McNally v. Tiny (Township), 2022 CanLII 21232

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 17, 2022

CASE NO(S).: OLT-21-001695

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

Appellant: William McNally

Applicant: Marilyn Trentos

Subject: Minor Variance

Variance from By-law No.: Zoning By-law 06-001

Property Address/Description: 19 Nottawasaga Court

Municipality: Township of Tiny

Municipal File No.: A51/21

OLT Case No.: OLT-21-001695

OLT Lead Case No.: OLT-21-001695

OLT Case Name: McNally v. Tiny (Township)

Heard: March 9, 2022 by video hearing

APPEARANCES:

Parties	Counsel
William McNally (“Appellant”)	Self-represented
Marilyn Trentos (“Applicant”)	Joseph Murray

DECISION DELIVERED BY A. CORNACCHIA AND ORDER OF THE TRIBUNAL

BACKGROUND

1This is an appeal of the decision by the Township’s Committee of Adjustment (“Committee”) granting a minor variance application for a reduced flood hazard setback on the property municipally known as 19 Nottawasaga Court, Township of Tiny (“Subject Property”). The Appellant is an immediate neighbour of the Applicant.

2The Subject Property is a shoreline property on Georgian Bay in the County of Simcoe (“County”) and is designated by the Official Plan (“OP”) of the County as “Rural” and the Township OP as “Shoreline”. It is zoned “Shoreline Residential (SR) (Appendix 1)” in the Township Comprehensive Zoning By-law No. 06-0001, as amended (“ZB”)

3The ZB requires a flood hazard setback of 33 metres for the Subject Property. The Applicant submitted a minor variance application for a reduced shoreline setback of 24 metres, (later adjusted to 23 metres at the Committee hearing) to permit the construction of a replacement detached dwelling on the Subject Property (“Minor Variance”).

4After reviewing the Minor Variance application, the Planning & Development Department of the Township prepared a report dated July 29, 2021 for the Committee recommending approval of the Minor Variance (“Township Planning Report”). The requested flood hazard setback variance was adjusted to 24 metres at the Committee hearing. Based on the Township Planning Report, the Committee approved the Minor Variance for a 24-metre flood hazard setback on September 22, 2021.

5On August 20, 2021, the Appellant filed an appeal of the Committee decision with the Ontario Land Tribunal. Prior to the hearing, the Appellant and the Applicant agreed in a written settlement agreement that the flood hazard setback for the Subject Property would be increased to 27 metres. The Town did not appear at the hearing and did not take a position with respect to the settlement. The parties jointly requested that the Tribunal approve a minor variance for a flood hazard setback of 27 metres for the Subject Property (“New Flood Hazard Setback”).

adjusted minor variance application

6To permit the Tribunal to hear the case, the Applicant requested authorization under s. 45 (18.1.1) of the Planning Act (“Act”) to amend her minor variance application to include the New Flood Hazard Setback, without the written notice required by s. 45 (18.1) of the Act. Counsel submitted that the New Flood Hazard Setback will result in a greater setback of the proposed structure than the one approved by the Committee and thus, the proposed amendment to the Minor Variance application is minor. The Tribunal agrees with the submissions of counsel and rules that the Minor Variance Application is amended with the New Flood Hazard Setback (“Amended Minor Variance”) and that further notice is not required.

Hearing and Witnesses

7With the Appellant’s approval, the Applicant’s counsel presented the case for the Amended Minor Variance application to the Tribunal for both parties.

8Shawn Persaud, the Director of Planning & Development of the Township, appeared as a friend of the Tribunal to provide planning evidence. He was properly qualified as an expert witness and the Tribunal found his evidence to be credible and uncontradicted.

APPEAL AND APPLICABLE TESTS

9This appeal is a hearing de novo of the Amended Minor Variance application. The Tribunal is required to hear the evidence for the Amended Minor Variance and decide whether to allow the Amended Minor Variance based on this evidence and the submissions by applying the applicable legal tests. The Tribunal must have regard to the decision of the Committee but is not bound by it.

10Mr. Persaud advised the Tribunal that the Amended Minor Variance did not change the conclusions and recommendations made in the Township Planning Report. His evidence confirmed that the proposal conforms with the Provincial Policy Statement (“PPS”) and the Growth Plan for the Greater Golden Horseshoe 2020 (“GPGGH”). The Subject Property is located on the Georgian Bay shoreline, where there is flooding risk, erosion risk and other risks. The PPS permits residential development in these areas provided that appropriate risk mitigation plans are adopted. The Shoreline Natural Hazard Review report prepared by Shoreplan dated July 29, 2021 (“Shoreplan Report”) confirms that appropriate risk mitigation measures, like a suitable flood hazard setback, are in place.

11In making its decision on the Amended Minor Variance, the Tribunal is required to assess the Minor Variance based on the four tests set out in s. 45(1) of the Planning Act. The Tribunal heard the following planning evidence regarding each of these tests.

1. Does the variance maintain the general intent and purpose of the official plan?

12The Subject Property is a shoreline property on Georgian Bay in the County and is designated by the County OP as “Rural” and the Township OP as “Shoreline”.

13The planning evidence identified that the Minor Variance is consistent with the County OP and the Township OP since the Rural designation in the County OP and the Shoreline designation in the Township OP both contemplate residential development. In areas of possible flood hazards like the Subject Property, adjacent to Georgian Bay, the PPS identifies that development should not be permitted without appropriate study of the flood hazard and other risks. The Shoreplan Report prepared in support of the application presents an expert opinion that a flood hazard setback of 27 metres back from the 178 metres contour for the Subject Property would be appropriate.

2. Does the variance maintain the general intent and purpose of the zoning by-law?

14The Subject Property is zoned “Shoreline Residential (SR) (Appendix 1)”. The ZB requires a flood hazard setback of 33 metres from the minimum 45 metres setback to the 178 metres elevation of Georgian Bay (dwelling) in order to limit the risk of possible flooding from Georgian Bay. The planning evidence confirmed that based on the Shoreplan Report, the New Flood Hazard Setback would conform with the general intent and purpose of the ZB, since the contemplated risk of flooding for the residential development would not be increased.

3. Is the variance desirable for the appropriate development or use of the land, building or structure?

15The planning evidence confirmed that the proposed development facilitated by the Minor Variance is desirable for the development of the property. It will result in the appropriate development of the Subject Property with a replacement dwelling.

4. Is the variance minor?

16The planning evidence confirmed that the proposed variance is minor since it would not adversely affect the surrounding neighbourhood.

17There were no conditions contemplated by the Planning Report. The notes identified in the Planning Report will be addressed during the permitting stage for the new residential development contemplated for the Subject Property.

18In summary, the application for a minor variance meets all four tests under s. 45(1) of the Act and Minor Variance with the New Flood Hazard Setback should be allowed.

ORDER

19The Tribunal having been asked to consider an application which has been amended from the original application, and the Tribunal having determined as provided for in s. 45(18.1.1) of the Planning Act that no further notice is required.

20THE TRIBUNAL ORDERS that:

1. The appeal is dismissed.
2. The variance is authorized to the Township Comprehensive Zoning By-law No. 06-0001, as amended for a Flood Hazard Setback of 27 metres from the 178 metres contour for property municipally known as 19 Nottawasaga Court, Township of Tiny.

“A. Cornacchia”

A. cornacchia

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.