Henderson v. Cobourg (Town), 2021 CanLII 56419

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 24, 2021

CASE NO(S).: PL200643

The Ontario Municipal Board (the “OMB”) and the Local Planning Appeal Tribunal (the “LPAT”) is continued under the name Ontario Land Tribunal (the “Tribunal”), and any reference to the Ontario Municipal Board or Board or Local Planning Appeal Tribunal in any publication of the Tribunal is deemed to be a reference to the Tribunal.

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Jim & Cindy Henderson Subject: Consent Property Address/Description: 171 Bagot Street Municipality: Town of Cobourg Municipal File No.: B-03-2020 LPAT Case No.: PL200643 LPAT File No.: PL200643 LPAT Case Name: Henderson v. Cobourg (Town)

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

Applicant and Appellant: Jim & Cindy Henderson Subject: Minor Variance Variance from By-law No.: 85-2003 Property Address/Description: 171 Bagot Street Municipality: Town of Cobourg Municipal File No.: A-02-2020 LPAT Case No.: PL200643 LPAT File No.: PL200644

Heard: March 30, 2021 by video hearing

APPEARANCES:

Parties Jim and Cindy Henderson (“Applicants”)

Counsel Kathleen Kinch Jenn Khoury-Hanna

DECISION DELIVERED BY DAVID L. LANTHIER AND ORDER OF THE TRIBUNAL

INTRODUCTION AND HEARING

1The Applicants made application for a consent to sever the lot located at 171 Bagot Street in Coburg (“Subject Property”) and create a new infill lot to the north of the existing residence and a single minor variance in order to construct a new detached dwelling on that severed lot. Planning staff recommended approval of both the consent and minor variance applications (the “Applications”) but the Committee of Adjustment (“Committee”) for the Town of Cobourg (“Town”) refused the Applications. The Applicants then appealed the decisions in both Applications to the Tribunal (the “Appeals”).

2Town Council resolved to take no position on the Appeal and did not attend to the hearing. Council requested however that if the Tribunal approved the Applications that specific conditions identified in the Resolution of December 14, 2020 be imposed.

3Mr. Bob Clark, a planner retained by the Applicants, was qualified by the Tribunal to provide expert land use planning evidence. Mr. Robert Franklin, the Manager of Planning Services for the Town appeared under summons by the Applicants and was also qualified by the Tribunal as a land use planner. Both Mr. Clark and Mr. Franklin provided their executed Acknowledgements of Experts Duty.

4The Applicant, Jim Henderson also provided brief factual evidence, providing some background to the Applications. The Applicants have purchased, renovated and restored 12 homes, six of which were Victorian century homes, including five in heritage districts.

5Prior to the hearing the Applicants’ counsel advised the Tribunal that due to unavoidable pandemic-related caregiving responsibilities, one of the Applicants’ intended witnesses, Ms. Lindsay Reid, the heritage architect, would be unable to participate in the video hearing. The request was made to have the relevant architectural evidence introduced through Mr. Clark’s evidence. Mr. Clark was able to incorporate Ms. Reid’s opinions and factual information into his evidence, as the planner, but additionally the Tribunal directed Ms. Reid to provide a sworn affidavit formally adopting the content of the Cultural Heritage Impact Assessment which she authored through the consultant, Branch Architecture, and providing any other additional evidence. The Tribunal also directed that a curriculum vitae and executed Acknowledgement of Expert’s Duty be provided such that Ms. Reid could be qualified. The Affidavit, CV and Acknowledgement were filed at Tab 3 of Exhibit 1. In light of the fact that no one else appeared as a party at the hearing to oppose the Appeals, the Tribunal was satisfied to receive this part of the evidence in written form and also qualified Ms. Reid to provide opinion evidence in the subject matter of heritage architecture and cultural heritage matters.

6The Tribunal received requests from a number of persons and an entity, for status as Participants in the hearing. There were some objections voiced, including concerns with respect to Ms. Felicity Pope’s membership on the Cobourg Heritage Advisory Committee, which was not disclosed and which, it is suggested, creates a conflict or bias. In the Tribunal’s view it is able to appropriately weigh and consider the statements from the Participants, taking into account that their statements do not represent any type of “expert” evidence and instead represent their own observational and personal comments and views on the subject matter of the Appeals. As she now objects to the Applications, Ms. Pope may be required to consider the matter of her conflict of interest should she later be called upon to vote on any future requests to the Cobourg Heritage Advisory Committee. That is a matter outside of the purvey of the Tribunal but the Tribunal, in considering these matters now before it, can accept her Participant statement at this time.

7The Tribunal has reviewed, and accepted, the Participant Statements from the following:

• Brenda Liston-Hanley
• Sheila and David Cable
• Margaret Bain
• Felicity Pope
• John Hinman
• Cobourg & Northumberland Branch of the Architectural Conservancy of Ontario by its local Co-Chair Esther Robson
• Gail Rayment

8No other person appeared in favour of, or in opposition to, the Applications.

9The Tribunal received and marked the following documents as Exhibits to the Hearing:

Exhibit 1 – Document Book of the Applicants

Exhibit 2 – The Three Staff Reports authored by Mr. Franklin together with his CV and Acknowledgement

Exhibit 3 – The Composite collection of 7 Participant Status Request Forms and written submissions.

References to Tabs in this Decision are references to the tabulated documentation located in Exhibit 1.

10The Tribunal also had the Municipal Record available to it as forwarded by the municipality, containing all of the information and documentation, before the Committee and Council when the Applications were received, considered and decided.

BACKGROUND, SUBJECT PROPERTY, NEIGHBOURHOOD AND HERITAGE CONTEXT, PROPOSED CONSENT AND REQUESTED VARIANCE

Subject Property

11The Subject Property is a non-rectangular residential lot, approximately 969.5 square meters (“m²”) in size, in an established residential area of the Town of Cobourg which currently contains a 1 ½ storey residence. The Subject Property has a frontage of 27.26 meters (“m”) onto the west side of Bagot Street (“Bagot”) running between Albert and Sydenham streets. The rear lot width is 23.98 m. The depth of the north boundary is 37.92 m and the south boundary is 38.60 m.

12The Subject Property is within the Built Boundary of the County of Northumberland Official Plan (“County OP”), designated as Stable Residential Area in the Town’s Official Plan (“Town OP”), and is within the Residential Three (R3) Zone of the Town’s Zoning By-law (“ZBL”).

13The existing dwelling at 171 Bagot is designated under Part V of the Ontario Heritage Act and as it is inventoried, is identified as one of two houses built in 1876 (with 181 Bagot to the north) as rental properties.

Neighbourhood and Heritage Context

14The Subject Property, and the surrounding area, are within the West Heritage Conservation District (“West HCD”) designated under Part V of the Ontario Heritage Act.

15The streetscape on Bagot is comprised of one to two-storey nineteenth century homes, in varying style, located more or less in a cohesive street wall with some variations in front-yard setback. The street is lined with trees on both the road allowance and in private yards. The lot pattern up and down Bagot, and in the immediate area, is not consistent, with varying sizes and depths. Currently, for example, there are only three properties on the west side of this block of Bagot, with 171 Bagot, the Subject Property, and 181 Bagot to the north, being of similar size (as both were historically built and owned together as rental properties when they were first built). On the other side of Bagot, there are, by comparison, 7 lots of varying sizes and frontages, all of them smaller than the Subject Property. A glance at the West HCD map (Tab 12) confirms that this widely varying lot pattern extends throughout the residential West HCD, with both very narrowed, and expansive frontages, all manner of depths and all manner of lot sizes.

16Most properties on the street, and in the West HCD, have driveways beside the house, and any garages are set back from the front of the dwellings. Residences have open landscaped lawns, little front-yard fencing. Most streets have at least one grassed boulevard on the side of the street, with many mature trees, and sidewalks. Houses are characterised by vernacular housing types, similar plans and differing architectural styles and influence, and generous porches are found on most homes. The entire West HCD is a low-profile residential character. Ms. Reid’s Cultural Heritage Impact Assessment (Tab 3) contains a summary list of heritage attributes of the West HCD.

Proposed Severance and Construction

17The Applicants have provided a draft Concept Survey Plan (Exhibit 2, Schedule B to the Report of July 23, 2020), which lays out the proposed severance for which consent is sought. The Subject Property will be divided with the north part representing the Severed Lot and the south part being the Retained Lot.

18The Severed Lot will have a frontage of 9.88 m and a total area of 373 m². The south boundary of the Severed Lot will be more or less parallel with the north boundary of the Subject Property, resulting in a parallelogram.

19The Retained Lot will be left with a frontage reduced to 17.38 m and have a total remaining area of 596.6 m². With the irregular width of the Subject Property, after the Severed Lot is removed, the frontage of the Retained Lot will be approximately 3.3 m wider than the rear width.

20Although full and complete plans of the proposed structure on the Severed Lot will be submitted at a later date, a working draft of a Site Plan has already been prepared by the Applicants’ architects (Tab 5), which has permitted a preliminary computer rendering of the home (Tab 8). This concept Site Plan, and concept rendering, are acknowledged to be only that – preliminary. Eventually, if the Applications are approved, the final proposed plans and drawings will be prepared and submitted for Heritage approval.

21For the purposes of the evidence as it was presented, the Site Plan proposes a 1½ storey dwelling, with a front porch spanning the width of the front of the dwelling, set back from the front lot line approximately 6.2 m. Of some significance is the proposed open grid paved driveway with interlocking pavers that will be located between the street and the porch of the proposed dwelling in lieu of a fully paved or delineated hardscaped driveway. A single tree, indicated to be unsalvageable, currently located where a portion of the driveway would be situated, is to be removed.

Variance

22Only one minor variance has been applied for relating to the lot frontage performance standard. The Town’s ZBL requires a minimum frontage of 11.0 m, and as the Severed Lot will have a frontage of 9.88 m the variance requested under the Application (“Variance”) is:

To permit 9.88 m frontage for a new infill lot, whereas the Zoning By-law requires 11.0 m, a variance of 1.12 m.

23At this point, as the final plans and drawings for the proposed new dwelling have not been completed, however a working Concept Survey Plan and rendering of the proposed dwelling were submitted with the Applications to the Town in part to demonstrate the manner in which the proposed dwelling will be planned within the Severed Lot. As indicated herein, further Site Plan review and Heritage Permit approvals will eventually be required by the Applicants before they can proceed to construct a dwelling on the Severed Lot.

ISSUES

Consent Appeal – [s. 53(19)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

24In the determination of these appeals pursuant to s. 53(19) of the Planning Act (“Act”) and deciding whether the proposed provisional consent should be granted, with such conditions that may be required, the Tribunal must consider and decide the following issues:

(a) the Tribunal must address the threshold question in accordance with s. 53(1) of the Act and be satisfied that a plan of subdivision is not necessary for the proper and orderly development of the municipality and can proceed by way of application for consent. Given the circumstances of the single consent in this case, that issue does not apply;

(b) the Tribunal must then, under s. 53(12), have regard for the criteria set out in s. 51(24) of the Act which includes: that the proposed consent has regard to the effect that the consent will have on matters of provincial interest set out in s. 2 of the Act; whether the proposed consent is premature or in the public interest; and whether the consent conforms to the Northumberland County Official Plan (“County OP”) and the Town OP; the suitability of the land for the purposes for which it is to be subdivided; and the dimensions and shapes of the proposed lot; and the adequacy of utilities and municipal services.

(c) as required by s. 3(5) of the Act the Tribunal must, in its decision, be satisfied that the approval of the proposed provisional consents are consistent with the Provincial Policy Statement 2020, (“PPS”) and conform to such Provincial Plans that may be applicable, which in this case is the A Place to Grow: Growth Plan for the Greater Golden Horseshoe, as amended (“Growth Plan”);

(d) the Tribunal must also have regard to the decision of the approval authority relating to the consent applications that are before the Tribunal and the information and material that was before the approval authority in making the decision;

(e) the Tribunal may, under s. 53(12) also consider and impose such conditions as may be determined to be reasonable, having regard to the nature of the proposed consents, and such conditions may include such requirements as are set out in s. 51(25) of the Act; and

(f) generally, the Tribunal will decide whether the giving of provisional consent to the Applicants, with any required conditions, represents good planning in the public interest.

Minor Variance Appeal – [s. 45(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

25With respect to the application for the minor variance, the issue before the Tribunal is whether the requested variance meets the four tests set out in s. 45(1) of the Act and should be authorized by the Tribunal. The Tribunal must accordingly be satisfied, in this appeal, that the Variance that would permit the single structure the lot created by the severance, if granted: (a) maintains the general intent and purpose of the County OP and the Town of Cobourg’s Official Plan (“Town OP”); (b) maintains the general intent and purpose of the Town’s Zoning By-Law (“ZBL”); (c) is minor, and (d) is desirable for the appropriate use and development of the Subject Property.

26Additionally, the Variance must also be consistent with the PPS, and conform to the Growth Plan under s. 3(5) of the Act. The Tribunal must also have regard to matters of Provincial interest and to any decision made by the Committee, as well as all information and material that the Committee considered in making its decision.

27As the evidence was received, and upon reviewing the concerns expressed by the Participants and the reasons for refusal cited by the Committee, it was evident to the Tribunal that within the underlying statutory and legal issues outlined above, the following issues and concerns were the focus of the Appeals:

(a) The focus of examination is whether the creation of an additional lot, and the infill of a smaller sized lot with an additional new residence, relative to the lot pattern and heritage dwellings on the street between the existing heritage dwellings on 171 and 181 Bagot Street, and in the West HCD, will conform to the Guidelines governing the West HCD. That will require, under the Guidelines, that the proposed new construction be compatible with the heritage character and attributes of adjacent heritage properties and the cultural heritage values of the West HCD;

(b) Also posited, is the question of whether the parking element will inappropriately and unduly dominate the new proposed dwelling on the Severed Lot such that it will be incompatible to the existing streetscape and homes in the West HCD. Relatedly the concern is that there will be an adverse impact upon permitted on-street parking;

(c) The Participants have raised apprehensions regarding: adverse precedent if the severance and Variance are permitted; the loss of a tree on the Severed Lot; and concerns of shadow and privacy.

ANALYSIS AND FINDINGS

28Aside from the observations, personal views, concerns and apprehensions expressed within the Participants’ Statements, the expert planning, architectural and heritage evidence presented by the Applicants and before the Tribunal is uncontroverted and unchallenged.

29For the reasons that follow, and upon the various findings set out herein, the Tribunal determines that the Appeal under s. 53(19) should be allowed and provisional consent should be given for the proposed Consent, and further, that the minor Variance requested should be authorized and that appeal pursuant to s. 45(12) allowed.

The Provincial Policy Statement and Growth Plan

30Leaving aside, for the moment, the matter of policies within the PPS that relate to cultural heritage, based upon the whole of the evidence, including the uncontroverted planning opinions provided by Messrs. Clark and Franklin the Tribunal finds that in all respects both the application for consent and for the minor variance are consistent with the higher over-arching provincial policies within the PPS, and the polices within the Growth Plan.

31As this modest infill development does not involve significant aspects of concern arising from the Provincial policies and plans, other than perhaps cultural heritage policies, both Mr. Franklin and Mr. Clark have opined that the Applications are consistent with the broad provincial level policies in the PPS that govern development and conform to those similar policies within the Growth Plan. With respect to the policies in the PPS that address heritage resources, as discussed further below, the proposal also is consistent with those policies as well.

The Consent Application – s. 51(24) Criteria

32Both Mr. Franklin and Mr. Clark, and as well, Ms. Reid to the extent that her evidence addresses the heritage issues, conclude that the proposed severance and creation of the additional infill lot, have appropriate regard to the listed criteria set out in s. 51(24) of the Act.

33Insofar as suitability of the land for the proposed use and the dimensions and shape of the severed and retained lots, both Mr. Franklin and Mr. Clark are of the opinion that the existing neighbourhood character and varied lot patterning are supportive of the proposed severed lot and suitable for the creation of an additional residence intended to be heritage appropriate. The Tribunal would agree, having examined the various photos and plans and the content of the West HCD Plan that the creation of the smaller lot will be consistent with the quite varied lot pattern, and specifically the lot width/frontage of lots located in both the immediate neighbourhood and the West HCD. The severance will, as discussed further below, conform to both Official Plans and in that respect has regard for that important criteria in s. 51(24)(c)

34Ms. Reid, for the purposes of assessing cultural heritage impact also concluded that the Subject Property was appropriate for such a severance as it will maintain the existing heritage dwelling located on the retained lot, and be consistent with the lot pattern in the neighbourhood and across Bagot. The area contains a number of lots with reduced lot frontages, some of which having lot widths less than that proposed by the Applicants. Ms. Reid has also determined that the proposed severance ensures compliance with zoning by-laws required interior side-yard setbacks between the dwellings and is in keeping with the Heritage Conservation District Infill Guidelines. Ms. Reid has indicated that the severance will support the diversity of side yard conditions and the importance of preserving open views to rear yard greenery.

35Upon the whole of the evidence, and upon the additional findings below regarding conformity with the applicable official plans and the West HCD Plan, and the unanimous and uncontroverted expert planning, heritage and architectural evidence presented, the Tribunal finds that the proposed severance had regard to, and does not conflict with, the criteria set out in s. 51(24) of the Act.

Heritage and Conformity with the Official Plans and West Heritage Conservation District Plan and Consistency with the PPS Heritage Policies

36The Tribunal has reviewed the detailed, and unchallenged expert evidence provided by Ms. Reid who conducted the Cultural Heritage Impact Assessment and concluded that the creation of the additional lot would not have any adverse effect upon the cultural heritage value and heritage attributes of the District. Although the final design and form of the new dwelling has yet to be determined, the direct and cogent evidence from the witnesses, and from Mr. Henderson, is that a heritage-sensitive, compatible new dwelling is planned for the building.

37In regard to lot sizing and configuration, the Tribunal has provided its analysis and findings as to the extent to which the proposed Severed Lot will conform to the neighbourhood and West HCD in the section above. With respect to heritage, the proposed lot frontage and lot size fits within the overall character of the irregular lot pattern that exists, and in particular, within a two-block radius of the Subject Property. Based upon the heritage impact assessment that had been conducted, the pattern and existence of such smaller lots throughout the area is, as Mr. Franklin pointed out in his testimony, actually a definitive aspect of the overall character of the West HCD. As a result, Mr. Franklin’s conclusion is that heritage streetscape will be preserved and the proposed Severed Lot will not adversely impact adjacent properties and no aspect of the public interest is adversely impacted by the severance or the requested Variance. Mr. Franklin’s opinions is corroborated and supported by Mr. Clark’s testimony and, as indicated, Ms. Reid’s Heritage Impact Assessment Report which she has formally adopted through her affidavit evidence.

38Practically speaking, the eventual form of the new dwelling will undergo further review and approval processes as a Heritage Permit will be required to ensure that the design adheres to the policies in the West HCD and HCD Guidelines. The Tribunal has taken note of the demonstrated “track record” of the Applicants in restoring heritage dwellings and their commitment to ensuring a compatible heritage building is constructed which will be compatible with, and conform with, the heritage requirements governing the Subject Property.

39With respect to the impact of the severance and the Variance upon the Bagot streetscape and the expressed concerns of some Participants relating to the proposed parking arrangement between the front of the proposed structure and Bagot on the Severed Lot, the Tribunal concludes that the apprehensions are not supportable. The Tribunal is satisfied that despite the fact that the proposed dwelling may eventually be subject to further site design, heritage permitting and approval, based upon the submitted Concept Plan the extent to which the parking arrangement and the maintaining of the landscaping elements, as well as the proposed building entrance will be compatible with, and “fit” within the west streetscape and the neighbourhood as a whole.

40Furthermore, although not primarily related to heritage, but perhaps more to concerns expressed regarding parking, the Tribunal finds, based upon Mr. Clark’s uncontroverted evidence based upon car counts that were conducted that there is ample parking capacity. Mr. Clark’s observations and conclusions, which have not been challenged in the evidence, indicate that the permitted on-street parking, when examined, was never exceeded and was, in his estimation only to a maximum of 70% and thus there is adequate parking easily able to accommodate any need arising from the additional Severed Lot.

41The Tribunal accepts the evidence of the experts and finds that the result of the severance and minor variance will be a front-yard view similar to the other residential structures on the street including the adjacent residences. As well the Tribunal concludes that the height, massing and density of the proposed dwelling will also be similar to other dwellings in the immediate area thus respecting the height, massing and density of adjacent buildings. The Tribunal also accepts the evidence, and finds, that there will be limited shadowing and appropriate buffering will be provided to avoid concerns of impact. The proposal will clearly allow for the preservation of the heritage house on the Retained Lot and the Severed Lot is in keeping with the neighbouring lot sizes and patterns, without adversely affecting the cultural heritage value and heritage attributes of the West HCD.

42Despite the criticisms leveled against the infill lot and proposed dwelling by some of the Participants, the Tribunal is persuaded by the evidentiary record as a whole and prefers the opinions of the experts, and in particular Ms. Reid and the planning witnesses over the general criticisms, apprehensions and opinions expressed by the Participants. The Tribunal does not find, upon the evidence, including the visual evidence, that the parking arrangement for the Severed Lot will improperly dominate the streetscape or detract from other homes in the heritage district as some of the submissions of the Participants suggest. Existing driveways and parking arrangements within the block and the West HCD have been demonstrated to be of a diverse form, which differ in size, shape, contextual location and appearance, and in the Tribunal’s view the proposal for the Severed Lot will align with this diversity and neighbourhood character.

43Despite the fact that the resulting infill development occurring as a result of the approval of both the severance and minor variance applications will be “new” and represent a change, the proposal is demonstrated to the Tribunal to be in conformity with the policies and guidelines relating to heritage and infill development in the West HCD. As Mr. Franklin has indicated in his testimony, and as was contained in one of his planning reports, the HCD Guidelines are not in place to forever prevent intensification or alternations to the streetscape, lot patterns and built form, and are intended to manage change based upon heritage best practices.

44Mr. Franklin’s and Mr. Clark’s evidence supports a finding that the proposed severance, and the proposed Variance are consistent with the policies of the PPS which address the significance of preserving cultural heritage, and specifically Policy 2.6.1 of the PPS.

45The Tribunal accordingly finds that in all respects both Applications, as approved, will conform to the heritage and infill policies of the Town OP, will not result in non-conformity with the upper tier OP, and will conform to the heritage policies governing the Subject Property.

46In this respect, as indicated above, the proposed severance has regard to s. 51(24)(c) of the Act, and also, as a result, maintains the general intent and purpose of the Town OP and the County OP, for the purposes of s. 45(1) of the Act and the tests applicable to a request for the Variance.

Conformity with the Town OP and County OP

47For the purposes of completeness the Tribunal accepts the direct evidence of Mr. Clark and Mr. Franklin that the proposed severance conforms to all other policies of the Town OP and the County OP and similarly, for the purposes of s. 45(1) of the Act.

Summary - Severance

48Having considered the broader Provincial policy concerns, the matters of Provincial interest set out in section 2 of the Act, all of the criteria as set out in s. 51(24), and with particular consideration of the heritage issues arising in regards to the proposed severance the Tribunal finds that the proposed severance has due regard for such matters of Provincial interest, is consistent with the PPS, conforms to, or is not in conflict with, the Growth Plan and the County OP and the Town OP, inclusive of all applicable policies relating to heritage, the West HCD Plan, the applicable heritage Guidelines, and represents good planning in the public interest and provisional consent should accordingly be granted.

49As to the matter of the Conditions, the Tribunal finds that the Conditions to the proposed Severance, as proposed by Council, and as recommended by Mr. Clark and Mr. Franklin, are appropriate and should be imposed, save and except that the Tribunal does not find it appropriate, as the Tribunal makes its Orders, to stipulate that the conditions are “subject to the specifications and approval of the Town of Cobourg” or the proviso that they are “at no cost to the Municipality”, which is now provided for in the first condition to the severance.

Variance Application – the Four Tests s. 45(1)

General Intent and Purpose of the Official Plans

50For the reasons already set out above, the Tribunal has considered all of the evidence, and based upon the uncontroverted opinion evidence of the planners, and of Ms. Reid, the Tribunal is satisfied that the severance and the requested Variance conforms to the Town’s OP. To the extent of the limited applicability of the County Plan, and its policies relating to intensification within the urban serviced area of the municipality and a range of housing options, the proposed Variance, as well, does not conflict with, and conforms to the County OP.

51Given such a finding of conformity, the Tribunal accordingly finds that the proposed Variance, as it will permit the proposed residential dwelling on the Severed Lot, meets the “lesser test” and meets the general intent and purpose of the Town OP and the County OP.

General Intent and Purpose of the Town’s Zoning By-law

52Both Mr. Clark and Mr. Franklin opine that the proposed single Variance meets the general intent and purpose of the Town’s Zoning By-law which certainly permits the proposed residential use and provides for performance standards, all of which are met, at this point, save and except for the minimum required lot frontage.

53In that respect, based on the other opinion evidence provided with respect to the varied lot pattern and existing examples of reduced lot frontages for lots within the neighbourhood area and within the West HCD, the reduced lot frontage permitted by the Variance will nevertheless maintain the general intent and purpose of the Zoning By-law.

54The Tribunal accordingly finds that this test for the Variance has been satisfied.

Variance is Desirable for the Appropriate Development of the Land

55Both Mr. Franklin and Mr. Clark opine that the Variance is desirable for the appropriate development of the land. The benefits of allowing for the infill lot and the eventual construction of a residential dwelling on the new Severed Lot has been referred to by the witnesses, as has the ability of the Severed Lot to fit within the streetscape, the immediate neighbourhood and the surrounding heritage character within the West HCD.

56For these reasons, and upon such opinions, and based upon the Heritage Assessment undertaken by Ms. Reid, the Tribunal finds that the proposed Variance, as it will permit the construction of a residential dwelling (pursuant to future site plan and heritage permit processes) on the Severed Lot is desirable for the appropriate development of the Subject Property.

Variance is Minor

57Finally, the planners agree that the proposed Variance is minor. The Tribunal considers the proposed frontage Variance is numerically minor, particularly in the context of the West HCD and the clearly demonstrated varied lot pattern of the heritage area where there are numerous lots which have frontages less than the Zoning By-law performance standard for frontage, and some which are less than what would be permitted under the requested Variance.

58As always, the extent of the numerical deviation from the performance standard in the Zoning By-law is not necessarily determinative as to whether a requested variance should, or should not, be considered as minor and approved under s. 45(1) of the Act. This approach, adopted often by the Tribunal and its predecessor Board, acknowledges that the process of determining what is minor is not a type of robotic exercise of comparative numerical deviation and does not, in and of itself, necessarily determine whether a variance is minor. It is instead often more helpful to examine the specific facts of the case and consider such things as the proposed fit, the specific characteristics of the lot and building, the appropriateness of the development, the sense of proportion, whether there is due regard to the built and planned environment, and especially, the impact of the deviations upon the neighbourhood.

59In this case, for the reasons already set out, the Tribunal has concluded that the existence of a lot of this size and frontage dimension is appropriate and compatible within the heritage area, which is supportive of the proposed lot frontage and severance of an infill lot because of the existing varied lot pattern of the West HCD. As Mr. Clark testified, the size and frontage of the proposed lot is “sympathetic” to a number of any one of a number of similarly smaller sized lots identified in the Heritage Impact Assessment. As such it will represent a good fit in keeping with the physical and heritage character of the neighbourhood and area, and specifically the West HCD.

60As indicated, this is also one of those cases where the requested numerical deviation is also, on its face, minor, representing a reduction in the frontage of only approximately 10% which creates a new lot with more than adequate room to construct a modest sized residence meeting all other performance standards.

61There is also no cogent evidence of any kind demonstrating that the proposed residential dwelling on the infill lot permitted by the proposed severance will result in any unacceptable adverse impact upon any adjacent property, including any impacts relating to shadow or privacy. As indicated by Mr. Clark, based upon the shadow study that was done, all shadows are on the north side and there will be no new shadowing imposed by the construction of a dwelling on the Severed Lot with the reduced frontage.

62For these reasons, and upon these findings, the Tribunal finds that the proposed Variance is also Minor.

SUMMARY

63For the reasons indicated in the analysis above, and upon the various findings made in this Decision, the Tribunal will allow the Consent Application and give provisional consent subject to the conditions set out in the Order below.

64For the reasons indicated in the analysis above, and upon the various findings, the Tribunal is also satisfied that the four tests set out in s. 45(1) of the Act have been met and the requested variance is approved.

65While the Participant’s have expressed their reservations and personal opinions on various matters, overall, the Tribunal is persuaded by, and prefers, the collective opinion evidence provided by the expert witnesses on the subject matter of these Applications. In the Tribunal’s view, there is no basis upon which it can consider the opinion evidence of the experts to have been challenged or shaken by these personal views expressed by the Participants, however earnest their views might be. Neither is the Tribunal concerned that this approval will constitute an adverse precedent as each Application and Appeal is dealt with on its own merits, and the facts of that case.

66In all respects, the Tribunal finds that the Consent Application and the Minor Variance Applications are consistent with the PPS, conform to the Growth Plan and have regard to the Provincial interests set out in s. 2 of the Act.

67In making these decisions, the Tribunal has had regard for the decisions of the Committee and the information and documentation that was before Committee and Council prior to making those decisions.

ORDER

Consent Application and Appeal

68With respect to the Application for Consent, and the appeal pursuant to s. 53(19) of the Act, the Tribunal hereby orders that the appeal is allowed, and provisional consent is to be given, subject to the following conditions:

(a) That prior to the stamping of a Deed, a Severance Agreement be registered on Title of the new lot to address all future development requirements such as, but not limited to, servicing, grading, driveway and access, heritage conservation and compatible building design (following approved guidelines and generally in accordance with the Concept Survey Plan submitted by the Applicants), urban design and landscaping including tree re-planting and screening, all to the satisfaction of the Town and at the Applicants’ cost.

(b) That 5% of the value of the land be paid to the Town as cash-in-lieu of parkland.

Minor Variance Application and Appeal

69With respect to the Minor Variance Application, the Tribunal orders that the appeal pursuant to s. 45(12) of the Act is allowed and the following variance is authorized:

To permit 9.88 m frontage for a new infill lot, whereas the Zoning By-law requires 11.0 m, a variance of 1.12 m.

The authorization of the Variance is subject to the Condition that the proposed layout of the construction of the dwelling be generally in accordance with the Concept Survey Plan submitted by the Applicants.

“David L. Lanthier”

DAVID L. LANTHIER

VICE-CHAIR

Ontario Land Tribunal

Website: 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.