Burns v. Brant (County), 2022 CanLII 1613

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

January 13, 2022

OLT-21-001225

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

Applicant and Appellant:

Marty Burns

Subject:

Minor Variance

Variance from By-law:

61-16

Property Address/Description:

557 Lynden Road

Municipality:

County of Brant

Municipal File No.:

A14-21-AW

OLT Case No.:

OLT-21-001225

OLT File No.:

OLT-21-001225

OLT Case Name:

Burns v. Brant (County)

Heard:

January 10, 2022 by video hearing

Parties

Counsel

Marty and Tamara Burns

Derek Sinko

(“Appellants”)

1This is an appeal of a decision by the County of Brant (“County”) to refuse an application by for minor variances in relation to the property at 557 Lynden Road (“subject property”). The Appellants constructed a detached garage at the rear of the subject property that currently does not conform with Zoning By-law No. 61-16 (“ZBL”) and the variances were sought to rectify the zoning deficiencies.

2Although planning staff recommended approval of the variances at issue subject to a list of conditions, the Committee of Adjustment (“Committee”) refused the proposed application “for the reason that it is not minor in nature and is recommended to be refused by Field Services”.

3The subject property is rectangular in shape and approximately 2,359 square metres in size. It contains a single detached dwelling and is predominantly surrounded by agricultural uses, as well as four single detached dwelling lots to the immediate east and west.

4For context, the Tribunal notes there is some history to this matter. In the spring of 2020, the Appellants were granted a building permit and began construction on an accessory structure (detached garage) at the rear of the subject property. During the course of the construction, a site inspection revealed that certain errors had been made and in order to bring the structure into conformity with the ZBL, the Appellants required minor variances. Specifically, a rear yard setback of 1.2 metres (“m”), whereas the ZBL requires 3 m, as well as an increase in the permitted height of the structure from 5.0 to 5.2 m. The variances were granted in September 2020, subject to conditions, one of which was for the Appellants to obtain a survey.

5Through the preparation of that required survey, it was discovered that a portion of the detached garage had, in fact, been constructed with a rear yard setback of 0.75 m rather than the previously granted 1.2 m. The survey additionally revealed that the interior side yard setback was 1.8 m, whereas the by-law requires 3 m. As such, the Appellants filed a further application for minor variances, which are the subject of this hearing.

PARTIES/PARTICIPANTS

6The County did not participate in the hearing and was not a party.

7The Tribunal received one participant request from Pat, Tom and Tricia Herriman (Exhibit 1), who own the adjacent property located at 563 Lynden Road. The Tribunal granted the request without objection from the Appellants.

8The statement filed by the Herrimans outlined concerns with respect to drainage and the trimming of/damage to trees which line the boundary between their property and the subject property. They also raised a concern with respect to “after the fact” approval of the variances which, in their view, has the potential to set an improper precedent.

LEGISLATIVE FRAMEWORK

9An appeal pursuant to s. 45 of the Planning Act¹ (“Act”) is a hearing de novo and the Appellants bear the onus of demonstrating that the four tests in s. 45(1) have been met. It is important to note that, although the detached garage has already been constructed, the Tribunal must determine the matter before it based solely upon its planning merits and evaluates the requested variances as if the structure does not exist on the subject property.

10The four tests in s. 45(1) require the Tribunal to be satisfied that each variance sought:

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

d) is minor.

11Additionally, the variances must be consistent with the Provincial Policy Statement (“PPS”) and conform to any applicable Provincial plan. In this instance, the applicable plan is A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019 (“GP”). The Tribunal must also have regard to matters of Provincial interest and to the decision made by the Committee, as well as the information and material considered by it in the course of making its decision.

EVIDENCE

12The Appellants called the following three witnesses: Robert (Bob) Phillips, an engineer who gave non-expert contextual evidence in relation to the structure at issue and its location on the subject property; Ruchika Angrish, who was qualified by the Tribunal to provide expert evidence in the field of land use planning; and Amanda Wyszynski, Planner for the County, who appeared under summons and was also qualified by the Tribunal to provide expert land use planning evidence.

13Mr. Phillips testified that the subject property is an irregularly shaped lot with an acute angle in the rear corner where the detached garage was constructed. He explained, with reference to a sketch of the lot and the structures thereon (Exhibit 2, Tab 11), that the setback of the northwest corner of the structure has a rear yard setback of 0.75 m, whereas the opposite corner has a setback of 2.28 m owing to the angle on the lot. Additionally, he noted that with the angled orientation of the rear property line, efforts to “square up” the building resulted in an interior side yard setback of 1.83 m.

14Ms. Angrish recommended the Tribunal approve the requested variances subject to conditions (discussed in further detail below) and noted that her opinion was based upon a review of the variances solely on their planning merits, as though the detached garage did not already exist.

15As the matter is primarily local in nature, the majority of Ms. Angrish’s testimony focused upon how the requested variances meet the requisite tests in s. 45(1). However, she noted that in her considered professional opinion, the variances have due regard to matters of Provincial interest, are consistent with the PPS and conform to the GP.

16With respect to the PPS, Ms. Angrish noted that the subject property is located within a Prime Agricultural area of the County, yet due to its small size, it is used as a residential lot. She opined that, as no new residential lots are being created and the requested variances do not remove any Prime Agricultural lands or resources from the County, they are consistent with the policy direction of the PPS.

17For similar reasons, she opined that the variances conform to the GP, which sets out policy directions for rural areas and land uses. She reiterated that, while situated within a rural landscape, due to its size the subject property is used as a residential lot containing a single detached dwelling. In her view, the accessory structure is appropriate to support the existing residential use and will fit with the character of similarly-sized residential lots to the immediate east and west of the property.

18With respect to the four-part test in s. 45(1) she opined with the imposition of recommended conditions which address drainage and grading (Exhibit 2, Tab 13), the relief requested is in keeping with the general intent and purpose of both the OP and the ZBL, is desirable and appropriate for the development of the subject property and is minor in nature.

19She explained that the subject property is designated in the OP as Agricultural and the intent of this designation is to ensure protection for agricultural lands and resources. A single residential dwelling unit is a permitted use as set out in s. 3.3.1. The variances will not remove any agricultural lands or resources but will permit an accessory structure to support the existing residential use of the property which, in Ms. Angrish’s view, is appropriate and maintains the general intent and purpose of the OP.

20Additionally, she opined the variances maintain the general intent and purpose of the ZBL, as the intent of setbacks are to avoid adverse impacts upon neighbouring properties. Although the requested variances seek reductions to the required setbacks, Ms. Angrish opined there will nevertheless be sufficient space to maintain and address drainage or other issues associated with the accessory structure, especially in light of the recommended conditions. It was further explained that the conditions will result in an absence of unmitigable impacts upon neighbouring properties including drainage and grading impacts to the adjacent property owned by the Herrimans, while allowing an accessory structure to support the existing use of the subject property which, in Ms. Angrish’s view, is desirable and appropriate for the development of the subject property.

21Finally, she opined that the variances are minor in nature, noting that when one looks to the development standards for other residential zones in the County as set out in the ZBL, the proposed detached garage would meet the interior side yard requirement and the rear yard setback, although slightly deficient, would nevertheless allow for sufficient space to address potential impacts such as drainage, grading, etc.

22With respect to the concerns raised in the participant statement vis-a-vis trees, Ms. Angrish indicated that although the trees are located on the adjacent (Herriman) property, tree branches were overhanging onto the subject property, which were trimmed in order to accommodate the construction of the detached garage.

23Counsel for the Appellants submitted that his clients were entitled to trim the branches on their property, allegations of damage to the trees were not supported by any evidence such as an arborist report and, in any event, the Tribunal is without jurisdiction to address damage to trees, as noted in Ship v. Greater Sudbury (City), [2017] O.M.B.D. No. 18 (Tribunal File No. PL151124).

24In her capacity as a Planner for the County, Ms. Wyszynski authored the July 15, 2021 report recommending approval of the requested variances. She concurred with the totality of the evidence and opinions offered by Ms. Angrish and recommended the Tribunal approve the variances subject to the conditions in Exhibit 1, Tab 13.

25Like Ms. Angrish, Ms. Wyszynski took guidance from the development standards for other residential zones within the County (specifically rural residential and residential hamlet) in arriving at her opinion. She drew the Tribunal’s attention to the following paragraph in her report:

In regards to the proposed interior side yard setback, the applicant is seeking an interior side yard setback of 1.8 metres (5.9 feet), whereas a minimum of 3 metres (9.8 feet) is required for lands zoned as Agriculture. However, if the subject lands were zoned as Rural Residential or Residential Hamlet as the lands are not being farmed and are being used for residential uses, an interior side yard setback of 1.5 metres (4.9 feet) would be required, which would be satisfied with the proposed 1.8 metres (5.9 feet). In regards to the proposed rear yard setback of 0.75 metres (2.46 feet), whereas a minimum of 3 metres (9.8 feet) is required. Section 4.34.4 of the Zoning By-Law requires a minimum setback of 0.6 metres (1.97 feet) for structures from all setback. Based on the proposed setback drainage can be accommodated and can be addressed through conditions.

26She noted that the 0.6 m setback set out in s. 4.34.4 is the minimum required to appropriately address issues of drainage and grading and the 0.75 m setback proposed is therefore sufficient.

27Finally, Ms. Wyszynski testified that the list of recommended conditions was drafted in direct response to concerns raised in agency comments received from the Departments of Development Engineering and Field Services. They include, but are not limited to: a requirement that downspouts be directed away from the rear of the property and a requirement to submit an updated grading plan which includes ‘as constructed’ topographic information, as well as written permission from the adjacent landowner in the event that drainage cannot be accommodated on the subject property. She opined that the list of conditions is appropriate and, if adhered to, will result in the absence of negative impacts upon neighbouring properties.

FINDINGS

28The Tribunal considered the concerns raised by the adjacent property owners as detailed in their participant statement. Nevertheless, upon the totality of the evidence before it, including the unchallenged opinions of both land use planning witnesses and the oral submissions of the Appellants, the Tribunal was persuaded that the variances, subject to conditions, meet the four tests in s. 45(1), are consistent with and conform to all applicable Provincial policies/plans and are representative of good planning in the public interest. This is primarily because the specific concerns of the commenting agencies as well as the concerns raised by the participants in relation to grading and drainage are appropriately addressed through the list of recommended conditions.

29Finally, in relation to the remaining concerns raised by the participants, the Tribunal notes that it is without jurisdiction to address allegations of damage to trees lining the boundary of the subject and adjacent properties. With respect to the possibility of setting a negative precedent through retroactive approval, it is to be noted that although the Tribunal does not condone a “beg forgiveness rather than ask permission” approach to development, on the particular facts of this case (which include errors of construction that led to zoning deficiencies revealed only in the course of an inspection and subsequent survey), the Tribunal finds it appropriate to approve the requested variances which, subject to the specified conditions, meet all requisite legislative tests.

ORDER

30The Tribunal orders that the appeal is allowed in part and the variances to By-law No. 61-16 are authorized, subject to the conditions set out in Attachment 1 to this Order.

“S. Braun”

s. braun

MEMBER

Ontario Land Tribunal

Website: www.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.

OLT-21-001225 – Attachment 1

Conditions of Approval

Proof that taxes have been paid up-to-date on the subject property to the County of Brant.
That the applicant understands and agrees that the approval applies only to the proposed variances as noted in Staff Report CA-21-49. Should the proposed structure change a new minor variance application may be required.
That the applicant acknowledges a business cannot be operated out of the structure without being subject to additional reviews.
That the following comments of Development Engineering are satisfied to the satisfaction of the County of Brant:

The applicant will be required to redirect the downspouts on the rear garage away from the rear of the property. The downspouts will require splashpads to reduce the erosion caused by the angle of the direct stormwater flow.
Building Permit PRACC20200196 was issued with an approved grading plan, prepared by West & Ruuska Ltd, dated March 16, 2020. The drainage swales on the plan have not been constructed as submitted to the County. An updated “As-Constructed” grading plan will be required.
A site visit on June 22, 2021, by County staff discovered that a gravel driveway has been constructed for the rear garage. Access to the rear garage has not been clearly indicated on the “Prop. Garage Addition” drawing prepared by J.H Cohoon Engineering. Should access to the rear garage be required adjacent to the proposed garage attached to the residential house, then the side yard setback will need to be a minimum 3.6 metres, this will provide for a legal access width and drainage swale along the side yard.
Verification of the location of the property lines is required to address the required zoning setbacks from property lines.
Through the Building Permit, the following will be required to be submitted: Sedimentation & Erosion Control Plan and a Lot Grading Plan.

That the following comments of the Field Services Department are satisfied to the satisfaction of the County of Brant:

i. Field Services staff will require an updated grading plan to ensure that County of Brant Development and Engineering standards are adhered to. This plan should include ‘As-Constructed’ topographic information.

ii. If drainage cannot be accommodated on the Subject Lands, then permission from the adjacent land owner to the north of the Subject Lands must be obtained in writing

Footnotes

R.S.O. 1990, c. P. 13, as amended.