Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 2, 2022
CASE NO(S).: OLT-22-002604
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Dayna Pervaiz
Subject: Minor Variance
Property Address: 228 Tilford
Variance from By-Law No.: 2014-014
Municipality: Town of Oakville
Municipality File No.: A/026/2022
OLT Case No.: OLT-22-002604
OLT Lead Case No.: OLT-22-002604
OLT Case Name: Pervaiz v. Oakville (Town)
Heard: July 20, 2022 by video hearing
APPEARANCES:
Parties
Counsel
Dayna Pervaiz
Matthew Di Vona
Town of Oakville
Dennis Perlin
MEMORANDUM OF ORAL DECISION DELIVERED BY ERIC S. CROWE ON JULY 20, 2022, AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal is an appeal filed by Dayna Pervaiz (the “Appellant”) on March 10, 2022 against the Town of Oakville (the “Town”), Committee of Adjustment’s (the “CoA”) decision dated February 22, 2022, in relation to a minor variance from Zoning By-law No. 2014-014 (the” ZBL”) as amended, concerning 228 Tilford Road (the “Subject Property” / “Subject Site”).
2The application pursued the approval of a minor variance that would facilitate the construction of one new single detached residential two-storey dwelling. The proposed dwelling will include one private attached garage area with a lot coverage of 24.66%. The dwelling proposes a total floor area of 460.60 square metres (“m2”).
3The minor variance application (the “Original Application”) included a variance request to permit the maximum residential floor area ratio (“RFAR”) for the detached dwelling to be 33.07% (460.60 m2).
REQUESTED MINOR VARIANCE
4The amended application for the requested minor variance from ZBL No. 2014-014 as amended, is a reduction of the RFAR at 32.5% as summarized below:
HEARING
5On request of all Parties, the Tribunal converted the scheduled two-day Hearing to a Settlement Hearing to amend the minor variance application and authorize the minor variance request.
6The Parties informed the Tribunal that they were able to finalize a settlement respecting the variance request to:
i. amend the application in terms of the applicable Site Plan and drawings (Elevations and Floorplans) and to reduce the minor variance request for permitted RFAR to 32.5% (452.52 m2);
ii. to declare the amendment minor, requiring no notice to those who received notice of the Original Application nor any others; and
iii. to approve the amended application, subject to two (2) conditions.
7All Parties were canvased as to their concurrence of the settlement to be presented. The City advised they concurred to the Settlement. With all Parties agreeing with the proposed minor variance amended application, the Tribunal qualified Paul Demczak to proffer expert opinion evidence in the discipline of land use planning.
MINUTES OF SETTLEMENT (“MOS”)
8Counsel for the Appellant, Matthew Di Vona, provided the Tribunal an overview of the MOS that served to further define and clarify the basis of settlements for the Parties. The MOS are between the Appellant and the Town. The Town concurred with the submission of counsel Mr. Di Vona.
LEGISLATIVE TESTS
9It 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 of establishing that the four tests under s. 45(1) of the Act are met is on the Applicant. 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 (the “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 Act, namely that the requested variances:
maintain the general intent and purpose of the Official Plan (the “OP”),
maintain the general intent and purpose of the ZBL,
are desirable for the appropriate development or use of the land, building or structure; and
are minor in nature.
WITNESS
11The Appellant’s counsel called Mr. Demczak to provide evidence in support of the proposed settlement. He was duly qualified on consent to provide opinion evidence in land use planning. He adopted his Planning Brief presented to the CoA within the Book of Documents which was marked as Exhibit 1 to this proceeding.
12Mr. Demczak informed the Tribunal that since March 30, 2022, he has continued settlement discussions with the Town to resolve the issues concerning the minor variance application. These discussions proved successful, resulting in the resolution of the revised Site Plan and Drawings to reduce the RFAR.
PROPOSED SETTLEMENTS
13At the outset of his evidence, Mr. Demczak stated that in formulating his opinion on the minor variance amended application through settlement discussions with the Town, he considered the applicable legislative and policy context. In his opinion, the minor variance application, as amended, meets all of the applicable four tests of the Act and provincial policy tests. The amended application, has regard to the matters of provincial interest in s. 2 of the Act, conforms and does not conflict with the Growth Plan 2019, and is consistent with the PPS. Mr. Demczak provided detailed oral evidence to describe the amended application.
SITE CONTEXT
14The Subject Property is located in West Oakville, south of Lakeshore Road and to the west of Appleby College, within a low-density neighbourhood in the Town of Oakville. The Subject Property is situated on the west side of Tilford Road, south of Lakeshore Road West. The Subject Site is approximately 1,392 m2 in lot area.
OAKVILLE OFFICAL PLAN (“OP”)
15Mr. Demczak advised in his testimony that within the OP, the Subject Property is designated as Low Density Residential (Section 11.2.1), which permits the proposed use of a detached dwelling. In Mr. Demczak’s opinion, allowing for a high-quality architectural home maintains the integrity of the neighbourhood.
16Mr. Demczak advised the following policies are also relevant to the Subject Property: Section 11.1.9: Development within all stable residential communities shall be evaluated using the following criteria to maintain and protect the existing neighbourhood character:
a. The built form of development, including scale, height, massing, architectural character and materials, is to be compatible with the surrounding neighbourhood.
b. Development should be compatible with the setbacks, orientation and separation distances within the surrounding neighbourhood.
17Mr. Demczak highlighted that further to Section 11.1.9 of the OP, the Town of Oakville Design Guidelines for Stable Residential Communities (the “Design Guidelines”) implement the urban design and residential policies of the OP. The Design Guidelines would apply to the development on the Subject Site and in his opinion is an important tool in providing an assessment on the intent of the OP. Section 3.2 of the Design Guidelines states:
To achieve the policies of the Livable Oakville Plan, the design and placement of new dwellings, replacement dwellings and significant building additions within stable residential communities should preserve and maintain the character and the established patterns of nearby properties and those within the immediate surroundings.
The thoughtful design of dwellings is key for achieving visual continuity and compatibility throughout a neighbourhood. Commonly used architectural elements valued by the community are encouraged for consideration and incorporation into new development as key elements in establishing and maintaining the character of the area.
New development should not replicate the architecture of the adjacent dwellings or imitate historic styles; rather it should be designed to address the site and maintain the patterns found within the neighbourhood. New development, when contextually designed, may reflect any architectural style and still maintain compatibility with the character of the surrounding neighbourhood.
18Mr. Demczak also highlighted Section 3.2.1 of the Design Guidelines which states:
New development, which is larger in overall massing than adjacent dwellings, should be designed to reduce the building massing through the thoughtful composition of smaller elements and forms that visually reflect the scale and character of the dwellings in the surrounding area. This design approach may incorporate:
projections and/or recesses of forms and/or wall planes on the façade(s)
single-level building elements when located adjacent to lower height dwellings
variation in roof forms
subdividing the larger building into smaller elements through additive and/or repetitive massing techniques
porches and balconies that can reduce the verticality of taller dwellings and bring focus to the main entrance
architectural components that reflect human scale and do not appear monolithic
horizontal detailing to de-emphasize the massing
variation in building materials and colours.
19Mr. Demczak advised while the proposed dwelling is of a modern architectural style relative to some of the dwellings within the immediate neighbourhood, the architecture and proportions of the building have been carefully considered to appropriately reflect the scale and ensure compatibility of the existing streetscape.
20The proposed dwelling incorporates a front porch element, windows which interact with the street, a two-vehicle garage, and various building elevation components to provide variety, which are commonly used architectural elements found in the neighbourhood. High quality material and architectural details are further implemented which benefit the streetscape of the surrounding dwellings and neighbourhood. The proposed dwelling maintains the required lot coverage and height, as well as all building setbacks and dwelling depth requirements of the ZBL and respective neighbourhood.
21In Mr. Demczak’s opinion, the proposed dwelling does not seek to replicate the architecture of the adjacent dwellings and is designed to address the site and maintain the general patterns found within the neighbourhood. The proposed dwelling is contextually designed and reflects a modern architectural style which maintains compatibility with the character of the surrounding neighbourhood. As such, the proposed development maintains the general purpose and intent of the OP and the Halton Region OP. The Tribunal accepts Mr. Demczak’s evidence and opinion and finds the same.
TOWN OF OAKVILLE ZONING BY-LAW (“ZBL”)
22Mr. Demczak testified the RFAR regulation is intended to assist in regulating the scale and massing of the building. The proposed increase in RFAR is not considered to contribute negatively to the scale and massing for the proposed dwelling. It is noted that the proposed dwelling is in keeping with the required lot coverage and height, as well as all building setbacks and dwelling depth requirements of the ZBL and respective neighbourhood.
23Further, Mr. Demczak advised the proposed dwelling provides for high-quality design and architecture. As such, the proposed increase to the RFAR is not considered to result in a building that dominates or is out of character with the streetscape. Mr. Demczak testified the RFAR is internal within the dwelling and has negligible impact.
24In Mr. Demczak’s opinion, the proposed variance poses no conflict and maintains the general purpose and intent of the ZBL and the amendment is minor, requiring no notice to those who received notice of the Original Application nor any others. The Tribunal accepts Mr. Demczak’s evidence and opinion and finds the same.
CONCLUSION
25Mr. Demczak opined, the proposed variance has been reviewed in relation to the current requirements of the ZBL and specifically examined with respect to the adverse impact, if any, that would be experienced in the nearby area as a consequence of the granting of the variance. It is his opinion, that the Subject Property can accommodate the variance for floor area without adverse impact on nearby properties and while fitting into the character of the area. As such, in his opinion the application is appropriate, considered minor in nature, desirable for the use of the land and maintains the general intent and purpose of the OP and ZBL. On this basis, the proposed development satisfies the four tests required for a minor variance application under the Act and represents good planning and is in the public interest.
TRIBUNAL ANALYSIS OF THE AMENDED APPLICATION
26The Tribunal accepts the uncontested evidence of the Mr. Demczak in its entirety and finds the amended application found in the proposed settlement meet all the relevant policy tests of the Act, PPS 2020, Growth Plan 2019, and all relevant foundational policies of the Town OP and ZBL.
27Mr. Demczak’s testimony to the Tribunal built upon the basic tenets of having regard to, being consistent with or in conformity with statutory provincial documents. The amended application represents good planning and is in the public interest.
28The Tribunal finds that the amended application is accepted in its entirety and declare the amendment minor, requiring no notice to those who received notice of the Original Application nor any others.
29The Tribunal commends the efforts of the Town and the Appellant to find common ground which resulted in an efficient resolution to this case.
ORDER
30THE 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 subsection 45(18.1.1) of the Planning Act that no further notice is required; and
31THE TRIBUNAL ORDERS that the appeal is allowed and the variance to Zoning By-law No. 2014-2022, is authorized to permit the maximum RFAR for the detached dwelling to be 32.5% subject to the following conditions:
That the approval expires two (2) years from the date of the Ontario Land Tribunal’s Decision if a building permit has not been issued for the proposed construction; and
That the proposed new dwelling be constructed in general accordance with the Revised Site Plan and Drawings (Elevations and Floorplans) in Schedule “C” to these Minutes of Settlement, on file with the Tribunal.
“Eric S. Crowe”
ERIC S. CROWE
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.