Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 03, 2022
CASE NO(S).: OLT-21-001457
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended
Applicant: Wendy Van Kempen and Stephen Birch
Appellant: Adam Drew
Subject: Minor Variance
Property Address/Description: 4900 Old Brock Road
Variance from By-law: 3037
Municipality: City of Pickering
Municipal File No.: P/CA 78/21
OLT Case No.: OLT-21-001457
OLT Lead Case No.: OLT-21-001457
OLT Case Name: Drew v. Pickering (City)
Heard: September 13, 2022 by Video Hearing
APPEARANCES:
Parties
Counsel
Wendy Van Kempen
Matthew Rutledge
Adam Drew
Tanya Walker, Rishi Nageshar
DECISION DELIVERED BY P. TOMILIN AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal is an appeal filed by Adam Drew (“Appellant”) against the decision of the City of Pickering Committee of Adjustment (“COA”) to authorize minor variances for the property owned by Wendy Van Kempen (“Applicant”) and municipally known as 4900 Old Brock Road (the “subject property”/ “lands”). The Appellant owns the property abutting the Applicant’s property to the north.
2The subject lands are located northwest of the intersection of Old Brock Road and Brock Road, in the City of Pickering (“City”).
3The property has 22.5 metres (“m”) of street frontage on Old Brock Road, a lot depth of 175 m and a lot area of 3,935 square metres (“m²”), and is developed with a two-storey, single-detached dwelling with an attached garage.
4The subject lands are located within the Settlement of Claremont, which generally consists of one- and two-storey, single detached dwellings. The local neighbourhood is characterized by rectangular-shaped lots with depths that exceed the frontage of the lot and generous rear yards.
5The subject property is designated “Rural Settlements – Oak Ridges Moraine Rural Hamlets” under Schedule 1, and “Hamlet Residential” under Schedule IV of the City Official Plan ("City OP"). Lands within these designations are recognized as historic settlements and detached dwellings and accessory structures are permitted uses of the property. The property is zoned ORM-R6 and ORM-EP by Zoning By-law No. 3037 (“ZBL”).
BACKGROUND TO THE APPLICATION
6The minor variance application results from the construction of a platform deck to replace a former deck that was damaged by water. The newly constructed deck is within the portion of the property zoned ORM-R6.
7The City’s Building Services Department (“BSD”) issued the building permit in May 2021. Upon inspection by the BSD, it was determined that the newly constructed deck was deficit in the south side yard setback (0.9 m) and exceeded the maximum 1 m height provision of the ZBL.
8Consequently, the Applicant submitted a minor variance application seeking approval for the following:
To permit a south yard setback of 0.9 m, whereas a setback of 1.8 m is required;
To permit a deck height of 2.5 m, whereas a maximum height of 1 m is permitted.
9City planning staff reviewed the application and recommended it be approved, and the COA authorized the variances. The decision of the COA was subsequently appealed to the Tribunal.
10It was mentioned to the Tribunal that the Applicant and the Appellant having long-standing disputes involving their respective properties and are currently engaged in civil litigation. It was not indicated, nor does the Tribunal have cause to believe the minor variance application in and of itself is a factor in the ongoing litigation.
11The City advised the Tribunal that it would not be participating in the hearing, and no other Party or Participant Status Requests were filed with the Tribunal prior to the hearing.
LEGISLATIVE FRAMEWORK
12An appeal pursuant to s. 45 of the Planning Act (“Act”) is a hearing de novo and the Applicant bears the onus to demonstrate to the Tribunal that the criteria established in s. 45(1) has been satisfied:
the intent and purpose of the official plan is being maintained;
the intent and purpose of the zoning by-law is being maintained;
is desirable for the appropriate development or use of the land, building or structure; and,
the variance(s) is minor in nature.
13In addition to the four tests, the Tribunal must have regard to the matters of the provincial interests as set out in s. 2 of the Act, and the decision of the approval authority under s. 2.1 of the Act.
SUBMISSIONS OF THE APPELLANT
14The Appellant told the Tribunal that he disagrees with the COA’s decision and reasons for approving the application. In his view, the variances do not meet the four tests.
15The Appellant claims the new deck is visible from his house and the reduction of the south side yard setback has affected his family’s privacy. The Appellant also alleges that the new deck is causing flooding which is affecting his septic bed.
16The Appellant was represented by legal counsel, but did not call a land use planning witness.
SUBMISSIONS BY THE APPLICANT
17Brayden Libawski is an Urban Planner and a Candidate Member of the Ontario Provincial Planners Institute. He appeared on behalf of the Applicant.
18Counsel to the Appellant objected to Mr. Libawski being qualified as an expert witness on the basis that he has not yet attained his professional accreditation.
19In consideration of Mr. Libawski’s land use planner certification, his related work experience, and his sworn Acknowledgement of an Expert’s Duty, the Tribunal qualified Mr. Libawski as an expert land use planning witness.
20Mr. Libawski confirmed that the new deck is located at the back of the dwelling and replaces a former deck that had deteriorated as a result of water damage caused by flooding.
21Due to the slope of the lands, the deck is above grade and is supported by wooden columns. Mr. Libawski indicated that the platform of the new deck is similar in height to that of the former deck, and likewise, is accessible from the first floor of the dwelling. The variance for increased height will facilitate access to the deck from the main floor of the dwelling, which, in his opinion, is desirable as it will enhance the use of the outdoor amenity area of the subject property.
22Mr. Libawski confirmed that he reviewed the relevant policies and concluded that the use of the property conforms to the City OP. The variances being sought do not result in any change to the size of the lot, the overall size of the existing dwelling, or the floor coverage of the dwelling.
23Provision 8.6.1 of the ZBL permits single detached dwellings. Provision 5.7(b) permits a deck of up to 1 m in height to project 0.5 m into the side yard setback. In this case, the new deck only projects 0.4 m more than what is permitted by the ZBL (1.5 m). The increased projection is due to the placement of wooden support columns. In any event, the 0.9 m side yard setback is sufficient to allow access to the side yard for maintenance purposes.
24In response to the concern about the reduced side yard and flooding, the Development Department provided the following comment:
Despite the projection into the side yard, the deck will maintain a 0.9 of a metre setback from the south side property line, which will not compromise the function of the side yard and will provide adequate separation to allow for access to the rear yard, drainage and maintenance. (emphasis added)
25Lastly, Mr. Libawski pointed out that the Appellants’ house is located 30 m from the new deck, and in his estimation, the impact of a 0.4 m separation differential is negligible and will not have an impact on the Appellant’s property. A row of mature trees extending along the separating lot line will serve to further mitigate the potential for privacy/overlook impacts.
26Overall, it is Mr. Libawski’s professional opinion that the variances maintain the general intent of the OP and the ZBL. The variances are minor in nature and will not adversely impact the Appellant’s property.
ANALYSIS AND FINDINGS
27Based on a thorough review of the evidence, and in consideration of the uncontroverted land use planning evidence and opinions of Mr. Libawski, the Tribunal finds that the requested variances meet the four tests established in s. 45(1) of the Act.
28The general intent and purpose of the City OP and ZBL is being appropriately maintained, and the variances are minor in nature and do not result in the creation of unacceptable adverse impacts.
29In regard to the issue of privacy, the Tribunal finds that given there is a 30 m separation between the subject lands and the Appellant’s property, the 0.4 m intrusion into the side yard setback will not have an undue impact on privacy.
30In that regard, the Tribunal notes that in Hany v Toronto (City), 2018 CanLII 78775 (ON LPAT), at para. 58, Vice-Chair Schiller found that:
The requirement set out in the OP is for adequate privacy. The OP standard of “adequate privacy” does not mean that there is a requirement for “no overlook”.
CONCLUSION
31The Tribunal finds that the variances satisfy the four tests of s. 45(1) of the Act, have regard to the matters of the provincial interests set out in s. 2, are consistent with the City OP, ZBL and are representative of good planning.
ORDER
32THE TRIBUNAL ORDERS that the appeal is dismissed and the variances to By- law No. 3037, as amended, are authorized subject to the following condition:
- That this variance apply only to the uncovered deck, as generally sited and outlined on the Applicant’s submitted plans (refer to Exhibit 2).
“P. Tomilin”
p. tomilin
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.