Oakville (Town) v. Oakville (Town), 2021 CanLII 88701

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 15, 2021

CASE NO(S).: PL210202

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

Appellant: The Corporation of the Town of Oakville

Appellant: The Regional Municipality of Halton

Applicant: Victor and Joyce Enns

Subject: Minor Variance

Variance from By-law No.: 2014-014

Property Address/Description: 2552 Rivers Bend Lane

Municipality: Town of Oakville

Municipal File No.: A/080/2020

OLT Lead Case No.: PL210202

OLT File No.: PL210202

OLT Case Name: Oakville (Town) v. Oakville (Town)

Heard: September 3, 2021 by video hearing

APPEARANCES:

Parties	Counsel
Victor and Joyce Enns	Denise Baker
Regional Municipality of Halton	Kelly G. Yerxa
Town of Oakville	Dennis Perlin

MEMORANDUM OF ORAL DECISION DELIVERED BY T. PREVEDEL ON SEPTEMBER 3, 2021 AND ORDER OF THE TRIBUNAL

BACKGROUND

1Victor and Joyce Enns (the “Applicant”), propose to enlarge their existing home at 2552 Rivers Bend Lane and replace the existing garage with a larger garage/workshop but in the same location.

2In support of this intention, the Applicant applied for two minor variances from the Town of Oakville’s (“Town”) Zoning By-Law No. 2014-014. These minor variances were approved by the Town’s Committee of Adjustment (“COA”) with conditions on March 9, 2021.

3Subsequent to the COA Approval, the matter was appealed by both the Town of Oakville and the Regional Municipality of Halton (the “Appellants”) to the Tribunal primarily due to concerns with the proposal to continue the use of a private sewage system within a Settlement Area that should ideally be serviced municipally.

AREA CONTEXT

4The lands owned by Victor and Joyce Enns are located at the end of Rivers Bend Lane and adjacent to Bronte Creek. The property includes the tablelands, slope and some of the valley lands associated with the creek. The surrounding area is single detached dwellings.

5Municipal services are available at Bronte Road. Due to the grading of the road and the surrounding properties, which slope down towards Bronte Creek, municipal sanitary sewer services were not a viable option. Engineering analysis was provided in support of this conclusion. The property has municipal water services.

6The current Zoning By-law, in subsection 4.14, prohibits the erection or enlargement of a building south of Dundas Street unless the land is serviced by municipal water and wastewater systems.

7The property is currently a single detached residence and will continue to be used as such. The house is currently serviced by a private septic sewage system and it is appropriate under section 45(2) to allow for the enlargement of the house with the private force-main connection to municipal services located at Bronte Road, in lieu of a private septic system.

THE VARIANCES

8The minor variances requested were as follows:

• Variance 1, under section 45(2)(a)(i) of the Planning Act: To permit a one-storey dwelling on partial existing foundations and a new detached accessory building on the subject lands whereas section 4.14 a) of By-law No. 2014-014, requires the subject lands to be serviced by municipal sewage systems in this instance.
• Variance 2, under section 45(1) of the Planning Act: To permit a minimum (northerly) interior side yard of 1.2 metres to the detached accessory building.

THE HEARING

9This was a Settlement Hearing as the Applicants and the Appellants have reached mutually acceptable Minutes of Settlement (“MoS”), endorsed by all Parties.

10Ms. Ruth Victor and Mr. James Nelson were available at the Hearing and qualified by the Tribunal as expert witnesses with respect to land use planning and municipal engineering respectively.

11A written Affidavit was provided by Ms. Victor with respect to the proposed settlement, providing expert opinion that the proposed variances are consistent with the Provincial Policy Statement, are in conformity with the Provincial Growth Plan, the Regional Municipality of Halton (“Region”) Official Plan and the Town of Oakville Official Plan.

12Ms. Baker provided the Tribunal with a chronological and contextual overview of the proposed application and the subsequent revisions as they evolved through the process of mediation with the Appellants.

SETTLEMENT PROPOSAL

13The Parties agree to settle PL210202 on the terms as set out below:

14The Town and the Region agree to not oppose the Application before the OLT, and together with the Applicants will request that the Tribunal allow the appeal, in part, and authorize the requested variances subject to the following conditions:

i) That the approval expires four years from the date of the OLT Decision, if the Applicant has not received a building permit for the proposed project;

ii) That the proposed development be constructed in general accordance with the approved Site Plan and Elevation Drawings, attached to the Minutes of Settlement as Schedule “C”;

iii) That the Applicant enter into a Minor Variance Agreement with the Town pursuant to subsections 45(9.1) and (9.2) of the Planning Act, substantially in accordance with the agreement attached to the Minutes of Settlement as scheduled “D”;

iv) That the Applicant is required to design and construct, at their sole expense, a private wastewater force-main within the road allowance of Rivers Bend Lane from 2552 Rivers Bend Lane to the connection point of the Region’s wastewater sewer system that includes Regional infrastructure such as the connection manhole, wastewater gravity main, road restoration on Rivers Bend Lane and all associated appurtenances related to public infrastructure as per the design standards of the Region of Halton;

v) The wastewater force-main proceed generally in accordance with the preferred servicing option as recommended in the Functional Servicing Brief, prepared by Trafalgar Engineering Ltd., dated May 29, 2021;

vi) That the Applicant shall prepare a detailed engineering submission to be submitted to the Regional Development Project Manager for review and approval for the proposed private wastewater force-main within the road allowance of Rivers Bend Lane and the associated Regional infrastructure required for these works prior to or after the preparation of the Regional Servicing Agreement;

vii) That the Applicant, pursuant to subsection 42(9.1) of the Planning Act, enter into a Servicing Agreement with the Region of Halton for the proposed private wastewater force-main within the road allowance of Rivers Bend Lane and the associated Regional infrastructure required for these works;

viii) The Applicant further agrees to decommission any existing private septic systems in accordance with Ministry of the Environment, Conservation and Parks guidelines prior to occupancy of the reconstructed dwelling on the Property, to the satisfaction of the Region’s Development Project Manager;

ix) The Applicant shall contact the Regional Services Permit Section for review and approval of the proposed water and sanitary servicing, to obtain water and sanitary sewer Services Permits, and pay all necessary fees; and

x) The Applicant acknowledges and agrees that the Region will not be required to maintain the private wastewater force-main that is located within the Rivers Bend Lane road allowance and that the Applicant will be required to maintain and repair the private wastewater force-main in perpetuity.

THE TESTS AND THE PLANNING EVIDENCE

15The four tests for minor variances are as follows:

• They must maintain the general intent and purpose of the Official Plan (both Regional and Town).
• They must maintain the general intent and purpose of the Zoning By-Law.
• They must be considered desirable for the appropriate development or use of the land, building or structure, and
• They must be considered minor in nature.

Maintains the General Intent and Purpose of the Official Plan (both Regional and Town)

16In her submitted Affidavit, Ms. Victor provided evidence that the two requested variances, together with the amended conditions, are consistent with the Provincial Policy Statement. Section 1.6.6.2 states that municipal sewage services and municipal water services are the preferred form of servicing for Settlement Areas to support protection of the environment and minimize potential risk to human health and safety. This proposal is a private connection to municipal services.

17The variances and amended conditions also conform to the Regional Official Plan (“ROP”). Section 89(3) of the ROP requires that all approvals for new development within the Urban Area be on the basis of connection to Halton's municipal water and wastewater systems, unless otherwise exempt by other policies of this Plan. This is a private connection to municipal services and therefore conforms with this policy.

18The Town of Oakville Official Plan states in section 9.1.1 that development of all lands within the urban area shall be on full urban water and sanitary sewers. This development will be serviced by full urban services, thus the variances and amended conditions meet the general intent and purpose of the Official Plan.

Maintain the General Intent and Purpose of the Zoning By-Law

19In her written Affidavit, Ms. Victor stated that the Town of Oakville Zoning By-law in subsection 4.14 prohibits the erection or enlargement of a building south of Dundas Street unless the land is serviced by municipal water and wastewater systems. As this property will be serviced by a municipal water and wastewater system, albeit through a private force-main connection located within the municipal road allowance, the variances and amended conditions meet the general intent and purpose of the Zoning By-law.

Are the Variances Appropriate and Desirable Development and Minor in Nature

20In the expert opinion of Ms. Victor, as stated in her written Affidavit, she considers the proposed variances and amended conditions to be desirable and an appropriate use of the land.

21Ms. Victor stated in her written submission that the proposed amended conditions are acceptable and that the replacement of an aging septic system is an improvement.

22On the basis of the planning evidence put forward in Ms. Victor’s Affidavit and the consent of both the Regional Municipality of Halton and the Town of Oakville, the Tribunal finds that the minor variances, together with the amended conditions, pass the statutory tests as required under the Planning Act.

ORDER

23The Tribunal Orders that the Appeal is allowed in part, and the variance under section 45(2) of the Planning Act, to permit the enlargement of an existing one-storey dwelling and the erection of a new detached accessory building on the subject lands is authorized.

24The Tribunal Orders that the requested variance under section 45(1) of the Planning Act to permit a minimum (northerly) interior side yard of 1.2 metres to the detached accessory building be authorized.

25The authorization of the variances are subject to the 10 conditions as set out in paragraph 14 above which are also reflected in the MoS.

“T. Prevedel”

T. PREVEDEL

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