Sradhananda Mishra v. Brampton (City), 2023 CanLII 115103

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 27, 2023

CASE NO(S).: OLT-23-000636

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Sradhananda Mishra

Subject: Consent

Description: To permit the creation of a new lot, lot addition and easement

Reference Number: B-2022-0025

Property Address: 9893 Torbram Road, Part of Lots 9 and 10, Concession 6 E.H.S.

Municipality/UT: Brampton/Peel

OLT Case No.: OLT-23-000636

OLT Lead Case No.: OLT-23-000636

OLT Case Name: Sradhananda v. Brampton (City)

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

Applicant and Appellant: Sradhananda Mishra

Subject: Minor Variance

Description: To permit the creation of a new lot, lot addition and easement

Reference Number: A-2022-0372

Property Address: 9893 Torbram Road, Part of Lots 9 and 10, Concession 6 E.H.S

Municipality/UT: Brampton/Peel

OLT Case No.: OLT-23-000637

OLT Lead Case No.: OLT-23-000636

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

Applicant and Appellant: Sradhananda Mishra

Subject: Minor Variance

Description: To permit the creation of a new lot, lot addition and easement

Reference Number: A-2022-0373

Property Address: 9893 Torbram Road, Part of Lots 9 and 10, Concession 6 E.H.S.

Municipality/UT: Brampton/Peel

OLT Case No.: OLT-23-000638

OLT Lead Case No.: OLT-23-000636

Heard: September 13, 2023 by Video Hearing, September 20, 25, 28 in Writing

APPEARANCES:

Parties	Counsel/Representative
Sradhanada Mishra	David Bronskill Zachary Fleisher (in absentia)
Shree Jagannath Temple Canada	Meaghan McDermid Hannah Ruby

DECISION DELIVERED BY G.A. CROSER AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This Merit Hearing was convened to hear the Appeal by Sradhanada Mishra (“Appellant”) of the City of Brampton’s Committee of Adjustment’s (“COA”) refusal of applications for provisional consent to effect a lot line adjustment, access easement, and necessary minor variances for the lands located at 9893 Torbram Road (the “Appeal”).

PARTY AND PARTICIPANT STATUS REQUESTS

2The Shree Jagannath Temple Canada (“SJTC”) applied for Party status. This is a not-for-profit registered charity and is the present occupier of the Place of Worship building located on the Subject Lands. The Tribunal reviewed the Party status request and was satisfied that the SJTC had a direct interest in the outcome of the Hearing, and that their presence was necessary to adjudicate effectively and completely on the issues in the proceeding. There was no objection from the Appellant and Party status was granted to the SJTC.

3There were eight requests for Participant status, which the Tribunal granted without objection to the following individuals:

1. H. Behera
2. S. Kumar Dash
3. B. Dash
4. S. Dash
5. B. Jana
6. B. Behera
7. S. Behera
8. R. Sabat

4The Participants included residents of Brampton and Jagannath devotees. Their concerns focused primarily on lack of parking and future expansion plans for the Temple. The Tribunal carefully reviewed the Participant Statements filed by the above noted individuals and took their views into consideration when reaching a decision on this matter.

5The City of Brampton (“City”) had indicated in advance of the Hearing that it was taking no position with respect to the Appeal and would not be attending the Hearing. Notwithstanding the foregoing, the City requested that, in the event of a decision authorizing the requested variances and approving the provisional Consent, a list of conditions recommended by City staff be imposed by the Tribunal.

SUBJECT LANDS

69893 Torbram Road (the “Subject Lands”) are located on the east side of Torbram Road, north of the intersection of Torbram Road and North Park Drive in the City. Torbram Road is identified in the City‘s Official Plan (“OP”) as a Minor Arterial Road, and is a Primary Transit Corridor. The site has a total area of approximately 0.60 hectares with approximately 118 metres of frontage along Torbram Road. Surrounding land uses include low density residential neighbourhoods to the north and west, and a commercial plaza immediately abutting the Subject Lands to the south.

7The site is partially occupied by an existing Place of Worship building. The Place of Worship building (the “Temple”) was placed on the City’s Heritage Register in 1984. It was built in 1876 and originally accommodated the Harrison United Church. Over the years the building has been utilized as a Place of Worship for various religious organizations. A Heritage Impact Assessment was submitted as part of the Application and was reviewed by the City’s Heritage staff, who had no objections to the Application. Access to the site is achieved via two driveways that provide access onto Torbram Road. These driveways are located on either side of the Temple. The remainder of the site is vacant.

8The Subject Lands are located within the Urban Boundary of the City of Brampton and the Region of Peel, and are considered by the Provincial Policy Statement, 2020 (“PPS”) as a Settlement Area. In accordance with the OP, the Subject Lands are designated as ‘Residential’ and are designated as Place of Worship in both the Springdale Secondary Plan (Area 2) and the Airport Intermodal Secondary Plan (Area 4). The City’s Zoning By-law lists the site as Institutional One – Section 676, which permits a Place of Worship.

APPLICATION

9The Subject Lands consist of four parcels, each with its own Property Identification Number (“PIN”), as noted on the Land Registry Office (“LRO”) parcel abstracts.

1. PIN #14208-0002 is 0.06 hectares, rectangular in size and contains the Temple.
2. PIN #14208-0040 is 0.54 hectares in size, generally rectangular in shape, and is mostly vacant, with a small portable structure and mobile phone transmission tower to the rear of the site.
3. PIN #14208-0810 and PIN #14208-0812 act as open space buffer blocks. They were created at the time of the approval of the adjacent subdivision and are not part of the Application.

10The purpose of the proposal is to sever the Place of Worship building and parking area from the remainder of the Subject Lands, upon which future development is contemplated.

11The proposed Consent would sever a ‘T-shaped’, 0.09-hectare portion of PIN #14208-0040 to be added to, and merged with, PIN #14208-0002. The resulting parcel would contain the Temple and would be approximately 0.15 hectares in size (the “Temple Lands”). The remaining parcel (the “Vacant Lands”) would be approximately 0.45 hectares in size. The resultant parcels would fail to meet the zoning specific requirements for this property address as set out in the ZBL. The Minor Variances sought to allow the consent to be approved are as follows:

1. To permit a lot size of 0.15 hectares for the Temple Lands, whereas a lot size of 0.65 hectares (6,500 square metres) is required by the ZBL.
2. To permit a minimum landscaped open space strip of 1.5 metres, whereas a minimum of 3 metres is required by the ZBL.
3. To permit a lot size of 0.45 hectares for the Vacant Lands, whereas a lot size of 0.65 hectares (6,500 square metres) is required by the ZBL.
4. To permit a minimum interior side yard setback of 2.4 metres, whereas a minimum of 7.5 metres is required by the ZBL.

12Access to both the Temple Lands and Vacant Lands will be provided from Torbram Road via the two existing separate driveways. The northerly driveway will provide access to both the Temple and Vacant Lands through the implementation of a 7-metre wide access easement on the Temple Lands in favour of the Vacant Lands. No change to the Temple building was sought or proposed by the Application.

LEGAL DISPUTE

13The Tribunal was made aware that there is an ongoing legal dispute with respect to the ownership of the Subject Lands. It was acknowledged by both Parties that the Appellant is the registered owner of the Subject Lands, which was demonstrated with Land Registry documents. The Tribunal made it clear to both Parties at the onset of the Hearing that the matter before the Tribunal was the Application and decision of the COA. The question of ownership of the Subject Lands is not an issue that the Tribunal has jurisdiction over, and matters relating or pertaining to the legal dispute were irrelevant to the adjudication of the planning instruments.

SHREE JAGANNATH TEMPLE CANADA

14The Place of Worship building on the Subject Lands is currently operating as a Hindu Temple operated by SJTC. It is the only Jagannath Temple in Canada. This Temple is used by community users for worship as well as spiritual gathering for events. The Temple contains 30-35 Deities, which are worshipped by devotees from the Jagannath Hindu community. Services are offered daily.

15The main floor of the Temple is an open floor area format where devotees sit on the floor, as is customary in the Hindu practice. Some benches have been placed around the walls of the Temple for any devotees with mobility issues who are not capable of sitting on the floor. On the front of the open floor is a raised area which acts as an altar for various Deities. There is also an upper balcony which can be accessed from stairs inside the main floor. The SJTC is presently utilizing the upper balcony and a portable accessory building, located on the Vacant Lands, for storage.

POSITIONS OF THE PARTIES

Appellant

16Mr. Bronskill, counsel for the Appellant, stated that this was a “simple Application” for a lot line adjustment; a taking of land from one parcel and adding it to another. The Appellant’s position was that this reconfiguration of land between the two parcels created an improved situation for the Place of Worship, as it expanded the parcel that the Temple resided upon and provided for a greater number of parking spaces on that parcel of land. It was the position of the Appellant that the Application is compatible with the surrounding context and prepares the Vacant Lands for future development.

Shree Jagannath Temple Canada

17The SJTC stated that the Application would have significant negative impacts on the Place of Worship and its devotees. SJTC’s counsel, Ms. McDermid, stated that the Consent Application was premature, that the lot sizes proposed were severely deficient, that this was a case of lot creation rather than a lot line adjustment, and that variances with respect to parking were missing from the Application. The SJTC also argued that the Application would limit, rather than foster, the evolution and growth of the Temple.

LEGISLATIVE FRAMEWORK

Minor Variance Appeal – [s. 45(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec45subsec1_smooth) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

18With respect to the Application for four Minor Variances, the issue before the Tribunal is whether the requested Variances meet the four tests set out in s. 45(1) of the Act and should be authorized by the Tribunal. The Tribunal must accordingly be satisfied, in this Appeal, that the Variances required for the two adjusted lots, if granted: (a) maintain the general intent and purpose of the POP and OP; (b) maintain the general intent and purpose of the City of Brampton’s Zoning By-Law (“ZBL”); (c) are desirable for the appropriate use and development of the Subject Lands; and (d) are minor.

19Lastly, the Tribunal must be satisfied that the requested Variances are consistent with the PPS; conform to the Growth Plan; have regard to matters of Provincial interest; and, in making its decision, the Tribunal must have regard to the decision of the approval authority and the information that was before it when making that decision.

Consent Appeal – [s. 53(19)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec53subsec19_smooth) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

20In determining the Appeal brought pursuant to s. 53(19) of the Planning Act (“Act”), and deciding whether the proposed provisional Consent should be granted with such conditions that may be required, the Tribunal must consider and decide certain issues:

1. The Tribunal must address the threshold question in accordance with s. 53(1) of the Act and be satisfied that a plan of subdivision is not necessary for the proper and orderly development of the municipality, and can proceed by way of application for consent. Plans of subdivision are normally used to divide land into smaller lots which may be allocated to streets, parks or municipal services. In this case, given the number of lots in question and the existing servicing already in place, the Tribunal finds that this issue does not apply;

2. The Tribunal must then, under s. 53(12) of the Act, have regard for the criteria set out in s. 51(24) of the Act, which includes: (a) that the proposed consent has regard to the effect that the consent will have on matters of Provincial interest set out in s. 2 of the Act; (b) whether the proposed consent is premature or in the public interest; (c) whether the consent conforms to the Region of Peel Official Plan (“POP”) and the OP; (d) the suitability of the land for the purposes for which it is to be subdivided; (f) the dimensions and shapes of the proposed lot; and (i) the adequacy of utilities and municipal services;

3. As required by s. 3(5) of the Act, the Tribunal must, in its decision, be satisfied that the approval of the proposed provisional consents are consistent with the PPS, and conform to such Provincial Plans that may be applicable, which in this case is the A Place to Grow: Growth Plan for the Greater Golden Horseshoe, as amended (“Growth Plan”);

4. The Tribunal must also have regard to the decision of the approval authority relating to the Consent Applications that are before the Tribunal, and the information and material that was before the approval authority in making its decision;

5. The Tribunal may, under s. 53(12) of the Act, also consider and impose such conditions as may be determined to be reasonable, having regard to the nature of the proposed consents, which may include those set out in s. 51(25) of the Act; and

6. The Tribunal will decide whether the giving of provisional Consent to the Appellant, with any required conditions, represents good planning in the public interest.

PLANNING EVIDENCE

[Section 2](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec2_smooth) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

21The Appellant’s Planner, Andrew Walker, was qualified by the Tribunal to provide expert opinion evidence in the area of land use planning. Mr. Walker’s opinion was that the Subject Lands were suitable for severance as the Temple remains in situ and that there were no changes in use. As such, the Application had regard for s. 2 of the Act, including 2(i) “being the adequate provision and distribution of educational, health, social, cultural and recreational facilities.” He also referenced s. 2(d) and s. 2(f) of the Act and commented that the original Place of Worship building was being maintained, and he noted the existing service and transit that service the site. In Mr. Walker’s opinion, the Application had appropriate regard for matters of Provincial interest as required by the Act.

22The SJTC’s planner, Aimee Powell, was similarly qualified by the Tribunal to provide expert opinion evidence in the area of land use planning. Ms. Powell’s position was that the Application failed to have regard for s. 2(i) of the Act. In her view, the Temple was a community landmark and cultural facility, which would be negatively impacted in terms of its function and ‘sense of place’ due to the reduced lot area that would result if the lot line adjustment and subsequent development of the Vacant Lands was permitted.

Provincial Policy Statement, 2020

23Mr. Walker’s opinion was that the Application was consistent with the PPS. He opined that the Application was consistent with Part IV of the document, primarily by focusing development within the urban settlement area and accommodating existing institutional and future additional development to meet the needs of the current and future residents of the City. Mr. Walker opined that the Application represented an efficient use of the land and existing infrastructure that created the opportunity to explore future redevelopment options on the Vacant Lands.

24Ms. Powell thought it was premature of Mr. Walker to reference policies with respect to housing, as no proposal with respect to redevelopment was before the Tribunal. In Ms. Powell’s opinion, the most suitable development of the Subject Lands would be for the expansion of the existing Place of Worship’s operations to benefit community members and their quality of life. Ms. Powell stated that the ability to expand the existing Place of Worship, when required, to meet the needs of the community, should be preserved.

25The Tribunal made it very clear at the Hearing that the SJTC’s vision for expansion on the Subject Lands was irrelevant for the purposes of the Appeal. The SJTC is not the registered owner of the Subject Lands, and as such, the impact of the Application on their theoretical expansion plans was not a valid planning reason to deny the Appeal.

A Place to Grow: Growth Plan for the Greater Golden Horseshoe

26Mr. Walker opined that the Application conformed with and supported the principles of the Growth Plan. To Mr. Walker, the benefit of the severance was the opportunity to explore the possibility of a compact mixed-use residential development on the Vacant Lands, which, to Mr. Walker are currently an underutilized portion of the site. This would assist in the achievement of complete communities by accommodating projected growth that makes efficient use of land and infrastructure, as well as supporting transit viability. Mr. Walker also noted that a Place of Worship is a community service that supports the principles of healthy living and daily needs of residents. In his view, the Application would not impede the functional operation of the Temple, as the Temple Lands would include the parking, circulation, and road access to Torbram Road.

27Ms. Powell’s witness statement did not include a review of the Growth Plan. During her viva voce evidence, Ms. Powell stated that as there was no development plan in place for the Vacant Lands; therefore, there was no “growth to consider”, and as such, it was “not contextually appropriate” to reference it.

[Section 45(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec45subsec1_smooth) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

28Mr. Walker was of the view that the general intent and purpose of both the OP and ZBL were met for each of the four Variances. He opined that the general intent of the OP was maintained, as no change in use or function of the Temple was proposed. Mr. Walker referenced Section 4.9.8.1 of the OP which outlines the objectives of the Places of Worship policies of the OP. In his opinion, the Application met these requirements. He also noted Section 5.2 of the POP, which states that a goal of the POP is to provide a diversity of healthy complete communities for those living and working in Peel Region, offering, amongst other things, a wide range and mix of housing. To Mr. Walker, the future development of the Vacant Lands would contribute to this range and mix of housing.

29The first Variance for the Temple Lands is for a reduction in lot area. However, Mr. Walker was of the view that the reduction in lot area reflected the manner in which the site currently operates and the size was sufficient for its needs. Mr. Walker stated on several occasions that the Temple Lands would be an appropriate size to accommodate the required parking, site circulation and the Place of Worship building itself. With respect to the second Variance for the Temple Lands, Mr. Walker’s view was that the reduction of the landscaped open space strip did not impact the ability for the Temple to continue to operate on the Temple Lands.

30With respect to the Variances for the Vacant Lands, Mr. Walker’s view was that the general intent of the OP was met as the consent would create the potential for a future development in a built-up area of the City. The Planner acknowledged that the resultant Vacant Lands lot would be “undersized” with respect to the ZBL; however, his evidence emphasized that the general intent and purpose of the ZBL is to provide performance standards to ensure the orderly development of land and to ensure land use compatibility. Mr. Walker’s view was that the Variance for the sideyard setback reflected existing conditions.

31To Mr. Walker, the four requested Variances were desirable and appropriate as it would facilitate the severance of the Subject Lands, promote and maintain the existing Place of Worship in situ, and maintain the manner in which the site currently functions. Mr. Walker stated the Temple Lands would be of sufficient size to accommodate the required parking in accordance with the ZBL and reflected how the site currently functions as a Place of Worship.

32Ms. Powell opined that the proposed Variances did not meet the general intent and purpose of the OP. Ms. Powell also drew the Tribunal’s attention to Section 4.9.8 of the OP and asserted that the reduction in lot size would impact the Temple’s ability to serve as a social and community hub, and that it failed to recognize the important contribution Places of Worship make to the objective of building sustainable, complete communities. Ms. Powell also explained the OP policies with respect to built form and landmarks, opining that the proposed lot sizes conflicted with the general intent and purpose of applicable OP policies.

33Ms. Powell stated that size was one of the key considerations in planning for Places of Worship. The Tribunal was directed to OP policy 4.2.1.1 which requires that Places of Worship be located on sites that are of sufficient size to accommodate parking, landscaping, pedestrian connections and setbacks to result in land use compatibility. Her opinion was that given the fact that the four Variances relate to matters in policy 4.2.1.1, which is directly controlled by zoning, this was an indication that the sizes of the sites are not suitable.

34Ms. Powell opined that the general intent and purpose of the ZBL was not met as the ZBL had established a lot size standard of 0.65 hectares (6,500 square feet) for the Subject Lands. The two lots would be undersized and did not meet the required standard. Ms. Powell also testified in detail that the parking requirements for the Temple were not met, and as such, the proposed Temple Lands failed to meet ZBL requirements for parking.

35With respect to the desirability of the Variances, Ms. Powell opined that the Tribunal should consider the community served by the Temple and that the entirety of the site was sacred to them. In considering whether the Variances were minor, Ms. Powell’s opinion was that variances matter quantitatively and qualitatively. She made the point that the Variances were not minor to the devotees of the Temple. In Ms. Powell’s opinion, the proposed Variances did not meet the four tests, and as such, they were not representative of good land use planning.

[Section 51(24)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec51subsec24_smooth) of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

36Mr. Walker stated that the Application satisfied the criteria to be met under s. 51(24) of the Act. In his opinion, the proposed severance was neither premature nor contrary to any matters of public interest. It conformed to the POP and OP, and was suitable for the purposes of a severance. He stressed that the Temple, as a heritage resource, would be maintained in situ and on a separate parcel from the Vacant Lands, which would be used for future development purposes.

37Section 5.17 outlines the Consent policies of the OP. In Mr. Walker’s opinion, the Consent to Sever Application and associated Variances are supportive of the policy objectives of Section 5.17, as it will facilitate two parcels of land, which are:

1. Of a size, shape and use that are compatible with each other and the current neighbouring parcel fabric, along with permitted OP and Secondary Plan uses (Sections 5.17.4 and 5.17.8);
2. Serviced by public water and sanitary sewers (Section 5.17.5);
3. Both lots have frontage onto Torbram Road (Section 5.17.13).

38With respect to the dimensions and shapes of the proposed lots, Mr. Walker was of the view that the proposed lots were appropriate in size and shape for the current Place of Worship use. He noted that there were no concerns with respect to the adequacy of school sites, utilities, and municipal services. Likewise, there were no concerns regarding flood control or on matters of energy conservation. With respect to parking, Mr. Walker opined that the size of the proposed Temple Lands would provide 17 parking spaces, which based on the floor size of the Temple, provided sufficient parking. In short, Mr. Walker believed that the proposed Consent represented good planning and should be supported from a land use perspective.

39In contrast, Ms. Powell expressed the view that the proposed Consent did not meet the requirements for a Consent in accordance with s. 53(1) and s. 53(12) of the Act and failed to have regard for the prescribed criteria set out in s. 51(24). Ms. Powell opined that the Consent was premature as the proposed development of the Vacant Lands had not been established. As such, it was unknown if the Vacant Lands could be developed in a manner that was compatible with the existing Place of Worship.

40Ms. Powell testified that the proposed dimensions of the two lots would reduce the functionality of the Temple. This was based, in part, on the SJTC’s position that the number of parking spaces that would be available on the Temple Lands would be capped at 17 - a number it considered inadequate. Ms. Powell also noted that the Application requires an access easement over the northerly driveway in order to access the Vacant Lands. In her opinion, this restricted the Temple Lands’ function and would reduce available parking.

41Ms. Powell was of the view that the proposed Consent did not conform to the POP or OP. In her opinion, the Consent would result in a lot fabric that was not compatible with the minimum standards for Places of Worship by not providing adequate parking, scale, access, or landscaping. The Consent was not suitable for the Subject Lands as it would reduce the Temple’s place and presence as a community landmark. In addition, the future redevelopment of the Vacant Lands would further reduce the Temple’s place and presence as a community landmark. Ms. Powell’s opinion was that the proposed Consent did not represent contextually appropriate or good planning.

ISSUES

42While many issues were raised by the expert planners, counsel and Participants, there were certain questions that guided the Tribunal’s decision in this matter. The Tribunal considered the following as particularly relevant in determining the Appeal of the COA’s decision:

1. Does the Consent to Sever constitute a lot line adjustment or a lot creation?
2. Will the proposed lot size for the Temple Lands provide adequate parking for devotees?
3. Does the proposed lot size for the Temple Lands align with the policies for Places of Worship in the OP?
4. Does the proposed Consent address the applicable statutory requirements?
5. Do the proposed Minor Variances satisfy the applicable tests set out in s. 45(1) of the Act?

ANALYSIS AND FINDINGS

1. Does the Consent to Sever constitute a lot line adjustment or a lot creation?

43SJTC’s assertion was that “title” to the four parcels that comprise the Subject Lands had legally merged through operation of s. 50(3)(b) of the Act, and that a single, legally conveyable parcel of land can have more than one PIN, as is the case here. The merging of title by virtue of s. 50(3)(b) of the Act prevents a person from conveying land where they retain the ownership interest in abutting land. As such, any severance would create a new, second lot and that the Tribunal should treat the Consent Application as a lot creation. Counsel for SJTC argued that the City’s “mischaracterization of the Consent” and what was presented to the COA does not override the provisions of the Act, nor does it make it legally valid or correct.

44The Appellant’s position was that the SJTC produced no evidence to support this claim and that it had ignored s. 50(12) of the Act, which provides that s. 50(3) does not apply to a subsequent conveyance of a parcel of land which was previously conveyed by way of Consent. The Appellant pointed out that the Temple Parcel (PIN 14208-0040) was subject to a Consent of the Land Division Committee of the Regional Municipality of Peel on November 30, 1993, triggering the exception in s. 50(12) of the Act. It was the Appellant’s position that submissions regarding alleged merger of title was not a matter for the Tribunal to decide. The Application as considered by City staff and the COA was for a lot adjustment and that is what is before the Tribunal.

45The Tribunal finds that the SJTC’s argument is a legal issue that is beyond the jurisdiction of the Tribunal. It is not for the Tribunal to determine or interpret the legality of the process by which title of a parcel of land is established. The SJTC provided no evidence that it had queried the manner by which the Consent was to be processed with either the LRO or City staff. As noted by the Appellant, the Application that was considered by the City and the COA was for a lot adjustment. The Tribunal has no authority to amend the Application and must consider the Application as it was before the COA.

2. Will the proposed Temple Lands provide adequate parking for devotees?

46Parking was a contentious issue at the Hearing and was also a concern raised in the Participant Statements. The Appellant’s position was that parking met the performance standards of the ZBL. The SJTC alleged that the Application was missing a Variance for parking, based on its calculations of floor space in the Temple and required parking standards set out in the ZBL. The Tribunal does not have the jurisdiction to question the process utilized by the City’s zoning examiner with respect to parking requirements. It would not be appropriate for the Tribunal to insert a Variance that was not properly put before the COA.

47The Planners did agree that Section 20 of the ZBL sets out the requirements for parking for Places of Worship, which can be summarized as follows:

• One parking space for every four seats or for each 2 metres of bench space in the main worship area; or
• One parking space for each 5 square metres of place of worship – net worship area when there is open floor seating.

48The Planners provided alternative calculations with respect to floor space. Mr. Walker inspected the inside of the Temple, while Ms. Powell’s visit did not include a tour of the inside of the Temple. Mr. Walker noted that the upper balcony area was being used for storage and therefore was not included in his calculation for worship space, while Ms. Powell’s calculation included that area. Mr. Walker did not include the raised area at the front of the Temple, which was formerly the chancel when the building was used by a Christian faith. The Tribunal finds that this area should have been included in Mr. Walker’s calculation as the building now serves as a Hindu Temple and the visual evidence provided by the SJTC demonstrated that devotees access this area as part of their worship. Ms. Powell’s calculations of floor space suggested that a potential of 34 parking spaces may be required for the Temple; however, during cross-examination she admitted that she had not contacted City staff to confirm her parking calculations.

49It was mentioned at the Hearing that neither a parking or a traffic impact study had been undertaken by the SJTC or the Appellant. The Tribunal also notes that these studies were not requested by the City staff, who supported the Application. No evidence was produced at the Hearing that the provision of 17 parking spaces was inadequate for daily services. It was also acknowledged by Ms. Powell during cross-examination that the temple is currently served by 17 parking spaces and has operated without issue with the current parking situation. Furthermore, it was acknowledged at the Hearing that the Vacant Lands adjacent to the Temple are partially leased out for the parking of school buses, meaning that the primary purpose of this vacant area is not to provide overflow parking for the Temple.

50Notwithstanding Mr. Walker’s failure to include the chancel area in his calculation, the Tribunal preferred his overall opinion that 17 parking spaces were adequate. Ms. Powell’s opinion was formulated without viewing the inside of the building, and her figure of 34 parking spaces was not discussed with the City, nor was an independent parking study conducted. Based on Mr. Walker’s calculations of open space in the worship area, a total of 12 spaces would be required for the Temple. Alternatively, he noted that if parking were to be based on benches – of which none were visible in the former chancel area – then 16 parking spaces would be required. The Tribunal finds that that the proposed lot line adjustment, which provides 17 dedicated parking spaces for the Temple, is adequate.

3. Does the proposed lot size for the Temple Lands align with the policies for Places of Worship in the OP?

51The SJTC’s position was that size is one of the key considerations in planning for Places of Worship, and OP policies 4.2.1.1 and 4.9.8.1 require Places of Worship to be located on sites that are of sufficient size to accommodate parking, landscaping, pedestrian connections and setbacks to result in land use compatibility. However, given the individual characteristics and requirements of different faith-based religions, and the fact that not all organizations can utilize custom-built facilities, the size of the lot for an existing Place of Worship is necessarily flexible.

52At 4.2.1.1 of the OP, the following statement is found:

A Place of Worship shall be located on a site of sufficient size to accommodate the required performance standards such as parking, landscaping, pedestrian connections and setbacks that will result in land use compatibility with the host area.

There is no prescribed lot size minimum for Place of Worship in the OP. While ‘new institutional lots’ have lot size minimums, this does not apply to existing Places of Worship. While policy 4.9.8 of the OP acknowledges that many Places of Worship “provide social and community related functions and services”, there is no policy direction that a Place of Worship must have a dedicated outdoor space other than the provision of adequate parking to meet typical peak demand. In this case, the Tribunal finds that there will be no change to the existing conditions or operation of the Temple as a result of the lot line adjustment and respective Variances to enable the severance.

53Ms. Powell opined that reducing the lot size that can be accessed by Temple devotees will impact the functional demands of the Temple. However, during cross-examination she acknowledged that the Temple has operated, to date, without issue under the current parking situation. The Tribunal preferred the testimony of Mr. Walker on this point and finds that the use of the Temple will not be compromised by the provision of 17 dedicated parking spaces. The Application maintains the existing heritage-designated Place of Worship building, provides for its continued and uninterrupted use, including sufficient parking, adequate site circulation and does not impact its functionality. The proposed size of the Temple Lands will provide the Temple sufficient space to function in its present capacity.

4. Does the proposed Consent address the applicable statutory requirements?

54The Tribunal notes that the Temple’s Heritage Designation applies only to PIN 14208-0002, which as noted at para 9, is presently 0.06 hectares in size. In short, the heritage designation does not apply to the entirety of the Subject Lands. The OP definition of a ‘Place of Worship’ does not require access to, or an attachment of, vacant land. While the SJTC may have utilized the vacant lands in the past for ceremonies and celebrations, there is no policy directive requiring access to such space.

55The Tribunal preferred the evidence of Mr. Walker and finds that the Application does satisfy the criteria to be met under s. 51(24) of the Act. Although the position of the COA was that the Consent Application was premature, the Tribunal respectfully disagrees. There is no planning pre-requisite that a severance application must be filed concurrently with a development application.

56The Application has appropriate regard for the matters listed under s. 51(24) of the Act and maintains the Consent policies of the OP as it will facilitate the creation of two parcels, which are of a size, shape, and use which is compatible with current neighbouring parcel fabric, permitted uses and are served by existing infrastructure and public transit. The proposed severance is not contrary to any matters of public interest. The Temple, as a heritage resource, will be maintained in situ and on a separate parcel from the Vacant Lands.The Tribunal finds that the Temple’s status as a local landmark would not be diminished by future development of the adjacent vacant area.

5. Do the proposed Minor Variances satisfy the applicable tests set out in [s. 45(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec45subsec1_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)?

57The Tribunal finds that the proposed Variances meet the four tests under s. 45(1) of the Act. It is acknowledged that the Consent to Sever Application will result in two undersized lots with respect to the performance standards of the ZBL for the Subject Lands; however, the proposed Temple Lands lot size will allow for the continued functional operation of the Temple in its present form. The lot provides sufficient parking, site circulation, pedestrian access, and the Tribunal notes that the site is well serviced by public transit.

58With regard to the proposed lot size of the Vacant Lands, the character of the property is maintained, and to quote Mr. Walker: “these lands have historically remained vacant”. Growth within Settlement Areas often requires creative solutions and smaller vacant lots often reflect the reality of potential in-fill development. The Tribunal finds that both Variances with respect to lot size meet the general intent and purpose of both the OP and ZBL.

59The Temple is a heritage listed resource and will continue to serve the City for faith-based, spiritual purposes. The Tribunal was not convinced that the Temple, as a cultural landmark, would be diminished by an adjacent development. The use of the Temple for religious worship will continue and the proposed Variances maintain the manner in which the site presently functions. The Tribunal finds that the lot size Variance is appropriate for the present use of the Temple. The Vacant Lands will be the subject of a future development application for an Official Plan and Zoning By-law Amendment. As the lands are presently vacant and underutilized, some form of future development is appropriate and can be accommodated.

60A lot size reduction variance must be subjected to a contextual analysis rather than mathematical scrutiny. The question of whether the Variances, with respect to lot size, are minor in this case, turns on potential undue adverse impacts arising from the lot line adjustment. The Appellant stressed that nothing would change with respect to how the Temple building is presently utilized. The Tribunal concurs that the proposed Variances would not alter the current conditions on the Subject Lands or on surrounding land uses, and finds that the lot size Variances are minor in nature.

61With respect to the Minor Variance for the landscaping strip, Ms. Powell testified that the reduction to this strip t created a notable loss of green space. Mr. Walker opined that the reduction to 1.50 metres was minor and was supportable given the wide landscape space on the commercial plaza lands to the south and east. The proposed landscape buffer and resultant variance request reflects the existing conditions on site. The Tribunal preferred Mr. Walker’s position on this Variance and finds that it is a minor variation that will not adversely impact current conditions on the Subject Lands or impact surrounding land uses.

62The Tribunal heard evidence from Mr. Walker that the interior side yard setback Variance for the Vacant Lands is a technical variance that recognizes an existing condition of the existing portable accessory building. The Tribunal was not provided evidence to the contrary. As such, the Tribunal finds that it meets the required tests.

63Overall, the Tribunal finds that the proposed Variances will not alter the Subject Lands as it currently functions. They do not propose to change any of the uses, the Variances reflect current conditions, will not adversely impact the Temple or surrounding land uses. Upon the evidence presented, the Tribunal is satisfied that the Minor Variances required by the Application meet the tests set out in s. 45(1) of the Act.

CONCLUSION

64The Tribunal will allow the Appeal, subject to the conditions recommended by City staff. The Application supports and maintains an existing Place of Worship in situ. The Tribunal is satisfied that the requested Variances and proposed Consent are compatible with the surrounding area and provide a future opportunity for a compact development on the underutilized vacant portion of the site, making efficient use of land and infrastructure. At the Hearing, the Appellant acknowledged the City’s requested conditions in the event of an approval and made no objection to them. The SJTC did not provide submissions on this point. The Tribunal has reviewed the conditions and finds it appropriate to impose them in this case.

65In making this decision, the Tribunal has reviewed the relevant policy documents, has had regard for s. 2 and s. 3(5) of the Act, and is satisfied that the Application is consistent with the PPS, conforms with the Growth Plan, applicable Official Plans and relevant Secondary Plans.

ORDER

66THE TRIBUNAL ORDERS that the Appeal is allowed and the Variances to the City of Brampton Zoning By-law 270-2004 are authorized, subject to the following condition.

A. That the extent of the Variances be limited to those shown on the sketches attached to this Decision as Attachment 1.

67THE TRIBUNAL FURTHER ORDERS that the Appeal is allowed and the provisional Consent is to be given, subject to the following conditions:

A. A Secretary-Treasurer’s certificate fee shall be paid, in the amount current at the time of the issuance of the Secretary-Treasurer’s Certificate;

B. Approval of the draft reference plan(s), as applicable, shall be obtained at the Committee of Adjustment’s office, and the required number of prints of the resultant deposited reference plan(s) shall be received;

C. Subsection 50(3) and/or (5) of the Planning Act, R.S.O. 1990, c. P.13, as amended, shall apply to any subsequent conveyance or transaction involving the parcel of land that is the subject of this Consent;

D. A solicitor’s undertaking shall be received indicating that the “severed” land and the abutting land, being Lot 10 on Plan 43M-1571, shall be “merged” merged for Planning Act purposes at the time of the registration of the Transfer to which the Secretary-Treasurer’s Certificate is affixed;

E. An undertaking shall be received from a solicitor confirming that the legal description of the “resultant” lot and the legal description in any mortgage(s) encumbering the “resultant” lot will be identical within four (4) weeks of the date of the Secretary-Treasurers Certificate under the Planning Act; or alternatively, that no part of the “resultant” lot is encumbered by any mortgage(s); and

F. That failure to comply with and maintain the Conditions of the Order shall render the approval null and void.

“G.A. Croser”

G.A. CROSER

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.

ATTACHMENT 1