Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 08, 2021

CASE NO(S).: PL200100

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: David Whiteman

Applicants: Philip Putman and Cheryl Morris-Putman

Subject: Minor Variance

Variance from By-law No.: 11-83

Property Address/Description: 276 Merrithew Street

Municipality: Municipality of Mississippi Mills

Municipal File No.: A-01-20

LPAT Case No.: PL200100

LPAT File No.: PL200100

LPAT Case Name: Whiteman v. Mississippi Mills (Town)

Heard: January 22, 2021 by video hearing

APPEARANCES:

Parties

Counsel/Representative*

David Whiteman

Self-represented

Philip Putman and Cheryl Morris-Putman

Self-represented

Municipality of Mississippi Mills

L. Scheulderman*

DECISION DELIVERED BY SUSAN de AVELLAR SCHILLER ON JANUARY 22, 2021 AND ORDER OF THE TRIBUNAL

BACKGROUND AND PRELIMINARY MATTERS

1Philip Putnam and Cheryl Morris-Putnam (“Applicants”) wish to add a rear addition to their home at 276 Merrithew Street in the Municipality of Mississippi Mills (“Municipality”). The addition has been described as a “garden room” that would emphasize a view of their rear garden. The addition would replace and expand upon the footprint of the existing rear deck.

2In support of this intention, the Applicants applied for a variance from Comprehensive Zoning By-law No. 11-83 to permit a reduction in the required rear yard setback from 7.5 metres (“m”) to 6.24 m. There has been no change to the application and no other variances are being sought.

3The Municipality’s Committee of Adjustment (“COA”) authorized the requested variance subject to conditions. The two conditions imposed by the COA are that the addition be based on the plans submitted to the COA and that the Applicants obtain all requisite building and health unit permits.

4David Whiteman is an adjacent rear yard neighbour at 737 Maurice Stead Street. Mr. Whiteman has appealed against the decision of the COA and brought the matter before this Tribunal.

5The Applicants made submissions but did not provide evidence.

6The Municipality called a full case in support of the decision of the COA and the application for variance.

7Tyler Duval is a full Member of the Canadian Institute of Planners and a Registered Professional Planner in Ontario, whom the Tribunal qualified to provide independent expert opinion evidence in land use planning matters. Mr. Duval was called by the Municipality.

8Mr. Whiteman is self-represented in these matters. On consent, the Tribunal afforded Mr. Whiteman the opportunity to give evidence as well as make submissions.

ISSUES AND ANALYSIS ON THE APPLICATION FOR VARIANCE

9The Tribunal distils Mr. Whitehead’s concerns to three matters:

1. The Applicants have not set out why a variance is needed.
2. The variance is not minor in terms of its impact and intrusion into the rear yard setback.
3. The variance, if authorized, will be a precedent for others.

Need

10The application for variance was made under s. 45(1) of the Planning Act (“Act”). This section sets out the tests that the application must meet in order for the variance to authorized. There are four tests. The variance must maintain the general intent and purpose of the official plan, maintain the general intent and purpose of the zoning by-law, be desirable for the appropriate development and use of the land, building or structure, and the variance must be minor.

11Need for the variance is not one of the tests. Put another way, the Applicants are not required to demonstrate why it cannot continue to be within the frame of the existing performance standards and requirements of the zoning by-law rather than seek a variance.

12The need that precipitates the variance is the need to vary the zoning by-law to do what the Applicants wish to do. Underlying the need for the variance is the preference to do something other than what is strictly permitted by the by-law. This is the structure of the Act which contemplates the possibility that the Applicants may wish to do something a bit different. The Tribunal appreciates Mr. Whiteman’s concerns in this regard but dismisses them as having no basis on which the Tribunal may authorize or refuse to authorize the variance that is sought.

Intrusion

13There is an existing deck at the rear of the Applicants’ home. The variance for the one-storey garden room addition would replace the deck and expand upon its existing footprint. No changes are proposed to the application now before the Tribunal from the application as filed with the COA.

14The existing deck is open with the opportunity for wide views not particularly focused on the Applicants’ yard. The proposed garden room will be enclosed, limiting and focusing the opportunity for views primarily on to the Applicants’ rear yard.

15The Tribunal had no evidence that the existing deck, with its open views, was an unacceptable visual intrusion or overlook. The Tribunal finds that the proposed garden room, with its more restrictive views, does not represent an unacceptable visual intrusion or overlook.

16The physical intrusion into the rear yard, as represented by the variance, is small quantitatively and in that sense minor. When considering the test of minor from the perspective of impacts, the Tribunal considered the visual intrusion or overlook. The Tribunal finds the variance to be minor in its impact.

Precedent

17Neighbourhoods are not static; they evolve over time as changes are introduced. There is no dispute that a change to a zoning by-law with a variance is a change on the ground that becomes part of the evolution of a neighbourhood. Each variance sought must be considered on its individual merit and within its particular context as it is measured against the four tests. If the variance meets the four tests, it does so on its own and not because some other application on another property met, or did not meet, those same four tests on that other property.

18Authorizing a variance does not establish a precedent in the sense that it binds the Tribunal when considering some other variance that may be similar but would apply to a different property and, therefore, be a different case. Precedent is not one of the tests and not a basis upon which the Tribunal could authorize or refuse to authorize a variance.

The Tests

19The official plan designation for the subject site is Residential. The site will continue to be used for residential purposes. The Tribunal finds that the general intent and purpose of the official plan is maintained.

20The zoning by-law requirement for the size of the rear yard setback is to ensure that there is ample separation between neighbours such that the rear yard may be used as an amenity space. The remaining rear yard setback, after the reduction of the variance, continues to be sufficient in size to be used as an amenity space. The Tribunal finds that the general intent and purposes of the zoning by-law is maintained.

21The existing open deck is part of the amenity space but, given the climate, is only available for use for part of the year. The enclosed garden room, while an addition to the structure of the house, will be used for amenity purposes and be available to be enjoyed year-round. Enhancing the amenity enjoyment within an enclosed space while still maintaining sufficient open space for external amenity use is desirable for the appropriate development and use of the land and building, and the Tribunal so finds.

22On the foregoing analysis on intrusion, and considered either quantitatively or for impacts, the Tribunal finds that the requested variance is minor.

Additional Matters

23Section 2 of the Act sets out matters of provincial interest. Flowing from the foregoing analysis, the Tribunal finds that the proposed variance has had regard for the matters of provincial interest. The Tribunal notes particularly that this variance is proposed for an appropriate location for development in that it is within an existing residential community.

24Section 3(5) of the Act requires that the Tribunal’s decision be consistent with the provincial policy statement in effect at the time of the decision. In this case, that is the Provincial Policy Statement, 2020 (“PPS 2020”). The proposed variance is for an addition to an existing dwelling that is within a settlement area, efficiently utilizing land and infrastructure. The Tribunal finds that the proposed variance is consistent with the PPS 2020.

Authorization Subject to Conditions

25Section 45(9) of the Act contemplates the possibility that conditions may attach to any authorization of a variance. A site plan sketch and elevations were submitted with the application to the COA and filed in evidence in these proceedings. The COA attached as one of its conditions that the variance be based on the plans submitted. The Tribunal amends this slightly, on consent of the Applicants, that the variance is authorized subject to the condition that the addition be built substantially in accordance with the elevations and exactly in accordance with the site plan sketch.

26The Tribunal is of the opinion that this slightly revised condition and the COA second condition regarding the securing of permits are appropriate.

REQUEST FOR COSTS

27Following the hearing, the Applicants filed a request for costs. The Applicants entered into an agreement for the Municipality to defend the COA decision and call the full case in support of the application for variance and the Applicants would offset the legal and expert witness costs of having the Municipality do so.

28The Tribunal will not award any costs in this case and no further submissions on costs are required. Here are the Tribunal’s reasons.

29The application for variance was made under s. 45(1) of the Act. This section sets out the tests that the application must meet in order for the variance to be authorized. There are four tests as set out above.

30The Applicants base their request for costs on two key matters: the result of this appeal in that the Tribunal has authorized the variance, subject to conditions, and the fact that Mr. Whiteman called no expert evidence in support of his appeal.

31Costs do not follow cause at the Tribunal. Costs are based on conduct, not on who wins and who loses in a dispute.

32The Tribunal’s Rules of Practice and Procedure (“Rules”) set out the circumstances in which an order for costs may be made. Before an order for costs may be made the Tribunal must be satisfied, and find, that the conduct or course of conduct of a party has been unreasonable, frivolous, vexatious or in bad faith. Rule 23.9 provides some illustrations:

a. failing to attend a hearing event or failing to send a representative when properly given notice, without contacting the Tribunal;

b. failing to give notice without adequate explanation, lack of co-operation with other parties during the proceedings, changing a position without notice to the parties, or introducing an issue or evidence not previously mentioned or included in a procedural order;

c. failing to act in a timely manner or failing to comply with a procedural order or direction of the Tribunal where the result is undue prejudice or delay;

d. a course of conduct necessitating unnecessary adjournments or delays or failing to prepare adequately for hearing events;

e. failing to present evidence, continuing to deal with issues, asking questions or taking steps that the Tribunal has determined to be improper;

f. failing to make reasonable efforts to combine submissions with parties of similar interest;

g. acting disrespectfully or maligning the character of another party;

h. knowingly presenting false or misleading evidence; or

i. breaching a confidentiality requirement of a mediation, settlement conference or of a decision of the Tribunal in the hearing of the merits.

33While this list is illustrative, Mr. Whitehead’s conduct did not meet any of these illustrations.

34There is no requirement that an applicant or an appellant be represented by legal counsel or call an expert, as distinct from a lay, witness to provide evidence.

35Appeals against a decision of a committee of adjustment trigger a new hearing at this Tribunal. The responsibility rests with the applicant for a variance to demonstrate that the variance meets the statutory tests. There is no assumption that the variance does so without evidence. If there were to be such an assumption, then the responsibility would fall on the opponent to the application to demonstrate how the variance does not meet the tests. But this is not the way the Act is structured.

36The Applicants had the responsibility to demonstrate at this new hearing before the Tribunal that the variance meets the tests. They elected to do so through an agreement with the Municipality, whereby the Municipality would call the case in support of the application for variance and the Applicants would reimburse certain costs associated with that effort by the Municipality. This was a choice made by the Applicants. The fact of this arrangement, and the quantum of any resulting costs, does not change the requirement that an order for costs must be grounded in inappropriate conduct.

37While Mr. Whiteman did not call an expert witness, the evidence he gave demonstrated research and thoughtfulness on his part. While on close analysis his evidence was not persuasive, his preparation and conduct were reasonable and appropriate.

ORDER

38The Tribunal orders that the variance to Mississippi Mills Zoning By-law No. 11-83 to reduce the rear yard setback requirement from 7.5 metres to 6.24 metres for the property at 276 Merrithew Street, located in the Residential Third Density Exception Zone, is authorized, subject to the conditions that:

1. the addition be built substantially in accordance with the elevations and exactly in accordance with the site plan sketch as filed in Exhibit 1, Tabs 11 and 12, in these proceedings; and
2. the owner obtains all required building and health unit permits.

“Susan de Avellar Schiller”

SUSAN de AVELLAR SCHILLER

VICE-CHAIR

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal