Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 16, 2025
CASE NO(S).: OLT-25-000317
PROCEEDING COMMENCED UNDER subsection 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2.
Appellant: Nigel and Diana Lobo Appellant: Adriene and Mary Jane Palencia Applicant: Manmeet Benipal Owner: Thusjan Keetha Subject: Approval of Development Permit with conditions Description: To permit an existing second storey rear deck Reference Number: APP-2025-00026 Property Address: 127 Cuesta Heights (PLAN 62M1257 LOT 199) Municipality/UT: Hamilton/Hamilton OLT Case No: OLT-25-000317 OLT Lead Case No: OLT-25-000317 OLT Case Name: Lobo v. Ontario (Niagara Escarpment Commission)
Heard: July 11, 2025 by Video Hearing
APPEARANCES:
Parties Thusjan Keetha
Representative M. Benipal
REPORT DELIVERED BY S. TOUSAW AND ORDER OF THE HEARING OFFICER
Link to Final Order
INTRODUCTION
1A Case Management Conference (“CMC”) was convened for two appeals filed against the Niagara Escarpment Commission’s (“NEC”) conditional approval of a Development Permit for a deck attached to the rear of the dwelling at 127 Cuesta Heights, Hamilton (“property”).
2The two Appellants – Adriene and Mary Jane Palencia, and Nigel and Diana Lobo – did not attend the CMC.
3In accordance with Rule 3.3 of the Tribunal’s Rules of Practice and Procedure (“Rules”), the Hearing Officer stood down for 15 minutes, during which time the Case Coordinator was unable to reach either Appellant by telephone. The Case Coordinator also confirmed that the correct email addresses were used to inform the Appellants of the CMC. The Hearing Officer resumed the CMC at 10:20 a.m.
4With consent of the Applicant, the Hearing Officer converted the CMC to a Hearing on the Merits of the appeals, in accordance with Rule 19.6.
5On the submissions of the Applicant and the absence of the Appellants, pursuant to s. 25(10.2) and s. 25(12) of the Niagara Escarpment Planning and Development Act, the Hearing Officer deems the NEC Decision and Conditions to be confirmed as they are found to be correct and should not be changed.
6Following the Hearing, in response to further correspondence from the Case Coordinator, both Appellants withdrew their appeals via emails dated July 13 and 15, 2025. While such withdrawals now cease the Hearing Officer’s jurisdiction, this Decision is issued for the record in fairness to the Applicant who participated in the Hearing leading to the Hearing Officer’s conclusions.
FINDINGS
7Ms. M Benipal, an Architect registered with the Ontario Association of Architects, represented the Applicant. On Ms. Benipal’s explanation of the application and the Hearing Officer’s review of the record, the Hearing Officer finds as follows.
8The Applicant constructed a deck attached to the rear wall of the dwelling, and a shed in the rear yard. The NEC staff report advised that the rear yard shed is exempt from requiring a Development Permit and proceeded to approve the application for the deck. The Appellants’ written appeals addressed both the deck and the shed. The shed has now been removed from the property.
9The Hearing Officer limits its review to the NEC approval, being for the deck only.
10The dwelling has a walk-out basement, which requires the main-floor deck to be one storey above the rear yard. Other nearby houses have similar raised decks in the rear yard. Plans have been filed with the City of Hamilton (“City”) for a building permit, including minor recommended changes to the structure to comply with the Ontario Building Code. The NEC approval, now before this Hearing Officer, is required by the City before further consideration of the building permit application.
11As outlined in the NEC staff report, the accessory deck is consistent with the Natural Heritage policies of the Provincial Planning Statement, 2024. The property is designated as Urban Area in the Niagara Escarpment Plan, which permits uses in accordance with the Urban Hamilton Official Plan designation of Neighbourhoods. A dwelling and accessory uses are permitted in the Neighbourhoods designation. No negative impacts to Species at Risk habitat arise from this application and no visual impacts to the escarpment are created by this deck.
12While the Appellants’ concerns may have been directed more to the shed than the deck, the Tribunal finds that the deck does not obstruct the neighbours’ views from their homes and/or decks toward the escarpment to the north of these lots. The woodland on lands immediately to the north of these lots may screen or block views to or over the escarpment from area dwellings and/or decks. A rear deck on this property has no effect on any possible views to or over the escarpment from Questa Heights or nearby streets.
13The Conditions of Approval ensure that the deck will be constructed in accordance with the plans prepared by B’Pal Architecture Studio Inc., and the Permit expires in three years unless the deck is completed in accordance with a valid Building Permit within that time.
CONCLUSION
14THE HEARING OFFICER CONCLUDES that the Niagara Escarpment Commission decision to issue Development Permit APP-2025-00026, with conditions, is correct and should not be changed.
15The Appellants’ withdrawal of their appeals results in the closure of this file at the Tribunal.
“S. Tousaw”
S. tousaw hearing officer
Ontario Land Tribunal Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review