Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 14, 2026
CASE NO(S).: OLT-25-000407
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: Tomaz Skrban
Respondent: Niagara Escarpment Commission
Subject of appeal: Refusal of a Development Permit Application to sever an existing lot into three additional lots and to retain a lot to construct a single dwelling, driveway, and private sewage treatment system on two of the proposed vacant lots
Reference No.: N/R/2022-2023/674
Property Address/Description: 457 Main Street West
Municipality/Upper Tier: Grimsby/Niagara
OLT Case No.: OLT-25-000407
OLT Lead Case No.: OLT-25-000407
OLT Case Name: Skrban v. Ontario (Niagara Escarpment Commission)
Heard: March 13, 2026 by video hearing
APPEARANCES:
| Parties | Counsel/Representative* |
|---|---|
| Tomaz Skrban | (Self-represented) |
| Niagara Escapement Commission | Demetrius Kappos Margaret McCloskey (in absentia) Alisia Bello (articling student) |
REPORT DELIVERED BY A. SNOWDON AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Tribunal acts in the role as the Niagara Escarpment Hearing Office (“Hearing Office”) for appeals under the Niagara Escarpment Planning and Development Act, R.S.O 1990, c. N. 2, as amended.
2The Hearing Office convened an appeal Hearing brought by Tomaz Skrban (“Appellant”) arising from a decision made by the Niagara Escarpment Commission (“NEC”) denying a development permit to sever an existing lot into three additional lots and to retain a lot on which to construct a single dwelling, driveway, and private sewage treatment system, at the property known municipally as 457 Main Street West (“Subject Property”), in the Town of Grimsby (“Town”).
3The Subject Property is located on the south side of Main Street West, between Oakes Road North and Hunter Road. Two single detached dwellings exist on the Subject Property. The Subject Property is classified as prime agricultural area and specialty crop area.
4The majority of the Subject Property is designated as Escarpment Protection Area (“EPA”). The rear of the property is classified as Escarpment Natural Area. The surrounding area is primarily agricultural uses and rural-residential lots. The Subject Property is not located within the settlement area.
5The proposed development permit seeks:
- To sever an existing 6.2-hectare/“ha” (15.3-acre/“ac”) lot into three ± 0.12 ha (0.28 ac) additional lots and to retain a ± 5.8 ha (14.3 ac) lot and to undertake the following: i. to construct a two-storey, ± 371.6 sq metre/“m” (4,000 square foot/ “sq ft”) single dwelling with a maximum height to peak of ± 10.7 m (35 ft), driveway, and private sewage treatment system on two (2) of the proposed ± 0.12 ha vacant lots; ii. to retain an existing 1.5-storey, 167 sq m (1,800 sq ft) single dwelling with a maximum height to peak of 10.7 m (35 ft), and construct a driveway on one of the proposed ± 0.12 ha lots iii. to retain a 585 sq m (6,300 sq ft) single dwelling with a maximum height to peak of 9.3 m (30.5 ft) on a ± 5.8 ha retained lot.
ISSUES
6The issues before the Hearing Office are:
- Whether the proposed development permit: i. conflicts with the lot creation policies of Part 1.4.4. of the Niagara Escarpment Plan (“NEP”); ii. conflicts with Parts 2.2.1, 2.4.1, 2.4.2, 2.4.3, 2.4.4, 2.4.5, 2.4.20, 2.13.5 of the NEP; iii. is consistent with s. 2.5.2 and 4.3.3.1 of the Provincial Planning Statement 2024 (“PPS”); iv. conforms to the Town’s Official Plan (“OP”); and v. conforms to the Region of Niagara’s Official Plan (“NOP”).
EVIDENCE AND WITNESSES
7The Appellant submitted photo evidence, marked as Exhibit 1, and a 17-page slide deck, marked as Exhibit 2.
8The Appellant, Mr. Tomaz Skrban, testified as a lay witness to provide additional context to his proposal.
9The NEC submitted a 63-page Witness Statement of Rosi J. Zirger, which was marked as Exhibit 3 and a 115-page Document Book, which was marked as Exhibit 4.
10Rosi J. Zirger, a Senior Planner for the NEC, testified with respect to the evidence set out in her witness statement dated October 9, 2025 and provided in Exhibit 3. Ms. Zirger was qualified by the Tribunal to provide opinion evidence in land use planning for the purpose of interpreting the NEP.
BACKGROUND
11Mr. Skrban stated that he had been granted a development permit in 2018 to build a new single detached dwelling. Ms. Zirger stated that the development permit included a condition that the existing dwelling on the Subject Property would be demolished. She stated that, while the new dwelling has been constructed, the demolition has not occurred. Mr. Skrban stated that the final permit for house occupancy is pending due to this.
Lot Creation Policies in Part 1.4.4 of the NEP
Submissions
12Ms. Zirger stated that the policies for lot creation within the EPA are found in Part 1.4.4 of the NEP as follows:
1.4.4.1. A lot may be created by severing one original township lot or original township half lot, from another original township lot or original township half lot, provided there have been no previous lots severed from one of the affected original township lots or original township half lots. Such severances shall only occur along the original township lot line.
13Ms. Zirger stated that, within the EPA, there are no opportunities for residential severances beyond the original township lot. She explained that the original township lot was 40 hectares (“ha”), bisected by Main St. She added that the lands (south of Main St.) that include the Subject Property were previously severed seven (7) times. This exceeds what the NEP would allow. The lands north of Main Street have been severed 27 times. Ms. Zirger explained that the entire Township Lot is considered when reviewing lot creation policies regardless of whether the entirety of the Lot is within the NEP.
14Ms. Zirger stated that the NEP directs new lots and growth to rural settlement areas and urban areas. Her opinion is that this is for the long-term protection of agricultural land and key natural heritage features.
15It is Ms. Zirger’s opinion that the Lot and consequentially the Subject Property have already been divided more than the NEP would have permitted or will permit.
16Mr. Skrban stated that multiple properties within three kilometres of the Subject Property have been severed. He stated and showed photo evidence of a concrete business, a greenhouse, and a car dealership. His photo evidence included a property with two houses.
17Ms. Zirger stated that properties north of Main Street are not within the NEP and are therefore not restricted in the same way. She also suggested that many properties nearby may have been severed prior to the introduction of the NEP but could not confirm which had been as she didn’t have the addresses of the properties shown in Mr. Skrban’s photo evidence.
Findings
18The Hearing Office accepts the evidence of Ms. Zirger and finds that the Subject Property cannot be divided further under NEP policy based on the number of historical divisions to the original Township Lot.
19The Hearing Office can lend little weight to the photo evidence of Mr. Skrban, given that it lacked relevant information like addresses or dates for the severances.
Policies in Part 2 of the NEP
Submissions
20Ms. Zirger explained that Part 2 of the NEP is to be applied to all development within the NEP area.
21Part 2.2.1 of the NEP states:
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.
22Ms. Zirger stated that Part 2.2.1 of the NEP suggests that the replacement of a dwelling with a new dwelling would be a “like-for-like” replacement; however the Appellant has built a new dwelling without removing the original dwelling as required under a previous development permit, hence doubling the density on the lot. She explained that the proposed development permit seeks to double the density again, to have four dwellings. Ms. Zirger’s opinion is that this is not the intention of Part 2.2.1 of the NEP.
23Mr. Skrban stated that, in his photos, it can be seen that some properties have four lots in a similar configuration to his proposal. He asserted that these houses were built in the last seven years.
24Part 2.4.1 and 2.4.2 of the NEP state:
2.4.1. Lot creation, including lots created within Urban Areas, Minor Urban Centres and Escarpment Recreation Areas, shall be subject to conformity with official plans and/or secondary plans and, where applicable, zoning by-laws that are not in conflict with the Niagara Escarpment Plan, and the criteria set out under Part 2, Development Criteria.
2.4.2. New lots to meet residential needs should be created primarily in designated Urban Areas, Minor Urban Centres and Escarpment Recreation Areas.
25Ms. Zirger explained that the Subject Property is designated as EPA under the NEP and not as an Urban Area, Minor Urban Centre, or Escarpment Recreation Area. She stated that new lots are created primarily in the latter three.
26Ms. Zirger stated that the Subject Property is outside of the Town’s Urban Settlement Area as defined by the OP. The OP designation of the Subject Property is protected countryside, with the intent of protecting and maintaining rural farm character.
27Part 2.4.3 and 2.4.4 of the NEP state:
2.4.3. Ribbon or strip development should be prevented.
2.4.4. The size and configuration of new lots shall be subject to the requirements of official plans and/or secondary plans, and where applicable, zoning by-laws and the objectives of the designation
28Ms. Zirger stated that the proposed development permit would create a strip of three undersized lots. This strip would not meet the requirements of Part 2.4.3 of the NEP. She also explained that the Town has stated that the lot configuration, density, and size do not conform to the OP.
29Part 2.4.5 of the NEP states:
2.4.5. New lots must: a) maintain and enhance the existing community character and/or open landscape character of the Escarpment; and b) protect and enhance existing natural heritage and hydrologic features and functions.
30Ms. Zirger stated that the existing character and open landscape character must be maintained.
31Mr. Skrban contested Ms. Zirger’s statement, stating that the view would not change if three additional houses existed on the proposed severances. He also asserted that the proposed severances are 800 m from the escarpment and would not involve the removal of trees such as other nearby properties have done during construction.
32Part 2.4.20 of the NEP states:
2.4.20. Lot creation in prime agricultural areas is discouraged and may only be permitted for: a) agriculture-related uses, provided that the lot satisfies the New Lots provisions in Part 1 of this Plan and will have minimal impact on the Escarpment environment; b) a residence surplus to a farm operation, as a result of a farm consolidation as provided for in this Plan; or c) infrastructure, where the facility or corridor cannot be accommodated through the use of easements or rights-of-way
33Ms. Zirger stated that Part 2.4.20 of the NEP discourages lot creation within prime agricultural areas. She explained that it is only permitted in limited circumstances and that specialty crop areas are given the highest priority for protection within prime agricultural areas. Her opinion is that the proposed severances for the Subject Property, which is designated as specialty crop area, do not meet the intent of Part 2.4.20.
34Part 2.13.5 of the NEP states:
2.13.5. Planning, design and construction practices shall ensure that Escarpment Related Landforms are maintained and enhanced, and that development is visually compatible with the natural scenery and open landscape character of the Niagara Escarpment.
35Ms. Zirger stated that the proposed severances would result in a change of character of the surrounding area which does not align with Part 2.13.5 of the NEP. Her opinion is that the proposed severances would adversely impact the open landscape character.
36Mr. Skrban reiterated that the proposed severances would not remove trees and would not negatively affect the visual compatibility with the natural scenery and open landscape character.
Findings
37The Hearing Office finds that the Subject Property, being located outside of the Urban Settlement Area (Policy 2.4.1 and 2.4.2), being in a prime agricultural area (Policy 2.4.20), and being designated as specialty crop area, is subject to a higher degree of protection (NEP Appendix 2) and would not be the ideal location for increased intensification.
PPS
Submissions
38Ms. Zirger stated that, while all development must conform to the NEP, it also needs to be consistent with the PPS. She stated that, while it is a Provincial interest to build more housing, the PPS is clear about what housing is appropriate and where.
39Ms. Zirger pointed to s. 2.5.2 of the PPS, which states that “… rural settlement areas shall be the focus of growth and development and their vitality and regeneration shall be promoted.” She reminded the Hearing Office that the Subject Property is not in the rural settlement area and the proposed severances are not consistent with s. 2.5.2 of the PPS.
40Ms. Zirger explained that under s. 4.3.3.1 of the PPS, “lot creation in prime agricultural areas is discouraged and may only be permitted” in limited circumstances. She reminded the Hearing Office that the Subject Property is designated as prime agricultural area. It is her opinion that the proposed severances are not consistent with s. 4.3.3.1 of the PPS.
41Mr. Skrban did not provide any evidence as to how the proposed severance was consistent with the PPS.
Findings
42The Hearing Office agrees with the evidence of Ms. Zirger that the proposal is not consistent with PPS policy 2.5.2 as the Subject Property is outside of the settlement area and PPS policy 4.3.3.1 as the Subject Property is designated as prime agricultural area.
Official Plans of the Town and Region
Submissions
43Ms. Zirger reiterated that the Subject Property is outside of the Town’s settlement area as designated under the OP and that the proposed severances do not conform to s. 4.7.1d) of the OP regarding the natural, visual, and cultural characteristics based on the lot configuration, density, and lot size. She stated that Region of Niagara staff advised that the lot sizes (0.12 ha [0.29 ac] per lot) would be insufficient to support private servicing. The Region of Niagara stated, in the Report shown in Exhibit 4, that NOP Policy 4.1.4.2 requires a minimum size of 0.4 hectares to support private servicing.
44Mr. Skrban stated that the lots are the minimum size required for private servicing. In his evidence, it is stated that “three family homes will be added on generous one acre lots.”
45Ms. Zirger stated that the NOP, under policy 4.1.5.1, states that severances for specialty crop areas may only be permitted for agricultural use, agricultural-related use, public infrastructure, or for conveyance to public bodies or non-profit entities for natural heritage conservation. Her opinion is that the proposed severances do not conform to the NOP.
Findings
46The Hearing Office finds that the lot configuration, density, and lot size do not conform to the OP and NOP. There is a discrepancy between Mr. Skrban’s submissions and the proposed development permit. Mr. Skrban stated that the proposed severances would be one acre each, but the proposed development permit lists them as 0.29 acres each. That, along with the NOP policy regarding private servicing, makes the proposed severances undersized.
ORDER
47THE HEARING OFFICER CONCLUDES THAT the decision of the Niagara Escarpment Commission to refuse Development Permit N/R/2022-2023/674 is correct and should not be changed. The Niagara Escarpment Commission’s decision is deemed to be confirmed, pursuant to s. 25(12) of the Niagara Escarpment Planning and Development Act. The appeal is dismissed.
“A. Snowdon”
A. SNOWDON HEARING OFFICER
Ontario Land Tribunal Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.