Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 28, 2022
CASE NO(S).: OLT-22-004209
PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Graeme Innes
Applicants: Ralph and Susanne Devries
Subject: Consent
Description: Creation of a new lot to build a single detached dwelling and maintain existing single detached dwelling on retained lot
Reference Number: B22-003
Property Address: 271 Sydney Street
Municipality/UT: Town of Milton/ Halton Region
OLT Case No.: OLT-22-004209
OLT Lead Case No.: OLT-22-004209
OLT Case Name: Innes v. Milton (Town)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Graeme Innes
Applicants: Ralph and Susanne Devries
Subject: Minor Variance
Description: For the construction of a single detached dwelling
Reference Number: A22-045
Property Address: 271 Sydney Street
Municipality/UT: Town of Milton/ Halton Region
OLT Case No.: OLT-22-004210
OLT Lead Case No.: OLT-22-004209
OLT Case Name: Innes v. Milton (Town)
Heard: November 30, 2022 by Video Hearing
APPEARANCES:
Parties Counsel*/Representative
Ralph and Susanne Devries (“Applicants”) Bert Arnold*
Graeme Innes (“Appellant”) Failed to appear
MEMORANDUM OF ORAL DECISION DELIVERED BY ERIC S. CROWE ON NOVEMBER 30, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal was an appeal by Graeme Innes (the “Appellant”) concerning the decision of the Town of Milton (“Town”) Committee of Adjustment (the “CoA”) to approve the minor variance and consent applications for the property at 271 Sydney Street (the “Subject Property” or “Subject Lands”).
2The minor variance and consent applications (“Application”) would facilitate the subdivision of the property into two residential parcels for the future construction of one detached dwelling with the existing dwelling to be retained and remain on the parcel.
3The Town Planning Staff provided two Staff Reports, dated June 16, 2022. Staff provided a review of the Application and identified their support for the requested consent and minor variances. The Staff Reports also identified a series of approval conditions. Schedule A provides the recommended approval conditions for the variances. Schedule B provides the recommended approval conditions for the consent (see Attachment 1).
4The Application was heard by the CoA on June 23, 2022, who approved the Application with conditions.
5For the reasons that follow, the Tribunal dismisses the Appeal.
Minor Variances
6The Application sought relief from s. 6.2, 016-2014 zoning provisions as summarized below:
The minimum rear yard setback for a detached dwelling is 7.5 metres (“m”). A rear yard setback of 6.51 m is requested.
A deck up to 1.2 m above grade is permitted to be 0.6 m in the interior side yard. A deck above grade, located 0.5 m, in the interior side yard is requested.
A deck greater than 1.2 m above grade is not permitted in the interior side yard. A deck, located 2.17 m from the interior side lot line, is requested.
An accessible ramp is not permitted to encroach into a required interior side yard. An existing accessible ramp located in an interior side yard is requested.
SUBJECT PROPERTY AND SURROUNDING AREA
7The Subject Lands are a 1,154 square metre (“sq m”) (0.12 hectare (“ha”)) rectangular shaped residential parcel municipally known as 271 Sydney Street, in the Town. The Subject Lands are located on the north side of Sydney Street, east of Lydia Avenue and west of Commercial Street. The Subject Lands are currently improved with an existing one-storey, detached dwelling.
8The Subject Lands are located within an established Neighbourhood of the Town. The residential area surrounding the Subject Lands is a well-established Neighbourhood, characterized by an eclectic mix of low-rise residential built forms with JM Denyes Public School and Milton Fairgrounds interspersed. Detached dwellings of varying size, heights and architectural styles dominate. The Neighbourhood is also characterized by mature tree-lined streetscapes. The Neighbourhood generally consists of various one and two-storey detached dwellings.
LEGISLATIVE FRAMEWORK
Section 45 - Minor Variance
9An appeal pursuant to s. 45 of the Planning Act (the “Act”) is a hearing de novo. The Appellant bears the onus of demonstrating that the four tests as set out in s. 45(1) have been met, namely, that the requested variance:
a. maintains the general intent and purpose of the Official Plan (“OP”);
b. maintains the general intent and purpose of the Zoning By-law (“ZBL”);
c. is minor in nature; and,
d. is desirable for the appropriate development or use of the land, building or structure.
10Concerning a consent application, the Act gives authority to grant consent to sever land under s. 53(1) of the Act, when a Plan of Subdivision is not required for the orderly development of the lands. The Act also requires, when making a decision on planning matters, that approval authorities have regard for matters of provincial interest in s. 2 and matters under s. 51(24) of the Act.
HEARING
11Prior to the hearing, the Tribunal was advised that the Town did not intend to take a position on the appeal and would not be appearing. No individuals or entities requested Party or Participant status.
12At the commencement of the Hearing, at 10 a.m., the Tribunal became aware that the Appellant failed to appear. As per Rule 3.3 of the Ontario Land Tribunal (“Tribunal’) Rules of Practice and Procedure, the Tribunal waited the required fifteen (15) minutes to begin the video hearing. The Tribunal notes the Tribunal Case Coordinator tried to contact the Appellant during this time without success.
PLANNING EVIDENCE
13The Tribunal heard from Stephanie Matveeva who was affirmed and qualified to provide expert testimony in land use planning, on behalf of the Appellant. Being the only land use planner providing evidence at this hearing, the Tribunal accepts her uncontroverted evidence.
CONSENT
14With respect to the consent, Ms. Matveeva opined s. 51(24) of the Act: a) Regard to matters of provincial interest pursuant to s. 2 of the Act - criteria have all been met.
15In Ms. Matveeva’s opinion, with which the Tribunal agrees, the proposed consent to establish two lots for the purpose of possibly constructing one new detached dwelling is consistent with s. 51(24) of the Act.
MINOR VARIANCE REVIEW – FOUR TESTS
Provincial Policy Statement (“PPS 2020”)
16Ms. Matveeva opined the variances have regard to matters of Provincial interest in s. 2 of the Act, including the orderly development of safe and healthy communities; protection of public health and safety; and the appropriate location for growth and development.
17In Ms. Matveeva’s opinion, with which the Tribunal agrees, the applications are consistent with the PPS, which is to encourage intensification through, among other means, infilling on underutilized parcels.
A Place to Grow: Growth Plan for the Greater Golden Horseshoe (“Growth Plan”)
18Ms. Matveeva highlighted in her submission. sections 1.2.1 , 2.2.1 and 2.2.2.3 of the Growth Plan concerning guiding principles for intensification, managing growth and intensification in built up areas.
19In Ms. Matveeva’s opinion, with which the Tribunal agrees, the application conforms to the Growth Plan.
Halton Regional Official Plan (“ROP”)
20Ms. Matveeva informed the Tribunal that the Subject Lands are designated 'Urban Area' by Map I, Regional Structure of the ROP. There are no applicable Site-Specific Policies relevant to the Subject Lands.
21Ms. Matveeva advised the Urban Area is a high-level designation intended to accommodate the majority of growth in a manner that supports the ROP's Urban Area goals and contextually appropriate development and intensification is permitted, and is encouraged to occur on Urban Area lands.
22In Ms. Matveeva’s opinion, with which the Tribunal agrees, the proposed detached dwellings located on urban serviced lots in an established residential neighbourhood maintains the general purpose and intent of the ROP.
Town of Milton Official Plan (“OP”)
23Ms. Matveeva, in her submissions, advised there are no applicable Secondary Plans or Site-Specific Policies relevant to the Subject Lands. The Residential Area designation permits a range of residential uses including single-detached dwellings, semi-detached dwellings and associated accessory structures. The OP states that growth is to be directed to the Urban Area.
24In Ms. Matveeva’s opinion, with which the Tribunal agrees, the application maintains the general purpose and intent of the OP.
Town of Milton Zoning By-Law (“ZBL”)
25Ms. Matveeva advised the Subject Lands are subject to ZBL No. 016 - 2014 and are zoned 'Residential Low Density I’ (RLD I). The in-effect zoning reflects the Neighbourhood's low-rise, low-density, eclectic residential character. Detached dwellings are a permitted use.
26In Ms. Matveeva’s opinion, which the Tribunal agrees, the lot to be severed is in keeping with the general purpose and intent of the ZBL.
Desirable for the appropriate development or use of the land and buildings
27Ms. Matveeva informed the Tribunal, the requested variances will allow for modest and appropriate residential infill development to occur. Contextually appropriate, sensitive development, such as that being proposed, is appropriate and desirable for the Town, the Neighbourhood and this property.
28In Ms. Matveeva’s opinion, in which the Tribunal agrees, the variances are desirable for the appropriate development of the property, having regard to both good planning and the public interest.
Minor
29Ms. Matveeva advised collectively, the variances requested will facilitate the retention of an existing dwelling and the creation of a new residential lot. Both the existing lot on lands to be retained and the new residential lot on lands to be severed will facilitate a development that is compatible with and complimentary to the eclectic, established character of the surrounding Neighbourhood.
30Ms. Matveeva submitted there are no requested variances that represent a notable departure from current permissions.
31Ms. Matveeva advised the existing dwelling on the altered lot, as contemplated, will not result in any adverse impacts to neighbouring properties nor will it lead to adverse privacy or overlook concerns. Overall, the requested variances represent a minor departure from what is currently permitted and are technical in nature to recognize existing conditions.
32In Ms. Matveeva’s opinion, in which the Tribunal agrees, the variances sought will have no undue adverse impact and are of negligible consequence in terms of their importance or impact.
FINDINGS
33In the absence of any planning evidence to the contrary, the Tribunal finds and accepts the uncontradicted land use planning evidence of Ms. Matveeva that the proposed variances are minor in nature, desirable for the appropriate development of the land and maintain the general purpose and intent of the OP and ZBL. The Tribunal is further satisfied that the variances have appropriate regard for matters of Provincial interest; are consistent with the PPS; and overall, represent good planning in the public interest.
34In addition, the Tribunal finds that the proposed consent conforms with the applicable municipal Plans and, correspondingly, satisfies all of the criteria of s. 51(24) of the Act, and otherwise, represents good planning and is in the public interest. Furthermore, the Tribunal is satisfied that a plan of subdivision is not necessary for the orderly development of the Town pursuant to s. 53(1) of the Act.
REQUEST FOR COSTS
35At the conclusion of the hearing, Counsel for the Applicants indicated he would be seeking cost on behalf of the Applicants against the Appellant.
36If the Applicants seek costs against the Appellant, pursuant to Rule 23 of the Tribunals Rules of Practice and Procedure, the Applicants are required to provide a written request for costs served on the Tribunal and the Appellant within 30 days of the Decision.
37The Appellant will have the right to respond within 15 days thereafter with the response served on the Tribunal and the Applicants.
38The Applicants will have a right of reply within 10 days thereafter served on the Tribunal and the Appellant.
ORDER
39THE TRIBUNAL ORDERS the appeal is dismissed and the variances to By- law No. 016- 2014 and consent are allowed subject to the conditions set out in Attachment 1 to this Order.
“Eric S. Crowe”
eric s. crowe
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.
ATTACHMENT 1
Conditions
SCHEDULE A /VARIANCE CONDITIONS
The proposed development be located and constructed in accordance with the site plan and building elevations, prepared by Cunningham McConnell Ltd. date stamped by Town Zoning on May 11, 2022.
The Owner must acknowledge and agree Development Engineering will require that a minimum setback of 0.45 m from the property line to the edge of the asphalt driveway. Existing asphalt falling short of the setback to be removed.
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.
SCHEDULE B /CONSENT CONDITIONS
The Applicant shall provide the Town (Committee Secretary-Treasurer) with two (2) full-sized copies of the deposited reference plan, together with one reduced paper copy (no larger than 11" x 17") and one reduced electronic PDF version, prior to final Consent being granted;
The Applicant shall provide the Town (Committee Secretary-Treasurer) with a registerable legal description of the 'lands to be severed' (including any references to PIN numbers and in such format as required for the Consent Certificate), prior to issuance of Final Consent Certificate;
A Solicitor's Certification of legal description will be required, prior to final Consent being granted;
After such time as all other conditions of provision consent have been satisfied and prior to final Consent being granted, the Applicant shall provide the Town (Committee Secretary-Treasurer) with an advisory of payment of any outstanding property taxes, to be confirmed by Town Tax Department Staff;
A Minor Variance is required to be approved and in force and effect to address non-compliances on the retained lands associated with Zoning By- law O16 - 2014, as amended, prior to Consent being granted;
The Owner shall remove the existing detached accessory structure to the satisfaction of the Town, prior to final Consent being granted.