Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 03, 2021

CASE NO(S).: PL190491

Appellant: Jacinta Synder

Applicant: Willem Albert Graves

Subject: Minor Variance

Variance from By-law No.: 2014-014

Property Address/Description: 1540 Reeves Gate, Unit 20 and 19

Municipality: Town of Oakville

Municipal File No.: A/106/2019

LPAT Case No.: PL190491

LPAT File No.: PL190491

LPAT Case Name: Snyder v. Oakville (Town)

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act

Property Address/Description: 1540 Reeves Gate, Unit 19

Municipality: Town of Oakville

LPAT Case No.: PL190491

LPAT File No.: PL190491

LPAT Case Name: Snyder v. Oakville (Town)

Heard: July 15 and 16, 2021 by video hearing

APPEARANCES:

Parties	Counsel*/Representative
Jacinta Snyder	Rebbecca Phillips*
Willem Graves	Rebbecca Phillips*
Town of Oakville	Dennis Perlin*
Safdar Akbari	Self-represented
Javid Sheikh	Safdar Akbari
Syed Owais Ahmad	Safdar Akbari

DECISION DELIVERED BY T.F. NG AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Jacinta Snyder (“Applicant/Appellant”) is the owner of unit 19, 1540 Reeves Gate (“subject property”), while Willem Graves (“Mr. Graves”) is the owner of unit 20, 1540 Reeves Gate. They are individual unit owners who had constructed balconies for their respective units in the rear portion of the subject property which required minor variances. The units are in a residential townhome development known as 1540 Reeves Gate.

2The Applicant and Mr. Graves each applied to the Town of Oakville (“Town”) for a minor variance for the balcony (the structure). The Applicant and Mr. Graves requested relief from the Zoning By-law No. 2014-014 (“ZBL”): To permit the maximum balcony projection beyond the main wall to be 3.0 metres notwithstanding the maximum total balcony projection beyond the main wall shall be 1.5 metres.

3The Town’s Planning Staff recommended denial of the variances and the Committee of Adjustment (“the COA”) denied the application for minor variances on September 24, 2019. The Applicant, Ms. Snyder appealed the COA's rejection of the variance application on October 11, 2019.

ISSUES

4The Issues for the Tribunal are:

• Would the minor variance of 3 metres (“m”) projection from the main wall of the building have a negative impact on the adjacent properties?
• Is the proposed variance incompatible with the character of the neighbourhood?
• Does the proposed variance satisfy the s. 45(1) Planning Act ("the Act") tests?

THE TESTS (in s. 45(1) the Act)

5The Tribunal must be satisfied that the variance:

1. maintains the general intent and purpose of the Official Plan;
2. maintains the general intent and purpose of the Zoning By-law;
3. is desirable for the appropriate development or use of the land, building or structure; and,
4. is minor in nature.

POLICY FRAMEWORK

6In addition, section 2 of the Act requires the Tribunal to have regard to matters of provincial interest, and section 3(5) of the Act requires the Tribunal to ensure its decisions are consistent with the Provincial Policy Statement 2020 (“ PPS”) and conform with any applicable Provincial Plans in effect.

HEARING

7Mr. Graves’ application for variance was rejected. Not being an appellant, he was granted party status without objection. Adjacent property owners of Stationmaster Lane, Mr. Akbari (1604), Mr. Sheikh (1596) and Mr. Ahmad (1600) were granted party status as well.

8On July 15, 2021, the first of a two day hearing, Ms. Phillips, counsel for the Applicant, called Ms. Snyder, Mr. Graves as fact witnesses and Michael Barton, a registered land use planner, who was qualified by the Tribunal to give expert opinion on land use planning.

9Mr. Akbari called Mr. Sheikh and Mr. Ahmad as fact witnesses to complete the day.

10On the second day, July 16, Counsel for the Town, Mr. Perlin called Allan Ramsay, registered land use planner and Brandon Hassan a city planner who were both qualified by the Tribunal to give their opinion on land use planning matters.

11The following documents were marked as Exhibits:

i. Consolidated Document Book of the Appellant/Applicant - Exhibit 1. ii. Consolidated Town’s Document Book – Exhibit 2. iii. Document Book Addendum – Exhibit 2A. iv. Addendum to Tab 22 of Exhibit 2 – Exhibit 2B. v. Witness Statement of Javid Sheikh – Exhibit 3. vi. Witness Statement of Owais Ahmad – Exhibit 4.

12The Application is addressed in the context of the Act; the PPS 2020; the applicable Provincial Plan, being the Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”); the Region of Halton Official Plan (“ROP”), the analyses of the Livable Oakville Plan (“Official Plan/OP”) and the applicable Zoning By-law which inform the four tests in section 45(1) of the Act.

ANALYSIS AND FINDINGS

The Planning Act

13The Tribunal views sections 2(h) and (n) of the Act as particularly applicable matters of provincial interest to which the Tribunal must have regard in this case.

14Mr. Ramsay and Mr. Hassan for the Town opined that the Application is a localized matter of local planning interest and has proper regard to the applicable matters of Provincial interest in s. 2 of the Act, is consistent with the PPS, conforms to the Growth Plan and the ROP. Mr. Barton, for the Appellant, did not directly address s. 2 of the Act. However, he concurs with the other two planners on their views of the PPS, the Growth Plan and the ROP. The Tribunal finds that the application is consistent with the PPS, conforms to the Growth Plan and the ROP. The application has regard for the matters in s. 2 of the Act in particular s. 2(h) the orderly development of safe and healthy communities and s. 2(n) the resolution of planning conflicts involving public and private interests. What needs to be established—and this is where the parties part ways—is whether the general purpose and intent of the Official Plan and Zoning By-law are maintained.

SITE CONTEXT

15The site is located along the west side of Reeves Gate, immediately south of Upper Middle Road and mid-way between Bronte Road and Third Line. The site is part of a townhouse condominium development known locally as “In the Abbey”. The site was developed in approximately 1991 and is made up of two parcels containing a total of sixty four, 2-storey and/or 3-storey townhouse dwellings, and includes areas for open space, driveways and visitor parking.

16The site lands affected by the minor variance appeal are found on the southerly of the two parcels and can be more particularly described as follows:

(i) comprise a lot area of 0.6248 hectares; (ii) include 5 blocks of townhouses containing a total of 32 dwellings; (iii) Units 19 and 20 are found within a block of seven, 3-storey townhouse dwellings located closest to the rear property line. This block of townhouse dwellings has a municipal address of 1540 Reeves Gate. (hereinafter the “1540 townhouse block”); (iv) The 1540 townhouse block has a rear setback of 7.47 m; and (v) The lands adjacent to the 1540 townhouse block slope downward from the rear façade of the building to the rear property line. The change in grade is estimated to be approximately 1.0 m.

17The site lands are within the Glen Abbey Community, an established neighbourhood in west Oakville. This area consists primarily of single detached dwellings and also includes a mix of townhouses, low-rise apartments, commercial uses, schools, parks and recreation facilities. The majority of the housing within the Glen Abbey Community was constructed between the early 1980s and the 2000s.

18Abutting the site lands to the west are single detached dwellings fronting onto Stationmaster Lane. Directly opposite the 1540 townhouse block are dwellings having municipal addresses of 1596, 1600 and 1604 Stationmaster Lane. These 2-storey dwellings have rear yard amenity areas immediately abutting the site lands. These dwellings have rear yard setbacks of between 8.6 m and 10.6 m. ( Tab 26 of Exhibit 2 contains photographs of the site and the surrounding area).

Would the balcony projection of three metres have any negative impact on the adjacent properties?

19The balcony has already been built and is already an existing structure that projects 3 m from the wall at the second storey. It was built allegedly after a permit to build was granted by the building department. Nevertheless, Planning staff required the Applicant/Appellant to apply for a minor variance as it contravened the by-laws’ 1.5 m maximum projection requirement.

20The Tribunal will disregard the fact that the balcony is constructed in determining the application and will not consider the matter of the building permit which is not before it. However, the existing balcony does provide the Tribunal a useful visual reference or a model of what would be constructed with an approval. Further the Tribunal is not concerned with the costs expended in a removal of the structure should the application be denied since the application is looked at as if the structure is not built.

21Unit 19 and unit 20 of 1540 Reeves Gate are the only two, out of three balconies that are constructed on the Townhouse block that have a 3 m projection from the wall. The other unit that has a constructed balcony is unit 15, which contains a balcony which has a compliant 1.5 m projection from the wall.

22Units 19 and 20 are each 14.1 square metres (“sq m”) in area. On the utility and functionality of the size of the balcony, Ms. Snyder said that it (unit 19) is of a size that her elderly father can have room to manoeuvre with a cane and walker. It is also a larger amenity space for her father to sit in to have a coffee and soak in the morning sun during summer and in the nicer months. She said that she goes out to the balcony with her father to sit, have coffee and read. Although she entertains guests on the balcony area, and at the patio walkout, it was inconvenient as there is no washroom near there. Mr. Graves (unit 20) confirmed that the balcony is to him like an expansion of his living room and it is a space that he often spends time in in the mornings. He said he hardly has any guests over and there are not many guests he can fit on the balcony. He said too that it is inconvenient to entertain at the patio walkout as there is no toilet. When he is on the balcony, he says he does not peer into the backyards.

23The rear wall of the townhouse building at 1540 Reeves Gate is located 7.47 m from the rear property line. Under the zoning regulations a balcony may project into the rear yard up to 1.5 m from the main wall of the dwelling. In these circumstances the balcony can be no closer than 5.97 m from the rear property line. The Applicant is proposing a 3.0 m projection from the rear wall of the dwelling resulting in a 4.47 m separation between the balcony and the rear property line.

24This has the effect of the balcony structure moving closer to the separating wooden fence of the rear property line. The balcony consequently towers from the second storey and appears to press down to the properties on Stationmaster Lane at the back. Photographs at Tabs M, O and R in Exhibit 1 demonstrates the extent of the close view from the balcony looking down to the rear properties’ homes.

25The size, height and massing effects of the balconies on units 19 and 20 are graphically shown in photographs Tab 26 views nos. 5, 6, 7, 8, 9, 11,13, 14, and 15 of Exhibit 2. The nearness of the large structures that are on a higher level (second storey) to the back property line, viewed from the perspective of the rear yards of the 1596, 1600 Stationmaster Lane properties is clearly impactful. View 15 of Tab 26 shows the stark difference of effect that unit 19 has on 1600 Stationmaster Lane as compared to units 18 and 17(both without balconies).

26Mr. Barton stated that under the Official Plan the proposal is a small expansion to an existing rear balcony. The expanded deck (of the balcony) will improve the living environment of the residents providing a more comfortable and functional use including accessibility to the elderly and people with disabilities. The proposal conforms to urban design and no impact is expected from the existing balcony. The increase in depth makes it more readily accessible to the elderly.

27Mr. Ramsay and Mr. Hassan on the other hand, both opined that the increased projection impacts the rear properties which will, by virtue of the extended length into the back towards the rear property line, brings with it adverse noise, privacy and overlook issues. The increased size of the balcony will alter the functionality of the balcony. Where the original functional use would be a sitting area for tea or coffee plus reading papers, an expanded deck will convert the balcony into an entertainment area where more guests could be fitted and thereby increasing the privacy, overlook and noise issues.

28The Tribunal agrees with and prefers the evidence of Mr. Ramsay and Mr. Hassan. Further the size, mass and height of the second storey amenity space will negatively impact the abutting properties as shown by the visual evidence from the viewpoints of the rear yards of Stationmaster Lane. With the extension on the second level of the unit, the walkout backyard amenity space would similarly be extended towards the rear property line of the adjacent property. The Tribunal finds that the Applicant may construct a balcony that projects 1.5m from the back wall as of right. In fact, unit 15 has such a balcony that is zoning by-law compliant. The doubling of depth of unit 19 has moved the edge of the balcony closer to the rear property wooden fence, exacerbating the overlook and privacy issues. The balcony appears almost to be sitting above the back properties wooden fence, cuts an imposing presence and magnifies the height and massing of the structure. The larger deck space has altered the functionality of a balcony space which is generally for a casual sitdown for refreshments, rest area and conversation area for a few people. The proposed size would accommodate more people, and functionality increases as evidenced by photos of a barbeque set on the balcony plus outdoor chairs, table and easy sofas. The Tribunal finds that the 3m projection of the balcony from the main wall of the building have unacceptable negative impacts on the Stationmaster Lane properties.

Is the variance incompatible with the character of the neighbourhood?

29The following definitions of “character”, “compatible”, and “development” are provided in Part F, section 29.5, Glossary, of the Livable Oakville Plan (Town Official Plan) (Tab 19, pg 197 and 199 of Exhibit 2):

“Character means the collective qualities and characteristics that distinguish a particular area or neighbourhood.”

“Compatible means the development or redevelopment of uses which may not necessarily be the same as, or similar to, the existing development, but can coexist with the surrounding area without unacceptable adverse impact.”

“Development means the creation of a new lot, a change in land use, or the construction of buildings and structures, requiring approval under the Planning Act,…

30Mr. Hassan opined that the intent and purpose of the Medium Density Residential land use policies, as it relates to newly developed areas, in the Livable Oakville Plan is to permit residential dwellings that are adequately spaced, and provide a consistent character in both scale and massing, as well as with the availability of private amenity space.

31He stated that the abutting rear yards reflect a character of generally open spaces, with wooden fencing approximately 1.8 m (6 feet) high, and privacy screens, which can be seen in the photographs. His view is that the requested variances to increase the balcony projections has the effect of increasing the availability of private amenity space, reducing the spatial separation between dwellings, increasing the intensity of living space on the subject property, and cause negative privacy and overlook impacts that are not compatible with the surrounding area (photos 11,12 in Tab 23 of Exhibit 2).

32Mr. Ramsay emphasized that one of the recurring themes found in the principles, objectives and policies of the Livable Oakville Plan is that the character of established residential areas is to be maintained, protected and enhanced. Section 2.2 “Guiding Principles” of the Plan indicates: “Preserving and creating a livable community in order to: a) preserve, enhance and protect the distinct character, cultural, heritage, living environment, and sense of community…” (2.2.1).

33The proposal to allow a larger balcony projection on Unit 19 (and Unit 20) does not preserve, enhance or protect the character of the neighbourhood and does not satisfy this guiding principle upon which the Livable Oakville Plan is based. In Mr. Ramsay’s opinion one of the defining characteristics of this neighbourhood is the privacy residents enjoy. Existing development has occurred with residential lots having outdoor rear yard amenity space affording privacy to residents. For example, on the lands on Stationmaster Lane (low density residential) abutting the Townhouse block, the rear yards have depths ranging from 8.6 m to 10.6 m and include a mixture of patios, decks, hot tubs and play areas. The introduction of enlarged balconies on the adjoining townhouse block as close as 4.5 m to the rear property line will create adverse noise, privacy and overlook issues that affect the use of outdoor amenity areas of the properties on Stationmaster Lane.

34He reiterated that s. 11 of the Livable Oakville Plan indicates that Residential Areas as shown on Schedule A1 represent the areas that provide for stable residential communities. In support of the above principle, Section 11(a) sets out the following objective for Residential Areas:

“a) maintain, protect and enhance the character of existing residential areas.”

35In Mr. Ramsay’s opinion, the Appellant’s proposal does not conform with the above-noted objective s. 11(a) as the proposal will not maintain, protect or enhance the character of the existing neighbourhood. A defining characteristic of the neighbourhood is the large outdoor, rear yard amenity areas found on the abutting lots. The proposed balcony projection of 3.0 m will create adverse noise, privacy and overlook impacts affecting the use and enjoyment of the neighbours’ rear yard amenity areas.

36Mr. Barton, on the other hand stressed that the balcony is part of the existing neighbourhood character including the relationship with the adjacent low- density residential area to the west (i.e. the Stationmaster Lane properties). The projection of the balcony will not adversely impact the character of the subject property or its consistency and compatibility with the character of the surrounding area. He said that there is no change in the balcony characteristics that would result in adverse overlook or privacy issues relative to the existing conditions.

37The Tribunal disagrees with Mr. Barton’s proposition that the constructed balconies at units 19 and 20 are part of the existing character of the neighbourhood. The balconies at units 19 and 20 are not to be considered as existing characteristic structures in the scheme of this application for approval of the minor variance. That would be like putting the cart before the horse. The Tribunal is at this point, considering the approval or otherwise, of the subject minor variance which structures were not supposed to be built without the minor variance approval.

38The Tribunal finds that the distinguishing character of this neighbourhood is the proximate relationship of the 1540 Townhouse Block on the east side with the Stationmaster Lane properties, on the west side, separated only by the wooden fence. Mr. Ramsay and Mr. Hassan spoke to the extended 3 m projection being out of character to the neighbourhood while noting that there is a balcony at unit 15 which is within the permitted 1.5 m projection. Certainly, in relation to a constructed balcony on the main wall of the Townhouse block, the proposed variance is not in keeping and is not compatible with the existing compliant balcony at unit 15. Further, the existing neighbourhood character encompasses the amenity spaces and regulated backyard setbacks of the Townhouses that are in place between them and their relationships with the large backyard amenity spaces of the abutting properties to the rear. The Tribunal finds that the proposed variance does not protect or enhance the existing residential character and is not compatible with the neighbourhood.

Does the variance satisfy the four tests?

Official Plan

39Mr. Barton stated that the Livable Oakville Plan (OP) was adopted by the Town Council and then approved by the Region of Halton on November 30, 2009. It was deemed to conform to the Growth Plan and the ROP.

40He referred to s. 2.1, s. 2.2 and s. 6 of the OP and opined that the proposal conforms to the mission statement and guiding principles of the OP. It is a small expansion, that maintains the existing character with no adverse impacts and will improve the living environment of the residents of the subject property by providing for more functional and comfortable use of this outdoor amenity area including accessibility for the elderly and individuals with disabilities.

41He said the development conforms to s.6.1.1 urban design objectives as it provides (a) diversity, comfort, safety and compatibility with the existing community. The proposal will not result in adverse impacts to the surrounding community relative to the existing balcony and the location, massing, height and design of the balcony are part of the community which will be maintained.

42Mr. Hassan stressed that s.11 of the OP sets out objectives for residential areas, one of which is to (i) maintain, protect and enhance the character of existing residential areas. Section 11.3 of the Official Plan contains policies regarding permitted uses and densities for the entire Medium Density Residential designation. He referred to section 11.1.9, in particular subsections (a), (b) and (h):

11.1.9 Development within all stable residential communities shall be evaluated using the following criteria to maintain and protect the existing neighbourhood character:

a) The built form of development, including scale, height, massing, architectural character and materials, is to be compatible with the surrounding neighbourhood.

b) Development should be compatible with the setbacks, orientation and separation distances within the surrounding neighbourhood.

h) Impacts on the adjacent properties shall be minimized in relation to grading, drainage, location of service areas, access and circulation, privacy, and microclimatic conditions such as shadowing.

43It is his opinion that the criteria set out in items a), b) and h) are applicable for evaluating minor variances that have the effect of creating impacts on abutting properties in a manner which is out of character and not compatible with the surrounding neighbourhood.

44Mr. Ramsay stated that s. 11.1.4 of the Livable Oakville Plan directs that “… development shall conform with the policies relating to urban design and sustainability set out in Part C”.

45Under Part C, Section 6.1.1 a) one of the objectives for urban design is to ensure new development is designed to provide for a “… diversity, comfort, safety and compatibility with the existing community”.

46Under Urban Design, Part C, Section 6.1.2 a) “Development and public realm improvements shall be evaluated in accordance with the urban design direction provided in the Livable by Design Manual, as amended, to ascertain conformity with the urban design policies of this Plan…” Section 6.1.2 c) further indicates that the urban design policies “… will be implemented through design documents and zoning”.

47Urban Design, Built Form, Part C, Section 6.9 requires consideration of the following:

1. Building design and placement should be compatible with the existing and planned surrounding context and undertaken in a creative and innovative manner (Section 6.9.2). In Mr. Ramsay’s opinion, from a noise, privacy and overlook perspective, the proposal is not compatible with the existing and planned context of the neighbourhood. The enlarged balcony will adversely affect the use and enjoyment of the abutting rear yard amenity areas and effectively alters the function and use of the balconies. The enlarged balcony provides a much larger area for people to congregate, socialize and entertain and thus contributing to adverse noise, privacy and overlook concerns.
2. Development shall be designed to accommodate an appropriate transition through landscape buffering, spatial separation and compatible built form. (Section 6.9.3) The proposed development lacks appropriate transition and separation with adjacent development. The proposed balcony projection will result in development being located within 4.5 m of the rear property line. The proposal does not include any mitigation measures to address the adverse impacts.
3. New development shall ensure that proposed building heights and building form are compatible with adjacent existing development by employing an appropriate transition of height and form from new to existing development, which may include setbacks, façade step backs or terracing in order to reduce adverse impacts on adjacent properties and/or the public realm (Section 6.9.9). The proposed balcony extensions alter the built form of the townhouse building and lacks appropriate setbacks, façade stepbacks, terracing or other measures to reduce the adverse impact on adjacent properties.

48In Mr. Ramsay’s opinion, the proposed balcony projection does not conform with the above noted guiding principles, objectives and policies of the Livable Oakville Plan. The proposed balcony projection does not conform with policies in the Livable Oakville Plan dealing with Residential Areas and Urban Design.

49The Tribunal agrees with Mr. Hassan and Mr. Ramsay. The purpose of the guiding principles is to implement the objectives of the Official Plan. The balcony built form is to respect, enhance and protect the existing stable neighbourhood character. Section 6.1.1(a) objective is to ensure this new development of the balcony structure is designed to provide diversity, comfort, safety and compatibility with the existing community. The community in this instance is made up of the other Townhouse units in the area and the Stationmaster Lane abutting properties. In order to have a balcony for the units, the built form, size and structure should be compatible with the neighbouring townhouse unit 15. That unit 15 balcony is in built form, appropriate in size, depth and design for this neighbourhood. The new development (i.e. the balcony structure) does not respect the criteria in s. 11.1.9 (a) and (b) of the OP in the scale and massing and existing setbacks in relation to the existing neighbourhood properties, particularly with respect to the Stationmaster Lane. The Tribunal finds that the proposal does not maintain the general intent and purpose of the OP.

Zoning By-law

50Mr. Barton opined that the purpose and intent of the Zoning By-law is to implement the policies and objectives of the Official Plan. The prevailing zoning designation permits the existing and proposed balcony, including the proposed height, setbacks and floor area. The only minor variance required is to permit the balcony to extend 3 m from the rear face of the dwelling while a maximum of 1.5 m is permitted. The requested minor variance will result in a balcony with an area of 14.1 sq m while a balcony of approximately 7 sq m would be permitted as-of-right. The permitted and proposed balcony areas are clearly intended to provide an outdoor amenity area for the residents of the dwelling on the subject property, in conjunction with a small number of guests. The increase in the size of the balcony relative to existing conditions and the as-of-right permissions will not facilitate the use of the balcony by a large number of people. The increase in the size of the balcony conforms to the purpose and intent of the Livable Oakville Plan policies outlined and the requested minor variance will support the Zoning By-law in its purpose and intent to implement the Livable Oakville Plan through specific permissions and regulations.

51It is his opinion that the requested minor variance conforms to the purpose and intent of the Zoning By-law and is also minor in nature relative to the prevailing regulations of the Zoning By-law.

52Mr. Ramsay’s view on the intent of the zoning regulation for maximum balcony projection is to minimize privacy and overlook conditions. As noted, the proposed increase in balcony projection from 1.5 m to 3.0 m coupled with the corresponding reduction in setback to the rear yard will create adverse noise, privacy and overlook impacts on the abutting residential properties. The proposed variance will not maintain the general intent and purpose of the Zoning By-law.

53Mr. Hassan stated that s. 11.1.9 in the OP gives the particular policy direction to support the implementing zoning that was put into place through By-law No. 2014-014 in terms of establishing the built form, and to prevent privacy and overlook of residential dwellings within established residential neighbourhoods. It is his opinion that the intent of the Zoning By-law with respect to balcony projection is to mitigate visual, noise, privacy and overlook impacts on abutting properties

54His view is that the intent of the Zoning By-law was to contemplate some increased permission in the available outdoor amenity space to the outdoor amenity space at grade by allowing balconies of 1.5 m projection as of right, but not to allow additional balcony area beyond the 1.5 m of the By-law to avoid negatively impacting abutting properties. To permit the increased balcony projection which further increases available outdoor amenity space, reduces the separation between dwellings, and results in visual, noise, privacy and overlook impacts on abutting properties, would not maintain the intent of the Zoning By-law.

55The Tribunal agrees with Mr. Ramsay and Mr. Hassan. The proposal will result in a balcony that is twice the depth that is permissible by the ZBL. The purpose of limiting the projection of a balcony to 1.5 m is to ensure that the structure does not protrude further into the back portion of the subject property and consequently deeper and closer to the rear property line. The intent is to minimize the impact upon the rear properties beyond the dividing wooden fence. The proposal will bring up visual, noise, privacy and overlook issues as the further projection will result in the non-compliant balcony structure being much closer to the properties at Stationmaster Lane at the rear of the unit. The related doubling of the balcony size from 7 sq m to 14.1 sq m, effectively creates a visually larger balcony and factually larger deck that will accommodate more people. The effect of which is to frustrate the By-law’s aim to maintain appropriate separation between dwellings. The Tribunal finds that the proposed variance does not maintain the general intent and purpose of the zoning By-law.

Desirable

56Mr. Barton’s recommendation is that the requested minor variance be approved by the Tribunal on the basis that it satisfies the four tests set out in s. 45(1) of the Act, specifically that the minor variance:

• Conforms to the purpose and intent of the Livable Oakville Plan;
• Conforms to the purpose and intent of Zoning By-Law 2014-014;
• Is minor in nature; and
• Is appropriate and desirable for the use of the subject lands and structures.

57It is Mr. Hassan’s opinion that the desirability of variances for the appropriate development or use of the land relates in this case to whether the presence of an increased balcony projection and increased balcony size would make for unacceptable adverse impacts on the subject land itself, and abutting properties.

58The 1540 Townhouse Block and neighbouring units contain the three-storey townhomes seen in the photos/visuals and they are taller and located much closer to the wooden privacy fence than the two-storey single detached dwellings along Stationmaster Lane to the rear.

59The balconies are located off the second storey, which overlook the fence into the rear yard amenity spaces of the abutting properties along Stationmaster Lane.

60These photos demonstrate that there is direct overlook from the balconies of the townhomes into the abutting rear yards of the single detached dwellings. It is Mr. Hassan’s opinion that balconies with more than a 1.5 m projection will have a greater adverse impact on the adjacent properties along Stationmaster Lane, than the surrounding units such as Unit 15, that has a balcony that complies with the 1.5 m projection permitted by the By-law, as the rear yard amenity spaces directly interface with each other. Given the location of the balconies and the proximity of the abutting rear yard amenity spaces, the requested increased projection will negatively impact the amenity space of the properties along Stationmaster Lane.

61Mr. Hassan’s view is that due to the height of the balconies being higher than the existing fence height with minimal to no screening, any increased projection beyond the 1.5 m would be even more visible to all the abutting properties along Stationmaster Lane than one that complies with the by-law. As such the increased balcony projection is not desirable for the appropriate development or use of the land as it results in a built form that presents unacceptable adverse visual, noise, privacy and overlook impacts onto abutting properties, predominantly along Stationmaster Lane.

62Mr. Ramsay’s view is that the proposed increase in allowable balcony projection is not desirable or appropriate for the development of the site and area. The proposed minor variance will facilitate a change in character of the neighbourhood by negatively impacting the use of the abutting rear yard amenity areas.

63The Tribunal accepts the opinion evidence of Mr. Hassan and Mr. Ramsay. The photographs do demonstrate the clear visuals of the two balconies at units 19 and 20. From the perspectives of the affected abutting properties at Stationmaster Lane, the balconies look tall, big and close to the back dividing wooden fence. Just a few units away from the balconies of units 19 and 20, there sits a zoning By-law compliant balcony, half the size of those two balconies. The projection of the unit 15 balcony is 1.5 m and the deck size is 7 sq m. Balconies of that dimension and size are buildable as of right under the Zoning By-law. Those compliant balconies at the right height, location, depth, size and projection are compatible with the character of the surroundings and will not change the character of the neighbourhood. That is not the case with the proposal. The Tribunal finds that the proposed variance is not desirable for the appropriate development or use of the subject property.

Minor

64Mr. Ramsay stressed that the proposed increase in allowable balcony projection is not minor as it will result in adverse privacy and overlook impacts on the abutting properties. The impacts largely affect the use and enjoyment of the rear yard amenity areas of the abutting properties on Stationmaster Lane. The impacts are a result of two factors: 1) the increased projection from the rear wall of the townhouse dwelling reduces the setback of the balcony from the rear property line. As proposed the balcony will only be 4.47 m from the rear property line; and 2) the increased projection will alter the function and use of the balconies. The enlarged balconies provide a much larger area for people to congregate, socialize and entertain resulting in more noise and privacy concerns compared with the smaller balconies that are intended as small sitting areas.

65Mr. Hassan’s opinion is that the requested increased balcony projection is not minor in nature as the increased projection and size of the balconies will present greater visual, noise, privacy and overlook impacts onto the abutting properties to the rear and has the potential to create increased adverse impacts for the abutting townhouse dwelling units that currently do not contain enlarged balcony projections.

66Both Mr. Hassan and Mr. Ramsay concluded that the requested variance to increase the balcony projection from 1.5 m to 3 m does not meet the four tests of a minor variance set out by the Act and does not represent good planning.

67The Tribunal agrees with Mr. Hassan and Mr. Ramsay that the effect of introducing elevated outdoor amenity space in the form of extended and expanded balconies walk out space from the second storey of the Townhouse units, would erode the existing character of the neighbourhood.

68Larger balconies will increase their functionality and use. This will invariably lead to more people congregating on the larger decks, multiplying the negative impacts of noise, privacy and overlook issues. Mr. Sheikh, owner of 1596 Stationmaster Lane testified that he used to enjoy his backyard a lot, but ever since the expanded balconies were built, he had lost the privacy and appropriate use of his backyard. He feels like he is living in a fishbowl. The balconies structures feel to him as if placed right above the back fence and the lack of privacy from overlook of people using the structures has caused him to wrap up his picnic table for two years already. Mr. Ahmad of 1600 Stationmaster Lane has similarly testified to the effect of the balconies on his use of the backyard. On occasions, there will be ten to twelve people leaning on the balcony railings of the respective units while looking into his backyard.

69The Tribunal recognizes that in a situation where the 1540 Townhouse block abuts the Stationmaster Lane properties, a certain amount of overlook from any built balcony is unavoidable. In the case of unit 15, which has a balcony, the by-law permitted projection of 1.5 m was adhered to. This balcony at unit 15 is in keeping with the permitted built form, size, location and projection depth into the rear yard portion of the unit. The size and projection and built form of the unit 15 balcony is compatible with the context, existing and planned character of the neighbourhood community. On the contrary, the proposed variance of the subject property of a balcony that is twice the permitted projection (1.5 m to 3 m) and twice the area (7 sq m to 14.1 sq m) is not compatible with the built form character of the neighbourhood community. The proposed balcony structure with the deeper projection will result in the structure being placed 4.5 m to the rear property line thus affecting the abutting properties to the rear, which does not represent good planning. There is no mitigation measure being proposed for the proposal. The consequence is that there are unacceptable negative impacts upon the abutting properties on Stationmaster Lane in the form of noise, increased privacy and overlook issues. The Tribunal finds that the proposed variance is not minor in nature.

SUMMARY CONCLUSION

70Based on the documentary evidence, witness testimony, the testimony of the experts and for the reasons provided, the Tribunal finds that the Application does not meet the four tests as set out in s. 45(1) of the Act.

ORDER

71The Tribunal orders that the Appeal is dismissed and the variance to Zoning By-law No. 2014-014 is not authorized.

“T.F. Ng”

T.F. NG

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 (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.