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Local Statutes - Niagara Escarpment Planning and Development Act) (NEPDA). Pleasant View Protection Corp. v. Niagara Escarpment Comm.
In Pleasant View Protection Corp. v. Niagara Escarpment Comm. (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR involving an NEC application, here brought more specifically against "the NEC decision to refer the application to the OLT" [the NEC (under the Niagara Escarpment Planning and Development Act)(NEPDA) regime has an unusual administrative structuring with extensive preliminary application requirements].
Here the court canvasses the NEPDA regime, and illustrates some of it's procedures:[1] In 2020, Columbia International College (“CIC”) applied to the Niagara Escarpment Commission (“NEC”) to amend the Niagara Escarpment Plan (“NEP”) to permit the use of a former convent as a private secondary school to be operated by CIC.
[2] When it receives an application, the NEC must consider whether the application should be considered by the NEC. As part of this preliminary review, the NEC considers whether the requested amendment would permit an “urban use” of the subject property. If so, the application is deferred to be considered under a full NEP review (described below).
[3] In this case, on preliminary review, the NEC found that the application could be processed, based in part on a staff report that the proposed amendment did not amount to an “urban use”.
[4] The proposal was subjected to full public consultation, after which the NEC revisited its earlier conclusion as to whether the proposed amendment would be an “urban use” and it referred the application to the Ontario Land Tribunal (“OLT”) for a hearing.
[5] As a result of this referral, the merits of the application, including whether the proposed amendment would be an urban use, will be before the OLT for decision.
Summary and Disposition
[6] The merits of CIC’s application, including whether the proposed amendment to the NEP would be for an “urban use” of the property, will all be before the OLT for decision. Consequently, the effect of the NEC decision to refer the application to the OLT is interlocutory: it does not decide the merits of any aspect of the underlying application, but rather directs the process to be followed. For this reason, I conclude that this application is premature and ought not be entertained by this court. Therefore, for the following reasons, I would dismiss this application, with costs to both CIC and the NEC from the applicant.
Analysis
(a) The Legislative Scheme
[7] The governing legislation is the Niagara Escarpment Planning and Development Act, RSO 1990, c. N.12 (“NEPDA” or the “Act”).
[8] Application may be made to the NEC “by any person… requesting an amendment” to the NEP (Act, s. 6.1(2)). No one shall request to amend the NEP in respect to land designated “Escarpment Protection Area” seeking to “permit urban uses” (Act, s.6.1(2.2)). Notwithstanding this prohibition, an application to amend the NEP to permit “urban uses” may be made “during the review set out in subsection 17(1)” of the Act. Section 17(1) of the Act provides that the Minister “shall cause a review” of the NEP to be carried out at the same time the review of the “Greenbelt Plan” is carried out under the Greenbelt Act, 2005, 2005, c. 1, s. 25(2); 2009, c. 12, Sched. L, s. 7.
[9] The lands owned by CIC, which are the subject of its application to permit it to operate a school, are part of the “Pleasant View Survey” and are subject to “Special Provisions” set out in Part 2.21 of the NEP. Thus, the net effect of the provisions summarized above, as they relate to this application for judicial review, is as follows:a. CIC’s application may be made to and considered by the NEP so long as CIC’s proposed amendment will not permit “urban uses” of the subject land.
b. If CIC’s application would permit “urban uses” of the subject land, then the NEP will not consider the merits of the application, but rather conclude that the application should be brought during the periodic review of the NEP and the Greenbelt Plan. [10] The NEC reviews proposed amendments to the NEP, determines if a proposed amendment is restricted by the Act, and makes recommendations respecting proposed amendments to the Minister of Natural Resources and Forestry (NEPDA, ss. 6.1(2), 6.1(2.2), 6(3) and 10(9).
[11] In 2020, NEC staff advised the NEC that the proposed amendment would not constitute an “urban use”. After an extensive process before the NEC, a subsequent staff report in 2023 came to a contrary view.
[12] In the context of competing staff reports, and competing submissions from interested parties (including the Applicant and the proponent CIC), the NEC concluded that the issue of whether the proposed amendment would be an “urban use” should be referred to an OLT hearing pursuant to s. 10(3) of the NEPDA.
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