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Court decision rendered on WJBT operations in Canada

by jmaloni
Fri, Apr 15th 2011 04:45 pm

After almost one year of evidence and one year following closing submissions on an appeal filed by the residents in the Village of Queenston challenging a Niagara Escarpment Commission decision that granted a development permit to construct a two-story building on the private dock in Queenston, the minister of natural resources has rendered a decision. The minister found the NEC's decision to grant the development permit was incorrect.

The Queenston Residents' Association and the Corporation of St. Saviour (Brock Memorial Church) filed an appeal with the Environment Review Tribunal challenging the Niagara Escarpment Commission's consent to construct a two-story accessory building on the private Queenston dock, which would have been twice the size of the previously existing building.

Lisa Triano, counsel for the QRA, together with Davine Burton and Dwight Williams, counsel for the church, argued that the proposed development did not meet compliance with the Niagara Escarpment Plan, and as a result, they argued, the Niagara Escarpment Commission's approval of the development was incorrect. Following a 63-page report, issued by Environmental Review Tribunal Chairman Robert Wright, the minister of natural resources issued its decision concurring with Wright that the proposed development did not meet compliance with the Niagara Escarpment Plan and directed the Niagara Escarpment Commission not to issue a development permit.

The Village of Queenston, with a population of 500, is situated on the Niagara River between Niagara-on-the-Lake and Niagara Falls, Ontario. On the shoreline, most of which is owned and cared for by the Niagara Parks Commission, sits a private dock. Currently, Whirlpool Jet Boat Tours is a tenant of the land and operates a commercial tourist attraction from the property, offering thrill rides on the Niagara River.

The land is designated as an environment conservation area on the Niagara Region's Core Natural Heritage Map. It lies just north of a provincially significant earth science area of natural and scientific interest and a regionally significant area of natural and scientific interest. On an international scale, the Niagara Escarpment has been recognized since 1990 by the Man and Biosphere program of the United Nations Educational Scientific and Cultural Organization as a World Biosphere Reserve. It is identified a type 1 critical fish habitat by the Ministry of Natural Resources and an important bird area of Canada.

The Queenston Residents' Association has fought for years to maintain what it considers the natural and peaceful nature of the village. The Whirlpool Jet Boat Tours commenced its tours from the Queenston dock in the early 2000s. The Queenston Residents' Association has voiced its concern for years that the Jet Boat Tour operation is not compatible with the quiet nature of the village or with the natural and ecological surroundings.

The Queenston Residents' Association argued, in its appeal, that the gradual intensification of use of the Queenston dock property by the Whirlpool Jet Boat Tours operation is contrary to the Niagara Escarpment Plan. Wright reported that any use of the dock property, including the Whirlpool Jet Boat Tours operation, that operated on a more than intermittent and infrequent basis would amount to an intensification of use and would therefore fail to meet compliance with the Niagara Escarpment Plan.

The minister of Natural Resources concurred with Wright's recommendation that a development permit not be issued to the landowner for the application, which was the subject of the Queenston Residents' Association and the corporation of St Saviour (Brock Memorial Church) appeal.

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