Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 15, 2023
CASE NO(S).: OLT-23-000727
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Ann Karel
Subject: Minor Variance
Description: To permit the existing accessory buildings and an existing platform attached to the main building to remain on the Subject Property
Reference Number: A7/2023
Property Address: 23 Don St Penetanguishene
Municipality/UT: Town of Penetanguishene
OLT Case No.: OLT.23.000727
OLT Lead Case No.: OLT.23.000727
OLT Case Name: Ann v. Penetanguishene (Municipality)
Heard: October 5, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel/Representative*
Ann Karel
Self-Represented*
Town of Penetanguishene
Alexandra Whyte
DECISION DELIVERED BY S.L. DIONNE AND ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION
1The matter before the Tribunal is an appeal by Ann Karel (“Applicant”) against a decision of the Committee of Adjustment (“COA”) of the Town of Penetanguishene (“Town”), pursuant to s. 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”). The Application affects the lands municipally known as 23 Don Street in the Town of Penetanguishene (“Subject Property”).
2The purpose of the Application is to rectify non-compliance(s) to zoning standards for existing accessory buildings and structures, including a deck in the west side yard and a shed in the east side yard, on the Subject Property. No new construction is proposed as part of the Application.
3The intent of the Application for Minor Variance, File No. A7/2023 (“Application”) is to seek relief on the basis of the measurements shown on the Survey Plan. The requested variances are as follows:
a) Variance A - To permit a maximum cumulative lot coverage of 142 square metres (“m2”) for all accessory buildings and structures on a lot, whereas a maximum of 100 m2 is permitted pursuant to Zoning By-law No. 2022-17;
b) Variance B - To permit a minimum setback to the interior side lot line (east) of 0.18 metres (“m”), whereas a minimum setback of 1.2 m is required for an accessory building pursuant to Zoning By-law No. 2022-17; and,
c) Variance C - To permit a minimum setback to the interior side lot line (west) of 0.1 m for a platform, whereas a minimum setback of 1.2 m is required pursuant to Zoning By-law No. 2022-17.
SUBJECT PROPERTY AND BACKGROUND
4The Subject Property has a frontage of 28.42 m, a depth of 134.80 m along the east side of the property, a depth of 141.47 m along the west side of the property, and an area of approximately 4,165 m2. There is a newly constructed raised bungalow on the property. Existing accessory structures located to the rear of the dwelling include a one-storey workshop, a shed, and a shipping container (“Seacan”). The driveway access is off Don Street and is situated on the east side of the property providing access to the attached garage and the area to the rear of the dwelling. The Subject Property is in a low-density residential area surrounded by other existing residential properties to the west, east and south.
5The Applicants have owned the Subject Property since 1982. In 1986, the Applicant obtained a building permit and constructed a workshop on the Subject Property. In 2017, the Applicant obtained a new Building Permit under File No. 17/181 (“BP”) to construct a new single detached dwelling replacing the former dwelling which has since been demolished.
6As part of the BP review process for the new dwelling, the Lot Grading Plan was reviewed and approved. At the time, the Town’s former Zoning By-law, Zoning By-law No. 2000-02, was in effect and the minimum interior side yard setback requirement was 1.0 m. The Town has since passed the ZBL which increased the minimum interior side yard setback provision to 1.2 m.
7The Lot Grading Plan illustrates the footprint of the then proposed raised bungalow and the accessory buildings and structures in existence at that time. The shed is shown to be located 0.18 m, at its closest point, to the easterly interior side lot line.
8A Survey Plan submitted as part of the BP process, is an “as-built” survey and illustrates the precise location of the new dwelling and the accessory buildings and structures. The footprint of the dwelling, as located on the Survey Plan is shifted on a slight angle from that shown on the Lot Grading Plan, resulting in the deck being situated 0.1 m from the westerly interior side lot line at its closest point.
9Following receipt of the Survey Plan, the Town issued separate correspondence dated February 24, 2021 and September 22, 2022, both indicating that the construction of the dwelling was not in accordance with the approved Lot Grading Plan. Specifically noted on the Survey Plan is the 0.1 m setback of the deck to the side yard, whereas a minimum setback of 1.2 m was proposed and a 1.0 m setback was required under Zoning By-law No. 2000-02. The letters from the Town also note that “there are several new accessory structures that do not have building permits which include the shed on the east property line, quonset hut, covered patio, and seacan”.
10In response to the letters from the Town, the Applicant submitted the Application to bring the property into compliance with the ZBL.
11On June 26, 2023, the COA held a virtual meeting in respect of the Application, at which time Variances B and C (referred to above) were denied, and Variance A (referred to above) was authorized subject to the following conditions:
a. That the seacan denoted on the Existing Site Plan (Attachment #3 to PL-2023-39) be removed within one (1) year; and,
b. That building permits be obtained within one (1) year for the accessory buildings and structures denoted on the Existing Site Plan (Attachment #3 to PL-2023-39), as determined by the Chief Building Official.
12As set out in the COA Decision, Variances B and C were denied due to concerns that the deck and shed limit access to the interior side yards for emergency services, impact the maintenance of the existing structures, and may result in drainage issues for adjacent properties. It was also noted that the deck could be re-constructed in compliance with the Town Zoning By-law No. 2022-17 (“ZBL”) and still provide amenity space and functional access to the dwelling.
13Additional accessory structures that existed at the time of the application to the COA, namely a vinyl Quonset hut and covered patio, have been removed since the COA hearing.
14The Tribunal affirmed Ms. Karel prior to her making her oral statement and she was qualified on consent for the purposes of providing “lay person” or factual evidence in relation to the requested variances. The Tribunal was able to separate facts from arguments made by Ms. Karel in the Hearing.
15The Town’s Witnesses included Andrea Betty, Director of Planning and Community Development and Bryan Murray, Director of Public Works. The Tribunal qualified Ms. Betty, a Registered Professional Planner, to provide expert opinion evidence related to land use planning. The Tribunal qualified Mr. Murray, licensed by the Professional Engineers of Ontario, to provide expert opinion evidence related to civil engineering.
LEGISLATIVE CONTEXT
16The Tribunal, when considering an Appeal under the Act, must have regard to matters of provincial interest as set out in s. 2 of the Act when making its decision. In this instance, the Tribunal must also have regard to the decision of the COA and the information and materials considered by it, as required under s. 2.1(1) of the Act, though it is not bound by that decision. Further, the Tribunal’s decision shall, in this instance, be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform with A Place to Grow: the Growth Plan for the Greater Golden Horseshoe, as amended in 2020 (“Growth Plan”), as set out in s. 3(5) of the Act.
17The Tribunal, when considering an Application for Minor Variance, must be satisfied that the requested variance(s) meets the four tests as set out in s. 45(1) of the Act, namely:
Is the general intent and purpose of the Official Plan maintained?
Is the general intent and purpose of the Zoning By-law maintained?
Is the requested variance desirable for the appropriate development or use of the land, building or structure? and
Is the requested variance minor in nature?
EXHIBITS
18The Tribunal received and entered the following Exhibits:
Exhibit 1: The Town of Penetanguishene Document Book – 23 Don Street dated September 25, 2023. The Witness Statements of Ms. Betty and Mr. Murray, both dated September 22, 2023, are found in Exhibit 1. A partial listing of other materials contained in this Exhibit and referred to throughout the decision are as follows: extracts of the Town of Penetanguishene Official Plan (“TOP”) and the ZBL at Tabs 4 and 5 respectively; Town Land Development Engineering Policy dated April 2009 (“Town Engineering Standards”) at Tab 6; a Plan of Survey and Site Grading Plan received by the Town on August 28, 2017 (“Lot Grading Plan“) at Tab 9; a Surveyor’s Real Property Report dated August 20, 2020 prepared by Peter T. Raikes, O.L.S. for the Subject Property (“Survey Plan”) at Tab 8; and Town Planning Report PL-2023-39 to the COA on the Application (“Planning Report”) at Tab 12.
Exhibit 2: The Photos and Written Statement prepared by Ann Karel dated August 15, 2023.
Exhibit 3: The Notice of Decision of the COA dated June 26, 2023.
Exhibit 4: The Notice of COA Hearing.
PLANNING POLICY CONTEXT
19The Subject Property is located within a Settlement Area in the context of the PPS and a Primary Settlement under the Growth Plan, and it is the intent for these areas to be the focus of growth and development and to provide for a mix and range of housing. As set out in the Planning Report, the requested minor variances represent a continuation of an existing residential use.
20The Town is identified as a Primary Settlement Area in the COP and the residential use of the Subject Property is supported by the COP.
21The majority of the Subject Property is designated Neighbourhood Area under the TOP. The rear portion of the property is traversed by a watercourse and falls within the Environmental Protection designation. A range of residential uses including low density residential units are permitted in the Neighbourhood Area designation. Don Street is classified as a Local Road.
22The Subject Property is zoned “R1 - Residential One” and “EP- Environmental Protection” pursuant to the ZBL. Low density residential uses, including a single detached dwelling unit and an accessory dwelling unit, along with accessory buildings and structures are permitted uses.
APPLICANT’S EVIDENCE AND SUBMISSIONS
23In her testimony, Ms. Karel pointed the Tribunal to the COA Decision, the Notice of Hearing, the Planning Report, the photographs in Exhibit 2, and referred to the four tests as set out in s. 45(1) of the Act and how she believes that the tests are met for each of three requested variances.
24Ms. Karel described the inconsistencies with respect to the numbers in the Application, the Notice of the COA meeting and the COA Decision. Specifically, Exhibit 4 indicates that the Variance B request is for a setback of 0.18 m to the (east) side lot line and the Variance C request is for a setback of 0 m to the (west) side lot line, whereas Exhibit 3 notes Variance B as 0.2 m and Variance C as 0.1 m.
25She drew the Tribunal’s attention to the Planning Report wherein Town Staff conclude that Variance A meets all of the statutory tests and recommend its approval. As set out in the Planning Report, the accessory structures are not visible from the street, posing no negative visual impacts, and do not compromise the general character of the area.
26The Planning Report also concludes that Variances B and C meet the first test, being “to maintain the general intent and purpose of the Official Plan”.
27Ms. Karel provided commentary as to how and why she does not agree with some of the Town Staff comments in the Planning Report, namely perceived issues of access for emergency services, maintenance of the existing structures, and drainage issues. She proffered that these factors led to the Planning Report recommendations to refuse Variance B and C, and ultimately the decision of the COA.
28In terms of limiting access specifically, she disagreed that the deck and shed restrict access for emergency services as there is a clear area from the driveway off Don Street on the east side of the dwelling that would provide access to the rear of the dwelling and rear of the property. She questioned where the requirement for unencumbered access on both side yards is set out. She also provided Photo 5 which illustrates the deck and condition of the property along the west side of the dwelling.
29Ms. Karel submitted that maintenance of the existing structures and buildings on the Subject Property has not been impacted by the shed and deck.
30Ms. Karel also indicated that the shed was not raised as a concern by the Town during the BP process until the June 2021 letter regarding the Survey Plan. This is despite the shed being illustrated on the Lot Grading Plan reviewed by the Town in advance of the BP for the new dwelling being issued. She noted that the neighbours to the east had been able to install a fence and maintain their property adjacent to the shed. The Applicants have been able to place patio stones at the rear of the shed up against the fence.
31The Tribunal was advised that a retaining wall was installed, generally located along the west property line, to prevent soil washing onto the neighbouring lands. At the same time, a subdrain was installed east of the retaining wall on the Subject Property, and there have been no drainage issues experienced since the construction of the retaining wall.
32The neighbour to the immediate west, albeit a relative, has signed a letter acknowledging the encroachment of the retaining wall and confirming no objections to the deck in its current location.
33There were no other objections to the Application filed with the Town.
34In summary, Ms. Karel submitted that Variances A, B and C met all four tests and should be approved.
TOWN PLANNER’S EVIDENCE
35Ms. Betty provided evidence on the applicable policies of the PPS, the Growth Plan, the County of Simcoe Official Plan (“COP”), the TOP, and the ZBL. She opined that all of the requested variances are consistent with the PPS and conform with the Growth Plan.
36Ms. Betty advised the Tribunal that both she and Mr. Murray were involved in the review of the drawings submitted as part of the BP process in 2017. She reviewed zoning conformity and Mr. Murray reviewed the lot grading. She confirmed that their respective approvals and sign offs were required for the Town to issue the BP.
37Ms. Betty advised the Tribunal that she was involved in the review and final preparation of the Planning Report. She submitted that the Planning Report was accurate and that she agrees with its conclusions.
38It was Ms. Betty’s evidence that the shed and deck are in the rear yard and not visible from the street and as such, they have limited impact on the character of the neighbourhood.
39Ms. Betty proffered that requested Variance A met all four tests and should be approved.
40With respect to requested Variances B and C, it was Ms. Betty’s evidence that the requested variances maintain the general intent and purpose of the TOP.
41With respect to the other tests for requested Variance B, Ms. Betty’s evidence is summarized as follows:
Ms. Betty proffered that the intent of the side yard setback provision is to ensure adequate buffer space between structures, appropriate building separation and massing, sufficient space for an adequate landscaped area, access to yards and residential utility services, to allow for maintenance, and to accommodate appropriate grading and drainage. She submitted that the proposed reduction to side yards does not meet the Town’s Engineering Standards. It was her opinion that for these reasons, requested Variance B, for the shed did not maintain the general intent and purpose of the zoning by-law.
It was Ms. Betty’s opinion that the shed could be easily accommodated in a different location on the property. She also submitted that its current proximity to the lot line may pose negative impacts to the repair and maintenance of the building, to future development of accessory structures on this and the adjacent property, and to drainage. It was her opinion that the requested variance was not desirable for the appropriate use of the land for these reasons.
It was Ms. Betty’s submission that requested Variance B would limit the ability to maintain and repair the shed without having to access the neighbouring property. She also submitted that the reduced setback may pose adverse impacts to future development of the adjacent lands such as general upkeep of structures permitted on the lot line, for example a fence. Additionally, she submitted that the pitch of the roof of the shed could pose drainage impacts, with water draining from the roof of the shed to the adjacent yard. It was Ms. Betty’s opinion that for these reasons the test of “is the request minor” was not met.
42With respect to the other tests for requested Variance C, Ms. Betty’s evidence is summarized as follows:
Ms. Betty proffered that Variance C for the deck did not meet the test to maintain the general intent and purpose of the zoning by-law for the same reasons as those noted for the shed.
With regards to Variance C, Ms. Betty opined that the deck could be easily reduced in size, with no reduction to its functionality, and no reduction to the residential amenity of the property. She submitted that the deck’s proximity to the side lot line may negatively impact the ability to maintain the dwelling, the future development of accessory structures on this and the adjacent property, and drainage. On this basis it was her opinion that the requested variance is not desirable for the appropriate development of the lands.
It was M. Betty’s submission that the deck impedes access to the rear yard from the west side of the dwelling, and as a result may impact the ability of emergency services to access the rear and side yards. Additionally, she submitted that the reduced setback to the side lot line impacts the ability to perform maintenance or general upkeep of the deck without having to pass over the adjacent property to the west. It was her opinion that requested Variance C does not meet the test “is the request minor”.
43Ms. Betty also submitted that her evidence relies on the opinion of the Mr. Murray, being that the deck in its current location would adversely impact the adjacent lots and surrounding area with respect to drainage and flooding and, further, that the shed should not be permitted to be located within 1.2 m of the side lot line in accordance with the Town’s Engineering Standards.
TOWN ENGINEER’S EVIDENCE
44Mr. Murray reviewed the Application, Survey Plan, aerial photographs of the Subject Property, and the Town’s Engineering Standards in preparation for the hearing.
45Mr. Murray proffered that Variance B and C should be denied given that the Town’s Engineering Standards require a drainage swale to be constructed on both sides of the property, having a minimum depth of 0.15 m, and that a minimum width of 0.9 m is required to achieve this swale, and that up to 1.2 m of width is required to access and maintain the swale.
46It was Mr. Murray’s opinion that the deck and shed will adversely impact the adjacent lots and surrounding area due to drainage and flooding.
47Mr. Murray submitted that the deck should be removed as it encroaches into the required 1.2 m setback.
ANALYSIS AND FINDINGS
48It is clear that there is some misunderstanding on the part of the Applicant as to the importance of the Survey Plan in establishing the precise location of the buildings and structures on the Subject Property. At the time of construction of the new dwelling, there was some confusion as to where the actual lot line was and it resulted in the footprint of the new dwelling differing from that shown on the Lot Grading Plan and by extension the deck being constructed closer than the 1.0 m permitted at the time the BP was issued.
49Based on the evidence in the hearing, the Tribunal finds that all three of the requested variances are consistent with the PPS and conform with the Growth Plan.
Requested Variance A – Increase in Lot Coverage
50The Tribunal finds that the totality of the written and oral evidence in the hearing demonstrates that requested Variance A, to permit a maximum cumulative lot coverage of 142 m2 for all accessory buildings and structures on a lot, meets the four tests of a minor variance. There was no dispute on this conclusion at the hearing.
Requested Variance B - The Shed
51This variance seeks relief from the minimum interior side yard setback of 1.2 m to permit an existing shed with a setback of 0.18 m to the east lot line.
52The evidence in this matter demonstrates that the Lot Grading Plan clearly illustrates the existence of the shed and its surveyed location being setback to the interior side lot line at 0.18 m. At the time of the BP processing, the issue of non-conformity with the location of the shed does not appear to have been raised. There was no evidence tendered that the shed requires a building permit.
53To address the issue raised by the Town, the Applicant has applied for relief from the new, in effect ZBL requiring a 1.2 m setback.
Does the request maintain the general intent and purpose of the official plan?
54The Tribunal accepts Ms. Betty’s evidence that residential uses, and accessory buildings and structures are permitted under the TOP. The Tribunal finds that the requested variance maintains the general intent and purpose of the official plan.
Does the request maintain the general intent and purpose of the zoning by-law?
55It was the Town Planner’s evidence that the Subject Property is zoned “Residential 1” under the ZBL and that low density residential uses, along with accessory buildings and structures are permitted uses. Accessory structures such as sheds are recognized as permissible under the ZBL.
56The Tribunal notes that the Planning Report describes this test of a minor variance as “does the application conform to the general intent of the zoning by-law”. Conformity is not the test to be applied. Section 45(1) of the Act allows for consideration of relief to a zoning by-law to be granted by way of a minor variance, subject to satisfying the applicable legislative tests and this test is whether the request maintains the general intent and purpose of the zoning by-law.
57The Planning Report sets out that the purpose of the interior side yard setback is to ensure that appropriate yard access is provided and to ensure separation from adjacent accessory structures and uses.
58In reviewing the Survey Plan, the Tribunal is satisfied that the shed is sufficiently set back from the dwelling and workshop on the Subject Property. There was no evidence presented that there is a concern in this regard.
59With regards to appropriate yard access, the Tribunal is satisfied by the evidence that access to the rear yard is not encumbered or restricted by the shed in its current location.
60With regards to the submissions of the Town’s Planner regarding the potential negative impact on the future development of the neighbouring property, the Tribunal notes in reviewing the materials contained in Exhibit 1 the existence of a dwelling and accessory structures on the adjacent lands to the east, including an existing shed which is situated 0.05 m from the property line, as well as a fence along the property line. The Tribunal is not persuaded that the shed in its current location will negatively impact the use of the adjacent property.
61The Tribunal finds that Variance B maintains the general intent and purpose of the zoning by-law.
Is the requested variance desirable for the appropriate use of the land, building or structure?
62A shed can add to the function of the Subject Property and can be desirable in that it can provide an option for indoor storage of equipment and supplies used to maintain a property.
63The Applicant told the Tribunal that she and her husband constructed the shed, it has been there a long time, and that it is used to store gardening equipment and supplies as there is a sizable property to maintain.
64While the Applicant acknowledged that the shed is closer to the lot line than it should be and offered, if necessary, that they could move it, she did indicate that it would be difficult. There was also some concern that in shifting it away from the side lot line to rectify the zoning non-compliance, that it could result in a negative consequence of hindering access to the rear yard.
65The Tribunal concludes that the shed is an added amenity and provides an important function for the use and enjoyment of the Subject Property.
66The evidence proffered does not indicate that the shed in its current location has resulted in an adverse impact on the adjacent lands, nor does it indicate that retaining the shed in this location has resulted in a negative impact on the ability to maintain the property. Rather, the Town’s position is that “it may” impact, and that Town’s Engineering Standards need to be met. The evidence is that there have been no issues caused by the shed in its location and the Applicant is satisfied that they can do maintenance on it as necessary. The Tribunal is not persuaded by the Town’s Witnesses in this regard.
67The Town’s Planner suggested that the shed can be moved to elsewhere on the Subject Property in compliance with the ZBL, however there is no elaboration given as to where specifically and how such a location would be an improvement from the current location. It seems that the Town is strictly concerned about compliance with the ZBL.
68The Tribunal finds that the requested Variance B is desirable for the appropriate development and use of the Subject Property.
Is the requested variance minor in nature?
69Whether a variance is considered minor is an assessment of the degree of impact (or cumulative impact where multiple variances are requested) on the Subject Property as well as the neighbouring or nearby properties. It is not a review of the numerical deviations from the prescribed provisions of the ZBL. Put another way, it is not about how much of a deviation in the interior side yard setback measurement, but rather of the impact of the deviation if it was to be granted.
70In terms of the concern raised by Town Staff regarding adverse impact on neighbouring properties, the Applicant submitted that they have had at least three different neighbours on their east side over the years, and no one has complained about the shed. The most recent neighbour installed a new fence and the shed was not in the way. Further, there were no objections from the neighbours in response to the Application.
71The evidence in this hearing supports that there is no concern with the shed in its current location from the neighbouring and nearby properties. There is no evidence of any adverse impact in the form of drainage or flooding issues, nor of concerns related to restrictions on the neighbour’s ability to maintain their properties as a result of the shed, or of any concerns regarding any other kind of adverse impact.
72The Tribunal heard evidence from the Town Engineer regarding the application of the Town’s Engineering Standards and the need for a 1.2 m clear area along the side lot lines. His evidence implies that there can be no situation in which this standard can be deviated from. The Tribunal acknowledges that the Town’s Engineering Standards are best practices and the Town’s Engineer acknowledged, in his testimony, that there may be other methods to address drainage concerns and therefore the Tribunal concludes that the strict adherence to the Town’s Engineering Standards in this instance is not an absolute.
73The Tribunal finds that the evidence supports that the requested variance is minor in nature.
74In conclusion, the Tribunal finds that based on the totality of the evidence that the four tests of a minor variance are met and that requested Variance B should be authorized.
Requested Variance C- The Deck
75This requested variance is to permit a minimum setback to the interior side lot line (west) of 0.1 m to recognize the existing deck, whereas a minimum setback of 1.2 m is required. It is noted however that at the time of the BP Application, the minimum required setback requirement was 1.0 m.
76The Applicant described the confusion related to the property line and the measurements, and she explained that some cedar trees along the west property boundary were removed making it difficult to determine the lot line. It appears that the Applicant relied on two building inspections undertaken as part of the BP process, in June 2018 that foundation footings were signed-off by the inspector and July 2018 that the deck footings were signed-off by the inspector, rather than arranging for a Surveyor to confirm things on site as construction proceeded. The Tribunal is of the view that it was an honest mistake, albeit one with serious implications. Fortunately, the dwelling was constructed in compliance with the ZBL. The consequence being that the deck is located 0.1 m off the west lot line.
Does the request maintain the general intent and purpose of the official plan?
77The Tribunal finds, based on the evidence in the hearing, that the requested variance maintains the general intent and purpose of the official plan. There was no dispute amongst the Parties on this.
Does the request maintain the general intent and purpose of the zoning by-law?
78The ZBL permits accessory structures such as decks and platforms.
79The Planning Report sets out that the purpose of the interior side yard setback is to ensure that appropriate yard access is provided and to ensure separation from adjacent accessory structures and uses.
80The driveway on the east side of the property and the separation between the house and the fence provides sufficient space for access to the rear yard.
81While the Town Planner proffered that a property needs to have access to the backyard from both sides of the property and that the ZBL requires two side yards to be maintained free and clear for this access, the Town did not provide any direct evidence of this in the form of specific provisions of the ZBL.
82On the issue raised by Town Staff regarding the deck impeding access to the backyard, Photo 5 found at page 9 of Exhibit 2 shows the Applicant standing beside the structural post of the deck located closest to the side lot line, with a retaining wall and fencing on one side and the raised deck on the other. Although it is not clear from the photo precisely where the Applicant is standing relative to the property line, what is apparent is that the area beneath the deck is completely open. From this visual evidence it would be difficult to conclude that the deck would prohibit access to a person on foot on that side of the dwelling.
83In essence, the Town’s Witnesses implied, through their evidence, that the Town’s Engineering Standards must be adhered to and that a minimum 1.2 m interior side yard setback is required to do so, and without a 1.2 m setback the Application fails this test. The Tribunal does not agree with this proposition in its evaluation of the merits of the Application.
84Based on the evidence in the hearing, the Tribunal finds that the general intent and purpose of the ZBL is maintained.
Is the requested variance desirable for the appropriate use of the land, building or structure?
85It was the evidence of both the Town Planner and the Applicant that the deck provides an enhanced residential amenity and that it is not visible from the street. The deck provides a landing for the entrance/exit to the dwelling and is attached to a staircase to grade.
86All of the Witnesses agreed that the deck is closer to the west lot line than ideal. While it is not ideal having the deck extending as close as 0.1 m to the side lot line, the Tribunal finds that the evidence demonstrates that it is nonetheless not a physical constraint that results in total prohibition of access to the front or rear yards on this side of the dwelling for maintenance purposes.
87Based on the evidence in this Hearing, the Tribunal is not persuaded that it is absolutely necessary to maintain a free and clear width of 1.2 m along both side lot lines. The Tribunal recognizes that it is not uncommon for side yard setbacks to be encroached upon provided that access is not prohibited and maintenance can be performed as required.
88The Town Planner proffered that the deck can be reduced in size to comply with the ZBL, with no reduction in its functionality and no reduction to the residential amenity of the property. However, the evidence in this hearing does not demonstrate how this is possible.
89When questioned by the Applicant as to how taking out the posts and reconstructing the deck so that the posts are closer to the house and making the raised platform smaller as a result would have any relevance to drainage, Ms. Betty responded that she relied on the evidence of Mr. Murray and the Town’s Engineering Standards.
90Given the Town’s position that the deck could be taken down and reconstructed to comply with the ZBL, the Tribunal asked Mr. Murray if he had turned his mind to how far the support posts and footings would need to be moved and what the resultant size of the deck landing would be. In response, he acknowledged that he had not, and in thinking about it out loud, he surmised that to implement the Town’s Engineering Standards for a drainage swale of 0.9 m with 3:1 slope on either side plus room to construct the swale and maintain it, essentially 1.2 m would be required.
91In response to the Tribunal’s questions regarding grading and drainage matters, Mr. Murray confirmed that he had not been on-site, nor was he aware of there being any issues with respect to drainage or flooding on the Subject Property or neighbouring lands. Mr. Murray did concede that there are alternative design measures other than the Town Engineering Standards, of requiring side yard swales, that could be implemented to address concerns with respect to drainage.
92The evidence of the Town in this matter, if accepted on its face, would be to eliminate any possibility of any degree of relief being afforded by way of a reduction in the side yard setbacks along both side lot lines. The principle of the “relief’ to a provision of a zoning by-law is enshrined in the Act at s. 45(1). That is not to say that relief will always be granted, but rather can be granted if the approval authority is satisfied that the four tests of a minor variance are met.
93The Tribunal is persuaded in considering the Applicant’s submissions and a review of the evidence in the hearing, including the Survey Plan, that the backyard is sufficiently accessible for use and maintenance, and for emergency responders in the event that such is necessary, regardless of whether the deck is retained. For these reasons, the Tribunal finds that this test is met.
Is the requested variance minor in nature?
94The Tribunal is satisfied that the deck would not preclude proper drainage and cause flooding as suggested by the Town’s Witnesses. With regard to grading and drainage, as noted previously, the Town’s Engineer acknowledged that he had not been on-site and was not aware of there being any drainage issues impacting the Subject Property or the neighbouring properties as a result of the deck. A subdrain was installed at the time of construction and the Tribunal accepts the Applicant’s testimony that there have been no issues with drainage or flooding since. As the visual evidence illustrates, the area under the deck is open and free of any obstructions to the flow of drainage.
95The Tribunal is satisfied from the totality of the evidence presented in the hearing that the deck is not the physical impediment as portrayed, and that it will not result in prohibition of access for emergency responders. The deck is open beneath and, based on the visual evidence, it would be possible for a person to go under it, on foot, to access the front or rear yards if need be. There is ample room from the east side of the lot for access to the rear of the dwelling and rear of the property from the east side of the lot. The Tribunal does not view the location of the deck as a constraint to access for maintenance or repair, nor an impediment to drainage.
96The Tribunal notes that Mr. Murray acknowledged that alternative engineering solutions may be available to deal with drainage issues where the standard swale and setback can not be met. Based on this, the Tribunal is confident that any outstanding concerns related to lot grading and drainage can be satisfied.
97The Tribunal finds that the requested variance meets the test of “is the request minor in nature”.
98Based on the totality of the evidence in the hearing and for the reasons as set out above, the Tribunal finds that the four tests for a minor variance are met and that Variance C should be approved.
Conditions of Approval
99The Town requested two proposed conditions be imposed on Variance A as follows:
a. That the seacan denoted on the Existing Site Plan (Attachment3 to PL-2023-39) be removed within one (1) year; and,
b. That building permits be obtained within one (1) year for the accessory buildings and structures denoted on the Existing Site Plan (Attachment 3 to PL-2023-39), as determined by the Chief Building Official.
100There was no rationale provided for how the conditions were pertinent and relevant to the relief requested set out in either the Witness Statements or Planning Report.
101The Tribunal questioned the Town Planner as to her opinion regarding the conditions as set out in the COA Decision. In her reply, Ms. Betty indicated that she supported the conditions regarding the removal of the Seacan and the other accessory buildings in order to be granted an increase in total lot coverage. There was no rationale provided as to why the conditions were believed to be appropriate and required to be attached to the decision.
102The variances, if authorized, would limit the cumulative gross floor area of permitted accessory buildings and structures on site to 142 m2 and the removal of some structures will be necessary to comply with this maximum limit. The Tribunal was advised that the Applicant had already removed some of the accessory structures from the property in accordance with the COA Decision, namely the Quonset hut and covered patio.
103The Seacan is not a permitted use in accordance with s. 4.15 of the ZBL, and therefore does not factor into the total lot coverage of permitted accessory buildings and structures that would be allowed in accordance with the requested variances.
104The Town has notified the Applicant, in writing, that the Seacan is not a permitted use and that it needs to be removed to bring the Subject Property into conformity with the ZBL. The Applicant has advised that they were in the process of emptying the Seacan and trying to find someone to remove it, but that it was taking a little time to do so.
105Based on the evidence in the hearing, the Tribunal has concerns in relation to the conditions themselves, and is not persuaded that they are appropriate to be imposed in respect of the variances. The proposed conditions address matters of enforcement not properly within the jurisdiction of the Tribunal in this matter and, as such, the Tribunal finds these conditions are neither necessary nor appropriate to attach to the Tribunal’s decision.
106The BP Application is not a matter before the Tribunal, however the evidence in this hearing does confirm the existence of the accessory buildings on the Lot Grading Plan submitted and reviewed by Town Staff in advance of the BP for the new dwelling being issued, and no evidence was presented that the property was deemed to be not in compliance with the ZBL when the BP was issued. The Tribunal notes this observation, however, it has no bearing on the Tribunal’s findings in this case.
107The Tribunal is not persuaded that it is necessary, nor appropriate, to impose a condition requiring the Applicant to apply for and obtain a building permit(s) for accessory structures that were in existence, as noted on the Lot Grading Plan which was the subject of review and approval by the Town, prior to the review and approval of the BP. Should the structures require a building permit, the Town has enforcement provisions available through the Ontario Building Code. This, in the opinion of the Tribunal, is not a relevant land use planning ground in evaluating whether or not the Application meets the four tests of a minor variance under the Act.
CONCLUSIONS
108In making its decision, the Tribunal has had regard for matters of provincial interest as set out in s. 2 of the Act, as well as the Decision of the COA and the information considered by the COA.
109In consideration of the submissions and the testimony of the Applicant and the Town’s witnesses, the Tribunal finds that the requested variances are consistent with the PPS, conform with the Growth Plan, and meet the four tests as set out in s. 45(1) of the Act. The requested variances individually and collectively maintain the general intent and purpose of the official plan, maintain the general intent and purpose of the zoning by-law, are desirable for the appropriate use of the buildings, structures and land, and are minor in nature.
110The Tribunal allows the Appeal and authorizes the minor variances as requested.
ORDER
111THE TRIBUNAL ORDERS that the appeal is allowed, and the requested variances are authorized as follows:
A. To permit a maximum cumulative lot coverage of 142 m2 for all accessory buildings and structures on a lot, whereas a maximum of 100 m2 is permitted pursuant to Zoning By-law No. 2022-17;
B. To permit a minimum setback to the interior side lot line (east) of 0.18 m, whereas a minimum setback of 1.2 m is required for an accessory building pursuant to Zoning By-law No. 2022-17; and,
C. To permit a minimum setback to the interior side lot line (west) of 0.1 m for a platform, whereas a minimum setback of 1.2 m is required pursuant to Zoning By-law No. 2022-17.
“S.L. Dionne”
S.L. DIONNE
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.