Intervenor: vol. 26, no. 4 September - December 2001

CELA In The Courts - CELA Goes to Divisional Court on Interpretation of the Niagara Escarpment Plan

CELA is representing the Coalition on the Niagara Escarpment (CONE) in a judicial review application of a decision rendered by a Hearing Officer under the Niagara Escarpment Planning and Development Act (NEPDA). The application raises for the first time the issue of whether the Niagara Escarpment Plan (Plan) should be interpreted as a prescriptive set of requirements.

The judicial review application deals with a Development Permit that had been issued to the Respondents to allow a lot severance on their property so that they could build a retirement residence.

The Respondents' property is located in areas designated as Escarpment Rural under the Plan. The Plan stipulates the Escarpment Rural Areas are an essential component of the Escarpment corridor, including portions of the Escarpment and lands in its vicinity. They provide a buffer to the more ecologically sensitive areas of the Escarpment. The objective of the Escarpment Rural designation is to maintain the scenic values of lands in the vicinity of the Escarpment and to maintain the open landscape character by encouraging the conservation of the traditional cultural landscape and cultural heritage features.

To meet these objectives the Plan prohibits new lot creation by way of severance in Escarpment Rural Areas where one or more lots have been severed from the original township lot or half township lot. Full time bona fide farmers, however, are allowed to seek a lot severance to build a retirement residence, provided there has been no more than one previous severance from the original township or half township lot.

The planner with the Niagara Escarpment Commission (NEC), who reviewed the application, found that the Respondents met the definition of full time bona fide farmer. However, in this case, since there had been two previous separations off the original half township lot, the planner concluded that the application did not comply with the New Lots Policies of the Escarpment Rural designation under the Plan. Accordingly, the planner recommended the Commission refuse the application. The NEC, however, narrowly voted in favor of approving the Development Permit. CONE, in turn, appealed the matter to the Hearing Officer.

The Hearing Officer found that the Respondents' application did not conform with the New Lots Policies for the Escarpment Rural Area designation. However, the Hearing Officer held that an additional severance would not be inconsistent with the purpose and objectives of the NEPDA and the Plan and upheld the Commission's decision to approve the Respondents' application for a Development Permit.

CONE's application raises the issues of whether the Hearing Officer exceeded his jurisdiction by:

  • failing to apply the correct test for granting a Development Permit under section 6 of the New Lots Policies for Escarpment Rural Area in the Plan;
  • considering the "agricultural viability" of the Respondents' property and by concluding the Respondents' property was "non-conforming" with the Plan. These factors were the basis for granting the Development Permit;
  • concluding that the NEDPAprovides discretion to approve a Development Permit application which otherwise contravenes the explicit prescriptive requirements of the Plan; and
  • using the Development Permit application process to amend the Plan when such amendment could only be done through the statutory process prescribed for Plan amendments under the NEPDA.

CELA filed a factum on CONE's behalf in Divisional Court in December. The Respondents are expected to file their factum by the end of January 2002, and the Court is expected to hear the case sometime in 2002.

Ramani Nadarajah is a lawyer at CELA