Mellor v. Wasaga Beach (Town), 2022 CanLII 30147

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

CASE NO(S).:

OLT-21-001648

CORRECTION NOTICE

OLT CASE NO(S).:

OLT-21-001648

DECISION ISSUE DATE(S):

April 14, 2022

CORRECTION NOTICE ISSUE DATE:

April 28, 2022

RE: Mellor v. Wasaga Beach (Town)

Correction to:

Originally:

Parties John and Cindy Needham

Counsel Sarah Hahn and Carly Emmett (student-at- law)

Neil Mellor

Sonja Hodis

Corrected to:

Parties John and Cindy Needham

Counsel Sarah Hahn and Carly Emmett (student-at- law)

Simcoe Common Element Condominium Corporation No. 367

Sonja Hodis

Town of Wasaga Beach

Harold Elston

“Euken Lui”

EUKEN LUI

ACTING REGISTRAR

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.

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

April 14, 2022

CASE NO(S).:

OLT-21-001648

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

Applicant:

John Needham

Appellant:

Neil Mellor

Subject:

Minor Variance

Property Address/Description:

55 Waterview Road

Variance from By-law:

Zoning By-law 2003-60

Municipality:

Town of Wasaga Beach

Municipal File No.:

A28/21

OLT Lead Case No.:

OLT-21-001648

OLT Case No.:

OLT-21-001648

OLT Case Name:

Mellor v. Wasaga Beach (Town)

Heard:

March 10, 2022 by video hearing

APPEARANCES:

Parties

Counsel

John and Cindy Needham

Sarah Hahn and Carly Emmett (student-at- law)

Neil Mellor

Sonja Hodis

MEMORANDUM OF ORAL DECISION DELIVERED BY ERIC S. COWE AND S. deBOER ON MARCH 10, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is an appeal filed by Neil Mellor (the “Appellant”) a Board member of the Simcoe Common Element Condominium Corporation No. 367 (“SCECC No. 367”) against the decision of the Town of Wasaga Beach, Committee of Adjustment’s (the “CoA”) decision on October 18, 2021, in relation to a minor variance from Zoning By-law No. 2003-60 (the “ZBL”) concerning 55 Waterview Road (the “Subject Property”).

2In the application, John and Cindy Needham (the “Applicants”) are seeking relief of a minor variance that would approve a minor amendment to the ZBL to permit the construction of a deck and stairs located within in the rear yard with a proposed setback of 2.68 metres (“m”) where the required setback is 3 m and to allow for the increase in lot coverage to 47.8% where 43% is permitted (see Sketch- Schedule 1).

3The CoA meeting was held on September 17, 2021, to consider the application. The Staff Report, dated September 20, 2021, recommended that the CoA defer the decision so staff could reissue the notice with the correct lot coverage numbers.

4Subsequently, the CoA approved the minor variance on October 18, 2021, subject to three conditions.

5The Appellant filed an appeal on November 5, 2021, outlining that CoA erred in law. The Appellant contends the Parcel of Tied Land (“POTL”) is contained within a condominium plan and is part of a condominium corporation that is created under the Condominium Act (“Condo Act”). Condo Act, Declaration or the restrictions need to be recognized and a condominium corporation needs to be consulted and approval obtained as part of the minor variance application process.

6The Appellant contends the restrictive covenants require an owner to obtain approval from the Board of Directors of the condo if they are to make any changes, alterations, improvements or additions to any part of the roof or the exterior of any structure or building. The Applicant currently has a deck which is attached to the exterior of the house and in the opinion of the Appellant the proposed deck would be considered a change, alteration, improvement or addition to the exterior of any structure (the existing deck) or the building itself.

7The Appellant highlighted the Declaration Section 21 that sets out the condo’s obligation to maintain and repair the common elements which service more than one POTL. The Appellant contends that the rip rap revetment is a common element and that it is a service or facility that services more than one POTL. This section also states that the condo and its designated agents shall have full access to the POTL to carry out its obligations.

8The Applicant contends the easement and restrictive covenant concerns of the Appellant are not proper matters within the jurisdiction of the Tribunal and should bear no weight in the determination of the Application.

9Alternatively, if the application is granted the Appellant request the Tribunal to add an additional condition subject to approval from the SCECC No. 367.

10For the reasons that follow, the Tribunal dismisses the Appeal.

The Requested Variance

11The Applicant’s application requests relief from Section 4 “Residential Type 1” of the ZBL, as amended. Specifically, the Applicant requests relief from:

1. Section 4.4.13 - to allow for an increased lot coverage of 47.8%, whereas 43% is permitted.

Also requested relief from Section 3.3 “Yard Encroachments”:

2. Section 3.3.3 iii) – to permit the construction of a deck located within the rear yard, with a proposed height of 1.2 m (3.94 ft.) and proposed rear yard setback of 2.6 m (8.53 ft.), whereas the rear yard setback requirement for decks exceeding 0.6 m in height is 3 m (9.84 ft.).

SUBJECT PROPERTY

12The Subject Property is designated Settlements in the County of Simcoe Official Plan (“OP”). The lands are designated Residential in Official Plan of Wasaga Beach (“Town OP”). The lands are zoned Residential Type 1 Exception 13 (R1-13) in ZBL 2003-60.

13The Subject Property is a free-standing home and is owned outright by the Applicants. The Subject Property is located within a residential development known as Bluewater. The development is a plan of condominium and consists of single detached dwellings.

14The lands abutting the Subject Property to the east and west, as well as across Waterview Road to the south support single detached dwellings. Lands north of the subject parcel support a retaining wall. Lands further to the north consist of the shoreline of the Nottawasaga Bay.

15The Subject Property is a POTL that abuts property owned by SCECC No. 367 which are common elements that are managed by SCECC No. 367 for the benefit of all POTL owners. The Subject Property is only one of 115 POTLs which are part of SCECC No. 367.

16The Subject Property is regulated by the Nottawasaga Valley Conservation Authority (“NVCA”).

LEGISLATIVE TESTS

17It must be noted that an appeal to this Tribunal pursuant to s. 45 of the Planning Act (the “Act”), is a hearing de novo and the onus is on the Applicant to meet the four tests under s. 45 (1) of the Act. In addition, in making a decision under the 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.

18Applications for minor variance must satisfy all four tests set out under s. 45(1) of the Act, namely that the requested variances:

(a) maintains the general intent and purpose of the official plan (“OP”);

(b) maintains the general intent and purpose of the ZBL;

(c) is minor in nature; and

(d) is desirable for the appropriate development or use of the land, building or structure.

EVIDENCE

19Krystin Rennie is a Senior Planner who appeared before the Tribunal to give expert testimony. After reviewing Ms. Rennie’s professional qualifications and confirmation of her Acknowledgement of Expert Duties, the Tribunal on consent qualified Ms. Rennie to provide expert opinion evidence in the field of land use planning.

20Joel Vines is a Planner for the Town of Wasaga Beach who appeared before the Tribunal to give expert testimony. After reviewing Mr. Vine’s professional qualifications and confirmation of his Acknowledgement of Expert Duties, the Tribunal with an objection from the Appellant’s counsel, qualified Mr. Vines to provide expert opinion evidence in the field of land use planning.

21The Tribunal qualified Mr. Vines on the basis of his 2 ½ years of planning experience for the Town of Wasaga Beach, along with his experience of being involved in this case from the outset.

22Milo Sturm is an Engineer who appeared before the Tribunal to give expert testimony. After reviewing Mr. Sturm’s professional qualifications and confirmation of his Acknowledgement of Expert Duties, the Tribunal on consent qualified Mr. Sturm to provide expert opinion evidence in the field coastal engineering.

Maintains the Intent of the County OP

23The Subject Property is designated Settlement in the OP. The proposed deck is an accessory structure, which is permitted where a residential use exists within a settlement area.

24Ms. Rennie testified the Subject Property is within the settlement boundary of the Town of Wasaga Beach.

25Ms. Rennie advised the Tribunal, that the property is partially regulated for natural hazards (shoreline hazards) associated with Georgian Bay at the rear of the property. NVCA Staff have confirmed that a permit is not required for the proposed deck development on the property and the NVCA had no objections to the minor variance requests.

26In Ms. Rennie’s opinion, the proposed minor variance conforms to the general intent and purpose of the County of Simcoe OP, as the proposed deck is an accessory structure permitted where there is a residential use and is within the settlement area.

Maintains the Intent of the Town OP

27Ms. Rennie informed the Tribunal, the Subject Property is designated Residential within the Town OP. The existing structure and proposed accessory structure of a deck are permitted uses as-of-right.

28It was Mr. Vines opinion that the slightly increased encroachment fully maintained the purpose and intent of the settlement and residential policies found in the OP.

29In Ms. Rennie’s opinion, the existing dwelling and proposed accessory structure are permitted uses as identified in the OP and the minor variances requested conform to the general purpose and intent of the Town OP.

Maintains the Intent of the ZBL

30Ms. Rennie informed the Tribunal, The Town of Wasaga Beach ZBL No. 2003-60 zones the Subject Property R1-13. Permitted residential uses include single detached residential units and one attached accessory dwelling unit. Permitted non-residential uses include accessory use directly related to the permitted uses in the R1 Zone. The proposed deck and stairs are a permitted use.

31Ms. Rennie highlighted s. 3.3.3 iii) provides that decks may project into a required rear yard, but no closer than 3 m to the lot line if the deck exceeds a height of 0.6 m above finished grade.

32The Application seeks an exception to section 3.3.3 iii) in the form of a minor variance to permit the stairs of the deck to encroach 32 centimeters into the required rear yard setback.

33Ms. Rennie testified that the portion of the stairs which will encroach into the 3 m setback is a mere 20 centimeters above finished grade.

34Mr. Vines testified that, even though the part of the steps that was encroaching was below 0.6 m above finished grade, he had taken a conservative approach and applied ZBL section 3.3.3 iii) to the steps. In Mr. Vine’s opinion the encroachment did not impede access and that the purpose and intent of the ZBL would be maintained, should the variance be granted.

35Ms. Rennie testified the Staff Planning Report notes that the intent of the rear yard setback requirement is to provide privacy between neighbours, set a standard for development in the area and to provide an amenity area for the occupants of the dwelling. The Staff Report concludes that the increased encroachment of the proposed deck by 0.32 m into the rear yard setback would not impact the neighbourhood character.

Lot Coverage

36Ms. Rennie highlighted s. 4.4.13 of the ZBL which notes that lot coverage maximum shall be 43%. Ms. Rennie informed the Tribunal this is the provision from which the second variance is requested to permit the location of the proposed deck and stairs. The request is to increase lot coverage to 47.8%.

37Mr. Vines informed the Tribunal the intent of the maximum lot coverage provision is to protect properties from reduction of drainage area and to ensure that residential lots are not dominated by structures.

38It was the evidence of Ms. Rennie and Mr. Vines that approximately 46% of the Subject Property would continue to remain as landscaped open space which exceeds the minimum requirement of 30% as per the ZBL.

39Ms. Rennie informed the Tribunal, Wasaga Beach Public Works does not oppose the Applicant’s request. The remaining setback distance should allow for the lot to be graded and manage surface storm water run-off. Further, the increased lot coverage to 47.8%, from the maximum 43% is marginal.

40The Tribunal finds there was no dispute amongst the Parties with regard to the increase in lot coverage. The application was also supported by the Planning Staff, Public Works and the NVCA. Therefore, the proposed minor variance request meets all other general provisions of R1-13 zone and conforms to the general intent and purpose of the Town ZBL.

Height Increase

41The Application seeks relief from the ZBL to permit a deck height of 1.2 m whereas a 0.6 m height is permitted on properties with a 3-m rear yard setback.

42Ms. Rennie testified that the portion of the deck that encroaches into the 3 m setback is 0.2 m high and therefore is within the allowed height restriction. Therefore, it meets the general intent and purpose of the ZBL. The Town staff, the Public Works Department and the NVCA took no issue with proposed height variance.

Considered Minor in Nature

43Ms. Rennie testified a variance may be considered “minor’” where the scale of the request is marginal and the proposed relief does not result in a greater adverse impact on adjacent properties, uses or area. Ms. Rennie informed the Tribunal the proposed reduction in the setback from the rear lot line is to allow the stairs (last stair) for the deck to allow the property owner to access their back yard.

44Mr. Vines explained the requirements of the Town’s ZBL concerning rear yard encroachments and noted the small size of the encroachment and the fact that, in his opinion, there would be no impact, should the variance be approved. Mr. Vines opine the rear yard encroachment is 0.32 m or 12 ½” and consists of the bottom step and a sliver of part of the second step from the bottom of the stairs from the deck and, while the Town recognizes that the measure of minor is not simply a mathematical exercise, at the same time, the math cannot be ignored in this case. In his opinion, the variance was minor.

45Mr. Vines advised the appropriate analysis to be applied for the test of minor is not simply quantitative, but includes matters such as appropriateness, proportion, built form and whether the planning objectives are fulfilled.

46In Ms. Rennie’s and Mr. Vine’s opinions, which the Tribunal agrees, the proposed changes conform to the OP, maintain the intent of the ZBL, and can be considered desirable and appropriate development on this site and the proposed variance is minor in nature.

Provincial Policy Statement, 2020

47The Act in s. 1.1 provides that two of its purposes are that land use planning is to be policy-led and to recognize the decision-making authority and accountability of municipal councils.

48Section 2 of the Act sets out a number of provincial interests that the Town and this Tribunal must have regard to in making a land use planning decision including:

• The orderly development of safe and healthy communities;

• Protection of public health and safety; and

• Promotion of built form that is well designed and encourages a sense of space.

49Section 2.1 of the Act requires the Tribunal when making a decision on a land use planning matter to have regard to any decision made by Town Council and the information and materials that Town Council considered in making its decision.

50Finally, the Act in s. 3(5) mandates that the Tribunal (and the Town council before it) when making a land use planning decision that such a decision shall be consistent with the PPS.

Compliance with the Planning Act

51Ms. Rennie testified the proposal is consistent with the policies of the Act, in relation to managing and directing land use. Ms. Rennie highlighted sections, promoting efficient development and land use patterns which sustain the financial well-being of the Province and Municipalities over the long term and sections avoiding development and land use patterns which may cause environmental or public health and safety concerns.

52Ms. Rennie informed the Tribunal, there are no anticipated environmental, or public health and safety concerns with the construction of a deck that has stairs projecting 0.32 m (1.05 ft) into the required rear yard setback.

53Ms. Rennie informed the Tribunal, that the NVCA reviewed and supported the minor variance application as this is their delegated responsibility from the Province. The NVCA represents provincial interests regarding natural hazards as identified in Section 3.1 of the PPS and as a regulatory authority under Ontario Regulation 172/06.

54Ms. Rennie advised the Tribunal the Wasaga Beach Public Works does not oppose the Applicant’s request. The remaining setback distance should allow for the lot to be graded and manage surface storm water run-off. Further, the increased lot coverage to 47.8%, from the maximum 43% is marginal.

55In Ms. Rennie’s opinion, the proposal is consistent with s. 1.1.3, Settlement Areas. The PPS provides that Settlement Areas shall be the focus of growth and development. Ms. Rennie testified the lands are within the Settlement Designation within the OP and the proposal is an efficient use of the land.

56Ms. Rennie testified the property is an existing lot of record with an existing single detached dwelling and a proposed deck. This proposal does not require additional public infrastructure. The Subject Property are within a designated growth area and are adjacent to existing built up areas.

57Ms. Rennie highlighted s. 3.0 “Protecting Public Health and Safety” and s. 3.1.1, development, shall generally be directed, in accordance with guidance developed by the Province (as amended from time to time), to areas outside of: hazardous lands adjacent to the shorelines of the Great Lakes - St. Lawrence River System and large inland lakes which are impacted by flooding hazards, erosion hazards and/or dynamic beach hazards.

58In Ms. Rennie’s opinion, the proposal is consistent with Section 3.1. The proposal does not include site alterations and there is more than adequate protection for the subject structure (deck). The location of the deck and the encroachment into the rear yard setback has also been supported by the NVCA.

59Ms. Rennie opines, the proposed location of the deck is appropriate and does not risk public safety. The property owners have a safe access and exit to the site, no new hazards are created from this proposal and there are no adverse environmental impacts anticipate by the construction of the deck.

60The Tribunal finds based upon the evidence of Ms. Rennie, the application complies with s. 45 (1) of the Act, is consistent with the PPS and addresses matters of provincial interest, specifically the orderly development for safe and healthy communities and the promotion of built form that is well designed and encourages a sense of space. The NVCA, the Town Staff and Public Works Department had no objections to the application.

APPELLANTS ARGUMENTS

Easements

61The Appellant highlighted that in the Application the box for restricted covenants was not checked off. Mr. Vines testified easements are important but not restricted covenants to a minor variance application.

62In cross examination Mr. Vine’s acknowledged he made no reference of any easements in his Staff Report. However, Mr. Vines confirmed the minor variance application itself, was drafted correctly for the CoA to consider.

63Under cross examination, Mr. Vine acknowledged that a restricted convenance on tile is important but not typical from a planning perspective. Mr. Vines testified the four-part test of the Act is the most appropriate avenue to guide a decision.

64In regard to impact factor from a restricted convenance, Mr. Vines opines the planning staff information has to come from the Applicant and the restricted convenance “could be helpful” but doesn’t think necessary or a “deal breaker” since the impact would be minor. Mr. Vines acknowledged a restricted convenance does factor into impact however, the planning process for a minor variance application does not include a title search.

65Under cross examination, Ms. Rennie acknowledged that easements were important but not restricted covenants from a minor variance perspective.

66The Appellant contends the SCECC No. 367 requires unobstructed access to the rear of the POTLs in order to repair and maintain the rip rap wall which is on the common elements which abuts the rear of the POTL, and which access is impeded if the variance is allowed. The Appellant contends the SCECC No. 367 has a 6 m easement on the rear lot line of the Subject Property for the purposes of access to the rip rap wall.

67The Applicant submitted the “Easement Plan” does not legally register an easement on title. It does not even indicate to who or for what the 6 m easement is intended to serve.

68The Applicant contends the argument regarding the existence of an easement is a legal argument regarding title and is not within the purview of the Tribunal. The Tribunal must evaluate the Proposal on its planning merits.

69The Appellant highlighted section 20 of the Condo Act which allows easements to be created in the Declaration. Section 21 provides the condo with an easement over the rear of the POTL to carry out its obligations.

70The Appellant also highlighted s. 28 of the Declaration sets out the “Rights of Entry” under the Declaration. Specifically, section 28(e) states;

that the condo, their agents, employees, authorized representatives shall be entitled to enter upon “the front and rear of any one or more POTLs” at all reasonable times and upon giving reasonable notice for the purposes of making inspections, adjusting losses, making repairs, correcting any condition which violates the provisions of any insurance policy, remedying any condition which might result in damage to the Property, carrying out any duty imposed upon it by the Corporation or to perform the duties and objects of the corporation or to exercise the powers of the Corporation.

71Mr. Vines disputes that an easement exists in favour of the corporation over the back of the lot in terms of the chart found in Schedule A to the Declaration, because part lot 132 is not mentioned in the chart.

72Mr. Vines advised without registration, an easement cannot exist. Upon purchase of the lands, the Applicants received no notice of an easement in favour of the SCECC No. 367. A registered easement along the portion of the Subject Property would have been identified in the review of title.

73Mr. Vines interpreted s. 20 of the Condo Act, as an easement is only created if the easement is described in the declaration and description of a condominium. Mr. Vines submitted there is no easement for the revetment described in the declaration and description of SCECC No. 367.

74Mr. Vines outlined that the Parcel Register for the Subject Property states that Lot 45 is “Subject to an easement in favour of SCP367 as in SC883778”. Instrument SC883778 is the “Condominium Declaration”9. Schedule “A” to the Condominium Declaration describes the many easements in favour of the condominium corporation.

75The Appellant claims that the final paragraph of Schedule “A” creates the “easement” for access to the revetment. That paragraph states:

TOGETHER WITH an easement in favour of the Condominium Lands in common with other entitled thereto, for the purpose of utility and common services, including, but not limited to, water, sanitary sewers, cable television, electric power, telephone and telecommunication lines, gas services and snow storage over, along, upon and under that portion of the following lots.

76Mr. Vines highlighted that the “Compiled Easement Plan”, there are two “parts” on Lot 45: i) Part 45, which is located on the front of the lot, and ii) Part 132, which is located on the water-side of the lot.

77Mr. Vines submitted the list of lots and the associated parts of those lots that are subject to this easement identifies only “Part” 45 of Lot 45 (55 Waterview Drive). There is no reference to Part 132, the waterside “Part”.

78Mr. Vines contends, notwithstanding the fact that the easement is only for utilities and common services, not the revetment, it does not apply to the rear part of the Subject Property.

79The Counsel for the Applicant referred the Ontario Municipal Board (“OMB”) case, Peel Condominium Corp. No. 315 v. Brampton (City), [2017] O.M.B.D. 920. This is a case about standing and whether an owner of a unit in a condo had standing to bring a minor variance application in relation to common elements.

80Counsel for the Town’s submission, which the Tribunal agrees, advised the Board’s decision in Peel Condominium Corp. No. 315 v. Brampton (City), [2017] O.M.B.D. 920, is easily distinguished from the case at bar by the fact that the Applicant in the within matter is the owner in fee simple of the land that is subject to the minor variance application. The application does not seek any variances to the provisions of the ZBL as it applies to any of the common elements of the condominium corporation but applies only to the Applicant’s lands.

81In closing written submission counsel for the Applicant highlighted a 2020 case of O’Reilly v. St. Thomas, 2020 LNONLPAT 558, from the Local Planning Appeal Tribunal, as it then was, rejected the argument of the Appellant that the Tribunal was required to make findings as to matters of title and contract when assessing the test of whether a proposed variance was “desirable”.

82The Tribunal finds this case relevant. Member Joyner, in his decision, wrote (paragraph 12):

A Restrictive Covenant is registered against the title to a property which generally arises out of an agreement between two private parties at the point of sale of a property, and thereafter remains on title for any subsequent owners. Whether the use of the property as a Day Care is, or is not, permitted under the terms of the Restrictive Covenant document in Exhibit 1 is a question of private contract and title and does not form part of the public planning processes over which the Tribunal has jurisdiction. Accordingly, the Tribunal does not have the authority to make a determination on the specifics of title or ownership of a property, or the legality of a restrictive covenant, or to decide whether a person is, or is not, in compliance with the covenant.

(paragraph 13):

Furthermore, a restrictive covenant, or the degree to which a party complies with any restrictions as to use under such a private agreement, does not, in the view of the Tribunal, represent a consideration for the Tribunal that falls within any one of the "Four Tests" outlined in s. 45(1) of the Planning Act. The Appellant has suggested that the matter of non-compliance with a restrictive covenant as to permitted use, goes to the third test of whether the variances are "desirable" for the appropriate use of the land.

83In their closing written submission, the Applicant provided 2001 decision of MacDonald v. Richmond Hill (Town) Committee of Adjustment, [2001] O.M.B.D No. 1397 in which it referenced an unpublished decision of Galway-Cavendish-Harvey (Township) Zoning By-law No. 78-43 (Re), [2000] O.M.B.D. No. 691. In this case Vice-Chair Makuch stated (para12):

The Board's jurisdiction is to determine the proper land use for the subject lands and not to determine the legal rights of the parties. The issue of the validity of the restrictive covenants is for another forum.

Appellants Expert Evidence

84Mr. Sturm provided evidence to the Tribunal in relation to maintenance access requirements for the existing shoreline revetment at the Subject Property. Mr. Sturm informed the Tribunal his company Shoreplan Engineering Limited have familiarity with the Subject Property having completed the shore protection design between the years 2005 and 2010 and providing periodic advice to the property management team since then.

85Mr. Sturm informed the Tribunal all shoreline protection structures are expected to require some level of maintenance over their design life so providing suitable maintenance access is a key component of deign. Mr. Sturm advised he conducted a site visit to the Subject Property on November 7, 2021, and noted the protection works consist of a rip rap revetment. Mr. Sturm explained to the Tribunal a revetment is a sloping stone structure that provides protection for the underlying erodible soils.

86Mr. Sturm referenced the PPS and the Technical Guide for Great Lakes – St. Lawrence River Shoreline (Guidelines) (MNR, 2001) to support natural hazards policy. Mr. Strum advised the Guidelines suggest a minimum width in the order of 4 m to 8 m and express the need for additional clearance to accommodate underground utilities or the proximity of basement walls or similar site features.

87Mr. Sturm informed the Tribunal the purpose of the minimum access is to ensure that heavy construction equipment required for emergency or maintenance repair can reach the repair site. The distance along the shoreline that might need to be traversed along the top of the revetment fronting of the Subject Property could be as much as 145 m.

88It is Mr. Sturm’s opinion that it would be unwise to limit access at the Subject Property to less than 5 m. Mr. Sturm stated that most Conservation Authorities in southern Ontario require maintenance access of 5 m along the shoreline for maintenance of shore protection under their regulations.

89Mr. Sturm also provided a copy of a Registered Plan 5 IR-37673 concerning the Subject Property to the Tribunal. The plan shows a 6 m easement granted to the SCECC No. 367 at the rear of lots on Waterview Drive and the Declaration for SCECC No. 367 which is registered on title and identifies in Schedule A, that the purpose of the easement is utility and common services. In Mr. Sturm’s opinion, the shore protection revetment is a common service, and the presence of the easement is consistent with the requirements of the PPS and Guidelines.

90In conclusion. Mr. Sturm testified that natural hazard policies are contained in the OP whereas new structures may be permitted provided they are in accordance with Provincial, watershed and local principles, guidelines and procedures. In Mr. Sturm’s opinion the provision of maintenance access is a Provincial principal therefore, interfering with maintenance access for the revetment is not consistent with the PPS and Guidelines.

91Under cross examination Mr. Sturm told the Tribunal that his concerns were about flooding and erosion, but acknowledged not only was the encroachment minor, but that there was no history of flooding or erosion of the lots on Waterview Drive.

92Mr. Sturm testified that the measure of the overall “level of concern” required in the design of shoreline developments ranged from a “low level of concern” to a “substantial level of concern” depending on various factors. Mr. Sturm agreed under cross examination that the small size of the deck steps, the good condition of the existing shoreline, the absence of flooding or erosion, along with the approval of the NVCA (the responsible “reviewing agency”) characterized the development as an overall “low level of concern.”

93Mr. Vines testified he disagreed with Mr. Strum’s report specifically in regard to the hazardous lands’ depiction of the Subject Property. In addition, in regard to Policy sections quoted by Mr. Strum as consents which are not applicable to the present minor variance application.

94Mr. Sturm opined that 5 m was a practical, workable number based on guidance from the Technical Guidelines. However, in cross examination Mr. Strum acknowledged the 5 m setback is only a suggestion. When reviewing the County of Simcoe GIS Mapping, Mr. Sturm acknowledged that the space on the water side (north) of the rip rap wall which is owned by SCECC No. 367 appeared to be 5 m in width. He also commented that this area could be sufficient for maintenance, determinative on the current water level.

95Mr. Sturm advised the Tribunal that maintenance is required approximately 10 years after construction and approximately every 5 years or so onwards. On cross examination, Mr. Sturm acknowledged that other communal access blocks to the shoreline would also serve as maintenance access to the rip rap revetment and identified these access blocks as being dedicated maintenance access points.

96Ms. Vines referenced the maintenance work, when necessary, will occur on the water side of the rip rap wall and the application will have no impact on its maintenance.

97Mr. Sturm relied on PPS policy 3.1.7 a), being a policy that all development and site alteration is carried out in accordance with floodproofing standards, protection works standards, and access standards. The property backs onto the shoreline of Georgian Bay which qualifies as a natural hazard. The application was reviewed by the NVCA, the designated conservation authority for this area, who had no objections to the application.

98Mr. Strum acknowledged a smaller backhoe or mini excavator could be used for maintenance of the rip rap revetment. He advised it would be a “tight fit” for a backhoe and dump truck however, a smaller backhoe could be used and the 5 m setback is a good number.

99Mr. Strum acknowledged under cross examination the limestone sizes of the rip rap revetment are the size of “bowling balls” 12 inches to 24 inches. Maintenance using a mini excavator could be used to maintain the rip rap revetment including in an emergency situation.

FINDINGS

100In determining this matter, the Tribunal accepts and adopts the land use planning evidence and expert opinions provided Ms. Rennie and Mr. Vines. The Tribunal is persuaded by the evidence that the proposal promotes good land use planning and is satisfied that the revised application for the minor variance meets the prescript four-tests.

101The Tribunal finds that the variance maintains the general intent and purpose of the County of Simcoe Official Plan, Official Plan of Wasaga Beach and Town of Wasaga Beach Comprehensive ZBL No. 2003-60 with no adverse impacts and is desirable resulting in a suitable deck and stairs.

102The Tribunal found no evidence opposing to allow an increased lot coverage of 47.8%, whereas 43% is permitted.

103The Tribunal has considered all the evidence including the case law presented to the Tribunal in relation to an easement and restricted covenants and accepts experts for the Applicant over Mr. Strum’s evidence.

104The Tribunal finds there was no definitive evidence provided to show that this Application would prevent maintenance of the rip rap revetment from occurring on the Subject Property even in case of an emergency.

105In regard to SCECC No. 367 declarations on restrictions on the lands to POTL owners’ obligations or approval the Tribunal agrees with the Applicant that this is a private matter between the Applicant/Owner of the Subject Property and the SCECC No. 367. The Tribunal applies the Planning Act tests for a minor variance and does not delegate or give a veto in the form of a condition to the Tribunal’s decision.

106The concerns of the Appellant are based on the restrictive covenants and an existence of an easement in favour of the SCECC No. 367, which are not proper planning matters for the Tribunal’s consideration. Even though the Tribunal is not obligated to follow other Tribunal decisions, the Tribunal finds the case law presented by the Applicant was relevant in the present case and therefore, is followed.

107The Tribunal finds that the requested variance is desirable and has regard for matters of provincial interest under the Planning Act and is consistent with the PPS, specifically property land use, residential wide range of styles and lots and the goal of OP to ensure high quality urban design permitted uses which enhance the use and property.

ORDER

108The Tribunal Orders that the appeal is allowed and the following variance to By-law No. 2003-60, as amended, to allow for an increased lot coverage of 46%, to permit the construction of a deck located within the rear yard, with a proposed height of 1.2 m and proposed rear yard setback of 2.6 m subject to the following three conditions:

1. That all other provisions of the Zoning By-law be complied with;

2. That any future development on the subject lot will adhere to current Town of Wasaga Beach Standards and Policies, specifically the Infill Lot Grading and Drainage Policy; and

3. That a Road Occupation Permit be take out for any works within the right of way.

“Eric S. Crowe”

ERIC S. CROWE

MEMBER

“S. deBoer”

S. deboer

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.