Clearview appeals NEC decision
Clearview council is appealing the Niagara Escarpment Commission’s decision to deny the township permission to reconstruct 26/27 Sideroad from the 10th Concession to Grey Road 31.
Council made the decision to appeal based on a “strong recommendation” from its solicitors at Barriston Law.
The township applied for a permit to upgrade the road as a requirement of an agreement in association with the acquisition and closure of part of County Road 91 to accommodate the expansion of Walker Industries’ Duntroon quarry.
The settlement came out of a joint board hearing and the permit is required as a result of a change in legislation that came into effect afterwards.
The issue was discussed in camera Monday night but the legal advice dated Dec. 2 was released to the public in open session.
The permit was refused for four reasons:
The work does not meet the test of “essential” as defined by the Niagara Escarpment Plan (NEP) and the application did not provide adequate evidence that all options had been taken into consideration.
Secondly, the tunnel drilled under the road to move aggregate from the quarry’s expansion area to the processing plant in the older portion of the quarry was not in place at the time of the application and not taken into consideration, which further erodes the case for this road project to be deemed essential.
Thirdly, development would offend the objectives of the NEP’s two most sensitive land use designations: Escarpment Natural Area and Escarpment Protection Area.
And lastly, development would cause an environmental harm, in particular to cold water streams and would damage steep escarpment slopes.
The township’s lawyers counter the first claim saying the joint board found the proposed upgrade was “essential” for the purposes of the quarry expansion and that alternatives were considered.
“In our opinion, the NEC erred in tying the test of essential to the operation of the quarry, rather than considering whether the road improvements were essential to the road network, and, accordingly in the public interest,” writes Harold Elston, adding that the road needs to be improved for public safety, not only as a haul route. “We believe it is arguable that the proposed works are essential to the public, as the roads are essential to the larger transportation network. Road safety, road width, roadside drainage and road base structure deficiencies have now been identified, and are required to be addressed.”
According to Barriston Law, the existence of the tunnel, being the second point is not relevant to the discussion and the third reason is easily countered because the road is already existing and the work will have little impact.
To the last point, lawyers say an environmental impact study has already been done and adequately addresses potential environmental impacts and could even improve drainage and erosion and other environmental threats.
“There are strong arguments to refute the NEC’s reasons for refusing the application and compelling environmental and engineering evidence is available to establish that the NEP’s purpose and objectives are met, and its development criteria satisfied. Accordingly, it is our recommendation that the township appeal the decision,” concludes the report.
Elston said with notification of the appeal, a hearing will be conducted but the final decision will be made by the Minister of Natural Resources and Forestry, even if the hearing officer’s recommendation is to uphold the NEC’s decision.
Clearview Township has also applied to the NEC for a permit to upgrade the 10th Concession but that decision was deferred until January.
