Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 12, 2022
CASE NO(S).: OLT-22-002874 (Formerly PL210207)
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Hassan Murad and Shifa Masood
Subject: Minor Variance
Variance from By-law No.: 270-2004
Property Address/Description: 33 Donomore Drive
Municipality: Brampton
Municipal File No.: A-2021-0031
OLT Case No.: OLT-22-002874
Legacy Case No.: PL210207
OLT Lead Case No.: OLT-22-002874
Legacy Lead Case No.: PL210207
OLT Case Name: Masood v. Brampton (City)
Heard: May 17, 2022 by video hearing
APPEARANCES:
| Parties | Counsel*/Representative |
|---|---|
| Hassan Murad and Shifa Masood | Self-represented by Hassan Murad |
| City of Brampton | Steven Ross* |
MEMORANDUM OF ORAL DECISION DELIVERED BY S. BOBKA AND D. ARNOLD ON MAY 17, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Hassan Murad and Shifa Masood (together the “Appellants”) own 33 Donomore Drive in Brampton (“Subject Property”). The Subject Property is approximately 249.34 square metres in lot area, with a lot frontage of 9.15 metres (“m”) and lot length of 27.25 m and a two-storey single detached dwelling located thereon. The Appellants applied to the City of Brampton (“City”) for minor variances in respect of the Subject Property to permit:
(a) A below grade entrance to a residential dwelling within a required side yard whereas the Zoning By-law does not permit such entrance; and
(b) A combined total side yard width of an interior lot of 0.97m whereas the Zoning By-law requires such total to be not less than 1.8m.
2The City’s Committee of Adjustment (“COA”) refused the minor variance applications, and the Appellants appealed that decision pursuant to s. 45(12) of the Planning Act (“Act”).
3Prior to the Hearing, the Appellants and the City advised that a settlement, subject to conditions, had been reached in the Appeal and would be presented to the Tribunal.
4The proposed settlement amends the Subsection (b) of the original minor variance application noted above to provide for a combined total side yard width of an interior lot of 1.39 m. The Tribunal determined, as provided for in Section 45(18.1.1) of the Act, that the amendment/change to the original application is minor and, as such, no further notice is required.
5At the Hearing on May 17, 2022, the Tribunal rendered an oral decision authorizing the amended minor variance application and the following provides a written memorandum of that oral decision.
LEGISLATIVE FRAMEWORK
6Pursuant to Section 45(1) of the Act, in considering whether to approve the minor variances, the Tribunal must be satisfied that the proposed minor variances:
a) maintain the general intent and purpose of applicable official plans;
b) maintain the general intent and purpose of the City’s zoning by-law;
c) are minor in nature; and
d) are desirable for the appropriate development or use of the land, building or structure
7In considering the proposed variances, the Tribunal must also have regard to matters of provincial interest as set out in s. 2 of the Act and to the decision of the approval authority and the information that was before it when making that decision as required by s. 2.1. Further, the Tribunal must be satisfied that the proposed minor variances are consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform to the Provincial plan entitled A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (“GP”) as required by s. 3(5) of the Act.
EVIDENCE
8The Appellants were self-represented at the Appeal and did not call any land use planning experts. The City was represented by Counsel and relied upon the testimony of Xinyue Li. Ms. Li is a Land Use Planner employed by the City, who was qualified by the Tribunal to provide opinion land use planning evidence. The Tribunal received the benefit of Ms. Li’s oral testimony as well as her sworn Affidavit of Evidence (Exhibit 2) executed on April 7, 2022. Ms. Li also provided an executed Acknowledgement of Expert’s Duty form (Exhibit 2).
9Ms. Li provided evidence that the Subject Property is:
(a) designated greenfield areas in Schedule 2 of the GP;
(b) within the Urban System Designation of Schedule D and designated Greenfield Area in Schedule D4 of the Region of Peel Official Plan;
(c) designated “Residential” in the City’s Official Plan and “Medium Density Residential” in the Fletcher’s Meadow Secondary Plan (Area 44) (the “Official Plan”); and
(d) zoned “Residential Single Detached D – Special Section 2014 (R1D-2014) pursuant to the City’s Zoning By-law 270-2004, as amended (the “Zoning By-law”).
10It was Ms. Li’s professional land use planning opinion in evidence that the minor variances requested in the amended Application have regard for matters of Provincial interest, are consistent with the PPS, and conform to the GP.
11With regard to the first test set out in Section 45(1) of the Act, Ms. Li provided evidence that the amended minor variances to permit a below grade entrance and reduced side yard setback do not change the residential use and therefore these minor variances maintain the general intent of the Official Plan.
12Ms. Li testified that the intent of the Zoning By-law provisions prescribing minimum side yard width is to ensure access to the rear yard, provide adequate space for maintenance and to maintain an appropriate buffer and setback distance from the neighbouring property. It was her opinion that the amended variances provide a sufficiently wide path to access the rear yard for maintenance or emergency purposes and sufficient space to ensure appropriate drainage. Ms. Li opined that the amended variances maintain the general intent and purpose of the Zoning By-law.
13Ms. Li highlighted to the Tribunal, the Proposed Site Plan, updated on January 12, 2022 and found in Exhibit 2 (and as subsequently revised and provided to the OLT by the Parties with clear measurement figures depicted thereon and attached as Attachment 1 to this Decision). Ms. Li opined that the distance between the below grade stairs and the property line provides a sufficient path and is considered desirable. She further opined that as the Province continues to emphasize the importance of affordability of housing, and as the amended variances will allow for a below grade entrance providing access to a secondary dwelling unit, the variances are desirable.
14It was Ms. Li’s opinion that the amended variances are not expected to negatively impact access to the rear yard, and as such they are considered to be minor in nature.
15In summary, it was Ms. Li’s opinion that the amended variances, as implemented in accordance with the Site Plan attached to Exhibit 2, have regard for matters of Provincial interest, are consistent with the PPS, conform to the GP, meet the four tests of a Minor Variances in s. 45(1) of the Act and represent good land use planning.
PROPOSED CONDITIONS
16Ms. Li testified that the City and the Appellant signed Minutes of Settlement (Exhibit 2) which contemplated the City and the Appellant jointly requesting the Tribunal to impose the following conditions in respect of its decision:
That the variances requested in the Application be approved to the extent indicated in the revised Site Plan attached to the Minutes of Settlement as Schedule A;
That drainage shall be maintained on the Subject Property and shall not adversely affect drainage on any adjacent properties;
That the below grade side entrance shall not be used to access an unregistered second dwelling unit;
That the appellants shall obtain a building permit for the existing below grade entrance within 60 days of the Tribunal’s decision, or within an extended period of time at the discretion of the Chief Building Official; and
That failure to comply with and maintain these conditions shall render the Tribunal approval null and void.
17Upon inquiry from the Panel, Counsel for the City acknowledged the jurisdictional issue relating to Condition No. 5 above and the Parties withdrew the request for this Condition at the Hearing.
18With respect to Conditions 2 to 4 above, Counsel for the City advised that they were intended to inform the Appellant of their responsibilities in connection with the proposed construction and use of the below grade entrance. Despite this intent, the Panel expressed its concern as to the propriety and ability of the Tribunal imposing Conditions such as these, that related to matters of enforcement rather than conditions properly relevant to the requested variances. Upon direct inquiry from the Tribunal, Ms. Li provided evidence that the proposed minor variances satisfy the balance of the four tests set out in Section 45(1) of the Act, without the imposition of these Conditions.
19Upon the evidence given, and as addressed with the Parties it is the view of the Tribunal that Conditions 2, 3 and 4 represent matters of private agreement as between the Parties under their settlement and do not represent conditions appropriate for inclusion in the Tribunal’s authorization of the requested variances. As they relate to matters of enforcement and future permitted uses, they are, as well, not properly within the jurisdiction of the Tribunal. As the Tribunal is satisfied upon the evidence presented that the requested variances meet the four tests, and the requirements of the Act, without such conditions, they are unnecessary as conditions to the Order of the Tribunal.
FINDINGS
20The Tribunal heard the uncontroverted testimony of Ms. Li, who was qualified to give land use planning evidence, and it has also reviewed her Affidavit of Evidence (Exhibit 2). On the evidence heard, the Tribunal is satisfied that the proposed amended variances conform to the Growth Plan, are consistent with the Provincial Policy Statement, have regard for matters of Provincial interest under the Act and meet the required criteria of s. 45 of the Act.
ORDER
21THE 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 Section 45(18.1.1) of the Planning Act that no further notice is required;
22THE TRIBUNAL HEREBY ORDERS that the appeal is allowed, and the following variances to Zoning By-law No. 270-2004, as amended, are authorized:
(1) A below grade entrance to a residential dwelling within a required side yard whereas the Zoning By-law does not permit such entrance; and
(2) A combined total side yard width of an interior lot of 1.39 m whereas the Zoning By-law requires such total to be not less than 1.8 m
subject to the following condition:
- That the construction on the Subject Property as permitted by the authorized minor variances be completed in accordance with the revised Site Plan attached as Attachment 1 to this Order.
“S. Bobka”
S. BOBKA MEMBER
“D. Arnold”
D. ARNOLD 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.