Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 30, 2023
CASE NO(S).: OLT-23-000316
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Sara Grace
Subject: Minor Variance
Description: To permit encroachment of an existing single-storey deck
Reference Number: A-005-23
Property Address: 356 McKeon Avenue
Municipality/UT: London/Middlesex
OLT Case No.: OLT-23-000316
OLT Lead Case No.: OLT-23-000316
OLT Case Name: Grace v. London (City)
Heard: August 10, 2023 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Sara Grace (“Applicant/Appellant”) | Self-represented |
DECISION DELIVERED BY JENNIFER GOLD AND ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
1The matter before the Tribunal is an appeal filed by Sarah Grace (the “Appellant”) against the decision of the City of London (the “City”) Committee of Adjustment (the “Committee”) dated March 23, 2023. The appeal is in relation to a conditional approval of an application for a minor variance to the zoning provision established by Section 4.27(5) of the Zoning By-law No. Z.-1, as amended (the “ZBL”) concerning 356 McKeon Avenue (the “Subject Property”). The Subject Property is zoned Residential R1 (R1-4), which provides for and regulates low-density residential development exclusively in the form of single detached dwellings.
2The requested variance is to permit a yard encroachment for a deck that is 0.6 metres (“m”) from the south lot line whereas 1.2 m is the minimum required. The purpose and effect of such a variance is to permit or legalize an existing single-storey deck. The existing single-storey deck, for which this minor variance applies, was constructed between 2021 and 2022. In January 2023, the Appellant applied for a variance to the Committee to seek relief from the ZBL to permit the deck at an encroachment closer to the south lot line than is permitted. The Appellant originally applied for a yard encroachment for a deck that is 0.1 m. The application was scheduled for consideration before the Committee on March 2, 2023. The Committee agreed to defer its decision so that the Appellant could adjust the deck size from 0.1 m from the south lot line to 0.6 m. On March 23, 2023, the Committee approved a yard encroachment for a deck that is 0.6 m from the south lot line subject to the condition that “the owner is required to provide a lot grading plan for stormwater flows and major overland flows on site and ensure that stormwater flows are self-contained on site, all to be submitted and approved by the City of London engineering department.” After the Committee provided this conditional approval, the Appellant appealed to this Tribunal on or about April 8, 2023.
ISSUE
3To succeed, the Appellant must satisfy the Tribunal that the requested variance meets the four tests set out under s. 45(1) of the Planning Act (the “Act”), namely, that the requested variance would:
a) maintain the general intent and purpose of the Official Plan; b) maintain the general intent and purpose of the ZBL; c) are desirable for the appropriate development or use of the land, building or structure; and, d) are minor in nature.
ANALYSIS AND FINDINGS
4An 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 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 of the Planning Act 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.
5It is noted that no one appeared for the City. The evidence before the Tribunal consisted of the testimony of the Appellant and her spouse, Jonathan Sikkema. Other abutting property owners did not attend. The Tribunal advised the Appellant that the Tribunal would consider the referral record which includes the report prepared by the City’s Planning and Development Department for the Committee.
6The Appellant submitted six photographs of the subject property that were entered as Exhibits 1 to 6. She testified that the deck was erected during the Covid-19 pandemic. Water has historically pooled in the centre of their backyard and that the construction of the deck or moving of the deck would not make a difference to the pre-existing water drainage issues. She informed the Tribunal that the Subject property is in the lowest area compared to abutting properties and that the deck is not causing water to be diverted to abutting properties. In order to respect her closest neighbour’s property, a privacy wall was installed.
7Jonathan Sikkema testified that having the 0.6 m from the south lot line as opposed to 1.2 m won’t make any difference to the water and drainage issues. The water issue is actually on the opposite side of the yard, away from the deck, on their property. There is no water issue near the south lot line. He had looked into a grading plan and found that an engineer’s drawing for a grading plan will cost about $10,000. He and the Appellant are prepared to grade the backyard and to dig and add a well that drains to the driveway and enters the city’s storm water drainage system. The cost of that is approximately $10,000-$12,000. He stated that doing that work in addition to obtaining a grading plan would be an excessive cost.
8The City’s Planning Report dated March 2, 2023 (“the Planning Report”) was reviewed. The Planning Report considered the variance to permit a yard encroachment for a deck that is 0.1 m from the south lot line, whereas 1.2 m is the minimum required. The Planning Report recommended refusal as it was the opinion of the planner that the variance did not satisfy Section 45(1) of the Planning Act on the basis that:
- The requested variance does not maintain the general intent and purpose of The London Plan.
- The requested variance does not maintain the general intent and purpose of the Zoning By-law.
- The requested variance is not minor in nature.
- The requested variance is not desirable for the appropriate development or use of the subject lands.
9The Planning Report indicated that yard encroachment for the deck was not considered minor in nature and is in opposition of the intent of the Zoning By-law. The Report further indicated that there are concerns that the encroachment does not provide space for site maintenance and functionality including accommodating stormwater runoff and drainage within the property as well as negative impacts on the adjacent property to the south as the existing deck abuts the shared fence.
10The Tribunal also reviewed a Memo containing comments from the City’s Environmental and Engineering Services Department and Development Services Division engineering staff, regarding various variance application including the Appellant’s application to the Committee. The comment regarding 356 McKeon Avenue was “Ensure neighbouring properties are not receiving additional stormwater flows.” This comment was different from other applications reviewed by that department. Regarding other applications, the engineering staff recommended “a lot drainage plan” that includes “elevations and directional flows” or “a lot grading plan for stormwater flows and major overland flows”. Such recommendations were not made with respect 356 McKeon Avenue.
11It does not appear that the Planning Report was subsequently updated after the amendment to the variance application from 0.1 m to 0.6 m.
12The Tribunal is satisfied that the privacy, drainage and maintenance issues have been adequately addressed by a yard encroachment for a deck that is 0.6 m from the south lot line from the originally sought encroachment of 0.1 m from the south lot line, in a context where 1.2 m is the minimum requirement. Such a variance is minor in nature and the change to 0.6 m address the issues with respect to privacy, drainage and maintenance particularly in light of the Appellant and her spouse’s undertaking to remediate the drainage issue and having erected a privacy wall. It is also significant that the comments from the City’s engineers did not require the condition that was imposed by the Committee that “a lot grading plan for stormwater flows and major overland flows on site and ensure that stormwater flows are self-contained on site, all to be submitted and approved by the City of London engineering department.” While it is clear that the Subject Property has water drainage issues, it is reassuring that the Appellant and her spouse are prepared to proactively take steps to remediate the issue. The Tribunal accepts the Appellant and Mr. Sikkema’s testimony that requiring a 1.2 m set back from the south lot line will not make any difference and that the Subject Property had drainage issues prior to the construction of the deck.
ORDER
13THE TRIBUNAL ORDERS that the appeal is allowed and the variance to the zoning provision established by Section 4.27(5) of the Zoning By-law No. Z.-1, as amended is authorized subject to the following conditions:
- Additional privacy screening including, but not limited to, planting, or panels shall be installed on the south side of the deck.
- Install a drainage system and improve grading to allow stormwater to drain into the City of London’s stormwater drainage system while ensuring neighbouring properties are not receiving additional stormwater flows.
“Jennifer Gold”
JENNIFER GOLD 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.