Ontario Land Tribunal / Tribunal ontarien de l'aménagement du territoire
ISSUE DATE: September 24, 2025
CASE NO(S).: OLT-25-000127
PROCEEDING COMMENCED UNDER section 25(5.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2, as amended
Appellant: Mark and Elizabeth Krapez
Respondent: Niagara Escarpment Commission
Subject of appeal: Refusal of a Development Permit Application to recognize the establishment of an agriculture use (vineyard), storage tent, asphalt parking lot, placement of four storage bins, and four portable washrooms, and general landscaping on an existing lot
Reference No.: P/C/2022-2023/175
Property Address/Description: 2521 Escarpment Road
Municipality/Upper Tier: Caledon/Peel
OLT Case No.: OLT-24-000127
PROCEEDING COMMENCED UNDER 25(8.1) of the Niagara Escarpment Planning and Development Act, R.S.O. 1990, c. N.2
Request by: Niagara Escarpment Commission
Request for: Request for Dismissal Without a Hearing
Heard: August 26, 2025 by Video Hearing
Parties and Counsel
Mark and Elizabeth Krapez Counsel: Eric Gillespie, Yasmeen Peer
Niagara Escarpment Commission Counsel: Demetrius Kappos
MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON AUGUST 26, 2025 AND ORDER OF THE TRIBUNAL
1On August 26, 2025, a motion was heard by the Tribunal in its role as the Hearing Office under the Niagara Escarpment Planning and Development Act ("NEPDA" or "Act") to dismiss an appeal commenced by Mark and Elizabeth Krapez ("Appellants"). The motion was brought by the Niagara Escarpment Commission ("Commission") to dismiss the Appellants' appeal of the refusal by the Commission of a development permit application relating to the lands located at 2521 Escarpment Road ("subject property"), in the Town of Caledon.
BACKGROUND
2The Appellants applied for the development permit to recognize an agricultural use (vineyard), a 360 square metre ("m2") agricultural storage tent, a 1,750 m2 asphalt parking lot, the placement of four storage bins, the placement of four portable washrooms, and landscaping on the subject property.
3In January 2025, the Commission refused the Appellants' development permit application. The Appellants appealed under NEPDA s. 25(5.1).
4At a Case Management Conference held on May 5, 2025, the Parties agreed on an issues list, which included issues regarding whether aspects of the development are existing uses under the Niagara Escarpment Plan ("Plan") and whether portions of the development are exempt from the need for a development permit. The Appellants' position is that no permit is required for exempt and existing uses, but if a development permit is required, then they seek to have one approved.
5The hearing of the appeal was scheduled to commence on July 21, 2025. On that day, the Appellants requested that the hearing be phased. They suggested that issues regarding whether there are existing uses on the subject property (giving rise to an exemption from the requirement for a development permit) should be heard first in an initial phase. If the Hearing Officer found that there are no existing uses, a second phase would be held to address issues regarding conformity with the Plan.
6In his decision, issued on July 25, 2025, the Hearing Officer directed that the hearing would not be phased and he adjourned the matter to allow the Parties to have time to prepare for one consolidated hearing.
7Upon being informed on July 21 that the Appellants intend to rely on exemptions and believe that no development permit may be required, the Commission brought this motion to dismiss on the basis that the appeal has no planning justification, is not in the public interest, and has no merit.
SUBMISSIONS
The Commission's Submissions
8The Commission submits that the Appellants are solely seeking determinations on the existence of an existing use on the subject property and on the applicability of exemptions under Ontario Regulation No. 828. It submits that they are not seeking the approval of a development permit. The Commission submits that (1) there is no planning justification for the appeal based on the Hearing Officer's jurisdiction, (2) the appeal is not in the public interest, and (3) the appeal is without merit. It submits that based on NEPDA s. 25(8.1), the appeal should be dismissed.
9The Commission submits that there is no planning justification for the appeal based on the Hearing Officer's jurisdiction. It argues that the scope of an appeal under NEPDA s. 25(5.1) is limited to the subject matter defined in the Act, which is the decision of the Commission to approve or refuse a development permit. The Commission submits that a Hearing Officer cannot exceed the statutory authority that the Officer is given under the NEPDA. In particular, it submits that the Hearing Officer does not have the authority to make a declaration regarding whether a use is an existing use or whether a development permit is required. It submits that the Hearing Officer can only focus on whether the Commission's decision was correct and should not be changed in terms of conformity with the Niagara Escarpment Plan and other statutory requirements. In other words, the Hearing Officer has the authority to only focus on whether a development permit should be approved or not.
10The Commission also submits that the appeal is not in the public interest. It argues that if an appellant is not seeking a development permit, the subject matter is not within the proper scope of a NEPDA s. 25(5.1) appeal, and the Hearing Officer does not have the statutory authority to adjudicate it. Therefore, it argues that it is not in the public interest to proceed.
11Thirdly, the Commission submits that the appeal has no substantive merit. It submits that a Hearing Officer does not have the authority to make a binding declaration on whether a development permit is necessary or not. The Commission submits that a finding or determination by the Hearing Officer that a use is exempt from requiring a development permit would not be enforceable or of any use.
The Appellants' Submissions
12The Appellants submit that they are not seeking a declaration from the Hearing Officer, but rather, they are seeking a determination on whether the Commission's decision was correct and should not be changed. They submit that agricultural uses are existing and ongoing on the subject property. They submit that if the uses in question are exempt under Ontario Regulation No. 828, then no development permit is required. If the use is an existing use and requires a development permit, then the Appellants submit that they seek the approval of a permit. In other words, the Appellants argue that a development permit may or may not be required, depending on the findings of the Hearing Officer on whether there are existing uses on the subject property that are exempt.
13The Appellants argue that there is planning justification for the appeal as the NEPDA prohibits development unless it is exempt or it is authorized by a development permit. They submit that NEPDA s. 24(1) explicitly prohibits development unless it is exempt or authorized by permit, and the Hearing Officer's mandate under NEPDA includes considering whether a development requires the permit. They argue that exemptions are a key aspect of the statutory regime and the Hearing Officer has the jurisdiction to consider them. Specifically, the Appellants submit that the Hearing Officer must consider whether a development permit is required when determining whether the Commission's decision was correct and should not be changed. They submit that this relates directly to whether there is a planning justification for the decision.
14The Appellants submit that the appeal is in the public interest as it addresses agricultural uses of land, which is a matter of public significance. They submit that the application of Plan policy 2.3 on existing uses is a matter of public interest and the Hearing Officer's role in adjudicating the appeal must be fulfilled. They submit that requiring litigants to go to the courts to address these issues would be contrary to the legislative intent of the NEPDA, inefficient, and would improperly defer the Hearing Officer's responsibilities to the courts.
15The Appellants also submit that the appeal has substantive merit They submit that the issues to be addressed are authentic and tied to the planning regime. They submit that they will rely on the history of agricultural uses on the subject property, expert reports, and statutory exemptions in making their case and that their appeal is supported by evidence and directly tied to the planning regime.
ANALYSIS AND FINDINGS
16A Hearing Officer cannot exceed the powers granted to the Officer under NEDPA. Specifically, on a development permit appeal, the Hearing Officer must adhere to the limits of the statutory authority granted under s. 25 of the Act. This is implicit in the language in NEPDA s. 25(8.1), which sets out circumstances in which the Hearing Officer may refuse to conduct a hearing. It states
(8.1) Despite subsections (8) and (10), an officer appointed under subsection (8) may refuse to conduct or to continue a hearing if,
(a) in the opinion of the officer, the appeal does not disclose a planning justification for the appeal, is not in the public interest, is without merit, is frivolous or vexatious, or is made only for the purpose of delay;
17A Hearing Officer must focus on whether the Commission's decision on a development permit is in accordance with the Plan. In other words, there must be a nexus between the issues raised by the Parties and the Plan itself. On a development permit appeal, the Hearing Officer, therefore, is limited to focusing on whether the proposed development accords with the Plan and, in this regard, whether the Commission's decision is correct and should not be changed.
18In the present case, the Commission's decision refuses the issuance of the requested development permit based on non-conformity with Plan policy 2.7.2, inconsistency with policies 4.1.1 and 4.1.5 of the Provincial Planning Statement 2024, non-conformity with Town of Caledon's Official Plan, the Town's objection to the approval of the application, and non-conformity with the Region of Peel's Official Plan. It does not appear to address whether a development permit is required. Based on this, it is not clear whether the Commission considered whether the proposed uses may be exempt from the requirement of having a development permit. This arguably could have been addressed in the Commission's reasons in its Notice of Decision. As it is, the development permit was refused, but, arguably, the issue of whether any existing uses on the subject property may continue is left open. This leaves open the question of whether the Commission's decision is correct and should not be changed. Addressing this is within the Hearing Officer's mandate and jurisdiction under the NEPDA. Determining whether there are any existing uses and whether they are exempt are matters of public interest to be adjudicated and the appeal may have merit. Moreover, the Appellants have stated that, if they are unsuccessful in their exemption arguments, they still wish to make arguments regarding conformity with the Plan.
19In the present case, the Hearing Officer finds that the subject matter of the appeal lies within the statutory mandate of the Hearing Officer and within the scope of the purposes of the NEPDA. The Hearing Officer finds that it is in the public interest for the appeal to be adjudicated by the Hearing Officer and that the appeal may have merit. The Hearing Officer finds that the appeal has authentic grounds that are worthy of the adjudicative process.
CONCLUSIONS
20Based on the evidence and submissions before the Hearing Officer, the Hearing Officer finds that there is planning justification for the appeal based on the Hearing Officer's jurisdiction, the appeal is in the public interest, and the appeal may have merit. The Hearing Officer finds that the Commission's motion to dismiss the appeal should be denied.
ORDER
21THE TRIBUNAL ORDERS THAT the Commission's motion to dismiss the appeal is denied.
"Hugh S. Wilkins"
HUGH S. WILKINS
HEARING OFFICER
Ontario Land Tribunal
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal ("Tribunal"). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.