerations, the Hearing Officers find that this component of the proposed amendment meets the purpose and objectives of the Act and the Plan.

2. Impacts Affecting the Purpose and Objectives of the Act and Plan

29Under the proposed amendment, any new ARUs and OFDUs would be subject to the NEC’s review and approval and would be subject to an environmental impact study, where appropriate. The proposed amendment stipulates that new proposed uses will only be approved where it has been demonstrated that the Earth Science values can be maintained and protected. It also requires that planning, design, and construction practices must be identified and disturbance to the landform character must be kept to a minimum to ensure the protection of the geological or geomorphological attributes. With this mechanism in place, the Hearing Officers find that the proposed amendment would not have impacts that adversely affect the purpose and objectives of the Act or the Plan.

3. Consistency with other relevant Provincial policies

30PPS policy 4.1.5 prohibits development in Earth Science ANSIs, unless it has been demonstrated that there will be no negative impacts. The Oak Ridges Moraine Conservation Plan allows for development within landform conservation areas subject to conditions. These include the condition that any impacts must be minimal. The Greenbelt Plan regulates Earth Science ANSIs as a key natural heritage feature, but only in the Protected Countryside designation. The proposed amendment to the NEP would require a proponent to obtain a development permit and, where necessary, require an environmental impact study demonstrating that the proposed development would not negatively impact the feature. In this regard, it would be consistent with the PPS and align with other Provincial plans by requiring that the proposed development not negatively impact the feature. Based on the presentations made at the hearing, the Hearing Officers find that the requirements set out in the proposed amendment align with those in other Provincial plans, including the Oak Ridges Moraine Conservation Plan and the Greenbelt Plan, and are consistent with the PPS.

4. Justification

31As stated in NEP policy 1.2.1, the justification for a proposed amendment means the rationale for the amendment, as well as reasons, arguments, or evidence in support of the proposed change. Permitting new ARUs and OFDUs in Earth Science ANSIs would help maintain the economic and social vitality of the Plan area by allowing new activities and uses and access to the Escarpment in a manner that protects the environment and maintains the character of the Escarpment. Based on this, the Hearing Officers find that the proposed amendment is justified.

32In making these findings, the Hearing Officers have considered the relevant development criteria in Part 2 of the Plan.

HEARING OFFICERS’ RECOMMENDATION – FIRST COMPONENT

33The Hearing Officers recommend that the first component of the proposed amendment should be adopted.

B. SECOND COMPONENT – DEVELOPMENT IN KEY NATURAL HERITAGE FEATURES

34Mr. Dobbyn reiterated that NEP Part 2 sets out development criteria that are to be applied to all development within the Plan area in conjunction with other Plan policies. NEP policy 2.7 focuses on development affecting natural heritage. Mr. Dobbyn said the proposed amendment (as set out in Issues 1 and 2 of the Issues List, issued on October 1, 2024) would amend NEP policy 2.7.2(f) by permitting the expansion of a building or structure for Agricultural Use, ARU, or OFDU purposes within key natural heritage features, subject to conditions. He said the expansion of uses in these areas would, in many cases, better protect the environment than expansion elsewhere. He also said such an expansion would be economically beneficial to farmers.

35Mr. Dobbyn stated that the proposed amendment would add a new sub-policy to NEP policy 2.7.2. He said the new sub-policy 2.7.2(f) would state:

2.7.2. Development is not permitted in key natural heritage features with the exception of the following, which may be permitted subject to compliance with all other relevant policies of this Plan:

(f) Expansions to existing buildings and structures for Agricultural Uses, Agriculture-Related Uses and On-Farm Diversified Uses may be considered within key natural heritage features and their associated vegetation protection zones if it is demonstrated that: a) there is no alternative and the expansion or alteration in the feature is minimized and, in the vegetation protection zone, is directed away from the feature to the maximum extent possible; and b) the impact of the expansion or alteration on the feature and its functions is minimized and mitigated to the maximum extent possible.

36Mr. Dobbyn stated that the proposed language was modified from an earlier version, which more broadly permitted the expansion of all Agricultural Uses. In response to comments from stakeholders, including Burlington and the Ontario Ministry of Agriculture, Food, and Rural Affairs (“OMAFRA”), he stated that the proposed amendment was modified so that it better aligns with other Provincial plans, including the Greenbelt Plan. The modified version focuses on the expansion of existing buildings and structures for these uses and not on the uses themselves. He stated that if impacts are expected, then environmental impact studies would be required. He said this is similar to Greenbelt Plan policy 4.5.5 and is consistent with the PPS. He said it conforms to all other applicable Provincial plans and policies.

37Ms. Cook stated that Burlington supports this component of the proposed amendment in its revised form. She opined that the proposed revised amendment would better align NEP policies with those in the Greenbelt Plan and the Oak Ridges Moraine Conservation Plan. She said that the initially worded language would have resulted in a separate standard for Agricultural Uses in key features in the NEP area from the standards that apply in areas outside of the NEP area. She said it would have broadly permitted expansions of all Agricultural Uses instead of limiting the permissions to existing structures. She said Burlington had concerns that the initially proposed wording could result in new Agricultural Uses in key features. She emphasized that the revised wording limits permission to existing buildings and structures.

38Upon hearing the presentations of the Parties, the Hearing Officers suggested that the proposed wording could be further revised so that it is better aligned with the existing language in policy 2.7.2 by deleting the words “may be considered”. The Parties agreed. Mr. Dobbyn and Ms. Cook noted that the words “within key natural heritage features and their associated vegetation protection zones” also were redundant and suggested that these be modified as well. They stated that policy 2.7.2 already refers to key natural heritage features and policies 2.7.6 and 2.7.7 already allow for exceptions regarding vegetation protection zones. They opined that this language should be deleted from the proposed amendment. They recommended the following wording:

2.7.2 Development is not permitted in key natural heritage features with the exception of the following, which may be permitted subject to compliance with all other relevant policies of this Plan:

(f) Expansions to existing buildings and structures for Agricultural Uses, Agriculture-Related Uses and On-Farm Diversified Uses, if it is demonstrated that: a) there is no alternative and the expansion or alteration in the feature is minimized; and b) the impact of the expansion or alteration on the feature and its functions is minimized and mitigated to the maximum extent possible.

ANALYSIS

1. Meeting the Purpose and Objectives of the Act and the Plan

39As described above, the purpose of the Act and the Plan are to provide for the maintenance of the Escarpment and neighbouring lands substantially as a continuous natural environment and to ensure that only environmentally compatible development occurs there. The Plan’s objectives are to protect the Escarpment’s environment and water resources, provide recreation opportunities, maintain and enhance the Escarpment’s open landscape character, ensure compatible development, provide public access to the Escarpment, and support local municipalities in exercising their planning functions.

40The purpose of the proposed new policy 2.7.2(f) is to allow for the expansion of buildings or structures that satisfy the definition of “existing use” in NEP Appendix 2. Regulation 828 exempts specific uses from having to obtain a development permit. These include general agricultural development and the building of structures that are accessory to general agricultural development (subject to lot size and setback requirements). The exemptions apply only if the proposed use is listed as a permitted use in NEP Part 1. Compliance with the development criteria in Part 2 is not required. The proposed amendment would apply to proposals to expand a building for Agricultural Uses where the proposal does not meet the exemption lot size and setbacks criteria. It would not apply where the proposal meets the exemption criteria. An expansion of a building to facilitate an ARU or OFDU is not exempt under the Regulation 828. In such cases, the proposed amendment would also apply.

41Amending NEP policy 2.7.2 so that it permits the expansion of a building or structure for Agricultural Use, ARU, or OFDU purposes within key natural heritage features would be subject to conditions that will ensure that the purpose and objectives of the Act and the Plan are met. These conditions are that (1) there is no alternative and the expansion or alteration in the feature is minimized and (2) the impact of the expansion or alteration on the feature and its functions is minimized and mitigated to the maximum extent possible. By means of these requirements, the proposed amendment will ensure the maintenance of the applicable lands as a continuous natural environment and ensure that only environmentally compatible development occurs. It will also ensure the protection of the Escarpment’s environment and will maintain and enhance its open landscape character. These uses will also facilitate recreation opportunities and provide public access to the Escarpment. Based on these considerations, the Hearing Officers find that this component of the proposed amendment will meet the purpose and objectives of the Act and the Plan.

2. Impacts Affecting the Purpose and Objectives of the Act and Plan

42Based on the conditions set out in the proposed amendment that (1) there is no alternative and the expansion or alteration in the feature is minimized and (2) the impact of the expansion or alteration on the feature and its functions is minimized and mitigated to the maximum extent possible, the Hearing Officers find that the proposed amendment would not have impacts that adversely affect the purpose and objectives of the Act or the Plan.

3. Consistency with other relevant Provincial policies

43The evidence before the Hearing Officers is that the purpose of this component of the proposed amendment is to make the NEP more consistent with other Provincial plans and policies. It aligns with Greenbelt Plan policy 4.5.5 on existing uses in its Protected Countryside designation, which allows for the expansion of existing buildings and structures for Agricultural Uses, ARUs, and OFDUs in key natural heritage and key hydrologic features or their associated vegetation protection zones, subject to conditions. The proposed revised language for the amendment also aligns with the language in Greenbelt Plan policy 4.5.5(b) as it relates to the expansion of uses in key natural heritage features. Expansions within key hydrologic features remain prohibited under the proposed amendment. Municipal official plans often permit the expansion of buildings or structures for Agricultural Uses, ARUs and OFDUs in key natural heritage features subject to similar conditions to those outlined in the Greenbelt Plan. The PPS allows for development, such as new buildings, structures or uses, in significant natural heritage features subject to the proponent demonstrating that there will be no negative impacts on the natural features or their ecological functions as a result of the development. Based on the evidence and submissions before them, the Hearing Officers find that this component of the proposed amendment is consistent with other relevant Provincial plans and policies.

4. Justification

44The rationale for the proposed amendment and the reasons, arguments and evidence in support of it are that by permitting the expansion of a building or structure for Agricultural Use, ARU, or OFDU purposes within key natural heritage features, subject to conditions, the proposed amendment would, in many cases, provide better protection of the environment than expansion elsewhere and would be economically beneficial to farmers. Permitting the expansion of a building or structure for Agricultural Use, ARU, or OFDU purposes within key natural heritage features would help maintain the economic and social vitality of the Plan area by allowing activities and uses on the Escarpment in a manner that protects the environment and maintains the character of the Escarpment. On this basis, the Hearing Officers find that the proposed amendment is justified.

45In making these findings, the Hearing Officers have considered the relevant development criteria in Part 2 of the Plan.

HEARING OFFICERS’ RECOMMENDATION – SECOND COMPONENT

46The Hearing Officers recommend that the second component of the proposed amendment should be adopted with the revisions agreed to by the Parties so that it reads:

2.7.2. Development is not permitted in key natural heritage features with the exception of the following, which may be permitted subject to compliance with all other relevant policies of this Plan:

(f) Expansions to existing buildings and structures for Agricultural Uses, Agriculture-Related Uses and On-Farm Diversified Uses, if it is demonstrated that: a) there is no alternative and the expansion or alteration in the feature is minimized; and b) the impact of the expansion or alteration on the feature and its functions is minimized and mitigated to the maximum extent possible.

C. THIRD COMPONENT - MAPLE SAP COLLECTION IN THE ESCARPMENT NATURAL AREA

The NEC’s Evidence and Submissions

47Mr. Dobbyn stated that maple woodlots are often located in the Escarpment Natural Area. Due to the prohibition of Agricultural Uses in these areas, he said opportunities are being missed as maple tree sap is not being harvested. He said the proposed amendment would allow for the tapping of maple trees and the collection of sap in these areas subject to specific restrictions. He said the proposed amendment would not permit the actual production of maple syrup and that sap would need to be transported out of the Escarpment Natural Area to be made into maple syrup and related products.

48Mr. Dobbyn stated that the initial proposal was to add a new permitted use under NEP policy 1.3.3.15 to permit the tapping of trees and collection of sap. He said it excluded the development of buildings or facilities related to tapping or sap collection. He stated that the NEC consulted with relevant Ministries, municipalities, and stakeholders regarding the proposed amendment. He said that several municipalities provided comments, including Burlington, which urged that ancillary equipment and structures should be permitted as well as minor trails to support tapping and sap collection. Mr. Dobbyn said the proposed language was revised to allow for the placement or erection of minor ancillary equipment or structures and trails. He said the proposed revised language reads:

Maple sugar harvesting, which for greater certainty, may include the tapping of trees, collection of sap, the placement or erection of minor ancillary equipment or structures (e.g., tanks, vacuum systems), and the establishment of minor trails (i.e., without the addition of aggregate material or pavement) to support the collection of sap, but does not include the development of buildings or facilities related to maple sugar processing.

49Mr. Dobbyn stated that the criteria for designation of the Escarpment Natural Area is found in NEP policy 1.3.2. He said the Escarpment Natural Area is the most sensitive and undisturbed area of the Escarpment consisting of slopes, woodlands, Life Science ANSIs, significant valleylands, and wetlands. He said that 70 to 80 percent of wooded lands in the Escarpment Natural Area have sugar maple trees. He stated that the collection of maple sugar is an Agricultural Use or an ARU, depending on whether the property is an agricultural property or not. He said ARUs are not permitted in the Escarpment Natural Area, except in situations where it has been an existing use since before 1985.

50Mr. Dobbyn opined that permitting tapping and the collection of sap would not impact the Escarpment Natural Area or the values that it represents and is consistent with the purpose and objectives of the NEP. He opined that tapping and the collection of sap supports the Escarpment Natural Area objectives and protects, maintains, and enhances natural heritage features.

51Mr. Dobbyn stated that, on a general basis, the NEP is based on the policies in the PPS and augments them with additional land-use planning policies to be applied on the Escarpment. He said this ensures the provision of a continuous natural environment and ensures that only compatible development occurs. He said the NEP is intended to be read in conjunction with the PPS, but it takes precedence over the PPS where there is a conflict. As a result, he said that where a proposal satisfies the NEP’s natural heritage policies, it also satisfies those in the PPS.

52Regarding the terminology used in the proposed amendment, Mr. Dobbyn stated that Regulation 828, which lists classes of development that are exempt from the requirement to obtain a development permit, applies the term “maple sugar harvesting” in its definition of “general agricultural development”. He said the term, which is also used in the proposed amendment, includes the tapping of trees, collection of sap, erection of minor equipment or structures and the maintenance of trails. He said that none of the proposed activities would be subject to an environmental impact study as “maple sugar harvesting” falls under the “general agricultural development” exemption category in the Regulation. He stated that if these activities were removed from the Regulation and not exempted, as proposed by Regal Point, they would require a development permit and be subject to NEP policy 2.7.2 which prohibits development in key natural heritage features, such as significant woodlands. He said they would also be subject to NEP policy 2.2.5, which requires that development be located in the least restrictive designation on a property. He said that to remove “maple sugar harvesting” from the Regulation would have significant implications as it would require maple sugar harvesters located in all NEP designations (including those outside the Escarpment Natural Area) to apply for development permits for harvesting maple sugar.

53Mr. Dobbyn identified four issues raised by the Parties in relation to the proposed amendment to NEP policy 1.3.3 (issues 3 to 6 in the Issues List, issued on October 1, 2024). The issues are:

• Issue 3. Should non-intrusive maple sugar harvesting activities be permitted in the Escarpment Natural Area as proposed by new land use policy 1.3.3.15?
• Issue 4. If the answer to Issue 3 is yes, should the proposed policy be clarified as follows:

  1.3.3.15 Maple sugar harvesting, which for greater certainty, may include the tapping of trees, collection of sap, the placement or erection of minor ancillary equipment or structures (e.g., tanks, vacuum systems), and the establishment of minor trails (i.e., without the addition of aggregate material or pavement) to support the collection of sap, but does not include the development of buildings or facilities related to maple sugar processing

• Issue 5. In addition to maple sugar harvesting, should buildings and structures for maple syrup production and sale operations also be permitted in the Escarpment Natural Area?
• Issue 6. If the answer to Issue 5 above is yes, should the proposed policy be broadened as follows:

  1.3.3.15 Maple syrup harvesting operations, for greater certainty, this includes the tapping of trees, the collection of sap, and the equipment and structures required for the production and sale of maple syrup. Such operations are limited in size and generally secondary to the principal agrarian operation.

54Regarding Issue 3 on whether non-intrusive maple sugar harvesting activities should be permitted in the Escarpment Natural Area, Mr. Dobbyn reiterated that tapping and the collection of maple sap within the Escarpment Natural Area is unlikely to create impacts to the Escarpment environment. He stated that sugar maple woodlots on the Escarpment are generally located within the Escarpment Natural Area, and, without the proposed permitted use, landowners are unable to collect sap at all, which is neither fair nor appropriate.

55Regarding Issue 4 on whether the proposed policy should be revised, Mr. Dobbyn opined that maple sap collection cannot occur without ancillary equipment and structures, and the proposed revisions are appropriate and necessary.

56Regarding Issue 5 on whether buildings and structures for maple syrup production and sale operations should be permitted in the Escarpment Natural Area, as proposed by Regal Point, Mr. Dobbyn opined that the inclusion of significant structures and development, and supporting infrastructure, such as roads, electricity, and parking facilities would likely cause impacts to the Escarpment Natural Area and its key natural heritage features. He opined that ARUs require a development permit and, as a result, maple syrup production activities would need to satisfy NEP policy 2.7.2, which prohibits development in key natural heritage features, such as significant woodlands. He opined that a further amendment would be required to exempt these ARUs from the application of policy 2.7.2. He also said the Escarpment Natural Area often overlaps with natural heritage core areas and environmental protection areas in municipal official plans, which generally prohibit or limit new ARUs and OFDUs or new structures within these areas. He opined that an amendment to permit maple syrup production within the Escarpment Natural Area generally would be less restrictive than the requirements in these official plans.

57Regarding Issue 6 on further revisions to the proposed amendment to allow maple syrup production in the Escarpment Natural Area, as proposed by Regal Point, would be disruptive. Mr. Dobbyn opined that allowing the production of maple syrup as an Agricultural Use or as an ARU in the Escarpment Natural Area would likely have negative impacts on the Escarpment Natural Area and key natural heritage features. He said the production of maple syrup would involve the installation of buildings and equipment, such as an evaporator, the construction of roads and parking areas, and the installation of hydro and other services. He said the production of maple syrup is a much more intensive activity than the tapping and collection of sap and would result in the loss of features, trees, and habitat. He further raised concerns that such facilities could include the retail sale of syrup and related products as well as tourist activities, which would further impact the integrity of the Escarpment Natural Area. Mr. Dobbyn stated that Regal Point’s proposed language for the amendment would offend Objectives 1, 2 and 5 and the purpose of the NEP, and would not protect Escarpment features. He opined that such uses do not align with the objectives and criteria for the Escarpment Natural Area. He also noted that this would be a different permitted use than what the public consultations for the proposed amendment addressed. He opined that revisions to include production should be rejected.

58Regarding the application of Regulation 828, Mr. Dobbyn stated that it specifies classes of development, which are exempt from having to obtain a development permit, provided that the use in question satisfies the Regulation’s exemption criteria. He said the use must be listed as a permitted use in the NEP and must not be in conflict with a development permit. He reiterated that if a use meets these conditions and is exempted, it is not reviewed by the NEC and, therefore, an environmental impact study is not required.

59In response to Regal Point’s proposal to amend Regulation 828 so that all maple syrup operations across the Escarpment become subject to environmental impact studies, Mr. Dobbyn stated that amending Regulation 828 to require an environmental impact study is contrary to the Regulation’s intention. He said the Regulation is intended to permit low-risk development without the requirement to obtain a development permit and the NEC can only review a proposed development and require an environmental impact study where a development permit is required. He opined that recommendations on amending the Regulation would be beyond the scope of the authority of the Hearing Officers, who are tasked only to make recommendations on proposed amendments to the NEP.

60Mr. Dobbyn disagreed with Mr. Scott’s opinion that a maple syrup production operation, including the evaporation of sap and creation of maple syrup, is a non-intrusive land use. He reiterated that the collection of sap, including the use of buckets on trees, vacuum lines, tanks, and a vacuum pump would have minimal impacts, while the construction of buildings for processing, sales and other activities, requiring electricity, water, and/or wastewater servicing and roads, would have higher impacts.

61Mr. Dobbyn also disagreed with Mr. Scott that the structures required for production would have a smaller footprint than a dwelling and accessory structures, which presently are permitted in the Escarpment Natural Area. He stated that the size of a dwelling cannot be compared to that of a building for the production of syrup. He said that, if the activity falls under a Regulation 828 exemption, the required buildings would have no set size limit under the NEP and would not be subject to NEC oversight. He noted that single dwellings are permitted uses in the Escarpment Natural Area under NEP policy 1.3.3, but he opined that this use must be considered in the context of the NEP’s development criteria. He said dwellings are never exempt from a development permit and thus must conform with NEP policy 2.2.5, which requires that the development occur in the portion of the property with the least restrictive designation. He stated that a dwelling is not permitted within the Escarpment Natural Area unless there are no other designations on the property or it can be demonstrated that development within the Escarpment Natural Area would have a lower impact than building it elsewhere. He said dwelling proposals must also satisfy NEP policies 2.6 and 2.7 and demonstrate that any impacts would be minimal or temporary.

62Mr. Dobbyn stated that although the production of maple syrup and the use of trails and structures would occur mostly in the early spring and thereby have fewer impacts, maple syrup production still requires the construction of buildings and laneways along with electrical, water, and wastewater servicing, causing permanent impacts on a woodlot.

63Regarding climate change mitigation considerations raised by Regal Point, Mr. Dobbyn stated that the NEP and its Escarpment Natural Area policies aim to address and mitigate climate change through the protection of natural areas. He said Regal Point’s proposed wording to consolidate facilities in the Escarpment Natural Area in order to reduce greenhouse gas emissions would reduce available forest and arable area, which is contrary to the NEP’s objectives. He said that locating maple syrup production facilities within the Escarpment Natural Area would remove trees and reduce carbon sequestration. He said the transportation of sap over short distances to adjacent areas would have minimal climate change impacts. He stated that gravity line collection systems or vacuum systems could be used to deliver sap to storage tanks located outside of the woodlot. He opined that the production of maple syrup within the Escarpment Natural Area would result in larger negative environmental and climate change impacts from the loss of forest than would the transportation of sap to adjacent lands for processing.

64Mr. Dobbyn stated that the prohibition of maple syrup production within the Escarpment Natural Area would not be inefficient or environmentally unfriendly. He said harvested sap would need to be transported from locations in the woodlot to the processing facility regardless of whether the processing facility is located in the woodlot or adjacent to it. He said gravity lines, pumps, or transportation in containers by tractor or off-road vehicle to facilities adjacent to the woodlot would not result in a substantial operational difference. Mr. Dobbyn stated that properties in the Escarpment Natural Area usually also have other designated lands on them as well. He opined that harvesting sap could be done in the Escarpment Natural Area portion of a property and maple syrup production could be located on adjacent portions, which are not so designated. Acknowledging that sap can spoil quickly, he said that production facilities could nonetheless be located on nearby lands. He reiterated that NEP policy 2.2.5 requires that development be located on the least restrictive NEP designated land located on a property, again requiring, in most situations, that production be located outside of the Escarpment Natural Area.

65Mr. Dobbyn stated that the NEC considered the need for social well-being and the role of sugar shacks in providing it. He opined that permitting sugar shacks does not justify damaging the Escarpment Natural Area. He stated that the NEC would have no tools to limit the size of the sugar shacks or the scope of operations, which could lead to adverse impacts on features. He stated that NEP policy 1.3.1.4 includes the objective to encourage compatible recreation, conservation, and educational activities; but he clarified that, in the context of the Escarpment Natural Area, this is limited to non-intrusive activities like hiking trails. He said it does not include sugar shacks or shops.

66Mr. Dobbyn stated that the retail sale of farm products permitted at farms and wineries is not permitted in the Escarpment Natural Area. He reiterated that NEP policy 2.2.5 requires that development be located in the least restrictive designation on a property. He said maple syrup retail sales can occur on farm properties, but not on lands that are designated in the Escarpment Natural Area.

The NEC’s Submissions

67The NEC submits that the revised proposed amendment meets the purpose and objectives of the Act and the Plan. The NEC submits that the revised proposed amendment meets the Act’s purpose by helping maintain the natural environment of the Escarpment and only allowing development that is compatible with the natural environment. It submits that the revised proposed amendment meets the objectives of the Plan by protecting natural heritage, providing opportunities for outdoor recreation, maintaining the open landscape character of the Escarpment, ensuring compatible development, and providing public access to the Escarpment. The NEC further submits that the revised proposed amendment meets the objectives of the Escarpment Natural Area designation and will not result in adverse impacts as it protects natural heritage, protects natural Escarpment features, conserves cultural heritage resources, encourages compatible recreation, conservation, and educational activities, and maintains and enhances the scenic resources and open landscape character of the Escarpment.

68Noting that sap can only be collected from maple trees, which, in turn, are largely located in maple woodlots within the Escarpment Natural Area designation, the NEC submits that the revised proposed amendment is justified as it facilitates sap collection while ensuring minimal environmental impacts. It submits that the proposed amendment allows for economic benefits while respecting the Escarpment environment. It also submits that sap collection has an important social and traditional use, which should be encouraged where it is compatible with the Plan’s objectives.

69The NEC submits that Regal Point’s proposal to allow production and retail sale facilities in the Escarpment Natural Area would cause environmental harm and does not meet the purpose or objectives of the Act or the Plan. It submits that Regal Point’s proposal would not meet the Escarpment Natural Area objectives regarding natural heritage protection, the protection of natural Escarpment features, the conservation of cultural heritage resources, or the maintenance or enhancement of the scenic resources and open landscape character of the Escarpment. Given that most properties located in the Escarpment Natural Area also have portions within less restrictive designations, it submits that sap could be transported by non-intrusive means to production facilities located outside of the Escarpment Natural Area. The NEC submits that Regal Point’s proposal that an environmental impact study be required would have little value as there would be no one to review the study. It submits that if maple sugar harvesting is removed from the exemption list under Regulation 828, this use would be subject to the acquisition of a development permit for maple sugar harvesting across all designations under the Plan. It submits that this would have significant impacts on maple sugar harvesting in areas outside of the Escarpment Natural Area.

Burlington’s Evidence and Submissions

70Ms. Cook stated that, unlike other Agricultural Uses, maple sugar harvesting is restricted only to maple forests, which, on the Escarpment, are generally located in the Escarpment Natural Area. She stated that Burlington’s concerns arising from the NEC’s initial version of the proposed amendment were that it did not allow for the inclusion of the necessary infrastructure to support the collection of sap, such as all-terrain vehicle trails and vacuum pump structures. She said Burlington suggested that small-scale ancillary equipment and structures should be also permitted for these purposes. However, she warned that the more extensive infrastructure required for maple syrup production, as proposed by Regal Point, could compromise the integrity of the Escarpment Natural Area as they would require water, wastewater, and other services that would increase the footprint of operations and would require infrastructure to allow for emergency services access. She said maple syrup production would also likely lead to the development of agricultural tourism facilities such as sugar shacks, wagon rides, and pancake houses on these sensitive lands. She said public transit in these areas is generally limited and parking facilities would be needed. She stated that this all increases the scale and intensity of development.

71Ms. Cook opined that the proposed amendment is consistent with the PPS, which prohibits development in, or adjacent to, natural features unless it can be demonstrated that there will be no negative impacts. She said it also conforms with the Halton and Burlington Official Plans in which the mapping of natural heritage systems generally overlaps with the Escarpment Natural Area. She opined that the taking and collection of maple sap does not constitute development or site alteration under the PPS or the Halton Regional Official Plan and an environmental impact study is not required for these activities. She opined that the proposed revised amendment, which would exempt tapping and maple sap collection from the development permit process and environmental impact study requirements, aligns with the approach taken in the PPS and the Halton Regional Official Plan.

72Ms. Cook stated that Map 1A of the Halton Regional Official Plan, which is now incorporated as part of the Burlington Official Plan, shows that many properties designated as Escarpment Natural Area in Burlington also have portions of land within less restrictive designations in which agricultural buildings and structures may be permitted for the production and sale of maple syrup. She said agricultural viability on the Escarpment should be supported, where it can be managed within the constraints of the predominant natural heritage system protections of the Escarpment Natural Area.

73Regarding Issue 3 on whether non-intrusive maple sugar harvesting activities should be permitted in the Escarpment Natural Area and Issue 4 on whether the proposed policy should be revised, Ms. Cook opined that non-intrusive tapping maple sap collection activities should be permitted and that the initial version of the proposed amendment should be revised as agreed between the NEC and Burlington. She stated that the proposed revised amendment allows for compatible maple sap tapping and collection activities with small-scale ancillary support equipment and structures. She also opined that the word “sap” should be used in the proposed amendment to help provide clarity.

74Regarding Issue 5 on whether buildings and structures for maple syrup production and sale operations should be permitted in the Escarpment Natural Area and Issue 6 on further revisions proposed by Regal Point to allow maple syrup production, Ms. Cook reiterated that buildings and structures for maple syrup production and sale operations should not be permitted. She said the objective of the development criteria in NEP policy 2.7 is to protect and enhance natural heritage features and functions in order to maintain the diversity and connectivity of the Escarpment’s continuous natural environment. She opined that the introduction of permissions for buildings and structures for the production and sale of maple syrup would facilitate development at a scale and intensity that could compromise the protection of natural heritage features and functions. She opined that buildings and structures for maple syrup production and sale operations in the Escarpment Natural Area would be contrary to the NEP’s objectives to protect and enhance natural features and functions.

Burlington’s Submissions

75Burlington submits that the revised proposed amendment addresses its concerns with the NEC’s initial proposal. It submits that the revised language ensures that the tapping and collection of maple sap would only occur where it is appropriate and compatible and meets the Plan’s objectives for the Escarpment Natural Area. On the other hand, Burlington submits that Regal Point’s proposed language would expand uses to a degree that does not meet the purpose and objectives of the Act or the Plan. Burlington submits that Regal Point’s proposed language would not ensure environmental protection and it would be inconsistent with the PPS, which prohibits development in natural features unless it is demonstrated to have no negative impacts. Burlington submits that Regal Point’s proposed language also would not conform with policy 3.7.2 of the Halton Official Plan. It submits that maximization of efficiency in commercial operations is not an objective of the Act or the Plan. Further, it submits that Regal Point’s proposed language would require amendments to Regulation 828, which it submits are outside the mandate of the Hearing Officers to consider. It submits that Regal Point’s proposed language, as well as its interplay with other policies in the Plan, have not been assessed by the Commission, and have not been subject to consultations with applicable agencies, municipalities, or the public.

Regal Point’s Evidence and Submissions

76Regal Point put forward the following wording for the proposed amendment:

Maple sugar harvesting and maple syrup production, for greater certainty, including the tapping of trees, the collection of sap, and the equipment/structures required for the production/sale of maple syrup. Such operations should be limited in size. Production/sale facilities (i.e. “sugar shacks”) shall be subject to a Development Permit and any disturbance of the lands shall be minimized. Section 2.2.5 shall not apply to this permitted use.

77Mr. Scott opined that Regal Point’s suggested wording is compatible with the purpose and objectives of the Plan and the Act. He stated that maple syrup production is a benign use that can be accommodated without impacts to the environment. He stated that Regal Point’s suggested wording also does not conflict with NEP development criteria. He opined that Regal Point’s suggested wording is justified.

78Mr. Scott stated that a maple syrup operation, including tapping, sap collection, sap evaporation, and the creation of maple syrup, is a non-intrusive land use. He said the footprint of such operations would be less than a dwelling and its accessory buildings, which are already permitted in the Escarpment Natural Area. He said an environmental impact study should be required, or alternatively, proposals could be made subject to the development criteria in Part 2 of the NEP to ensure that the use complies with the objectives of the Act and the Plan.

79Regarding Issue 4 on whether the NEC’s proposed wording should be revised, Mr. Scott said a maple syrup operation must include the buildings and equipment used for the actual production of maple syrup. He said such development should be subject to either a scoped or full environmental impact study depending on the scale of proposed development. He opined that if an operation does not exceed the footprint of a single dwelling, then a scoped environmental impact study would be sufficient. He said that such operations would be an OFDU as they would be secondary to the principal agricultural operation on the property in question and would be limited in scale. He said that maple syrup operations are generally small scale in nature and rarely over 2000 square metres in size.

80In response to Issue 5 on whether buildings and structures for maple syrup production and sale operations should be permitted, Mr. Scott stated that dividing maple syrup production into two separate operations is inefficient, uneconomical, and environmentally unfriendly. He said it takes 40 gallons of sap to create one gallon of syrup and it is unreasonable, inefficient, and uneconomic to transport sap outside of a woodlot for maple syrup production and sale. He said farm products are widely sold on farms and wineries. He added that maple syrup production and the use of associated trails and structures would be in the spring and would cause only limited environmental damage.

81In regard to Issue 6 on further revisions to the proposed amendment, Mr. Scott opined that the amendment should permit the location of a maple syrup operation that is most economical and efficient, subject to the recommendations in an environmental impact study and in accordance with the development criteria in NEP Part 2.

82Mr. Scott stated that the purpose of the proposed amendment is to incorporate a legitimate agricultural use into the Escarpment Natural Area, while respecting the NEP’s purpose and objectives. In keeping with NEP’s aim to maintain a continuous natural environment, Mr. Scott said development should be compatible with the environment and maintain and enhance the open space character by such means as compatible farming or forestry. He opined that small-scale maple syrup operations, in compliance with NEP Part 2 or subject to an environmental impact study, represent a compatible farming use and should be permitted in the Escarpment Natural Area.

83Mr. Scott opined that if maple syrup harvesting is permitted and environmental impact studies are required, Regulation 828 will need to be amended to reflect the changes so that maple sugar harvesting is not exempt from development permit requirements. He said that maple sugar harvesting is unique and should not be limited by NEP policy 2.2.5 requiring development in the least restrictive land use designation. He said it is dependent on trees and must be located in maple forests. Alternatively, he opined that a further amendment to Regulation 828 could be made exempting these uses from NEP policy 2.2.5.

84Mr. Scott said that not all Escarpment Natural Area lands are in key natural heritage features and that each property must be studied to determine its characteristics. He stated that sugar shacks can help foster social well-being by introducing people to maple syrup, showing them how it is made, and engaging them in maple syrup festivals and events. He said there is no evidence that maple syrup processing in the Escarpment Natural Area would result in deforestation. He said environmental impact studies would show where sugar shacks should be best located.

85Ms. Sober reviewed the definition of “woodland” in the NEP, the Forestry Act, and in the Ministry of Natural Resources’ Ecological Land Classification for Southern Ontario guidance materials. She stated that the PPS provides overall policy directions on matters of Provincial interest related to land use and development and that NEC decisions must be consistent with the PPS. She said that PPS policy 4.1 requires that natural features and areas must be protected for the long term and that development and site alteration is not permitted in enumerated natural features, unless it has been demonstrated that there will be no negative impacts on the natural features or their ecological functions. She also reviewed NEP policy 1.3.1, which sets out the NEP objectives for the Escarpment Natural Area. She said the sensitive natural and scenic resources in the Escarpment Natural Area are to be protected and enhanced. She also reviewed the uses that are permitted in the Escarpment Natural Area under policy 1.3.3, which include existing uses, single dwellings, and infrastructure, among others.

86Ms. Sober stated that Regulation 828 exempts maple syrup production and Agricultural Uses from being required to undergo an environmental impact study, which she opined is not compatible with the PPS. As a consequence, she opined that the Regulation should be amended. She said uncontrolled land uses are inconsistent with NEP policies 1.3 and 1.3.1 as well as PPS policy 4.1 and should be subject to environmental impact studies to ensure sustainable use and to ensure that the PPS test of no negative impact is met. She stated that the scope of an environmental impact study should be based on the size of the proposed development. She said all maple syrup operations should be subject to at least a scoped study, while commercial-scale maple syrup operations should be subject to a full environmental impact study. Ms. Sober opined that maple syrup land uses should be treated in the same manner as single-family residential land uses within the Escarpment Natural Area and be required to undergo an environmental impact study. She said the tapping trees and creation of trail systems to collect sap can cause negative impacts and that they too should be subject to a study.

87Ms. Sober stated that not all maple trees are in significant woodlands in the Escarpment Natural Area, and, therefore, they are not all located in key natural heritage features. She opined that each woodlot needs to be studied to determine whether it is in a key natural heritage feature. She stated that tapping and collecting sap requires making trails and cutting trees, which may cause damage. She said that the application of gravel and the use of all-terrain vehicles also may cause harm. She reiterated that an environmental impact study should be completed before these activities are undertaken. She said that single dwellings have larger footprints and greater impacts than many sugar shacks and that sugar shacks are seasonal in nature, while dwellings impact the environment all-year round. She said an environmental impact study should be required for maple sugar harvesting regardless of which NEP designation the lands fall under. She also stated that maple syrup production can be valued by the community in a manner that is similar to cultural heritage.

Regal Point’s Submissions

88Regal Point submits that maple sugar harvesting is a benign Agricultural Use. It submits that the use includes tapping, collection, storage, trail creation, and production. It argues that the NEC and Burlington are agreeable to all of these uses except production due to concerns relating to the removal of trees and the scale of development. It argues that these concerns can be addressed through a requirement that an environmental impact study be undertaken for each maple sugar harvesting application. It submits that the Parties agree that maple sugar harvesting should be a permitted use, but they differ on whether this should include buildings and structures for production. It submits that production should be included, but it should be subject to obtaining a development permit and undertaking any necessary environmental studies.

89Regal Point submits that the scope of the Hearing Officers’ recommendations should not be limited to the language proposed by the NEC and Burlington. It submits that the recommendations can include those relating to regulatory amendments or additional changes to the Plan. Regal Point submits that there is no planning evidence before the Hearing Officers that its proposed language does not meet the purpose and objectives of the Act and Plan and is justified.

ANALYSIS

90As described above, when making recommendations on proposed amendments to the NEP, Hearing Officers are required to consider four main issues. These are (1) whether the proposed amendment would result in the purpose and objectives of the Act and the Plan being met; (2) whether the proposed amendment would have impacts that adversely affect the purpose and objectives of the Act or the Plan; (3) whether the proposed amendment is consistent with other relevant Provincial policies; and (4) whether the proposed amendment is justified. The development criteria in Part 2 of the Plan must also be considered. Each of these general issues is addressed below in relation to the third component.

1. Meeting the Purpose and Objectives of the Act and the Plan

91The purpose of the Act and the Plan are to provide for the maintenance of the Escarpment and neighbouring lands substantially as a continuous natural environment and to ensure that only environmentally compatible development occurs there. The Plan’s objectives are to protect the Escarpment’s environment and water resources, provide recreation opportunities, maintain and enhance the Escarpment’s open landscape character, ensure compatible development, provide public access to the Escarpment, and support local municipalities in exercising their planning functions.

92The Escarpment Natural Area is the most protected land use designation under the NEP. It contains significant woodlands, significant valleylands, Life Science ANSIs, significant wildlife habitat, and endangered and threatened species habitat. Sugar maple woodlots are often found in the Escarpment Natural Area.

93The proposed NEP amendment in relation to the third component would modify NEP policy 1.3.3. This policy lists the permitted uses allowed in the Escarpment Natural Area, subject to the development criteria in NEP Part 2. It would add a new sub-policy 15. Policy 1.3.3.15, as proposed by the NEC and supported by Burlington, would state:

As part of maple sugar harvesting, the tapping of trees, the collection of sap, the placement of minor ancillary equipment or structures (e.g. collection tanks, vacuum systems), and the establishment of minor trails (i.e., without the addition of aggregate material or pavement) to facilitate the collection of sap. For greater certainty, this does not include maple syrup production or sale, or the construction of buildings or structures related to the processing of sap for maple syrup production or sale.

94This proposed wording permits only maple sap tapping and collection, along with minor ancillary equipment or structures and minor trails to facilitate the collection of sap. Based on the evidence before the Hearing Officers, ancillary equipment and structures are necessary to support the tapping and collection of sap. As set out in the proposed language for the amendment, the required equipment and structures, such as tanks and vacuum systems, would have no negative impacts. Based on the evidence before the Hearing Officers, the proposed amendment would not affect the character or integrity of the Escarpment Natural Area, the proposed uses would maintain the natural environment of the Escarpment, and they would be compatible with the natural environment.

95The tapping and collection of sap, along with the erection and use of ancillary equipment and structures along with minor trails to support theses uses, meet the Plan’s objectives. These uses help maintain the woodlots in question and protect these ecologic areas. The proposed uses will also help to maintain and enhance the open landscape character of the Escarpment by preserving natural scenery. The Hearing Officers find that these uses constitute a form of development that is compatible with the Plan’s purpose of maintaining the Escarpment substantially as a continuous natural environment. The Hearing Officers further find that, by aligning with the policies in municipal official plans and policies, these uses will help support municipalities in their exercise of their planning functions.

96Consideration of the Plan’s objectives requires consideration of the objectives of the designated area in question. The objectives of the Escarpment Natural Area designation are set out in policy 1.3.1 of the Plan. They are:

1. To recognize, protect and where possible enhance the natural heritage and hydrological systems associated with the Niagara Escarpment Plan area.
2. To protect the most natural Escarpment features, valleylands, wetlands and related significant natural areas.
3. To conserve cultural heritage resources, including features and areas of interest to First Nations and Métis communities.
4. To encourage compatible recreation, conservation and educational activities.
5. To maintain and enhance the scenic resources and open landscape character of the Escarpment.

97Given that the proposed activities require preservation and maintenance of maple woodlots and augment interest in these resources, the Hearing Officers find that the proposed amendment meets the objectives of the Escarpment Natural Area. The Hearing Officers find that, by preserving and maintaining maple woodlots in the Escarpment Natural Area, the proposal helps protect and enhance natural heritage and hydrological systems, helps protect the natural Escarpment features, valleylands, and related significant natural areas, and helps to maintain and enhance scenic resources and the open landscape character of the Escarpment.

98The wording proposed by Regal Point for the amendment is the following:

Maple sugar harvesting and maple syrup production, for greater certainty, including the tapping of trees, the collection of sap, and the equipment/structures required for the production/sale of maple syrup. Such operations should be limited in size. Production/sale facilities (i.e. “sugar shacks”) shall be subject to a Development Permit and any disturbance of the lands shall be minimized. Section 2.2.5 shall not apply to this permitted use.

99This proposed wording would allow production and retail sale facilities within the Escarpment Natural Area. The production of maple syrup is a more intensive activity than the tapping and collection of sap. Based on the evidence before the Hearing Officers, Regal Point’s proposed wording could include the production and retail sale of syrup and related products along with a variety of tourist activities. Agricultural Uses, ARUs and OFDUs presently are not included as permitted uses in the Escarpment Natural Area under NEP policy 1.3.3, except where the activity is an existing use that was in place prior to 1985 and has been ongoing.

100The production of maple syrup is an ARU or OFDU depending on the other uses on the property. The sale of maple syrup on its own generally is an ARU, while the sale of other products, or activities associated with it, would be an OFDU. The Hearing Officers find that the expansion of the permitted uses in the Escarpment Natural Area to include ARUs and OFDUs relating to maple syrup production, sale, and related activities would not meet the purpose and objectives of the Act or the Plan or the objectives for the Escarpment Natural Area. The Hearing Officers find that permitting these ARUs and OFDUs would likely alter the natural environment in a manner that is not compatible with its existing character. The Hearing Officers find that Regal Point’s proposed wording would facilitate uses that neither maintain the Escarpment as a continuous natural environment nor ensure that only environmentally compatible development occurs there.

101Although Regal Point’s wording could provide recreation opportunities and help provide public access to the Escarpment in accordance with the Plan’s objectives, the Hearing Officers find that the fact that it would contradict each of the Plan’s other objectives makes it unsuitable. They find that the resulting uses would not constitute a form of development that is compatible with the Plan’s purpose of maintaining the Escarpment substantially as a continuous natural environment or support the policies in municipal official plans and polices, which generally require strict protection of woodlands in the Escarpment Natural Area.

102Given the nature of the uses that would result from Regal Point’s proposed language, the Hearing Officers find that its proposal would not meet the Escarpment Natural Area objectives regarding natural heritage protection, the protection of natural Escarpment features, the conservation of cultural heritage resources, or the maintenance or enhancement of the scenic resources and open landscape character of the Escarpment. The Hearing Officers note that economic development is not an objective for the Escarpment Natural Area

2. Impacts Affecting the Purpose and Objectives of the Act and Plan

103The evidence from the NEC and Burlington is that tapping and the collection of maple sap would have no negative impacts on the environment. Ms. Sober, on behalf of Regal Point, opined that some of the proposed activities, in particular, the development and use of minor trails, could have impacts and should be subject to an environmental impact study. However, Ms. Sober did not elaborate on how non-gravel unpaved seasonal trails that are used primarily in the early spring would have impacts beyond stating that some trees may need to be cut or trimmed. The proposed amendment stipulates that the trails must be minor and may not include the addition of aggregate material or pavement. They are restricted to facilitating tapping and the collection of sap. Although some trees may need to be cut or trimmed to facilitate the creation and maintenance of the trails, based on the restrictions in the proposed amendment, these alterations would be minor.

104Based on the evidence before the Hearing Officers, ancillary equipment and structures are necessary to support tapping and the collection of sap. As set out in the proposed language for the amendment, this could include tanks and vacuum systems. They would not result in significant tree removal or the construction of significant structures, buildings, or roads, provided that tapping and sap collection is done by bucket, gravity line or vacuum line, and structures are limited in size to only house the necessary equipment. The use of trails is also required to be limited. Based on these considerations, the Hearing Officers find that the NEC’s proposed amendment would not result in negative impacts affecting the purpose and objectives of the Act or the Plan. Specifically, the Hearing Officers find that the proposed amendment would permit uses that would not cause impacts on the open landscape character of the Escarpment. They would not impact the preservation of natural scenery and they would not impact the Escarpment as a continuous natural environment. The Hearing Officers find that, by aligning with the policies in municipal official plans and polices, the NEC’s proposed amendment would not adversely impact municipalities in their exercise of their planning functions. Also, the Hearing Officers find that the NEC’s proposed amendment would not impact the meeting of the Escarpment Natural Area objectives in NEP policy 1.3.1 regarding natural heritage protection, the protection of natural Escarpment features, the conservation of cultural heritage resources, and the maintenance or enhancement of the scenic resources and open landscape character of the Escarpment.

105On the other hand, the evidence before the Hearing Officers is that maple syrup production facilities, as proposed by Regal Point’s suggested language, would likely cause impacts to the Escarpment Natural Area and to the key natural heritage features located in it. The infrastructure required for maple sugar production would require water, wastewater, and other services. It would require buildings and equipment, such as an evaporator, the construction of roads and parking areas, and the installation of hydro in sensitive natural areas. It would also require infrastructure for fire and emergency service access. It could also include retail and tourism facilities and activities such as sugar shacks, wagon rides, and pancake houses. All of these elements would result in a footprint that is not compatible with the character of the Escarpment Natural Area. The evidence before the Hearing Officers is that maple syrup production facilities located in the Escarpment Natural Area would result in the likelihood of negative environmental impacts, which are not compatible with the purpose and objectives of the Act or the Plan or with the NEP objectives for the Escarpment Natural Area.

106Regal Point argues that these concerns can be addressed by requiring that environmental impact studies be undertaken. However, to require this, further amendments to the Plan as well as amendments to Regulation 828 would be needed. The NEC would need to have overview powers over the environmental impact study process and maple sugar harvesting would need to be removed from being a type of general agricultural development under Regulation 828. If it is removed from the Regulation’s exemption list, harvesting would be subject to development permit approval across all designations under the Plan. This would have significant impacts on maple sugar harvesting across the Escarpment and would impact the NEP’s objectives by curtailing recreation opportunities, deterring compatible development, preventing public access to the Escarpment, and hindering local municipalities in exercising their planning functions.

107If maple syrup production was permitted in the Escarpment Natural Area without removal of the maple sugar harvesting exemption, then other amendments to the Regulation and the Plan would be needed. New ARUs and OFDUs are not exempt under the Regulation, which would need to be amended to exempt them. Unless they were exempted, production facilities would be required to have a development permit and would be subject to NEP policy 2.7.2, which prohibits development in key natural heritage features, such as significant woodlands. They would also be subject to policy 2.2.5, which requires that development be located in the least restrictive designation on a property. Amendments to the Plan would be required to address these issues, which would detract from meeting the purpose and objectives of the Act and the Plan.

108The Hearing Officers find that Regal Point’s proposed language would have adverse impacts that do not align with the purpose and objectives of the Act or the Plan and would have impacts that do not align with the NEP objectives for the Escarpment Natural Area. To address these inconsistencies would require further amendments to the Plan and to the Regulation, which, in the view of the Hearing Officers, would detract from meeting the purpose and objectives of the Act and the Plan.

3. Consistency with other Provincial policies

109NEP policies are generally based on the policies in the PPS with added protection for the Escarpment environment using a landscape approach to protect geologic features as a continuous natural environment. The NEC’s proposed amendment is consistent with the PPS which prohibits development in, or adjacent to, natural features unless it can be demonstrated that there will be no negative impacts. The requirement for no negative impacts is stricter and thereby consistent with the policies in the Greenbelt Plan and the Oak Ridges Moraine Conservation Plan for environmentally sensitive lands. The Escarpment Natural Area often overlaps with natural heritage core areas and environmental protection areas in municipal official plans, which generally prohibit or limit the types of new ARUs and OFDUs or new structures within core natural heritage areas. The NEC’s proposed amendment would be consistent with these policies, while Regal Point’s suggested wording would not.

110The Hearing Officers find that the NEC’s proposed amendment is consistent with the relevant Provincial policies.

4. Justification

111NEP policy 1.2.1 states that the justification for a proposed amendment means the rationale for the amendment, as well as reasons, arguments, or evidence in support of the proposed change. Permitting tapping and maple sap collection in the Escarpment Natural Area would help maintain the economic and social vitality of the Plan area by allowing new activities and uses as well as access to the Escarpment in a manner that protects the environment and maintains the character of the Escarpment. Tapping and maple sap collection can only take place in maple forests, which, on the Escarpment, are generally located in the Escarpment Natural Area. As NEP policy 1.3.3 is currently framed, landowners are prevented from tapping trees and collecting sap in these areas. The Hearing Officers agree with the NEC that it would be appropriate to provide landowners who own these resources with the opportunity to harvest maple sap, subject to restrictions set out in the proposed amendment. Given that tapping of trees and the collection of maple sap within the Escarpment Natural Area would have no negative impacts, the Hearing Officers find that the proposed amendment is justified. It will provide economic opportunities for maple woodlot owners while having no negative impacts on the Escarpment environment. Taking into account the rationale for the proposed amendment, as well as the reasons, arguments, and evidence in support of it, the Hearing Officers find that the NEC’s proposed amendment is justified.

112Regarding Regal Point’s proposed language for the amendment, the Hearing Officers find that it is not justified. The evidence before the Hearing Officers is that most properties in the Escarpment Natural Area, and all properties that have active agricultural operations, also include lands that are designated less restrictively. Maple syrup production is a permitted use on those less restrictively designated lands, subject to development permit approval. Given the impacts that maple syrup production would have on the Escarpment Natural Area, its misalignment with the purpose and objectives of the Act and the Plan, and the fact that the processing can be facilitated by locating it nearby on less restrictively designated lands, the Hearing Officers find that Regal Point’s suggested language is not justified.

113In making these findings, the Hearing Officers have considered the relevant development criteria in Part 2 of the Plan.

HEARING OFFICERS’ RECOMMENDATION – THIRD COMPONENT

114The Hearing Officers recommend that the third component of the proposed amendment should be adopted based on the following wording for a new sub-policy 1.3.3.15:

As part of maple sugar harvesting, the tapping of trees, the collection of sap, the placement of minor ancillary equipment or structures (e.g. collection tanks, vacuum systems), and the establishment of minor trails (i.e., without the addition of aggregate material or pavement) to facilitate the collection of sap. For greater certainty, this does not include maple syrup production or sale, or the construction of buildings or structures related to the processing of sap for maple syrup production or sale.

D. FOURTH COMPONENT – ARUs AND OFDUs IN THE ESCARPMENT PROTECTION AREA

115The NEC proposed an amendment to NEP policy 1.4.3.2, which would permit ARUs and OFDUs outside of prime agricultural areas (“PAAs”) in the Escarpment Protection Area. As per policy 1.4.3 of the Plan, ARUs and OFDUs are currently permitted uses within the Escarpment Protection Area, but only in PAAs. The proposed amendment would remove reference to PAAs, making ARUs and OFDUs permitted uses throughout the Escarpment Protection Area.

EVIDENCE AND SUBMISSIONS

116The six issues of concern regarding the proposed amendment (Issues 7 to 12 in the Issues List, issued on October 1, 2024) are:

a. Is the proposed amendment to Policy 1.4.3.2 consistent with the purpose and objectives of the NEP?

b. Should land use policy 1.4.3.2 be amended to permit ARUs and OFDUs outside of PAAs? Or should the restriction of ARUs and OFDUs continue to be limited to PAAs only?

c. Are the definition of OFDUs and the development criteria in the NEP including 2.8.6, 2.8.7, 2.8.8, 2.8.9, 2.8.10, 2.13 sufficient to ensure that OFDUs do not become primary?

d. Are existing development criteria for OFDUs sufficient to inform the issuance of development permits by the NEC under the Act?

e. Do applicable development criteria, including in d. above, need to be reviewed and updated prior to approving the proposed amendment to permit OFDUs outside of PAAs?

f. If the answer to e. above is yes, what types of additional development criteria should be added to address the establishment of OFDUs in the Escarpment Protection Area?

NEC, Burlington, Krapez, and Muzyka Evidence and Submissions

117Mr. Dobbyn explained that ARUs and OFDUs in the Escarpment Protection Area are currently only allowed in PAAs. He shared the definitions of PAA and prime agricultural land as set out in the NEP:

Prime agricultural area: An area where prime agricultural lands predominate. This includes areas of prime agricultural lands and associated Canada Land Inventory Class 4 through 7 lands, and additional areas where there is a local concentration of farms that exhibit characteristics of ongoing agriculture. Prime agricultural areas may be identified by the Ontario Ministry of Agriculture, Food and Agribusiness using guidelines developed by the Province as amended from time to time. A prime agricultural area may also be identified through an alternative agricultural land evaluation system approved by the Province (Provincial Policy Statement, 2014).

Prime agricultural land: Specialty crop areas and/or Canada Land Inventory Class 1, 2, and 3 lands, as amended from time to time, in this order of priority for protection (Provincial Policy Statement, 2014).

118Mr. Dobbyn pointed out that the NEC staff report states that PAAs are identified by municipalities in their official plans, however, not all municipal official plans include prime agricultural area mapping, which creates challenges to their identification and to the implementation of ARUs and OFDUs as permitted uses in PAAs in the Escarpment Protection Area under NEP policy 1.4.3.2.

119Mr. Dobbyn defined ARUs according to the PPS and the NEP. Both definitions are consistent with each other. The PPS definition is:

Agriculture-related uses: means those farm related commercial and farm-related industrial uses that are directly related to farm operations in the area, support agriculture, benefit from being in close proximity to farm operations, and provide direct products and/or services to farm operations as a primary activity.

120Mr. Dobbyn defined OFDUs according to the PPS and the NEP. Both definitions are consistent with each other. The PPS definition is:

On-farm diversified uses: means uses that are secondary to the principal agricultural use of the property, and are limited in area. On-farm diversified uses include, but are not limited to, home occupations, home industries, agri-tourism uses, uses that produce value-added agricultural products, and electricity generation facilities and transmission systems, and energy storage systems.

121Mr. Dobbyn explained how the Oak Ridges Moraine Conservation Plan and Greenbelt Plan restrict OFDUs from the most sensitive lands (akin to the Escarpment Natural Area). He said OFDUs are permitted in other land designations under those Plans. He stated that bringing the NEP more in line with other Provincial plans is part of the goal. Mr. Dobbyn explained that a coordinated Plan-wide review is required every 10 years for all Provincial plans and the last review for the NEP was completed in 2017.

122Mr. Dobbyn pointed out that NEP policy 1.5.3 lists both ARUs and OFDUs as appropriate uses and permitted uses broadly within the Niagara Escarpment area. However, he stated that no other permitted use is restricted to only being permitted within PAAs and he opined that there is no value to this restriction.

123Mr. Dobbyn stated that restricting ARUs and OFDUs to PAAs does not protect lands because prime agricultural lands are better used for farming than for related or diversified uses. He added that farmers outside of PAAs may need ARUs and OFDUs to provide additional benefits and/or economic value.

124Mr. Dobbyn clarified that, according to policy 2.8 of the NEP, OFDUs must be secondary to the primary Agricultural Use on the property in question which restricts the OFDU to 2% of the property to a maximum of 1 hectare in total. He said ARUs are not size limited and do not need to be secondary in nature.

125Mr. Dobbyn highlighted that every ARU and OFDU application, regardless of location, is reviewed and assessed, by the NEC, on a case-by-case basis. If the proposed amendment is approved, it would only amend the permitted uses, but the application review process would not change and all applications for ARUs and OFDUs would continue to be assessed independently.

126Mr. Dobbyn opined that the proposed amendment satisfies the requirements in NEP policy 1.2.1, by explaining how it:

a. does not conflict with the purpose and objectives of the Act and the NEP and is, in general, supportive of the compatible management of land and resources within the NEP;

b. would not be contrary to the objectives and permitted uses of the applicable land-use designations of the NEP;

c. is supported by the existing development criteria of the NEP, specifically concerning the policies related to promoting and protecting agriculture;

d. is consistent with other Provincial plans (e.g., the PPS, the Greenbelt Plan, the Oak Ridges Moraine Conservation Plan) in supporting agriculture while protecting key natural heritage features; and,

e. is justified, given the lack of harm that it would cause and the benefits that it would provide to local farmers.

127The response to the proposed amendment’s public consultation, according to Mr. Dobbyn, showed that it is supported by all municipalities involved, OMAFRA, farming agencies, and eight members of the public. Opposition to the proposed amendment from the public consultation included Preserve the Escarpment and 23 members of the public.

128Ms. Cook testified that the proposed amendment is consistent with the NEP and that she supports it. She stated that, subject to the various development tests and controls that exist, allowing OFDUs and ARUs outside of PAAs in the Escarpment Protection Area complements the NEP.

129Mr. Krapez stated that the first objective of the NEP is to maintain the open landscape character of the Niagara Escarpment. He stated that the proposed amendment could help achieve this and help farmers make better economic use of their lands. Mr. Krapez stated that an OFDU using 2% of farmlands would support the other 98%. He questioned Mr. Wynia, under cross-examination, to introduce evidence that shows that ARUs and/or OFDUs would harm the Escarpment Protection Area.

130Mr. Muzyka raised the point that the NEC development permit application is highly detailed and the NEC employs compliance officers to ensure that developments operate according to the conditions of the permit. Mr. Muzyka reiterated that a control structure exists for development permits and, if the proposed amendment is approved, that control structure would apply to both PAAs and non-prime agricultural areas of the Escarpment Protection Area.

Kantelberg and Blaiklock Evidence and Submissions

131Mr. Wynia opined that these types of development should be regulated by policy and not by development permits.

132Mr. Wynia stated that while the development permit process has been in use for some time, the issue is not about whether the development permit can be enforced, but instead how it would be enforced.

133Mr. Wynia testified that the proposed amendment is premature and should be considered during the upcoming coordinated Plan-wide review. He said a more detailed review and analysis is needed and development criteria would need to be revised to accommodate it.

134Mr. Wynia reiterated that the objectives of the NEP are to protect the environment by keeping its unique landscape character. Agriculture can be a compatible use, however, he stated that agriculture is a mechanism to achieve the objectives under the NEP and no agriculture is permitted in the Escarpment Natural Area, just in the Escarpment Recreation Area, Escarpment Protection Area, and Escarpment Rural Area designations. He stated that, while an ARU or OFDU may be appropriate on some lands, it would not be appropriate for all lands.

135Mr. Wynia stated that if the proposed amendment is approved, many ARUs and OFDUs would be permitted in the Escarpment Protection Area and the potential impacts would not be compatible with the intent of the Escarpment Protection Area designation. His opinion is that the NEP’s development criteria are insufficient to ensure that OFDUs do not become primary land uses. He is not sure how implementation or enforcement would occur, and he questioned how primary use would be determined.

136Mr. Wynia stated that a review of the development criteria alone would likely not be sufficient as he believes that the permitted uses are inconsistent with them.

137Mr. Wynia opined that the proposed amendment should not be approved and ARUs and OFDUs should continue to be limited within the Escarpment Protection Area to PAAs.

138Mr. Blaiklock indicated that he is unconvinced that there are sufficient safeguards to allow the proposed amendment. He is concerned that “lowering the bar” will have negative consequences with only a small number of people benefiting from the proposed amendment and everyone else suffering from its impacts.

ANALYSIS

1. Meeting the Purpose and Objectives of the Act and the Plan

139The NEP purpose and objectives are primarily to protect the environment. NEP Objective 4 states:

4. To maintain and enhance the open landscape character of the Niagara Escarpment in so far as possible, by such means as compatible farming or forestry and by preserving the natural scenery;

140Specific objectives are defined for the Escarpment land designations including the Escarpment Protection Area. The Escarpment Protection Area objectives include:

a. To maintain and enhance the scenic resources and open landscape character of the Escarpment.

b. To provide a buffer to prominent Escarpment features.

c. To recognize, protect and where possible enhance the natural heritage system associated with the Niagara Escarpment Plan area and protect natural areas of regional significance.

d. To conserve cultural heritage resources, including features and areas of interest to First Nation and Métis communities.

e. To encourage forest management, compatible recreation, conservation and educational activities.

f. To encourage agriculture and protect agricultural lands and prime agricultural areas.

141Policy 2.8 of the NEP encourages Agricultural Uses and permits ARUs and OFDUs provided that they are compatible and do not offend the NEP objectives. The Hearing Officers find that the proposed amendment satisfies the NEP objectives, including Objective 4, and the objectives for the Escarpment Protection Area. Under the proposed amendment, the development of ARUs and OFDUs will remain under development control including the need for a development permit. The application process for a development permit allows the NEC to determine if the use is compatible and ensures that it does not adversely affect other lands. This approach allows for a case-by-case site-specific merit-based review. The development permit process is designed to address concerns regarding incompatible development. Proposals for OFDUs in the non-PAAs will be subject to the NEP Part 2 development criteria and approval by the NEC, which addresses concerns that the proposed amendment will attract incompatible tourist attractions, wedding venues, and other uses that will hinder Agricultural Uses in the Escarpment Protection Area. If a development permit application does not meet the development criteria, it will be refused. The proposed amendment does not remove appeal rights. The Hearing Officers find that there are sufficient controls in place to limit developments to compatible uses that will help meet the purpose and objectives of the NEP.

2. Impacts Affecting the Purpose and Objectives of the Act and Plan

142Implementing ARUs and OFDUs outside of PAAs will not negatively impact the purpose and objectives of the NEP as the development permit application process would ensure that only appropriate development occurs with any necessary research and/or studies that may be required.

143The proposed amendment only amends the permitted uses for areas and does not alter the application process.

144Kantelberg submits that striking words from policy 1.4.3.2 to allow non-PAA OFDUs should require multiple policy changes and an examination of the policy differences between the Escarpment Protection Area and those of Escarpment Rural Area. Kantelberg believes that the proposed amendment is contrary to the Escarpment Protection Area policies. Kantelberg also questioned if the development criteria found in Part 2 of the NEP are sufficient to ensure that OFDUs do not become primary uses. Kantelberg suggests that oversized developments may occur if the proposed amendment is approved.

145The NEC and Burlington disagreed with Kantelberg that overdevelopment would occur as the permitted uses are identified in Part 1 of the NEP and are subject to review in Part 2 of the NEP. This is part of the development permit control process. Burlington submits that this concern is addressed via policy 2.2.1 of the NEP:

2.2.1 The Escarpment environment shall be protected, restored and where possible enhanced for the long term having regard to single, multiple or successive development that have occurred or are likely to occur.

146In regard to OFDUs, this requirement to protect the Escarpment and its character is implemented through the development criteria in NEP policy 2.8.7, which states:

2.8.7 On-farm diversified uses are subject to the following criteria:

a) the use is located on a farm that is actively in agricultural use;

b) the use is secondary to the principal agricultural uses of the farm;

c) the use shall be compatible with and shall not hinder surrounding agriculture operations and other land uses;

d) the use is appropriate to available rural services and infrastructure;

e) the use maintains the agricultural/rural character of the area;

f) the impact of multiple uses in prime agricultural areas is limited and does not undermine the agricultural nature of the area;

g) the use is limited in area to up to two (2) per cent of a farm lot, to a maximum of 10,000 square metres;

h) the gross floor area of buildings used for on-farm diversified uses is limited to 20 per cent of the maximum area allowed for on-farm diversified use as set out in 2.8.7(g);

i) existing buildings, structures or facilities on the property, that are no longer needed to support agricultural uses, should be used where possible;

j) all buildings, structures and facilities, including parking areas, associated with the use shall be designed and located to have minimal impact on agricultural uses in the area and the Escarpment’s open landscape character; and

k) the land supporting the use shall not be severed from the farm lot exclusively for the on-farm diversified use.

147The development criterion requiring compatibility in policy 2.8.7(c) helps mitigate impacts by protecting the character of the Escarpment Protection Area agricultural operations and by preventing large industrial uses from being allowed in the Escarpment Protection Area, which was one of Mr. Wynia’s concerns. This is further addressed through policy 2.8.7(e), which limits impacts affecting the purpose and objectives of the Act and Plan by ensuring that the agricultural/rural character of the area is maintained. Also, policy 2.8.7(f) ensures that the agricultural nature of the Escarpment Protection Area is not undermined through multiple uses. The Hearing Officers note that it includes reference to PAAs and, therefore, may need to be reviewed as part of the proposed amendment, if approved. Expanding the policy or ensuring consistency with the proposed amendment would be necessary. This could be accomplished by removing "prime agricultural areas” from policy 2.8.7(f).

148The combination of policy 2.2.1 and 2.8.7 establishes a clear mechanism to protect the Escarpment lands with an emphasis on the agricultural lands. It provides a mandate to enhance the lands where possible regardless of development that has or will occur. With the above-noted minor change to policy 2.8.7(f), the policies can mitigate any impacts to the purpose and objectives of the Plan.

149When the development control process, that the NEC uses to evaluate compatible development, is included in conjunction with these policies, there is a clear and effective approach to ensure the protection of the Escarpment Protection Area and its character. All NEP Part 2 development criteria must be satisfied for a development permit to be approved. The Hearing Officers find that this process ensures that the environmental sensitivities of the Escarpment Protection Area will be addressed and protected on a case-by-case basis.

150Kantelberg proposed that policy guidance materials should be issued on how to apply NEP policy on ARUs and OFDUs before the proposed amendment is approved. These materials may include guidance on what types of properties qualify for ARUs and OFDUs, as well as what level of commercial activity the area can support. There is guidance to be found in OMAFRA Guidelines on Permitted Uses in Prime Agricultural Areas. NEC staff have consulted with OMAFRA in the past to address policy and guideline interpretation and implementation. The Hearing Officers find that there is sufficient guidance on policy application available, although, additional guidance materials that are specifically related to the NEP would be valuable resources once the content of the amended policies is finalized.

3. Consistency with other Provincial policies

151The NEC submits that other Provincial plans outside of the NEP permit ARUs and OFDUs in non-PAA lands.

152The Oak Ridges Moraine Conservation Plan restricts OFDUs to non-core lands. Core lands are considered the most environmentally sensitive and the NEC suggested that core lands are akin to the Escarpment Natural Area. The Escarpment Protection Area is considered to be less environmentally sensitive. The Greenbelt Plan permits OFDUs in a similar manner. The proposed amendment is consistent with the Oak Ridges Moraine Conservation Plan and Greenbelt Plan.

153The NEP is more restrictive than the PPS as part of the NEP’s mandate to more comprehensively protect the environment (for example, the NEP protects all wetlands, the PPS only protects provincially significantly wetlands). If something meets the requirements of the NEP, then it will also meet those of the PPS.

154Municipalities typically refer to agricultural lands as prime and rural lands as non-prime. However, not all municipalities have identified PAAs, which limits the lands that can be used for OFDUs.

155The NEP is the only Provincial plan that restricts OFDUs to being only in PAAs.

156The Hearing Officers find that the proposed amendment is consistent with other relevant Provincial plans and policies.

4. Justification

157Changing the permitted uses in the Escarpment Protection Area for non-PAAs will not alter the planned function and will provide opportunities for broader land use in the designation. The planned function of the Escarpment Protection Area is a blending of more and less sensitive lands with specific objectives that focus on compatible land use and development to act as a buffer space to Escarpment Natural Areas. Permitting a use, in already disturbed areas, will not lessen the environmental protection or cause undue impact on surrounding agricultural areas provided that sufficient review of the proposed use is done via the development permit process. The Hearing Officers find that changing the permitted uses in this manner will not alter the planned function when the development permit process is used to ensure appropriate and compatible development.

158NEC staff reports, related to the 2017 coordinated Plan-wide review, that were written and sent to Ministry of Natural Resources policy staff, between 2016 and 2021, indicate that the NEC staff believed it was appropriate for farming to be a mechanism to achieve the objectives of the NEP along with compatible development. Limiting ARUs and OFDUs to PAAs was not an NEC staff recommendation. The NEC staff believed that allowing ARUs and OFDUs outside of PAAs was appropriate. However, the limitation allowing ARUs and OFDUs only in PAAs was applied by the Ministry policy staff and subsequently approved by the Minister.

159A 2021 NEC staff report (dated November 17, 2021) reviewing the changes from the 2017 coordinated Plan-wide review pointed out at page 6 that the underlying intention of the Ministry policy staff to limit ARUs and OFDUs to PAAs was to prevent…

a proliferation of the more intensive, large-scale ARUs and OFDUs s (e.g., large-scale grain elevators, feed mills) on the Escarpment, as such uses could result in a conflict with the Purpose of the NEP respecting the maintenance of open landscape character and the Objectives respecting scenic quality.

160Kantelberg raised concerns that NEC staff recommendations, from 2016, refer to new or revised policies and yet the NEC, presently, wants to manage development via the development permit process. Kantelberg argued that the Minister did not approve the recommendation of the NEC staff in 2017, and that the NEC has not demonstrated how things have since changed.

161The NEC submits that a fulsome review of the 2017 recommendations and current proposed amendment has been conducted, and given that development control exists via the development permit process, the proposed amendment is justified.

162The NEC and Burlington submit that the case-by-case site-specific approach that would result from the development permit process, if the proposed amendment is approved, would appropriately apply the policies of the PPS and the NEP with respect to agricultural and natural heritage lenses. The intention is to apply both the PPS and NEP without compromising them, however, if a conflict exists, the NEP is given preference.

163In general, justification for an amendment to the NEP requires showing that the proposed amendment will advance the NEP, but that does not mean that it needs to advance every objective of the Plan. It needs to advance at least one of them and not offend the remaining objectives. The NEC submits that the proposed amendment advances Objective 4 and does not offend the rest.

164Kantelberg submits that the proposed amendment is premature and that additional studies need to be conducted prior to implementation. The intent of the proposed amendment has been recommended by NEC staff since 2016. NEC staff supported their recommendation with reports/studies and a follow-up report detailing how the NEP was performing in the years following the 2017 coordinated Plan-wide review. The need for additional review or study of the proposed amendment is not justified given the extensive work already conducted and given that the NEC has established that it is possible to provide a system of control for these developments.

165The proposed amendment serves the public interest by expanding permitted uses within the Escarpment Protection Area allowing for diversified agricultural operations and opportunities for the public to engage with the agricultural sector. It would also provide a needed opportunity for farmers to enrich the use of their lands.

166The Hearing Officers are satisfied that the proposed amendment is justified.

167In making these findings, the Hearing Officers have considered the relevant development criteria in Part 2 of the Plan.

HEARING OFFICERS’ RECOMMENDATION – FOURTH COMPONENT

168The proposed amendment to policy 1.4.3.2 is recommended for approval by the Minister and the development criteria in policy 2.8 7 should be reviewed to ensure it is consistent with the proposed amendment to policy 1.4.3.2. Policy 1.4.3.2 should use the following language:

2. Agriculture-related uses and on-farm diversified uses.

SUMMARY OF RECOMMENDATIONS OF THE HEARING OFFICERS

169THE HEARING OFFICERS RECOMMEND TO THE COMMISSION THAT:

a. the first proposed amendment to policy 2.7.2 be recommended to the Minister for approval based on the following language for a new paragraph 2.7.13:

2.7.13 Notwithstanding Part 2.7.2, Agricultural uses, agriculture-related uses, and on-farm diversified uses may be permitted in Earth Science Areas of Natural and Scientific Interest, which is not also identified as any other Key Natural Heritage Feature, provided it has been demonstrated that the earth science values can be maintained and protected. Planning, design, and construction practices shall be identified that will keep disturbance to landform character to a minimum and ensure the protection of the geological or geomorphological attributes.

along with the addition of a new definition of “Earth Science Value” to NEP Appendix 2 stating:

Earth Science Value: values that relate to the geological, soil, and landform features of the environment.

b. the second proposed amendment to policy 2.7.2 is recommended for approval by the Minister based on the following language for a new sub-policy 2.7.2(f):

2.7.2 Development is not permitted in key natural heritage features with the exception of the following, which may be permitted subject to compliance with all other relevant policies of this Plan:

(f) Expansions to existing buildings and structures for Agricultural Uses, Agriculture-Related Uses and On-Farm Diversified Uses, if it is demonstrated that: a) there is no alternative and the expansion or alteration in the feature is minimized; and b) the impact of the expansion or alteration on the feature and its functions is minimized and mitigated to the maximum extent possible.

c. the proposed amendment to policy 1.3.3 is recommended for approval by the Minister based on the following language for a new sub-policy 1.3.3.15:

1.3.3.15 As part of maple sugar harvesting, the tapping of trees, the collection of sap, the placement of minor ancillary equipment or structures (e.g. collection tanks, vacuum systems), and the establishment of minor trails (i.e., without the addition of aggregate material or pavement) to facilitate the collection of sap. For greater certainty, this does not include maple syrup production or sale, or the construction of buildings or structures related to the processing of sap for maple syrup production or sale.

d. the proposed amendment to policy 1.4.3.2 is recommended for approval by the Minister and the development criteria in policy 2.8 7) should be reviewed to ensure it is consistent with the proposed amendment to policy 1.4.3.2. Policy 1.4.3.2 should use the following language:

1.4.3.2 Agriculture-related uses and on-farm diversified uses.

“Hugh S. Wilkins”

HUGH S. WILKINS

HEARING OFFICER

“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.