Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 15, 2021
CASE NO(S).: PL200605
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Nizar & Sumar Darwish
Subject: Minor Variance
Variance from By-law No.: 2014-014
Property Address/Description: 171 Burgundy Drive
Municipality: Town of Oakville
Municipal File No.: CAV A/110/2020
LPAT Case No.: PL200605
LPAT File No.: PL200605
LPAT Case Name: Darwish v. Oakville (Town)
Heard: April 9, 2021 by Video Hearing
APPEARANCES:
Parties
Counsel
Nizar and Sumar Darwish
Russell Cheeseman
(“Applicant/Appellant”)
Town of Oakville
Dennis Perlin
MEMORANDUM OF ORAL DECISION DELIVERED BY JATINDER BHULLAR ON APRIL 9, 2021 AND ORDER OF THE TRIBUNAL
1This was the first Case Management Conference (“CMC”) converted to a settlement hearing. This is an appeal by the Applicant/Appellant regarding the Town of Oakville (“Town”) Committee of Adjustment refusal to grant the minor variances applied for. The Applicant/Appellant has property located at 171 Burgundy Drive, in the Town. It is a one-storey bungalow.
2The Applicant/Appellant plans to demolish the existing dwelling and construct a two-storey detached house in its place. The subject property has 38.18 metres (“m”) of frontage on Burgundy Drive and a depth of approximately 36.30 m. The lot area of the subject property is 1,393.71 square metres (“sq m”).
3In order to build the planned house, the Applicant/Appellant sought approval of three variances. Namely, the rear yard setback, the gross floor area coverage and the height of the new house.
PARTIES AND PARTICIPANTS
4The Tribunal received no request for additional party or participant status.
WITNESSES
5The Applicant/Appellant called Steven Qi, a professional land use planner.
ISSUES
6The Tribunal, if it were to allow the appeal, must be satisfied that the necessary statutory tests per s. 45(1) of the Planning Act (the “Act”) are met. The tests are for each variance separately as well as collectively that they;
maintain the general intent and purpose of the Official Plan;
maintain the general intent and purpose of the Zoning By-law;
are desirable for the appropriate development or use of the land building or structure; and,
are minor.
EVIDENCE
7Mr. Qi submitted and adopted an affidavit of his expert opinion and this was marked as Exhibit 1. The Tribunal received a book of documents and it was marked as Exhibit 2. The Town provided an agreed list of conditions to be set if approval was granted and this was marked as Exhibit 3.
8Mr. Qi reviewed the applicable policies in the Provincial Policy Statement 2020 (“PPS 2020”). Mr. Qi opined that the proposed redevelopment is consistent with various policies in PPS 2020 and he opined that the proposal will, with reference, to;
a. Policy 1.1.1 (a) provide for better and more efficient land use;
b. Policy 1.1.3.4 provide for intensification with greater and more compact built form; and,
c. The proposal is consistent with Policy 1.1.3.1 by providing for redevelopment in a settlement area through regeneration while using existing municipal services and infrastructure.
9Mr. Qi reviewed the Growth Plan for the Greater Golden Horseshoe 2020 (the "Growth Plan") and opined that the proposal conforms with the Growth Plan. He highlighted Policy 1.2 whereby market demand driven housing is accommodated as well as more efficient land use is created while making use of existing municipal services and infrastructure.
10Mr. Qi reviewed the applicable policies in the Region of Halton Official Plan (“Region”) and the Town Official Plan. Based on a consideration of designation of the subject property within the “Urban Area” boundary he added that the proposal will replace an older single detached dwelling with a new single detached dwelling within an existing residential area, which will directly maintain, protect, and enhance the stability and character of the existing residential community. Mr. Qi opined that the proposal thus maintains the general intent and purpose of the Region and Town’s Official Plans.
11Mr. Qi stated that the Town Zoning By-law No. 2014-014 (“ZBL”) applies to the subject land. He opined that the variances maintain the general intent and purpose of the ZBL. He added that the reduced rear yard setback is measured from a covered terrace, which only covers a small portion of the overall rear width of the proposed dwelling unit. He opined that this will not jeopardize the intent of the ZBL for such setback when considered for appropriate amenity and open space.
12In considering the increase in floor area of approximately 35.26 sq m, Mr. Qi opined that when this is split over two floors the intent and purpose of the ZBL is not jeopardized in terms of massing or overbuilding of a residential lot.
13In considering the increase in height of 0.35 m from what is allowed in the ZBL, Mr. Qi opined that such will not create any overlook or shadow issues and will maintain the intent and purpose of the ZBL.
14Mr. Qi reviewed and opined that the requested variances are minor in nature as discussed with respect to the prescriptions in the ZBL. He highlighted that this was so numerically, as well as qualitatively, with respect to any impacts on adjacent properties.
15Mr. Qi concluded that in totality, the variances are desirable and needed for the appropriate development of the subject property.
16In all respects, the Tribunal finds that the minor variance application is consistent with the PPS, conforms to the Growth Plan and has regard to the provincial interests set out in s. 2 of the Act. In making this Decision, the Tribunal has also had regard for the decision of the Committee and the information and documentation that was before the Committee prior to making those decisions.
17In conclusion, based on all the evidence before it and the uncontroverted expert opinion evidence of Mr. Qi, the Tribunal finds that the Applicant/Appellant has met all the statutory test in s. 45(1) of the Act for the three minor variances separately as well as when considered together.
18The Tribunal reviewed the conditions submitted for attachment to the possible approval and finds that these are appropriate for ensuring the variances are appropriately applied as approved and that there is land use planning certainty for adjacent and surrounding lands and their inhabitants in the scoped time period of two years.
ORDER
19The Tribunal allows the appeal and the following minor variances are authorized with request to the Town of Oakville Zoning By-law No. 2014-014;
i) The minimum rear yard of 6.58 m is allowed, whereas the minimum rear yard of 10.5 m is required;
ii) The maximum residential floor area ratio for the detached dwelling is 31.53% (439.43 sq m), whereas a maximum of 29% (404.17 sq m) is allowed; and,
iii) The maximum height of 9.35 m is allowed, whereas the maximum height of 9.0 metres is required.
20The authorizing of the variances is subject to the following conditions:
a. That the dwelling be built in general accordance with the submitted site plan and elevation drawings REF No. 1 dated October 16, 2020 submitted to the Town of Oakville Committee of Adjustment in Support of the Application; and,
b. That the authorization of the variances expires two (2) years from the date of this Order if a building permit has not been issued for the proposed construction.
21Should any difficulties arise implementing this Order, the Tribunal may be spoken to.
“Jatinder Bhullar”
JATINDER BHULLAR
MEMBER
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.