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

CELA In The Courts - CONE Defends the New Lots Policies in the Niagara Escarpment Plan

CELA recently represented CONE at a hearing with respect to a lot severance application on the Niagara Escarpment. The Niagara Escarpment is designated as a World Biosphere Reserve by the United Nations Educational, Scientific and Cultural Organization (UNESCO). A biosphere reserve is an area, which UNESCO chooses as representative of the world's important ecosystems. Each reserve is intended to be a demonstration area for both the conservation of biological diversity and the promotion of environmentally appropriate development.

The Niagara Escarpment Plan (Plan) seeks to protect lands within the Plan area by setting out strict controls on lot density provisions. The Plan divides lands within the Plan area into seven designations and outlines specific objectives, permitted uses and polices for each land use designation.

The owners of Springridge Farm had applied for a lot severance to the Niagara Escarpment Commission (NEC). Springridge Farm is located in an area designated as an Escarpment Protection Area under the Plan. The new lot creation policy for lands within this area permit a bona fide farmer a lot severance provided there has been no previous severance of the original township lot or half township lot.

In this case, Mr. Gary Murphy, the NEC planner noted there had been four previous severances of the half township lot. Consequently, Mr. Murphy recommended the NEC refuse the application. However, the NEC in a surprise move voted unanimously to approve the application. CONE, in turn filed an appeal of the NEC decision as did a neighbor residing on the adjacent property.

A hearing was held on January 7th and 8th , 2002 at the Council Chambers in the Town of Milton. CONE called two expert planners to provide testimony on why the application for lot severance should not be granted. Mr. Alan Ernest, a planner, provided a comprehensive review of the New Lot Policies of the Plan and testified that if the application was granted it would open the floodgates for similar applications. Mr. Ernest also testified about the negative visual impacts since the proposed building site is one of the most visually prominent locations on the property as well as on the south-eastern part of the Milton Outlier.

Mr. Frank Shaw, a former Director of the NEC who had worked for approximately 34 years with the Ontario Public Service also testified about the negative precedential impact the NEC's decision would set. According to Mr. Shaw, the planners in his department when making a recommendation to approve or reject a proposal considered precedents to ensure that there is consistency in policy interpretation and that applicants were treated equally and with fairness. Mr. Shaw said this was necessary to ensure that the planning process provides certainty and predictability and that the public has respect for quality and consistency in the NEC planning process.

Mr. Shaw also testified on how the new lot policies under the Plan had become more stringent over the years to fulfill the purpose of the Plan and the Niagara Escarpment Planning and Development Act (NEPDA), which is to provide for the maintenance of the Niagara Escarpment and land in its vicinity as a continuous natural environment. The position of CONE's experts was supported by Mr. Murphy and Mr. Stephen Stone, a senior planner with the Regional Municipality of Halton.

The Hearing Officer is expected to render a decision on this case by early February 2002.

Ramani Nadarajah is a lawyer at CELA