For Immediate Release

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

In his first Niagara Escarpment decision since being appointed Minister of Natural Resources on April 15, 2002, Jerry Ouellette has dealt a near-fatal blow to the provincial land-use plan that has been protecting the Niagara Escarpment since 1985.

The Minister has ignored an independent hearing tribunal's recommendation and ordered that a Development Permit be granted to an Escarpment agri-business against the explicit provisions of the province's Niagara Escarpment (NE) Plan.

The Coalition on the Niagara Escarpment (CONE), an environmental watchdog group that has been monitoring development on the Escarpment for 25 years, fears that the Minister's decision could throw the door open to rampant development on the 750-kilometre-long Escarpment, which was designated a World Biosphere Reserve by the United Nations in 1990.

"It is because of the Niagara Escarpment Plan that Escarpment lands have been spared the urban sprawl and rural strip development that has spread across most of the rest of southern Ontario," commented Jason Thorne, Executive Director of CONE. "The Minister's decision sends the message that the land-use policies of the Plan no longer have any force or effect. That could be disastrous for Escarpment protection."

CONE is not alone in its condemnation of the Minister's decision.

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 the Escarpment-protection legislation, wrote a letter to CONE about the case in January. In it he states, "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."

CONE's legal counsel, Ramani Nadarajah of the Canadian Environmental Law Assocation (CELA), wrote to the Minister seeking reasons for his decision, but none has yet been provided.

"This decision is yet another step in the current provincial government's apparent move away from the historical role Queen's Park has played as protector of the Escarpment," said Thorne, who also cited funding cuts and some questionable Cabinet appointments to the Niagara Escarpment Commission. "By picking and choosing how and to whom the rules of the Niagara Escarpment Plan are applied, the government is sending a message to developers that nothing is impossible."

The case in question appeared to be a routine application. The owner of an Escarpment agri-business applied to the NE Commission for a Development Permit to build a new home on his farm property on a proposed new lot. The NE Plan has strict rules on rural lot creation as a means of controlling strip residential development in the Escarpment countryside. Despite the fact that the application was in clear violation of the NE Plan, the Cabinet-appointed NE Commission approved it anyway.

CONE appealed the case to the Environment Review Tribunal, with legal representation from CELA. A neighbour of the agri-business also appealed the decision. A hearing was held in January 2002. It included two days of expert planning evidence from the NE Commission, the Region of Halton and CONE, all unanimously supporting the position that the application violated the NE Plan. The Town of Milton also opposed the application.

In his strongly-worded, 13-page report, Hearing Officer William Balfour stated that the "fundamental issue" in the hearing was "Whether or not the NE Commission or the [Environmental Review Tribunal] has the discretion to bypass the provisions of the ... NE Plan." Balfour concluded that neither the NE Commission nor the Tribunal had such discretion and that the application should be refused.

However on December 30, 2002, nearly a year after receiving the Hearing Officer's report, Minister Ouellette set aside the Hearing Officer's recommendation, and the provisions of the NE Plan, and ordered that a Development Permit be granted.

"With the stroke of a pen, Minister Ouellette has called into question the validity of the rules that have been protecting the Niagara Escarpment for nearly 20 years," added Thorne. "This could mark a return to the wild-west days of piecemeal, unregulated development of this hitherto specially-protected part of Ontario."

Professor Gertler observed, "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."

Thorne added that, "The fact that the Hearing Officer released such a strong and unequivocal recommendation, the fact that absolutely no planning evidence in favour of the application was provided at the hearing, and the fact that the Minister provided no rationale for his decision, all lead CONE to the inevitable conclusion that the Minister's decision must have been politically motivated."

"Since the Minister's decision cannot be appealed, we can only wait and see what impact it will have on future protection of the Niagara Escarpment," concluded Thorne.

For more information contact:
Jason Thorne, Executive Director
Coalition on the Niagara Escarpment (CONE)
Phone: (416) 960-2008
Cell: (416) 892-4861

Also available for comment, Mr. Stepan Wood, Professor at Osgoode Hall Law School, (416) 736-5036.

The letter by Professor Len Gertler available by fax upon request (January 10, 2003).

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