Minister's Decision Throws Open the Door to Rampant Development on the Niagara Escarpment

About the Application On April 4, 2001, John and Laura Hughes, owners of Springridge Farm in Milton, applied to the Niagara Escarpment Commission (NEC) to build a new house on a proposed new lot. The stated purpose of the application was to enable them to retire in their existing home on the proposed 0.75 ac. new lot, and enable one or more of their children to construct a new home in a "building envelope" on the remaining +/- 64 ac. parcel.

NEC planning staff, after reviewing the application and consulting with agencies and municipalities (the Region of Halton and Town of Milton opposed the application), recommended that a Development Permit not be issued. They concluded that the application was contrary to the New Lots Policies of the Niagara Escarpment Plan.

On September 26, 2001, the Cabinet-appointed Niagara Escarpment Commission made a decision to approve the application, subject to a standard set of conditions.

On October 5, 2001, the Niagara Escarpment Hearing Office, a branch of the Environmental Review Tribunal, received appeal notices from CONE and from Springridge Farms' neighbours Ken and Sylvie Gulak.

A hearing was held in Milton on January 7 and 8, 2002, with hearing officer William Balfour presiding.

Mr. Balfour submitted his report to the Minister of Natural Resources on February 7, 2002 (it was not released to the public until after the Minister's decision of December 30, 2002). In it he recommended that the Minister overturn the NEC decision and refuse the application.

On December 30, 2002, the Minister ignored Mr. Balfour's recommendation in issuing a decision which stated (in its entirety):
"I have reviewed the decision of the Niagara Escarpment Commission and after reviewing the Hearing Officer's report, I do not concur with the recommendation and direct the Niagara Escarpment Commission to issue a Development Permit subject to the attached conditions."

About the Niagara Escarpment Plan

The Niagara Escarpment Plan (NEP) was approved by Cabinet in 1985. It governs land use on nearly half a million acres (183,694 hectares) of land from Niagara Falls in the south, to the tip of the Bruce Peninsula in the north.

The purpose of the NEP is "to provide for the maintenance of the Niagara Escarpment and land in its vicinity substantially as a continuous natural environment, and to ensure only such development occurs as is compatible with that natural environment."

The NEP takes precedence over municipal planning policies and is administered by the 17-member, Cabinet-appointed Niagara Escarpment Commission.

The NEP divides the Niagara Escarpment into seven land use designations. The subject property in this case is in the Escarpment Protection Area designation, the second most restrictive designation in the Plan. The Escarpment Protection Area permits some development and is intended to maintain the remaining natural features and open, rural landscape character of the Escarpment and lands near it.

About the NEP's New Lots Policies

The New Lots Policies are cornerstone policies in the NEP. Paragraph 5 of the New Lots Policies for the Escarpment Protection Area states as follows:
"Provided no lots have been severed in the past from the original township lot or half lot, where the original township lot is 80 ha (200 ac.) or more a full time bona fide farmer who is retiring from active working life and has farmed the land from the date of approval of the Original Plan on June 2, 1985, may be permitted a lot on which the farmer intends to retire and reside."

Springridge Farm's application for a farm retirement lot was made under this provision of the NEP New Lots Policies.

The NEC approved the application in September 2001, giving as its reason:
"The number of lots in the original 40 ha (100 ac.) Township half-lot has not been increased. The Applicants amalgamated a number of existing lots in the past to create the farm property."

At the hearing, CONE presented unrefuted evidence that there had in fact been four previous severances from the half-lot, and that the current application would increase this number to five.

In his report, hearing officer William Balfour agreed with CONE's position. He stated that "It is clear, based on evidence presented at this hearing, that [the NEC's] statement is not factually correct."

He concluded that the application violated the New Lots Policies of the NEP. He further concluded that "it is important for the integrity of the NEP that the NEC and the Hearing Office uphold the New Lots Policies as providing unambiguous requirements for the creation of new lots in the Escarpment."

About Discretion and the Applicability of the NEP's Policies

After concluding that the application clearly violated the NEP's New Lots Policies, hearing officer William Balfour considered whether this fact required that the application be refused.

In his report, he stated that the "fundamental issue" in the hearing was "whether or not the NEC or the [Environmental Review Tribunal] has the discretion to bypass the provisions of the ... NEP".

Former Director of the Niagara Escarpment Commission Frank Shaw appeared as a witness at the hearing under subpoena from CONE. He testified that, with respect to the application of the New Lots Policies, there was no discretion on the part of the NEC. The policy is numerical and constitutes a pass or fail. He cited section 25(4) of the Niagara Escarpment Planning and Development Act (NEPDA) which was amended in 1999 to explicitly reference the NEP as the basis for all decisions made by the NEC.

Mr. Balfour agreed with Mr. Shaw's interpretation of the NEPDA and concluded that:
"it is my opinion that the NEC does not have the discretion to interpret the New Lots Policies. Evidence of past decisions of the Niagara Escarpment Hearing Office supports this position. Evidence of past appeals made by the NEC regarding decisions of Committees of Adjustment supports the NEC's previous position on this. Evidence was introduced to indicate that NEC staff have consistently supported the view that these policies are not subject to discretionary interpretation."

Implications of the Case

The Minister's decision to disagree with the hearing officer's findings calls into question the very applicability of the NEP itself. As such, the implications of the decision go far beyond the Springridge Farm application.

Len Gertler, distinguished Professor Emeritus, University of Waterloo, and author of the 1968 report commissioned by then-Premier John Robarts which ultimately led to the passage of Escarpment protection legislation, wrote in a letter to CONE in January of this year that "the creation of one additional rural lot by means of a severance has much more serious repercussions than may at first be apparent" and that, as a result of the Minister's decision, "the door would be opened for destroying the very foundation on which the entire [Niagara Escarpment Plan] rests. This is clearly too high a cost."

Professor Gertler further observed that "the issuing of the Development Permit for this development would establish a precedent for the approval of similar … applications anywhere in the Escarpment Protection area, virtually without limit."

The Minister's decision would seem to indicate that the NEC, Niagara Escarpment Hearing Officers, and the Minister himself have the discretion to apply, or not apply, the policies of the NEP.

It is disturbing that a Plan that has been in place for nearly 20 years, and which has undergone extensive scrutiny through various legal challenges and two major policy reviews, could in future be treated as merely a list of suggested guidelines.

It is CONE's position that this could lead to inconsistent and arbitrary decision-making on the part of the NEC in future.

Residents, developers and conservationists are now placed in a position of great uncertainty with respect to what the rules are.