Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
March 23, 2022
CASE NO(S).:
OLT-21-001114
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant:
Alex Faber and Carla Faber
Appellant:
Susan Cox
Subject:
Minor Variance
Property Address/Description:
12425 Kirkpatrick Lane
Variance from By-law:
Zoning By-law 2010-0050, as amended
Municipality:
Town of Halton Hills
Municipal File No.:
D13VAR21.004H
OLT Case No.:
OLT-21-001114
OLT Lead Case No.:
OLT-21-001114
OLT Case Name:
Cox v. Halton Hills (Town)
Heard:
March 3, 2022 by video hearing
APPEARANCES:
Parties
Counsel
Alex and Carla Faber
Herbert Arnold
Susan Cox
Self-represented
Town of Halton Hills
No one appeared
DECISION DELIVERED BY ERIC S. CROWE AND M. RUSSO AND ORDER OF THE TRIBUNAL
BACKGROUND
1The matter before the Tribunal is an appeal filed by Susan Cox (the “Appellant”) against the decision of the Town of Halton Hills (the “Town”) Committee of Adjustment’s (the “CoA”) decision on June 4, 2021, in relation to a minor variance from Zoning By-Law No. 2010-0050 (the “ZBL”) concerning 12425 Kirkpatrick Lane (the “Subject Property”).
2In the initial application, Alex and Carla Faber (the “Applicants”) proposed to construct an addition to the existing dwelling, an existing garden shed and a new canopy structure. The Applicants are requesting relief from ZBL, as amended;
To reduce the setback from the land owned by a federally owned railway company from 30 metres (“m”) to permit a setback of 15.75 m.
To reduce the interior side yard setback from the minimum 4.5 m to permit a 2.06 m side yard setback.
To reduce the front yard setback from the minimum 7.5 m to permit a 5.5 m front yard setback.
To increase the total floor area of all accessory structures from the maximum 60 square metres (“sq. m”) to permit a total floor area of 136 sq. m for all accessory structures.
3The need for the fourth variance was determined by Planning staff following a site visit to the property, wherein accessory structures not indicated on the submitted site plan were discovered surrounding the existing detached garage. Given the existing detached garage already exceeds the maximum permitted total floor area for all accessory structures, a variance must be obtained to recognize the existing garden shed and permit the new canopy structure. Based on the foregoing and at the Applicants’ request, the CoA deferred its decision on the subject minor variance application at its meeting held on March 3, 2021, to allow the site plan to be revised to reflect the additional requested relief.
4Subsequently, the CoA approved the revised application on June 4, 2021, subject to two conditions:
(1) The location of the addition and its accompanying driveway leading to the attached garage shall be generally in accordance with the site plan, prepared Van Harten Surveying Inc., date stamped by the CoA on April 22, 2021, to the satisfaction of the Commissioner of Planning & Development.
(2) The addition shall be constructed generally in accordance with the architectural design as shown on the Front (Southwest) and Side (Northwest) Elevations, date stamped by the CoA on February 1, 2021, to the satisfaction of the Commissioner of Planning & Development.
5The Appellant filed an appeal expressing concern for the variance requested for the setback from the railway line and that the other variances requested are not minor in nature.
THE HEARING
6At the outset of the hearing, the counsel for the Applicants advised the Tribunal that variance request (1) to reduce the setback from the land owned by a federally owned railway company from 30 m to permit a setback of 15.75 m has been withdrawn. Evidence was submitted that the railway line belongs to Metrolinx, which is a Provincial Crown Agency and not a Federal Regulated Railway Company therefore, s. 4.34 of the ZBL, which requires a variance from the special setback from a railway is not required, since Metrolinx who owns the right-of-way is not a federally regulated railway company. Counsel indicated this was further confirmed through discussions with Town Planning staff (counsel undertook to provide the Town concurrence to the Tribunal).
SPECIAL RAILWAY RIGHT OF WAY SETBACKS
Notwithstanding any other provision in this By-law, all buildings and structures containing a dwelling unit, a place of worship, a day nursery and/or a private or public school shall be located no closer than 30 metres from the right-of-way owned by a Federally regulated railway company.
7The Applicants noted that on October 5, 2021, a letter was sent to the Tribunal and the Appellant advising of withdrawing the “railway” variance (Exhibit 4).
The Requested Variance
8The Applicants’ application proposes to construct an addition to the existing dwelling, an existing garden shed and a new canopy structure. Variances 2 and 3 are required in order to accommodate a 2-storey addition to the north side of the existing dwelling. The proposed addition is 129.34 sq. m (~1,392 sq. ft.) in total floor area, which includes an attached garage and additional living space. The fourth variance is required to recognize an existing 9.75 sq. m (~105 sq. ft.) garden shed and permit a new 11.31 sq. m (~122 sq. ft.) canopy structure.
LEGISLATIVE TESTS
9It must be noted that an appeal to this Tribunal pursuant to s. 45 of the Planning Act is a hearing de novo and the onus of establishing that the four tests under s. 45(1) of the Planning Act are met is on the Applicant. In addition, in making a decision under the Planning Act with respect to a minor variance, the Tribunal must have regard to matters of provincial interest as set out in s. 2 and to the decision of the approval authority under s. 2.1. The decision must be consistent with the Provincial Policy Statement, 2020 (“PPS”) under s. 3(5) and conform with any provincial plans that are in effect.
10Applications for minor variance must satisfy all four tests set out under s. 45(1) of the Planning Act, namely that the requested variances:
i. maintain the general intent and purpose of the Official Plan (the “OP”),
ii. maintain the general intent and purpose of the ZBL,
iii. are desirable for the appropriate development or use of the land, building or structure, and,
iv. are minor in nature.
EVIDENCE
Witnesses
11John McMulkin is a planner for the Town, who appeared under summons before the Tribunal to give expert testimony. On consent of the Parties, and after review of Mr. McMulkin’s professional qualifications (marked as Exhibit 1) and confirmation of his Acknowledgement of Expert Duties (marked as Exhibit 2), the Tribunal qualified Mr. McMulkin to provide expert testimony in the field of land use planning.
12The Appellant advised the Tribunal that she would be self-represented. Counsel for the Applicants had no objection that the Appellant provide factual evidence (in light of the Appellant not intending to call any other witness) but with no indication of her qualifications or experience, counsel did ask that the Appellant’s testimony be confined to factual information and not opinion evidence. The Tribunal so directed.
Town of Halton Hills Official Plan
13Mr. McMulkin adopted and relied upon the Planning Report (marked as Exhibit 5) which showed the Subject Property is designated “Rural Cluster Area” in the Town’s OP. This designation permits single detached dwellings. The OP does not identify minimum yard and railway setbacks for single detached dwellings. Section G13.6 of the OP states that whenever a use is permitted in a land use designation, it is intended that uses, buildings or structures normally incidental, and accessory to that use are also permitted.
Town of Halton Hills Zoning By-Law
14Mr. McMulkin testified the Subject Property is zoned “Rural Cluster Residential One (RCR1)” in the Town’s Comprehensive ZBL, which permits single detached dwellings. Within the RCR1 zone, the minimum front yard setback is 7.5 m and the minimum interior side yard setback is 4.5 m.
15Section 4.1.1 of the ZBL states where the by-law provides that land may be used or a building or structure may be erected or used for a purpose, that purpose shall include any accessory buildings, structures or accessory uses located on the same lot as the primary use to which they are related. The RCR1 zone limits the total floor area for all accessory structures to a maximum of 60.0 sq. m.
TOWN AND AGENCY COMMENTS (EXHIBIT 6)
Internal Department and External Agency Comments
16Mr. McMulkin advised the application was circulated for review and comment to Town departments and external agencies. No objections were received. Relevant comments regarding the minor variance came from the Development Engineering Section with no objection to the proposed variances, but requests that the reduced front yard setback of 5.5 m apply only to the portion of the lot where the addition and driveway are proposed to be located, as shown on the site plan prepared by Van Harten Surveying Inc.
17Evidence presented showed the Fire Department was consulted acknowledging the fire separation concerns raised by residents in the neighbourhood. Mr. McMulkin testified and presented drawings concerning the Fire Department requests that the side of the proposed addition facing the interior side lot line not contain any windows or other openings on the Side (Northwest) Elevation, and encourages the exterior cladding to be made of non-combustible material.
18The Appellant on cross-examination testified that the previous dwelling on the Subject Land was destroyed by fire. She advised that the neighbours, including herself, had concerns of fire separation from their own dwellings in case of another fire. The Appellant pointed out that having no windows or any openings and using non-combustible material for fire purposes was only a recommendation and not a requirement by the Town. Mr. McMulkin acknowledged it was only a recommendation, however, explained that the Applicants had agreed and have incorporated them in the proposed site plan and is a condition to have no windows or openings on the Northwest side of the dwelling and to use the non-combustible material (see Attachment 2).
19The Appellant requested that the south side of the dwelling should also use non-combustible material since the lane is narrow and the dwellings across the street such as hers, are at risk of fire. Mr. McMulkin testified the application is for land-use permissions. Building code concerns are dealt with at the permit stage and will be verified at that time. However, he noted that the road was 20 m wide and within regulation of the OP. Mr. McMulkin referred to the agency comments and that Fire staff has indicated they have been satisfied, and thus, from a land-use perspective he is satisfied.
20The Appellant raised additional concerns with snow (load) on the narrow lane, as well as drainage issues and the impacts of reduced front and side setbacks on the Subject Property. Mr. McMulkin responded that he has no concerns with snow loads and the Town Engineering Department has reviewed the proposal and has no objections.
21The Appellant continued to raise concerns that did not deal with land-use planning matters. Concerns with potential business operations on the Subject Property were raised, at which point Mr. McMulkin and with interjections of the Tribunal, explained the statutory jurisdiction of the Tribunal and the land-use matters at hand. The Tribunal advised it only has jurisdiction to deal with land-use planning matters properly before it, specifically the minor variances. Mr. McMulkin advised the Planning Act only grants municipalities the authority to evaluate the merits of the requested zoning relief based on their suitability for the site and the Town is the approval authority of the ZBL requirements. Concerning the issues of the narrow road, Mr. McMulkin advised the Appellant that Works and Transportation Department of the Town have the responsibility for the upkeep of the roads and testified there was no issue of snow storage (snow load) on the road which is 20 m wide and in compliance with municipal standards. Mr. McMulkin also advised the Appellant that the Town By-law Enforcement Section could be contacted concerning her concern of a suspected illegal business being operated on the subject lands and this was not the jurisdiction of the Planning Department or the Tribunal.
22Mr. McMulkin highlighted the Staff Planning Report, explaining the intent of the minimum front yard setback requirement is to provide an area on the private lot for parking, permitted projections (e.g., porches, balconies, canopies and decks) and snow storage. The intent of the minimum interior side yard setback requirement is to provide separation between the dwelling and the lot line for maintenance of the building’s eaves/outside walls and to access the property’s rear yard. In addition, these requirements are intended to provide a consistent pattern of dwelling setbacks and area for landscaping to maintain privacy and neighbourhood character.
23The proposed addition would be located no closer to the front lot line than the existing dwelling (which has a setback of approximately 4.87 m), no closer to the interior side lot line than the setback maintained for the neighbouring dwelling (12429 Kirkpatrick Lane) and is consistent with setbacks in the neighbourhood. Given the extent of the relief requested, the location of the proposed addition and its context within the neighbourhood, Planning staff views the intent of the front yard and interior side yard setbacks to be maintained.
24Mr. McMulkin provided some input to the intent of the minimum required setback from the railway right-of-way, being to ensure that impacts to sensitive land uses (e.g., dwelling units) from railway operations are mitigated. Given the proposed addition would be located on the north side of the dwelling facing away from the railway, Planning staff views the intent of the setback from the railway right-of-way to be maintained. This, however, was noted to be a moot point, with the withdrawal of the railway minimum setback variance.
25Mr. McMulkin advised the Tribunal of the intent of the requirements for accessory buildings and structures, being to ensure that the accessory buildings/structures do not visually dominate the lot, are clearly accessory to the principal residential use (i.e., single detached dwelling) and do not create impacts to surrounding properties. Given the size and location of the existing garden shed and proposed canopy structure, Planning staff views the intent of the maximum total floor area for all accessory buildings/structures to be maintained.
Public Comments
26Mr. McMulkin informed there were three (3) objection letters received from the public (12428 Kirkpatrick Lane, 12438 Kirkpatrick Lane (the Appellant) and 12439 Kirkpatrick Lane). The Tribunal notes there were no participants or written submissions entered as evidence to this hearing.
27Mr. McMulkin thoroughly summarized the responses provided by Planning staff to the concerns of residents. Mr. McMulkin explained the size of the proposed addition is not something that Planning staff can restrict based on the ZBL as there is no maximum lot coverage requirement in the RCR1 zone. However, Mr. McMulkin noted that the Town’s Senior Heritage Planner had reviewed the application and had no objections from a heritage/character perspective. Planning staff cannot consider impact to property values when evaluating the merits of the minor variance application as this is not something that the Tribunal will add to the list of issues when considering an appeal of an application. Halton Region’s Public Health Department had reviewed the application and had no objections from a public health (private servicing) perspective.
28Mr. McMulkin testified despite the reduced front yard setback, the submitted site plan demonstrates that the Subject Property exceeds the minimum parking requirement of 2 parking spaces for the single detached dwelling. The proposed addition includes an attached garage that can accommodate 1 parking space and the existing driveway to the addition can accommodate 2 parking spaces. Furthermore, the existing driveway to the existing detached garage can accommodate additional parking. Metrolinx (i.e., the railway authority) was circulated on the minor variance application and noted no objections, subject to their Environmental Easement for operational emissions being registered on title of the property in favour of Metrolinx.
29In conclusion, the opinion of Mr. McMulkin to the Tribunal was that the application has regard to provincial interest and s. 2 of the Planning Act.
30Mr. McMulkin testified that the application for minor variance meets the four tests as outlined in the Planning Act.
the variances meet the intent and purpose of the Town OP;
meet the intent and purpose of the Town ZBL;
are considered to be desirable for the appropriate development or use of the property; and
are considered to be minor in nature.
FINDINGS AND DISPOSITION
31In determining this matter, the Tribunal accepts and adopts the land use planning evidence and expert opinion provided by Mr. McMulkin. The Tribunal is persuaded by the evidence that the proposal promotes good land use planning and is satisfied that the minor variances meet the prescript of the four-tests.
32The Appellant presented multiple issues that were based solely on apprehension and out of jurisdiction for the Tribunal. The Tribunal is grounded on determining facts and that mere apprehension or concern about a matter without any substantiation is not evidence. The Tribunal found the Appellant did not present applicable evidence in this case.
33The Tribunal finds that the variance maintains the general intent and purpose of the Town OP and Town ZBL with no adverse impacts.
34The Applicants’ withdrawal of the “railway” variance was accepted by the Tribunal and a condition of constructing the addition generally in accordance with the architectural designs submitted is deemed appropriate and acceptable by the Tribunal.
35Mr. McMulkin provided minimal evidence as to the proposal having regard to matters of the provincial interest and being consistent with the PPS, focusing more so on the four tests set out by s. 45(1) of the Planning Act.
36Mr. McMulkin did, however, provide his summary opinion that the proposal as permitted with the variances, and as provided to this Tribunal, has regard for matters of provincial interest and that the proposal, when considered in its entirety, is consistent with relevant policies of the PPS. The Tribunal finds that the requested variances are desirable and have regard for matters of provincial interest under the Planning Act and are consistent with the PPS.
ORDER
37THE TRIBUNAL ORDERS that the appeal is dismissed, and the variances to By-Law No. 2010-0050, as amended, are authorized subject to the conditions as set out in Attachment “1” to this Order.
“Eric S. Crowe”
ERIC S. CROWE
MEMBER
“M. Russo”
m. russo
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-21-001114 – Attachment 1
The following variances to Town of Halton Hills Zoning By-Law No. 2010-0050 are authorized as follows:
to reduce the interior side yard setback from the minimum 4.5 m to permit a 2.06 m side yard setback;
To reduce the front yard setback from the minimum 7.5 m to permit a 5.5 m front yard setback;
to increase the total floor area of all accessory structures from the maximum 60 sq. m to permit a total floor area of 136 sq. m for all accessory structures.
Subject to the following conditions:
The location of the addition and its accompanying driveway leading to the attached garage shall be generally in accordance with the Site Plan, prepared Van Harten Surveying Inc., date stamped by the Committee of Adjustment on April 22, 2021, to the satisfaction of the Commissioner of Planning & Development as set out in Attachment “2”.
The addition shall be constructed generally in accordance with the architectural design as shown on the front (Southwest) and Side (Northwest) Elevations, date stamped by the Committee of Adjustment on February 1, 2021, to the satisfaction of the Commissioner of Planning & Development as set out in Attachment “3”.
OLT-21-001114 – Attachment 2
Site Plan prepared Van Harten Surveying Inc., date stamped by the Committee of Adjustment on April 22, 2021
OLT-21-001114 – Attachment 3
Site Plan prepared Van Harten Surveying Inc., date stamped by the Committee of Adjustment on February 1, 2021