Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 28, 2022

CASE NO(S).: OLT-22-003754

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

Applicant/Appellant: Nadeem Munir Anjum

Subject: Minor Variance

Description: To construct a new single detached two storey dwelling on each lot

Reference Number: P/CA 47/22

Property Address: 700 Hillview Crescent

Municipality/UT: Pickering/Durham

OLT Case No: OLT-22-003754

OLT Lead Case No: OLT-22-003754

OLT Case Name: Anjum v. Pickering (City)

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

Subject: Minor Variance

Reference Number: P/CA 48/22

Property Address: 700 Hillview Crescent

Municipality/UT: Pickering/Durham

OLT Case No: OLT-22-003756

OLT Lead Case No: OLT-22-003754

PROCEEDING COMMENCED UNDER section 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Subject: Consent - refused by Approval Authority

Reference Number: LD-2021-00070

Property Address: 700 Hillview Crescent

Municipality/UT: Pickering/Durham

OLT Case No: OLT-22-004248

OLT Lead Case No: OLT-22-003754

Heard: October 25 & 26, 2022 by Video Hearing

APPEARANCES:

Parties Counsel

Nadeem Munir Anjum R. Kehar

City of Pickering A. Whyte

DECISION DELIVERED BY P. TOMILIN AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is an appeal filed by Nadeem Munir Anjum (“Applicant” / “Appellant”) against the decision of the City of Pickering (“City”) Committee of Adjustment (“COA”) to deny a Consent and a Minor Variance (“MV”) application for a property municipally known as 700 Hillview Crescent (“subject property” / “subject site”).

2Prior to the hearing, the Tribunal had been advised by the Region of Durham (“Region”) that they had no concerns with the development proposal, subject to the conditions, and that the Region would not be participating in the hearing.

3The subject site is located at the southwest corner of Hillview Crescent and Hillcrest Road in the West Shore Neighbourhood of the City.

4The subject property has 17 metres (“m”) of street frontage on Hillview Crescent, a lot frontage of 57 m on Hillcrest Road and a lot area of approximately 970 square metres (“m²”) and is developed with a two-storey single detached dwelling facing Hillview Crescent and a detached garage with access from Hillcrest Road.

5The subject site is designated Urban Residential Areas – Low Density Area by Pickering Official Plan (“OP”) and permits a maximum net residential density of up to and including 30 dwellings per net hectare. The subject property is zoned R3.

STATUS REQUEST

6Prior to the hearing the Tribunal received Party status request from a Fairport Beach Neighbourhood Association (“FBNA”), represented by Philip Warne. Counsel to the Appellant objected to FBNA being granted Party status. The Tribunal questioned whether FBNA is intended to call any expert witnesses to testify at the hearing. Mr. Warne stated that FBNA will not have any expert witnesses at the hearing and instead they submitted a letter to the Tribunal, outlining their concerns with the proposed development.

7The role of a Party at the appeal is to fully engage in the hearing process, more specifically to support the issues raised by them with expert planning or technical evidence. Given that FBNA was not calling any witnesses or evidence, the request for Party status is denied. Instead, the Tribunal will grant FBNA Participant status and will consider the issues raised by them, when making a decision.

PRELIMINARY MATTER

8At the Hearing, the Counsel for the Applicant has proposed to add an additional MV (Part 2, e)) with the consent of the City.

9Pursuant to s. 45 (18.1) and (18.1.1) of the Act, the Tribunal has the discretion to allow amendments to a MV application without the requirement for further public notice it is of the opinion that such amendments are minor by virtue of s. 45(18.1) and (18.1.1) of the Act.

THE DEVELOPMENT PROPOSAL

10The Applicant proposes to sever the lot, to demolish the existing detached dwelling and to construct two, two-storey detached dwellings, with one dwelling on the severed parcel with a lot area of 465 m² (Part 1) and another dwelling on the retained parcel with a lot area of 505 m² (Part 2).

11The Applicant is requesting authorization of the following variances from the ZBL:

Part 1:

a) A minimum lot area of 465 m², whereas the By-law requires a minimum lot area of 550 m²;

b) A minimum front yard of 3.5 m, whereas the By-law requires a minimum front yard of 7.5 m;

c) A minimum front yard setback of 3.5 m, whereas the minimum front yard setback of the dwellings on the immediately abutting lots located along the same side of the street and within the same block are greater than 3.5 m; whereas ZBL requires the minimum front yard setback to be equal to the shortest existing front yard setback of the dwellings on the immediately abutting lots located along the same side of the street and within the same block;

d) A minimum rear yard setback of 1.5 m, whereas 7.5 m is required; and

e) A covered and uncovered platform and associated uncovered steps (front porch) not exceeding 1.2 m in height above grade and not projecting more than 6.2 m into the required front yard, whereas the By-law permits uncovered steps or platforms not exceeding 1.0 m in height above grade and not projecting more than 1.5 m into any required front yard, not 1.0 m into any required side yard.

Part 2:

a) A minimum lot area of 505 m², whereas 550 m² is required;

b) A minimum south side yard of 1.6 m, whereas the By-law states that where a garage is erected as part of a detached dwelling, the minimum required side yard shall be 1.8 m;

c) A minimum north flankage side yard of 3.5 m, whereas the By-law states that where a main building is erected upon a corner lot with its main front entrance facing the front of such lot, the minimum width of the side yard facing the street upon which the lot flanks shall be 4.5 m;

d) A covered and uncovered platform and associated uncovered steps (front porch) not exceeding 1.2 m in height above grade and not projecting more than 1.6 m into the required front yard, whereas the By-law permits uncovered steps or platforms not exceeding 1.0 m in height above grade and not projecting more than 1.5 m into any required front yard, not 1.0 m into any required side yard; and

e) Notwithstanding ZBL No. 2511, as amended by ZBL No. 7610/18, ZBL No. 7872/21 and ZBL No. 7900/22, no lot, building or structure shall be deemed to have contravened any provisions of these By-laws if the contravention is due solely to the transfer to or acquisition by The Corporation of the City of a part or parts of the subject property associated with a corner rounding at the intersection of Hillview Crescent and Hillcrest Road.

LEGISLATIVE FRAMEWORK

12The issue before the Tribunal is whether the Consent to sever application meets the general requirements set out in the applicable Provincial Planning legislation and Municipal planning policies and the specific criteria of the Planning Act (“Act”) and represents good planning. The proposed severance must meet the requirements of the applicable policies of the applicable Official Plans (“OP”) and ZBL. The Tribunal must be satisfied that the relevant criteria set out in s. 51(24) is met.

13The Tribunal shall also have regard to matters of Provincial interest.

14An appeal pursuant to s. 45 of the Act is a hearing de novo and the Applicant bears the onus to demonstrate to the Tribunal that the criteria established in s. 45(1) has been satisfied:

1. The intent and purpose of the official plan is being maintained;

2. The intent and purpose of the Zoning By-law is being maintained;

3. Is desirable for the appropriate development or use of the land, building or structure; and

4. Is minor.

15In addition to the four tests, the Tribunal must have regard to the matters of the provincial interests as set out in s. 2 of the Act, and the decision of the approval authority under s. 2.1 of the Act.

EVIDENCE

16Deepak Bhatt is a Registered Professional Planner who appeared on behalf of the Applicant. After review of Mr. Bhatt’s professional qualifications, his Curriculum Vitae and confirmation of his Acknowledgment of Expert’s Duty, the Tribunal qualified Mr. Bhatt to provide expert opinion testimony in the field of land use planning.

17Until recently, Mr. Bhatt was a Senior Planner with the City, and he is familiar with the Region’s and City’s OP and ZBL requirements. Mr. Bhatt explained that the current dwelling on the subject site is very old and in a dilapidated condition. The Applicant proposes to demolish the existing dwelling and to replace it with two, two-storey detached dwellings, compliant with the current ZBL and regulations, with better energy conservation, and consistent with the approved “Urban Design Guidelines for Infill and Replacement Housing in Established Neighbourhood Precincts”. He mentioned that within 180 m of the subject property there is a bus stop that connects with Pickering GO station.

18Mr. Bhatt stated that the vast majority of the surrounding neighbourhood is zoned R4, except for the subject site and three others immediately surrounding properties that are zoned R3. In his opinion the proposed development fully complies with the required lot coverage, is appropriate and will lead to a minor intensification.

19Appropriate regard has been given by Mr. Bhatt to the applicable criteria in s. 51(24) of the Act. In addition, in his opinion, the proposed development is consistent with the Provincial Policy Statement, 2020 (“PPS”). More specifically, Policies 1.1.3.1, 1.1.3.2, 1.1.3.3, 1.1.3.4, and 1.4.3 of the PPS encourages efficient land use patterns with an appropriate range and mix of residential housing and it directs development to the established settlement areas where infrastructure exists. It conforms to the applicable Growth Plan which in this instance is A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“GP”). He brought the Tribunal’s attention to the policies 1.2.1 – intensification, 2.2.2 – 50% of residential development occurring within the delineated built-up area, and 3.1 – encouraging compact built form and others.

20Mr. Bhatt opined that a single lot development, as proposed by the City’s staff, is not consistent with the PPS, as it would lead to the subject site being underutilized.

21Before moving to the review of the requested variances, Mr. Bhatt concluded that the proposed development conforms to Region’s OP, specifically Policies1.1.1, 4.1.1, 4.2.1, 4.2.5, 4.3.2 – calling for the intensification and the conversion of single detached dwellings into multiple residential units as well as the creation of the new residential units on underdeveloped lands. He then reviewed the applicable City’s OP Policies, such as 2.7 a), c), d), 6.1, 6.2, 6.5 – encouraging compact urban form, increasing the number and variety of housing, utilizing existing services and facilities, etc.

22Mr. Bhatt described the area as an emerging neighbourhood, with an eclectic mix of buildings and different setback distances between eastern and western portions. For his study area, he relied on the West Shore Neighbourhood Precinct (Exhibit 1, Tab 11).

23In addressing the requested MV, Mr. Bhatt opined that given the regard to the legislative framework that is calling for intensification, the proposed lot sizes are appropriate.

24Mr. Bhatt explained that because of the positioning of the proposed dwellings in relation to the street and to each other, what is considered a rear yard to one dwelling will be a side yard to another dwelling.

25In Mr. Bhatt’s opinion, given that there is approximately 5 m of the green space separation between the edge of the subject site property line and the road, the encroachment into the front yard will be visually negligible. It is also minimizing the visual impact of the requested front yard setback on Part 1, north flankage side yard for Part 2 and the visual effect of the steps. Both proposed dwellings will be visually aligned along the Hillcrest Rd., given that there is a significant grade change and about a 20 m distance separation between the proposed dwelling on Part 1 and the house of the abutting property to the West.

26Mr. Bhatt explained that the purpose of the rear yard setback is to provide sufficient privacy between the neighbouring properties. The revised plans (Exhibit 1, Tab 17, Tab 18) address the privacy issue by having only a basement window for Part 1 on the south side and by removing the second storey windows on the south elevation on Part 2. The existing building has a main floor window. In Mr. Bhatt’s opinion, given that the proposed dwelling on Part 1 will have 7.5 m side yards it will provide a sufficient outdoor amenity space for the occupants to enjoy. Thus, a 1.5 m rear yard setback is appropriate. The City’s Planning staff did not raise an issue with the south yard setback for the Part 2 having 1.6 m setback, instead of the required 1.8 m.

27Mr. Bhatt concluded, that in his professional opinion the proposed Consent application is appropriate, the requested MVs maintain the intent and purpose of the OP as well as the ZBL, are minor in nature and represent good land use planning.

28Isabel Lima is a Candidate Member of the Canadian Institute of Planning and Ontario Professional Planners Institute and appeared on behalf of the City. After a careful review of her qualifications and relevant experience, the Tribunal qualified Ms. Lima to provide expert opinion testimony in the field of land use planning.

29Ms. Lima argued that the requested MVs related to lot area, front yard setback, height, and projection of the platform (steps) and north flankage side yard for Part 2 does not meet the four tests, as outlined in her opinion evidence in Exhibit 4.

30Ms. Lima is of the opinion that the proposed severance will jeopardize the potential for a land assembly and redevelopment of the abutting properties.

31During the cross examination, Counsel for the Applicant demonstrated to Ms. Lima that there are properties within the R3 zone that have a lot area below that required for R3 zoning. Ms. Lima has agreed with that evidence.

ISSUES RASED BY THE PARTICIPANT

32In the letter to the Tribunal (Exhibit 5) FBNA brought up a few concerns. One of the issues was that FBNA is alleging that the Appellant has purchased a neighbouring property. In his testimony Mr. Bhatt indicated that he had spoken to the Appellant and the Appellant confirmed to Mr. Bhatt that he has no intention in purchasing the neighbouring property.

33FBNA has expressed a concern of the residents dealing with storm water management and potential flooding of adjacent properties and also contamination of neighbouring in ground pools. That concern will be addressed by the City’s engineering department that requires grading plans for the proposed development.

34Lastly, FBNA brought up the same concern that was mentioned by Ms. Lima in her opinion evidence (Exhibit 4, para 44), namely, the proposed development will jeopardize the potential for a land assembly and redevelopment of the abutting properties. This matter was addressed by the Tribunal at the hearing: given that those lands are not part of the applications before the Tribunal, the concern about future development of the abutting properties is speculative in nature and is not a matter that can be considered by the Tribunal in this hearing. Also, given that the surrounding properties do not have an H zoning, means that the City is not concerned with the redevelopment of the properties.

ANALYSIS AND FINDINGS

35The Tribunal noted that neither in her witness statement, her City’s Staff Report or in her oral testimony did Ms. Lima address the PPS, the GP, the. criteria set out in s. 51(24) or s. 2 of the Act.

36Ms. Lima’s study area was limited to the immediate properties to the subject site: south of Oklahoma Dr., west of Victoria Dr., along Park Crescent and lots to the south-west and to the north of Sandcastle Court. She has determined that the main impact from the proposed development will be on the bordering properties to the west, to the south and to the south-west.

37Ms. Lima did not have any concerns with the Consent application for the requested MV, as it was in conformity with the OP. Her concerns were in relation to the reduced lot area, lotting pattern, certain setbacks, and the character of the neighbourhood.

38Based on a thorough review of the evidence before the Tribunal, including the correspondence from the Region in support for the Consent (Exhibit 3), the contents of the City’s Staff report, or the decision of the COA; taking into consideration the Participant statement from the FBNA, and taking into account the professional planning opinion of Mr. Bhatt and Ms. Lima, the Tribunal prefers Mr. Bhatt’s opinion evidence.

CONCLUSION

39The Tribunal finds that the residential use maintains the intent of the OP designation encouraging efficient land use patterns with an appropriate range and mix of residential housing, infill development and intensification of the areas which utilizes existing infrastructure. To the intent of the ZBL, the variances are appropriate as the subject site is zoned R3, fully complies with the required lot coverage, is appropriate and will lead to a minor intensification. The proposed development is desirable, as it will increase the housing supply within the built boundary and will rely on the existing municipal servicing. The Tribunal agrees with Mr. Bhatt’s analysis that the requested variances are minor in nature and will not have an undue impact on the surrounding properties or the neighbourhood..

40The Tribunal finds that the Consent Application meets the applicable criteria in s. 51(24) of the Act. The Tribunal finds that the subject property is suitable for severance. The retained and severed lots comply with the City’s ZBL No. 2511 for lot area coverage.

41The Tribunal finds that the Consent to sever land application is consistent with the policies of the PPS, conforms with the policies of the GP, conforms to the OP, meets the requirement of the ZBL, represents good planning and in the public interest.

42The Tribunal finds that the variances satisfy the four tests of s. 45(1) of the Act, have regard to the matters of the provincial interests set out in s. 2, are consistent with the PPS and conform with the GP, and are representative of good planning in the public interest.

ORDER

43THE TRIBUNAL ORDERS that the appeal is allowed and the provisional consent is to be given subject to the conditions set out below;

44The Tribunal, having been asked to consider an application which has been amended from the original application, has determined that no further notice is required in accordance with s. 45(18.1.1) of the Planning Act.

45THE TRIBUNAL ORDERS that the appeal is allowed and the variances to By-laws No. 2511, as amended, are authorized.

Conditions of Approval for 700 Hillhurst Crescent, City of Pickering:

1. That the new single detached dwellings be built substantially in accordance with the site plan and elevation plans found in the revised architectural plans filed as Exhibit 1, Tab 17 and 18.

Region of Durham Conditions:

Planning:

2. That the applicant demonstrates to the satisfaction of the Regional Planning Division that both the retained and severed parcels comply with the requirements of the City of Pickering Zoning Bylaw; and

3. That the applicant satisfies the requirements of the Region of Durham’s Soil and Groundwater Assessment Protocol.

Works:

4. Payment for Inspection of the existing water connection a. at $125.00 per connection (flat rate): = $125.00 (or current rate)

5. Payment for Inspection of the existing sanitary connection a. at $125.00 per connection (flat rate): = $125.00 (or current rate)

6. The applicant will be required to enter into a Servicing Agreement with the Regional Municipality of Durham

Administrative:

7. That the applicant submit two copies of a registered plan on the subject parcel.

8. That the consent be subject to the following periods:

a) Last date for fulfilling Conditions is two years from OLT decision date

b) Expiry Date of Application is two years and one month from OLT decision date

9. The submission of a deed review and stamping fee for each consent application in accordance with the Region’s Fee By-law.

City of Pickering Conditions

10. Submit three copies of a Deposited Reference Plan which confirms the dimensions and lot areas of the proposed retained and severed parcels located on the property. Prior to depositing a reference plan, and to ensure compliance with the zoning by-law, the applicant must submit four draft reference plans (in metric) for Staff’s review identifying the dimensions and lot areas of the proposed lots, building setbacks, and corner rounding effecting the subject properties created through Land Division Application LD 2021-00070

11. Obtain a Demolition Permit from the City’s Building Services Section for the removal of any existing structures on the severed or retained parcels (including the detached dwelling), or that straddle both the retained and severed parcels, and ensure all inspections are complete.

12. Ensure that any zoning non-compliances identified through Condition 1 above, resulting from the proposed severance, be brought into compliance.

13. Convey to the City of Pickering a 5.0 metre corner rounding at the intersection of Hillview Crescent and Hillcrest Road affecting the proposed retained parcel. This information should also be illustrated on the deposited reference plan. The requested conveyance and associated fees must be coordinated through the City’s Legal Services.

14. Submit a Preliminary Grading and Drainage Plan for review and approval by the City’s Engineering Services Department. The Plan must contain sufficient information regarding existing and proposed grades such that it can be adequately determined that development of this property will not adversely affect adjacent properties. The plan must illustrate Low Impact Development Stormwater Management Measures for the proposed lots, including, but not limited to, extra depth topsoil, permeable pavers on the driveway and rain barrels/gardens. The plan should indicate existing vegetation/trees within and adjacent to the property that may be affected. The plan should indicate the proposed driveway locations and existing utilities within the boulevard. Relocation of utilities will be the applicant’s responsibility.

15. Submit a “pre-condition survey” on the dwellings immediately adjacent of the subject property, due to their proximity and the anticipated disturbance related to the installation of services and house construction.

16. Submit a Tree Inventory and Protection/Removal Plan, prepared by a qualified Arborist or an Environmental Consultant. This information should address matters such as existing tree species, diameter, health, protection/removal strategies, and a proposed replanting plan. Compensation for loss of tree canopy will be required and is over and above any required boulevard tree as per the Boulevard Tree Planting Program.

17. Planting of one boulevard tree is required for each new lot created. Where the planting of a boulevard tree is not possible, cash-in-lieu be provided as per the current Development Services Fee Schedule.

18. The City requires a stormwater management brief be submitted for review. The brief shall address the following design criteria:

a) The 5-year post-development flow from the proposed development shall not exceed the pre-development levels. The runoff in excess of the 5-year pre-development level must be retained on the site through implementation of low impact development (LID) measures, such as soakaway pits/infiltration trenches, pervious surface etc. The 5-year pre-development flow should be determined using ‘old’ IDF parameters (A=2464, B=16, C=1). All LID measures must be designed in accordance with the Low Impact Development Stormwater Management Planning and Design Guide (CVC, TRCA, 2010). Sizing calculations and design information for all proposed LIDs must be provided in the Stormwater Management Design Letter or drawings signed and sealed by a Professional. Locations and details of the proposed measures must be shown on the Site Servicing/Grading Plan.

b) All proposed LID measures must be located solely on private property and must be owned and maintained by the property owner. All necessary information regarding the function and maintenance of LID must be included in the purchase agreements. A Section 119 Restrictive Covenant be registered on title prohibiting the alteration or removal of the LID measures.

c) A minimum 450mm depth of amended soils be specified for all grassed areas such as back yards, front yards and side yards. Add appropriate notes on the Site Grading Plan.

19. Provide the City with a certified cheque addressed to the City of Pickering for $102.40 ($2,200.00/hectare) for a Stormwater Management Maintenance Fee.

20. Provide the City with a certified cheque addressed to the City of Pickering for $3,500.00. This includes an Engineering Review Fee of $1,500.00 for the two proposed lots, and a fee of $2,000.00 for the clearance of Water Resources & Development Services conditions.

21. Provide a certified cheque, payable to the City of Pickering for cash-in lieu of parkland for each newly created lot. The parkland fee shall be in accordance with the City’s General Municipal Fees By-law in existence at the date of such payment (the amount is $6,610.00 for the creation of up to three new buildable lots).

22. Coordinate with the City of Pickering, City Development Department to assign an appropriate municipal address for the retained and severed parcels.

“P. Tomilin”

P. tomilin

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.