Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 23, 2023
CASE NO(S).: OLT-22-004441
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: James Strickland
Subject: Minor Variance
Description: To permit the construction of an addition to the existing dwelling and a new accessory building
Reference Number: A11-2022W
Property Address: 10431 Lakeshore Road
Municipality/UT: Wainfleet/Niagara
OLT Case No.: OLT-22-004441
OLT Lead Case No.: OLT-22-004441
OLT Case Name: Strickland v. Wainfleet (Township)
Heard: December 2, 2022 by video hearing
APPEARANCES:
Parties
Representative
James Strickland
Self-represented
DECISION DELIVERED BY DAVID BROWN AND C. I. MOLINARI AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal is an appeal under s. 45(12) of the Planning Act, R.S.O. 1990 c.P.13 (the “Act”) from a decision of the Township of Wainfleet (the “Township”) Committee of Adjustment (the “COA”) that denied an application filed by James Strickland (the “Applicant”).
2The Applicant owns the property located at 10431 Lakeshore Road (the “Subject Property”) which is the subject of the appeal. The Subject Property is located on the south side of Lakeshore Road on the north shore of Lake Erie in a rural area of the Township which is characterized by similarly developed lots along the shore of Lake Erie both to the east and west of the Subject Property.
3The Subject Property is currently developed with a detached dwelling and the Applicant is proposing to construct an addition to the westerly side of the existing dwelling (the “Addition”) and a new accessory building (the “Garage”) on the Lakeshore Road or northerly side of the Subject Property.
LEGISLATIVE FRAMEWORK
4An appeal pursuant to s. 45 of the Planning Act is a hearing de novo. In this case, the Applicant bears the onus of demonstrating that the four tests as set out in s. 45(1) of the Act have been met. These tests are summarized as follows:
Does the request maintain the general intent and purpose of the Official Plan?
Does the request maintain the general intent and purpose of the Zoning By-law?
Is the request desirable for the appropriate development or use of the land, building or structure? and;
Is the request minor in nature?
5S. 3(5) of the Planning Act requires that decisions of the Tribunal affecting planning matters be consistent with the Provincial Policy Statement, 2020 (the “PPS”) and conform to the A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019, as amended (The “GP”). The Tribunal is to also have regard to matters of provincial interest as set out in s. 2 of the Act as well as have regard for the decision of the Municipality and the information it considered in the course of making its decision in accordance with s. 2.1(1) of the Act.
APPLICATION FOR MINOR VARIANCE
6To facilitate the issuance of a building permit from the Township for the proposed Addition and Garage, the Applicant filed an Application for Minor Variance (the “Application”) requesting relief from the Township Zoning By-law 034-2014 (the “ZBL”) provisions as follows:
Permit a maximum lot coverage of 23.22% whereas a maximum of 15% is permitted (Section 7.2 Table 10);
Permit a maximum height of 7.7m whereas a maximum of 7.5m is permitted (Section 7.2 Table 11);
Permit a minimum front yard for an accessory building of 2.52m whereas a minimum of 6m is required (Section 4.21 Table 2);
Permit a minimum interior side yard for an accessory building of 0.61m whereas a minimum of 1m is required (Section 4.21 Table 2); and
Permit a maximum lot coverage for an accessory building of 4.72% whereas a maximum of 2.5% is permitted (Section 4.21 Table 2).
SUBMISSIONS
7The Tribunal, in considering the Application, reviewed the Municipal Record contained in the Tribunal’s file, which includes the Township Planning Staff Report dated August 17, 2022 (the “Staff Report”), the decision of the COA, and the draft minutes of the COA hearing.
8The Applicant directed the Tribunal to the Staff Report prepared by the Township Planner recommending approval of the Application subject to conditions. The Staff Report reviewed the PPS and states that the Subject Property is within a Rural Area which permits a single detached dwelling and accessory use. The Staff Report reviewed the GP and similarly states that the Subject Lands are designated within a Rural Area which permits a single detached dwelling and accessory use. The Staff Report concludes that the Application is consistent with the PPS and conforms to the GP.
9The Applicant reviewed the applicable policies of the Region of Niagara (the “Region”) Official Plan (the “ROP”) and referenced the Staff Report wherein it states that the ROP designates the Subject Property as Rural Area. The Rural Area designation permits a single detached dwelling and accessory uses. Further, the Subject Property is identified within the Region’s Core Natural Heritage System. The Region confirmed that an Environmental Site Assessment is not required for the proposed Addition and Garage.
10The ROP policies state that development or site alteration are not permitted on lands containing archaeological resources or areas of archaeological potential unless significant archaeological resources have been conserved. The Applicant noted that the Addition and Garage are within the existing development footprint that have had previous site disturbance and the Region confirmed that an Archaeological Assessment is not required. The Applicant advised that the Region is recommending the following warning clause be included as a condition of approval:
11“Should deeply buried archaeological remains/resources be found on the property during construction activities, all activities impacting archaeological resources must cease immediately, notify the Archaeology Programs Unit of the Ministry of Heritage, Sport, Tourism and Culture Industries (416-212-8886) and a licensed archaeologist is required to carry out an archaeological assessment in accordance with the Ontario Heritage Act and the Standards and Guidelines for Consultant Archaeologists.
12In the event that human remains are encountered during construction, all activities must cease immediately and the local police as well as the Cemeteries Regulation Unit of the Ministry of Government and Consumer Services (416-326- 8800) must be contacted. In situations where human remains are associated with archaeological resources, MHSTCI should also be notified to ensure that the site is not subject to unlicensed alterations which would be a contravention of the Ontario Heritage Act.”
13The Applicant directed the Tribunal to the Staff Report and the summary of the comments from the Niagara Peninsula Conservation Authority (the “NPCA”) where it states that there are NPCA regulated areas on the Subject Property due to hazards associated with the Lake Erie shoreline. The NPCA confirms that the Addition and Garage are outside of the NPCA regulated area. The NPCA advise that a NPCA Works Permit is required for the Addition and Garage and this permit application will require that a geotechnical investigation be completed and submitted with the permit application. The Applicant confirmed that he is aware of the requirement and has no objection to the imposition of the requested condition of a NPCA Work Permit being attached to any approval of the Application.
14In consideration of the Township Official Plan (the “TOP”), the Applicant outlined that the Staff Report advises that the Subject Property is designated Lakeshore Residential, Environmental Conservation Area, and Hazard Lands. This designation permits, amongst other uses, seasonal and year round single detached dwellings. The Applicant proffered that the use of the Subject Property complies to the TOP.
15The Applicant adopts the conclusions of the Staff Report and proffers that the Application is consistent with the PPS, conforms to the GP, complies with ROP and complies with the TOP.
16In consideration of the tests of a minor variance, the Applicant referenced the Staff Report and the conclusions in respect to the TOP, being the Lakeshore Residential Area designation permits the single detached residential dwelling use and structures accessory to the dwelling. Further, the NPCA has provided no objections, subject to approval of a NPCA Work Permit. The Applicant proffered that the request maintains the general intent and purpose of the TOP.
17In consideration of the second test of a minor variance, does the request maintain the general intent and purpose of the ZBL, the Applicant advised that the ZBL zones the Subject Property as Residential Lakeshore – RLS.C15-10 with a Hazard Overlay zone. The Staff Report confirms that the zoning permits the Addition and Garage. The Applicant submitted that the lot coverage proposed is comparable to other lot coverages found within the surrounding area. It was noted that the calculation of the lot coverage only uses that area of the lot that is not within the hazard line area and the subsequent reduced lot area inflates the lot coverage calculation. In respect to the relief sought for the height of the Addition, it was noted that the ridge of the existing dwelling is higher than the ridge of the Addition. With regard to the Garage and the setback relief being sought, the Applicant advised that the difference in grades between the location where the Garage is proposed and the abutting property to the east mitigates the impact of the reduced interior side yard on the neighbouring property. Further, the grade difference down to Lakeshore Road together with the vegetation across the frontage of the Subject Property effectively buffers the Garage and mitigates any impact from Lakeshore Road. The Applicant proffered that the intent and purpose of the lot coverage, height, and setback standards are maintained and he referred the Tribunal to the Staff Report in support of his conclusion.
18The Applicant advised that he is of the opinion that the request is minor in nature as there will be no adverse impact on the neighbouring properties or the Township. The request is desirable for the appropriate development of the Subject Property as it is consistent with other properties on surrounding lands and the use is permitted in the TOP and ZBL.
ANALYSIS AND FINDINGS
19In consideration of the Application, the Tribunal considered the submissions of the Applicant and the Municipal Record provided in the Tribunal’s files which contains the Staff Report and the decision of the COA.
20The Tribunal notes that the Township did not attend the hearing and no other persons attended expressing any interest in the Application.
21The Tribunal recognizes that the Subject Property is currently improved with a residential dwelling use including deck and patio structures on the Lake Erie side of the property and an access, driveway, and a septic field on the Lakeshore Road side of the property. The Addition and Garage are permitted uses.
22The Tribunal finds that the Application has regard for relevant matters of provincial interest under s. 2 of the Planning Act, including those related to the protection of ecological systems, the orderly development of safe and healthy communities, and the appropriate location of growth and development.
23The Tribunal is satisfied that the Application is consistent with the PPS and conforms with the GP in that it results in an efficient use of land and existing infrastructure. Additionally, it provides for the redevelopment of existing rural housing stock and is compatible with the landscape and surrounding local land uses.
24The Tribunal acknowledges that the Addition and the Garage are permitted uses in the ROP and the TOP. The NPCA has reviewed the Application and provided comments which outline that a Works Permit is required and environmental considerations will be reviewed and addressed through that process.
25The Region requested a warning clause be imposed as a condition of approval as described above. In consideration of this request, the Tribunal is of the opinion that the condition as requested cannot be fulfilled unless archaeological remains or resources are discovered. Should such an event occur, the Applicant is required by the Ontario Heritage Act to notify the appropriate division within the Ministry of Tourism, Culture and Sport. The requested condition is more appropriately framed as an advisory note to be included in the decision. In this respect, the Tribunal advised the Applicant who acknowledged his obligations in respect of the Ontario Heritage Act.
26The Tribunal is satisfied that the request maintains the general intent and purpose of the ROP and the TOP.
27The Addition and Garage are permitted by the ZBL. The Tribunal acknowledges that the Addition will be lower in height than the existing dwelling and will not be located closer to the shoreline than the existing dwelling. The Tribunal is satisfied that the Garage will be sufficiently set back from Lakeshore Road and at a higher elevation buffered by vegetation thereby mitigating any impacts from the road. Due to the grade difference between the Subject Property and the property to the east, any impacts resulting from the reduced setback will be sufficiently mitigated. The Tribunal is satisfied that the request maintains the general intent and purpose of the ZBL.
28The Tribunal is satisfied that the request is desirable for the appropriate development and use of the Subject Property. The Tribunal accepts the Staff Report conclusions that the area surrounding the Subject Property consists of lakeshore residential uses with a variety of building heights, sizes, designs, and locations. The increase in lot coverage to accommodate the Addition and Garage is comparable to the surrounding area.
29The Tribunal is satisfied that the request is minor in nature. The Addition and Garage will not create any adverse impacts and the relief being requested is appropriate given the context of the Subject Property.
30The Tribunal is satisfied that the Application meets the four tests of a minor variance and the Application should be granted.
ORDER
31THE TRIBUNAL ORDERS that the appeal is allowed and the variances to Township of Wainfleet Zoning By-law 034-2014 are authorized, subject to the following condition:
- A Works Permit be obtained from the Niagara Peninsula Conservation Authority.
“David Brown”
DAVID BROWN
MEMBER
“C.I. Molinari”
C.I. MOLINARI
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.