Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 28, 2022
CASE NO(S).: OLT-21-001099
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Tracy Cooper
Applicant: Richard Jones
Subject: Minor Variance
Property Address/Description: 14 Queen St.
Municipality: Municipality of Brighton
Municipal File No.: A03-2021
OLT Case No.: OLT-21-001099
OLT File No.: OLT-21-001099
OLT Case Name: Cooper v. Brighton (Municipality)
Heard: January 14, 2022 by video hearing
APPEARANCES:
Parties
Counsel*/Representative
Tracy Cooper
Self represented
Municipality of Brighton
John Ewart*
DECISION DELIVERED BY JATINDER BHULLAR AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This video hearing was conducted to hear an appeal by Tracy Cooper (the “Appellant”) regarding the proposed construction of an accessory building by Richard Jones (the “Applicant”). The Committee of Adjustment for the Municipality of Brighton (the “Municipality”) approved the minor variances sought by the Applicant.
2The Applicant has property which is Municipally known as 14 Queen Street East in the Municipality. The Applicant has a residential dwelling and plans to build an accessory building. Whereas such a structure is allowed in the planning instruments, the proposed size of the accessory building at 1500 square feet requires variances to certain setbacks. Namely “authorization for the minimum required setbacks from the EP Zone and the top-of-bank from 7.5 metres as required to allow 4.3 metres”.
3There were no additional requests for party or participant status to the Tribunal and none were granted.
PRELIMINARY MATTERS
4During a review of the documents filed with the Tribunal prior to the start of the hearing, an error in an email address for the Appellant was flagged. This error originated from a communication from the case-coordinator at the Tribunal. As a result, the Appellant stated that they never received the book of documents filed by the Municipality about ten days before the hearing. The Appellant filed no documents of their own.
5The Appellant claimed that had they gotten the documents they may have engaged legal support and consulted with experts. The Municipality proposed that they will not depend on the filed documents but have their expert provide oral testimony at the hearing.
6After further discussion on the role of the parties to prepare and make their cases at the hearing and noting that the Appellant was self representing and did not have legal credentials, the Tribunal determined that the document book will not be marked as evidentiary exhibit in terms of the expert witness statement contained therein.
7The document book was marked as Exhibit 1 except for the exclusion of the witness statement contained therein. The Exhibit so marked contained only publicly available, statutory and policy documents.
8The hearing thus continued and was completed with the consent of both parties under this arrangement
WITNESSES
9The Appellant was self-represented and did not call any additional witnesses.
10The Municipality called Josh Barry. Mr. Barry with the consent of the Appellant and due review by the Tribunal was qualified to provide expert opinion evidence in the area of land use planning.
EVIDENCE AND ANALYSIS
11In order to determine this matter, the Tribunal must make findings regarding the following statutory tests;
a. Do the minor variances maintain the general intent and purpose of the Official Plans?
b. Do the minor variances maintain the general intent and purpose of the Zoning By-law?
c. Are the variances minor?
d. Are the variances desirable and appropriate for the development of the subject property or lands?
12Ms. Cooper stated that she was not fully conversant with the planning basis and policies that inform these tests. Her evidence was that the variances were not minor. She provided how the previous actions by the Applicant have caused water drainage issues. She further stated that the proposal would impact aesthetics and lookout of natural areas. She further added that the proposed garage at 1500 square feet was bigger than many of the homes in the neighbourhood.
13Under cross examination Ms. Cooper admitted that in terms of the size, the Applicant is not seeking a variance from what is allowed under the zoning by-law. She also admitted that the Lower Trent Conservation Authority (“LTCA”) has confirmed that they have no concerns with the proposal or minor variances sought by the Applicant. Ms. Cooper also responded that she has received the proposed grading plan and is satisfied that if the proposal s implemented accordingly, her concerns regarding drainage will be addressed.
14As a backdrop, Mr. Barry reviewed the staff report which affirmed that the proposal meets the required statutory tests.
15Mr. Barry testified and reviewed the Act, the Provincial Policy Statement 2020 (“PPS”) and the Growth Plan for the Greater Golden Horseshoe 2019, as amended (“the Growth Plan”). Mr. Barry opined that the proposal is consistent with the PPS when applicable policies are reviewed. He cited specifically policies 1.1.1.a, 1.6.6.2 in terms of the proposal being in a settlement area for growth and providing for healthy liveable communities. Mr. Barry stated that the LTCA has duly considered the proposal for any environmental concerns and an associated Environmental Impact Study submitted by the Applicant has found no issues. He added that the proposal is located within shoreline flood hazard but that it in itself is not a prohibition for such developments. He opined that the PPS advises only due consideration for such issues but does not prohibit. He opined that the proposal is consistent with the PPS.
16Mr. Barry reviewed the Growth Plan policies applicable for the proposal. He cited and reviewed policies 2.2.1 and 4.2.2.1. He opined that the proposal is in a settlement area and that it was not subject to the natural heritage policies of the Growth Plan. He opined that the proposal conforms with the Growth Plan.
17Mr. Barry reviewed the Northumberland County Official Plan (“COP”) and the Municipality of Brighton Official Plan (“BOP”). He stated that the proposal conforms with policies C.1, C.1.2.1a, C.1.4 which envisage developments based on regeneration and full range of accessory uses. Mr. Barry added that the EIS was in conformance with policy D.1.9.2.b of the COP. He opined that thus in consideration of the applicable policies, the proposal conforms with the COP.
18Mr. Barry in his review of the policies in the BOP cited policies 3.9.1 (i), 3.9.4, 3.9.5 and 4.1.4. He explained that these policies guide considerations of environmental and flooding hazards. He stated that the EIS and consideration of the shoreline flood hazard as reviewed under the PPS analysis continue to be applicable and the proposal duly conforms with these policies of the BOP.
19Mr. Barry in further review of the BOP, assessed policies regarding accessory usages per policy 4.11.7 and opined that the proposal is an allowed use and conforms.
20Overall Mr. Barry concluded and opined that the proposal maintains the general intent and purpose of both the COP and the BOP.
21Mr. Barry reviewed the variances with respect to the Zoning By-law (“ZBL”) and opined that with split-zoning in place, the accessory building is appropriately sited. He further added that a development agreement is to be executed with the Municipality prior to the issuance of a building permit. Mr. Barry opined that with minimal changes requested and appropriate mitigation measures to be implemented where needed, the proposal maintains the general intent and purpose of the
22Mr. Barry reviewed the scope of variances as to their impact and quanta. He opined that the proposal has confirmed through the EIS that there are no negative ecological or natural features impacted by the proposed accessory building with the authorized setbacks. He added that while Ms. Cooper submitted concerns regarding massing, the variances require no changes or amendments to the ZBL. Mr. Barry concluded that the variances are minor in the context of their impact on the surrounding neighbourhood and communities.
23Mr. Barry reviewed and opined that the proposal creates no natural light hindrances to surrounding properties. He stated that the siting of the proposed accessory building needed the variances as the lot is irregular and required special consideration for best place to locate the structure as permitted with respect to massing and height. Mr. Barry further added that the proposal maintains street realm found on Queen Street East as the proposed accessory building does not create any visible impacts and the existing residential with street frontage is to be kept as is. He concluded that the minor variances allow for the creation of an accessory building which is both desirable and appropriate for the subject property.
24Having regard for the materials that were before the approval authority when they made their decision to authorize the minor variance; the evidence heard at this hearing from Ms. Cooper and Mr. Barry, the Tribunal prefers the expert opinion evidence of Mr. Barry. Ms. Cooper as a lay person provided little evidence that could establish her case with respect to the planning framework that applies to the subject property and the proposed development. When considering the evidence presented and submission made by Ms. Cooper, the Tribunal finds that it does not meet the required standards of policy based evidence as required for answers to the statutory tests. Mr. Barry on the contrary provided detailed planning evidence when he considered the provincial, county and municipal policies and plans that apply to this proposal. Furthermore, Mr. Barry’s evidence was uncontroverted in spite of the submissions made by Ms. Cooper.
25The Tribunal thus finds that the proposed minor variances are consistent with the PPS and the Growth Plan. Further, the minor variances maintain the general intent and purpose of the COP, the BOP and the ZBL. The Tribunal further finds that the variances are minor and both desirable and appropriate for the development and use of the subject lands.
26The appeal by Ms. Cooper against the Committee of Adjustment decision to approve the minor variances as sought by the Applicant is dismissed.
27The directions in this decision are so ordered.
“Jatinder Bhullar”
JATINDER BHULLAR
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.