Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 22, 2021
CASE NO(S).: PL200127
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Baljit & Manjeet Gangar
Subject: Minor Variance
Variance from By-law No.: 144-2003
Property Address/Description: 11260 Inglis Drive
Municipality: Town of Milton
Municipal File No.: A2-19/043/M
LPAT Case No.: PL200127
LPAT File No.: PL200127
LPAT Case Name: Gangar v. Milton (Town)
Heard: July 21, 2021 via video hearing
APPEARANCES:
Parties
Counsel
Town of Milton (“Town”)
K. Stavrakos
Baljit & Mangeet Gangar
T. Sanderson
MEMORANDUM OF ORAL DECISION DELIVERED BY STEVEN COOKE ON JULY 21, 2021 AND ORDER OF THE TRIBUNAL
1The matter before the Tribunal is a settlement hearing on the appeals under s. 45 (12) of the Planning Act (“Act”) from a denial by the Town Committee of Adjustment (“COA”) on an application of a minor variance to Zoning By-law No. 144-2003 for the property municipally known as 112670 Inglis Drive (“Subject Site”).
2Zoning By-law No. 144-2003 allows for a fence height of 1 metre. The original application for minor variance proposed was for an increase for a black picket style fence along the frontage of the property with a height of 1.83 metres and at the driveway entrance to allow for the existing stone pillars and a gate with the height of 2.13 metres.
3The settlement agreement presented to the Tribunal would allow the existing stone pillar and gate to remain at 2.13 metres in height. The black picket fencing along the frontage would be reduced to 1.22 metres.
PLANNING EVIDENCE
4Craig Rohe was qualified by the Tribunal to give expert land use planning evidence and opinion. Mr. Rohe gave evidence by written affidavit and viva voce to the Tribunal.
5The Subject Site is in the Brookville Hamlet which has been identified as a Settlement Area under the Provincial Policy Statement, 2020 (“PPS”). Mr. Rohe gave evidence that in an identified Settlement Area the provision of fencing is common and appropriate. As the application for minor variance is only for fencing to the Subject Site the application in his opinion should be considered to be consistent with the PPS.
6The Act requires that the Tribunal consider the four tests for the authorization of a minor variance in this matter. In the expert opinion of Mr. Rohe, the revised settlement does meet the four tests of a minor variance.
Does the variance meet the general intent and purpose of the Official Plan (“OP”)?
7Mr. Rohe stated that in the Town staff report to the COA, the staff had considered that the application was considered to be consistent with the OP. A perimeter fence is considered an ancillary use for a single detached dwelling under the Hamlet Residential Polices of the Brookville Secondary Plan. It was the opinion of Mr. Rohe that he agreed with the position of the Town staff.
Does the variance meet the general intent and purpose of the zoning by-law?
8Zoning By-law No. 144-2003 provision regarding frontage fencing heights are to ensure that visibility along the street is sufficient. Mr. Rohe agreed that front yard fencing should be permeable in order to allow for ample sightlines to the street view. However, while Mr. Rohe agreed with the general intent of the 1 metre maximum height in Zoning By-law No. 144-2003 in the case of the Subject Site, the scale of the dwelling and the lot size, it was his opinion that 1 metre would be too short. It was his expert opinion that the minor variance increase to 1.22 metres in height with the existing stone pillar and gate structure height of 2.13 metres in height would be appropriate.
Is the variance desirable for the appropriate development or use of the land, building or structure?
9Mr. Rohe described the Subject Site as being located in a neighbourhood with large single dwelling lots. Front yard fencing in the neighbourhood is not prevalent but given the large lot frontages of the neighbourhood would not be unreasonable.
10It was his opinion that the existing gate structure makes a positive visual impact on the street. With an appropriate front yard permeable fence of 1.22 metres in height the visual impact should be considered reasonable.
Is the variance minor in nature?
11In the testimony of Mr. Rohe, the maximum fence height of 2.13 metres would represent the highest point of the arched gate. The majority of the fence would only see a slight increase of 0.22 metres.
12The frontage of the Subject Site faces the side yard of a dwelling located at the corner of McPhail Way and Inglis Drive. The presence of coniferous trees and other landscaping elements along the side yard provide a year-round visual barrier. As a result, the proposed fence on the Subject Site would not create a negative impact to the immediate neighbours.
FINDINGS AND ANALYSIS
13In determining this matter, the Tribunal accepts and adopts the uncontested land use planning evidence and expert opinions provided Mr. Rohe. The Tribunal is persuaded by the evidence that the proposed settlement represents good planning and meets the criteria of the four tests of the Act.
ORDER
14The Tribunal Orders that the following Minor Variances to Zoning By-law No.144-2003, for the Town of Milton, are approved, in part, for 11260 Inglis Drive, Milton:
Permission to allow an increase to the maximum fence height for the gate structure, to 2.13 metres from the maximum front yard fence height of 1 metre as set out in section 4.5.2 iii) of Zoning By-law No.144-2003, as depicted on the elevation drawings attached as Schedule A and landscape plan for the gate attached as Schedule B to this Order; and
Permission to allow an increase to the maximum fence height for the remainder of the fence within the front yard as depicted on the attached elevation drawings and landscape plan to 4 feet (1.22 metres) in height from the maximum front yard fence height of 1 metres set out in section 4.5.2 iii) of Zoning By-law No. 144-2003, as depicted on the elevation drawings attached as Schedule A and landscape plan for the gate attached as Schedule B to this Order; and
The parties shall bear their own costs in this proceeding
“Steven Cooke”
STEVEN COOKE
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.