Innes v. Milton (Town), 2022 CanLII 103996

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 4, 2022

CASE NO(S).: OLT-22-003923

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

Appellant: Graeme Innes

Applicant: Ayodeji and Adeola Egerton Shyngle

Subject: Minor Variance

Reference Number.: A22-05M

Property Address: 270 Sydney Street

Municipality: Milton/Durham

OLT Case No.: OLT-22-003923

Legacy Case No.: OLT-22-003923

OLT Case Name: Innes v Milton (Town)

Heard: October 27, 2022 via video hearing

APPEARANCES:

Parties Graeme Innes ("the Appellant")

Counsel Self-Represented

Parties Ayodeji and Adeola Egerton Shyngle (collectively "the Applicant" or "the Appellant")

Counsel Andy Margaritis

DECISION DELIVERED BY A. CORNACCHIA AND ORDER OF THE TRIBUNAL

BACKGROUND

1The Appellant has appealed the decision of the Committee of Adjustment ("Committee") of the Town of Milton ("Town") authorizing a minor variance application ("MV Application") regarding the property municipally known as 270 Sydney Street ("Subject Property") to facilitate the construction of a new dwelling ("Proposed House"). The Proposed House will be a two-storey structure with an attached single garage and designed to replace the current structure, a bungalow with driveway parking. The effect of the MV application is to propose an increase in the maximum lot coverage, and reductions of the minimum interior side yard setback and the minimum garage face set back.

2The following is a summary of the requirements of the Town’s Comprehensive Zoning By-law 016-2014 ("ZB") and the requested minor variances:

A. Variance One – Lot Coverage

B. Variance Two – Side Yard Setback

C. Variance Three – Garage Face Setback

Section 6.3.2 ii) b. of the ZB requires that when a garage face is greater than 3.5 metres, the garage must be setback a minimum of 5.5 metres from the building wall front. The Applicant is requesting permission to allow a garage face that is greater than 3.5 metres wide to be setback a minimum of 3.3 metres from the building front wall (a reduction of 2.2 metres).

3The planning staff report recommended that the Committee authorize the application subject to the conditions identified in Appendix 1. The Committee allowed the MV application subject to the recommended conditions. The Appellant, who owns a neighbouring property and made representations at the Committee meeting, filed an appeal to the Tribunal.

HEARING

4A hearing was held on October 28, 2022. The Town did not appear and the Applicant was represented by counsel. The Applicant engaged Mr. Steven Qi ("Mr. Qi" or the "Applicant’s Planner"), a registered planner who was qualified as an expert to give evidence in the field of land use planning.

5The Appellant did not appear. He requested an adjournment by email on October 20, 2022 and on the morning of October 28, 2022 prior to the start of the hearing. Both adjournment requests were denied by the Tribunal. The Tribunal waited the requisite 15 minutes before commencing the hearing and checked with the attendees regarding whether he or his representative were present then and on numerous other occasions during the proceedings. Counsel for the Appellant also sent an email to the Appellant advising that the hearing would be proceeding.

6The Tribunal asked counsel for submissions on whether the case should be dismissed. Counsel referred the Tribunal to section 19(1) of the Ontario Land Tribunal Act and made specific submissions regarding dismissal relating to the Appellant’s failure to pay the Tribunal fees, failure to file materials in compliance with the Tribunal’s request prior to the hearing and the appeal having no reasonable prospect for success. The Tribunal considered and reviewed these submissions. Prior to making any decisions the Tribunal asked counsel for his views regarding the requirement under section 19(2) of the Ontario Land Tribunal Act to give notice and seek submissions from both parties prior to dismissing the Appeal. Counsel argued that the Tribunal could proceed with the dismissal without notice but had no convincing arguments or case law to support his position.

7Although the Tribunal was convinced that appropriate grounds had been established for dismissing the appeal under section 19(1) of the Ontario Land Tribunal Act, it did not wish to delay the matter further, with notice of dismissal under section 19(2) and decided to proceed with a hearing in the absence of the Appellant.

8The appeal of the Committee decision to the Tribunal requires a hearing de novo of the Minor Variance application. Mr. Qi gave evidence to the Tribunal relating to the applicable tests under the Planning Act.

Planning evidence

9Mr. Qi provided an overview of the property and the Neighbourhood. The Subject Property is located in the Downtown Character Area of Milton ("Downtown"). The area is a mix of new and original housing of different architectural styles with a one and two storey homes mix and some semi-detached and detached dwellings.

10The following planning evidence related to the MV application’s compliance with section 45(1) of the Planning Act ("Act").

1. general intent and purpose of the official plan ("OP")

The Subject Property is designated as Urban Area within the Halton Official Plan ("HOP") and Residential Area in the Town of Milton Official Plan ("TOP"). It maintains the intent and purpose of the HOP Official Plan since it is in line with the housing intensification objectives of the HOP. The proposed development will result in modest intensification that uses existing infrastructure. The variances will result in a built form dwelling that is similar to development and compatible with the surrounding Neighbourhood and thus also maintains the general intent and purpose of the TOP.

2. general intent and purpose of the zoning by-law

The Subject Property is zoned "RLD – Residential Low Density 1" under the ZB. The ZB imposes requirements for buildings to avoid unavoidable adverse impacts on neighbouring properties.

A. Variance One – Lot Coverage

Section 6.2 Table 6B (I) of the ZB requires that lots with areas less than 660 square metres have a maximum lot coverage of 30%. The Applicant is proposing a maximum lot coverage of 34.85% (an increase of 4.85%). The intent of the lot coverage requirement is to prevent over-development on the lot and ensure that it will not negatively impact existing grading and drainage patterns. The lot area coverage is in line with the coverages of other properties in the study area of the Downtown and will not result in a built-form that results in massing issues that are not compatible with the area. No grading and drainage issues will result from the proposed variance.

B. Variance Two – Side Yard Setback for the Garage

Section 6.2 Table 6B (*2) i) a. of the ZB requires that an interior side yard have a minimum setback of 1.8 metres. The Applicant is proposing an interior side yard setback of 1.2 metres (reduction of 0.6 metres) to the southwest lot line solely for the garage portion of the Proposed House. The second storey and the remainder of the wall of the house will be set back in compliance with the ZB requirements.

The intent of this ZB requirement is to ensure appropriate access to the rear yard from the front, sufficient area for drainage and grading and the privacy of adjacent properties will not be impacted negatively. The reduction of the side yard setback for the Garage will not impact any of these matters of concern.

C. Variance Three – Garage Face Setback

11The intent of this provision of the ZB is to ensure that the garage is adequately setback from the building wall front so that it is not the dominant feature of the façade and respects existing built-form / setback patterns in the area. Further, it establishes a transitional feature that reduces the massing of a dwelling and visual impact on surrounding properties.

12The reduction will not negatively impact adjacent properties. The proposed garage retains a clear transition from the front face of the dwelling and does not protrude beyond the existing front yard setbacks of adjacent dwellings.

3. desirability

The development proposal facilitated by the MV application is desirable for the following reasons. It will improve the existing condition of the Subject Property with a new home that reinforces and respects the existing physical character of the neighbourhood. New dwellings with similar built form exist within the Neighbourhood and this addition fits into the character of the Neighbourhood by respecting and reinforcing it with a similar development.

4. Minor

The evidence was that the application is minor in nature. There are not any unacceptable adverse impacts from a planning standpoint to the adjacent property owners. The Applicant’s Planner confirmed that he considered all potential adverse planning impacts resulting from each of the minor variances. The reduced lot coverage will not result in a massing or streetscape issue, the reduced side yard setback for the garage will not result in privacy issues for Neighbours and the reduced garage face setback will not result in a more predominant garage relative to the remainder of the structure. Drainage and access do not present issues with the proposed variances.

In summary, the MV Application complies with the requirements of subsection 45(1) of the Act. It is minor, desirable for the use and development of the Subject Property and maintains the general intent and purpose of both the applicable official plans and the ZB.

13The Town requested the conditions identified in Appendix 1 at the Committee hearing and they were included in the consent granted by the Committee. The planner confirmed that they are reasonable and customary for an application of this kind.

14The application is consistent with the PPS which promotes residential redevelopment since is a gentle redevelopment of the property and modestly increases the density resulting in a more efficient use of the lands. The proposal also conforms to the policies of the Growth Plan for the Greater Golden Horseshoe ("Growth Plan"). It will occur in a delineated built-up area and will use the existing municipal infrastructure.

15The Tribunal accepts Mr. Qi’s evidence and finds that each of the variances proposed by the MV application complies with section 45(1) since they are minor. The Proposed Home that will result from the authorization of the MV Application is consistent with the PPS and conforms with the Growth Plan. The conditions included in Appendix 1 are reasonable.

ORDER

THE TRIBUNAL ORDERS that the appeal is dismissed and the variances to By-law 016-2014 are authorized subject to the following conditions in Appendix 1.

"A. Cornacchia"

A. Cornacchia

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.

APPENDIX 1

CONDITIONS:

That the dwelling shall be located and constructed in accordance with the site plan and building elevations, prepared by Lucid Homes Inc., date stamped by Town Zoning on April 28, 2022.
That prior to building permit issuance, the Applicant provide a detailed grading plan, in accordance with the Town’s Standard No. E-18 Urban Infill Lot Grading Plan, for review by Town Development Engineering Staff.
That a building permit application be obtained within two (2) years from the date of this decision.
That the approval be subject to an expiry of two (2) years from the date of decision if the conditions are not met, if the proposed development does not proceed and/or a building permit is not secured.