Hunnakko v. Tay (Township), 2023 CanLII 69407

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 26, 2023

CASE NO(S).: OLT-23-000090

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

Applicant and Appellant: Barry Hunnakko & Kathryn Whitehead

Subject: Minor Variance

Description: To seek relief from two provisions of the Township of Tay Zoning By-law 2000-57 as amended, to allow for the construction of a new single detached dwelling

Reference Number: 2022-A-19

Property Address: 68 Robins Point Rd

Municipality/UT: Tay/Simcoe

OLT Case No.: OLT-23-000090

OLT Lead Case No.: OLT-23-000090

OLT Case Name: Hunnakko v. Tay (Township)

Heard: June 22-23, 2023 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
Barry Hunnakko and Kathryn Whitehead	A. Pilkington
Township of Tay / County of Simcoe	C. Emmett
Frederick Eplett	F. Eplett* (Self-represented)

DECISION BY STEVEN T. MASTORAS AND T.F. NG AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1The matter is before the Tribunal as an appeal by Barry Hunnakko and Kathryn Whitehead (“Applicants/Appellants”) of a Committee of Adjustment (“COA”) decision denying two minor variances pursuant to s. 45(12) of the Planning Act (“Act”) in the Township of Tay (“Township”) and the County of Simcoe (“County”).

2The property has a municipal address of 68 Robins Point Road (“Subject Property”), is designated Village Residential in the Township of Tay Official Plan (“TOP”) and is located within the Shoreline Residential Exception Two (SR-2) Zone in the Township of Tay Zoning By-law (“ZBL”).

3The Appellant is proposing to demolish the existing single-story dwelling to construct a two-storey dwelling with walk out basement and is requesting relief from two provisions of the Township of Tay Zoning By-law No. 2000-57 as amended to allow:

• A front yard setback of 4.6 metres (“m”) to the dwelling whereas section 12.4.2 of the Zoning By-law stipulates 7.5 m; and
• A revised shore-side setback of 10.8 m (from previous 9.8 m) from the 178.0 m Geodetic Survey of Canada (“GSC”) elevation contour to the dwelling, whereas 15 m is required by section 4.31 of the Zoning By-law and a legal non-complying 8.7 m is currently provided.

4As a first matter of business, the Panel considered the minor amendment requesting a revision to the shore-side setback of 10.8 m from the previous 9.8 m from the GSC elevation contour to the dwelling and determined that pursuant to s. 45(18.1.1) of the Act that no further notice is required, and that notice given for the hearing was properly circulated by the Tribunal.

LEGISLATIVE FRAMEWORK

5As this is a de novo hearing Section 45(1) establishes the ‘four tests’. In other words, to authorize the variances in an appeal, the Tribunal must be satisfied that the variances:

a. maintain the general intent and purpose of the Official Plan; b. maintain the general intent and purpose of the Zoning By-law; c. are minor in nature; and d. are desirable for the appropriate development or use of the land, building or structure.

6In addition, section 3(5) of the Act requires the Tribunal's decision to be consistent with policy statements and provincial plans, including the Provincial Policy Statement 2020 (“PPS”) and the Growth Plan for the Greater Golden Horseshoe 2020 (“GP”). The Tribunal must also have regard to matters of provincial interest set out in s. 2 of the Act, as well as for the decision of the COA and the information considered in the course of making its decision, as set out in section 2.1(1) of the Act.

7Where conditions are applicable, the appeal must also be consistent with s. 45(18) of the Act, which allows the Tribunal to make any decision the COA could have made with conditions in its decision pursuant to s. 45(9) of the Act:

(9) Any authority or permission granted by the committee under subsections (1), (2) and (3) may be for such time and subject to such terms and conditions as the committee considers advisable and as are set out in the decision.

(9.1) If the committee imposes terms and conditions under subsection (9), it may also require the owner of the land to enter into one or more agreements with the municipality dealing with some or all of the terms and conditions, and in that case the requirement shall be set out in the decision.

PARTY/PARTICIPANT STATUS REQUESTS AND HEARING PLAN

8The Tribunal was in receipt of a Party Status request form from Mr. Frederick Eplett, from 66 Robins Point Rd., a neighbouring resident, immediately adjacent to the Subject Property. Mr. Eplett asserted that as an adjacent property owner, and retired land surveyor, he believed he had a right to participate fully in the hearing and understood that he could provide opening and closing remarks, as well as have the ability to cross-examine testimony from expert witnesses. He agreed that he was not qualified to testify as an expert in land use planning and acknowledged that he fully understood his role and obligations as a Party pursuant to Rule 8.1 of the Tribunal’s Rules of Practice and Procedure.

9Mr. Eplett’s concerns were focussed on neighbourhood character, compatibility, survey requirements, height, privacy and proposed built form. The other Parties did not object to this request and the Tribunal conferred Party Status on Mr. Eplett.

10A Participant Status request was submitted prior to the hearing by Theresa Erskine, co-owner of 66 Robins Point Rd. with Mr. Eplett. Ms. Erskine’s concerns were like those of Mr. Eplett and submitted in written form to the Tribunal. The other Parties did not object to this request and the Tribunal conferred Participant Status on Theresa Erskine.

11There were no other requests for Party or Participant Status.

12Parties agreed to follow a hearing plan with a total of three expert witnesses beginning with testimony from Jamie Robinson, partner at MacNaughton Hermsen Britton Clarkson Planning Limited (“MHBC”) who was qualified as a Land Use Planner.

13Andrew Trevers followed as a Senior Engineer and Project Manager at Tatham Engineering Limited (“Tatham”) and was also qualified by the Tribunal as an expert in Coastal Engineering Matters.

14Lastly, Todd Weatherell, Director of Planning and Development at Tay Township, was qualified by the Tribunal as an expert in Land Use Planning who has appeared at the Tribunal on numerous occasions.

HEARING TESTIMONY AND SUBMISSIONS

15Mr. Robinson commenced his testimony outlining his engagement and historical involvement requiring modifications to the application dating back to the summer of 2022, prior to his decision to support the approval of the appeal. He asserted that the proposed variances in their present form do not result in the over development of the lot and the proposed dwelling does not exceed the maximum permitted height of the SR-2 Zone and does not exceed the maximum permitted lot coverage of the SR-2 Zone.

16The variance from the shore-side setback has increased and is therefore further from the 178 GSC and has gone further to address Township Planning concerns. Furthermore, this setback was confirmed at 10.8 m and drawings had been updated (Exh.1 p. 586) of the Joint Document Book (“JDB”). On the roadside, the setback is 4.6 m whereas there is a required 7.5 m setback pursuant to the Township’s ZBL and did not change.

Provincial Policy Statement 2020 (“PPS”) and Growth Plan (“GP”)

17Mr. Robinson opined that the proposed variances have regard for provincial interest and are consistent with the PPS and conforms to the GP, and at a high level effectively transitions a three-season dwelling to a year-round four-season residence. In his opinion, while having regard for these matters, they are not necessarily specific to the minor variance tests in the Act, however he reiterated that the focus of growth in this area conforms with the GP.

18Regarding the PPS, Mr. Robinson asserted the subject property has access to full services and falls within the settlement area. Furthermore, Mr. Robinson opined that the 178 GSC requirement is very important pursuant to (PPS 3.1.1 a)) whereby, s. 4.31 of ZBL as implemented shows regard to hazardous lands along shoreline in this area. Mr. Robinson also stated that the Tatham report addresses these issues in the JDB (p. 494) which provides for variances that may be permitted in such circumstances as it relates to the 15 m setback requirement from the 178 GSC. This was supported by the testimony of Mr. Trevers later in hearing.

19Mr. Robinson opined further that based on this, the proposed new dwelling is an improvement of the existing circumstances within the settlement area, is fully serviced, and, as such, the Application is consistent with the PPS and GP.

Township Official Plan (“TOP”) and County Official Plan (“COP”)

20Mr. Robinson opined that the original site plan had a slightly inaccurate measurement on the 178 GSC setback of 9.8 m which, which after careful review, resulted in the more accurately adjusted 10.8 m shore side setback considered to be consistent with the TOP and COP and conforms with the intent of both Plans. He further emphasized that because this was a minor variance application, that this was where he applied greater emphasis in his testimony.

21Regarding the COP, Mr. Robinson opined that consistent with Settlements s.3.5 (p.271 JDB):

3.5.7 Settlement areas shall be the focus of population and employment growth and their vitality and regeneration shall be promoted. Lands may only be redesignated from lands not for urban uses to lands for urban uses in accordance with Sections 3.5.8 or 3.5.10 of this Plan. Residential, commercial, industrial, institutional, and recreational land uses shall be developed within settlement area boundaries on land appropriately designated in a local municipal official plan for the use. Land use designation changes within settlement area boundaries do not require a County Official Plan amendment. The uses permitted in the land use designations within settlement area boundaries may be further restricted or prohibited in the local municipal official plans in order to facilitate urban development.

22Therefore, in his opinion, the location of the proposed new dwelling is in an area consistent with the Settlements referenced in the COP. Furthermore, Mr. Robinson asserted that the setback of 10.8 m, now being setback even further than which was before the COA previously, conforms with and meets the intent of the COP and is permitted within the residential designation of the subject property.

23Mr. Robinson opined the 216 square meters (“sq m”) footprint is close to the size of a number of other dwellings in the area and, although the Township believed it was too large and out of character, he concluded that in his opinion the footprint met the lot coverage requirements of the ZBL and, was in fact, consistent with the character of numerous dwellings in the area.

24Regarding the TOP as adopted in 1999, Mr. Robinson testified the subject property is designated as Village Residential (“VR”) in s.4 of the TOP (p. 338 JDB). Mr. Robinson referenced relevant sections of the TOP as follows:

• 4.1.2 Residential areas are either designated "Village Residential", "Shoreline Residential", "Mobile Home Residential", or "Estate Residential". It is intended that the "Village Residential" areas within the four main Settlement Areas will be the primary focus for residential development in the Township during the planning period.
• Village Residential 4.1.1.1 General Principles 4.1.1.1.1 The "Village Residential" designation is intended to recognize the significant existing residential areas of the Township's four main Settlement Areas of Port McNicoll, Victoria Harbour, Waubaushene, and Waverley and also provide the lands to accommodate the approved and projected residential growth for the Plan's planning period. [emphasis added]
• 4.1.1.1.2 Development in the "Village Residential" designation shall protect the low-density residential character of the communities and provide for limited medium density development in appropriate locations.
• 4.1.1.2 Permitted Uses 4.1.1.2.1 The predominate use of lands designated "Village Residential" shall be for low density single detached, semi-detached, and duplex dwellings.
• 4.1.1.3.5 Development proposals within the "Village Residential" designation will be reviewed with regard to their compatibility with the existing character of the Settlement Area. Designs, which utilize neo-traditional concepts and alternative development standards to recreate the pedestrian orientated “small village” character, will be encouraged.

25Mr. Robinson summarized his testimony stating that the context in which this policy is constructed therefore permits low density residential within the Victoria Harbour settlement area and should be protected. He also noted that medium density is permitted in certain locations and that the low-density nature of the subject property’s variance application clearly conforms with the TOP. Mr. Robinson opined throughout his testimony that the variances requested are “fully compatible” with the existing low-density character of the area and that the dwelling proposed is compliant with the ZBL and conforms with the overall objectives of the TOP and COP.

26Mr. Weatherell testified that it was his opinion that the Application does not have regard to the Planning Act, is not consistent with the PPS and does not conform to the COP and the TOP. Mr. Weatherell sought the dismissal of the Appeal and the approval of the COA decision of January 18, 2023, denying the Application.

27Mr. Weatherell opined that the Planning Justification Report, prepared by MHBC (the "MHBC PJR") and the Shoreline Hazard Study (“SHS”) prepared by Tatham did not satisfy the Township despite their assertions that the proposed Application presents good planning and is in the public interest. Specifically, Mr. Weatherell opined that the Application lacked conformity with the TOP, the ZBL and was not desirable, as it would result in a larger dwelling unit which “expands beyond the building envelope permitted” resulting in a dwelling that would be more “visually prominent from neighbours that are located on each side of the subject property, as well as from the properties across the road.”

28It was also Mr. Weatherell’s opinion that the overall footprint of the proposed dwelling should be reduced to achieve the setback requirements.

TESTS FOR MINOR VARIANCES

Maintain the General Intent of the Official Plans

29Regarding the TOP, Mr. Robinson also opined that, while the ZBL implements the objectives of the TOP, building massing and the primary issues of lot coverage, height, and side yard setbacks, are not the subject of the variance request sought by the Applicants.

30Mr. Robinson opined that the shoreline setback does not change the character of the area and that the roadside setback does not represent a significant change of the character of the area nor the compatibility of the surrounding neighbourhood. The intent of the TOP is achieved, and the low-density character of the area is maintained in relation to neighbouring properties, as this meets the definition of low density as a single-detached dwelling with no negative impact. He asserted that, while the design may be different, it is not necessarily a change of character of the area.

31Mr. Weatherell testified that the variance requests did not have regard for the TOP, in that it altered the character of the area, which is primarily single-story dwellings that were low profile in nature, and that the overall development will be “very prominent with neighbours” in addition to the required removal of trees to facilitate the new dwelling. During cross examination, Mr. Weatherell acknowledged that there was no tree protection by-law, and most trees are located on 66 Robins Point Road.

32Mr. Weatherell also acknowledged during cross examination that there was no vehicular turning analysis requirements in the ZBL regarding the front yard setback and acknowledged that the current parking on-site is on the road allowance and that a garage is preferable.

The Panel preferred and agreed with the testimony of Mr. Robinson in this regard and finds that the variances meet this first test and maintain the general intent of the official plans. The intent of the TOP is achieved, and the low-density character of the area is maintained in relation to neighbouring properties. The proposal meets the definition of low density as a single-detached dwelling with no negative impact. Furthermore, the variances conform with and meet the intent of the COP.

Maintain the general intent and purpose of the Zoning By-Law (“ZBL”)

33Mr. Robinson testified that the ZBL designates the subject property as SR and pursuant to the ZBL s. 12, Zone identifies Zone Regulations as they apply in this instance as:

12.3.3 Minimum Required Yards

(i) Front 7.5 metres

(ii) Rear 7.5 metres

(iii) Interior Side 3 metres

(iv) Exterior Side 4.5 metres

[emphasis added]

34Therefore, the roadside ZBL required variance is “Front 7.5 m” and furthermore in the ZBL Mr. Robinson addressed the waterfront lot variance referenced below:

s.4.31 WATERFRONT LOTS Notwithstanding any other provision in this By-law, no building or structure shall be located within 15.0 metres of the 178.0 metres G.S.C. elevation on a waterfront lot abutting Georgian Bay. In addition, openings to any building or structure on a waterfront lot abutting Georgian Bay shall be located no lower than 178.5 metres G.S.C. This provision shall not apply to detached non-habitable accessory buildings and structures or structural works required for flood and/or erosion control or sedimentation control. This provision shall not apply to decks and/or stairs attached to a main dwelling provided that the encroachment meets the applicable zone regulations for the required minimum Rear Yard.

35Mr. Robinson opined that the intent of the ZBL sets the standard at 15 m and the proposed shoreline setback at 10.8 m, reflects the intent of the ZBL and refers to the SHS and Tatham analysis which supports the opinion that, from a flood protection perspective, this setback does meet the intent of the ZBL with no risk to public health and safety. Lot grading and foundation work must be designed by a professional engineer, respect neighbouring properties and restrict any damage to shoreline, consistent with the SHS recommendations. In summary, Mr. Robinson opined that the ZBL objectives related to the shore side setback, flood control and intent of the ZBL are met as outlined in the SHS.

36This was further reinforced with the testimony of Mr. Trevers, who opined extensively on the need to ensure that lot grading and shoreline structures fall within careful engineering design to address any issues that may arise and recommended this as a condition of approval.

37Mr. Trevers also testified that the added shore side setback to 10.8 m, from 9.8 m originally, represented an improved site condition that is supported in the SHS. Additionally, Mr. Trevers opined that the bedrock shoreline was not as susceptible to erosion that would lead to future issues, as opposed to a dynamic beach environment.

38Mr. Trevers reinforced his testimony stating that the proposal improves the existing conditions on the subject property, is consistent with the PPS (s.3.1.1 and s.3.1.7 a, b, c and d) and further noted that any drainage would be self-contained, subject to a grading plan and the authority of the Township.

39Regarding the roadside setback, Mr. Robinson further opined that the three reasons for a front yard setback requirement of 7.5 m in the ZBL is to reflect the need to park vehicles at a property without encroaching the road allowance, allowing space for snow removal along the road allowance and respecting the character of the area (p.15 witness statement).

40Mr. Robinson opined that it was important to note that side yard setback change, from zero setback currently to a 1.2 m setback with a new dwelling, falls into compliance with the ZBL and that this is further the case with the building height falling within the current ZBL. No other variances were contemplated by the Applicant.

41Mr. Robinson asserted that the roadside variance remained at 4.6 m and he reiterated that it is consistent and desirable with the character of the area and evidenced this further with numerous photos of other properties in the area which reflect the same or lesser setbacks from the roadside along Robins Point Road.

42Mr. Robinson testified that, of 133 properties along the shoreline, approximately one-quarter of these properties have setbacks from garages within 7.5 m, and 27 of these are within 4.6 m from the roadside setback along Robins Point Road (Exh.3 p.47-53). He also noted that there was a distinct difference with waterfront lots and that he chose to focus the comparable properties on these waterfront properties versus roadside properties on the other side of the street with different design criteria and circumstances.

43The garage portion of the proposal is part of the dwelling unit and forms part of the variance request. Numerous garages are at the front of various properties in the area and there was no defined architectural style along the waterfront properties, keeping in mind that the ZBL allows for larger dwellings along the shoreline with varying architectural styles. In this case Mr. Robinson opined that within the front lot line the new design meets the intent of the ZBL, which allows for safe parking within the garage’s front wall, and no encroachment on municipal road allowance. Additionally, with 5.7 m of space from the front of the lot line to the edge of the roadway asphalt, this allows more than enough of a roadway snow storage buffer (Exh.2 p. 486) and improves existing conditions on the subject property with a variance difference of 2.9 m which is also in common with a number of other properties along Robins Point Road.

44Regarding both the proposed front yard setback and the proposed shore side setback, Mr. Weatherell opined that the new dwelling should be able to adhere to the Township’s ZBL and that he opposed both variance requests from a wholistic application perspective with the two variances combined. He testified that had the variance request only been shoreline related he may have been supportive.

45Regarding the SHS, Mr. Weatherell testified that he still maintained that the shoreline variance request was not appropriate and referenced this in his Planning report as follows:

• In my professional opinion, the Shoreline Hazard Study does not appropriately support the Application:

  i. The site plan provided in the Shoreline Hazard Study is different from the plans that were submitted in support of the Application and that were provided decided on by the Committee of Adjustment. The new, proposed structure, which forms the basis of the Application, proposes a walkout at the basement level.

  ii. The Shoreline Hazard Study recommends that a foundation plan be prepared by an engineer if a basement is to be included in the design of the new, proposed structure. No such engineering plans have been completed or submitted to the Township.

  iii. The Shoreline Hazard Study states that if a basement is proposed , a higher finished main floor elevation may be required. This would mean that the height of the new proposed structure may be required to be higher than currently proposed.

46The Tribunal notes that in Mr. Weatherell’s testimony, during cross examination, it was expressed that he would not be opposed to the shoreline setback if it were a stand-alone variance application, and that because both variances were before the COA, he could not support the Application in its entirety.

47Mr. Weatherell further opined that the proposed setback of the dwelling, which includes the garage, was not in conformity with the character of the area, and that the front yard setback of the garage adversely imposed on the property across the street, adjacent properties, and opined that it was not consistent or appropriate relating to the character of the area.

48Mr. Weatherell concluded in his oral testimony and written statement that “the proposed Application is not in keeping with the general purpose and intent of the Township ZBL, and the proposed application is neither minor nor appropriate development for the Subject Lands”. He further concludes that “The Application requests relief from the 15-metre setback from the 178 m G.S.C. contour level to 9.8 m.” He adds that “In the MHBC PJR, this relief is purported to be minor in nature as it will be moved back further than the existing dwelling but planning staff has not been provided justification as to why the current prescribed setbacks cannot be met.”

49Mr. Weatherell also acknowledged during cross examination that, regarding the front yard setback, there was “no vehicular turning analysis requirements in the ZBL” and that “currently the parking is on the road allowance and that a garage is preferable.”

50Based on witness testimony and submissions, the Panel preferred and agreed with the testimony of Mr. Robinson and finds that the variances meet this second test and maintain the general intent and purpose of the ZBL. The increased shore side setback to 10.8 m, from 9.8 m originally, represents an improved site condition from what currently exists, and the roadside variance which remains at 4.6 m is consistent and desirable with the character of the area.

Are desirable for the appropriate development or use of the land, building or structure

51Mr. Robinson opined that since the proposed dwelling is set back further at the shore side 178 GSC, it is set back further than much of the development and existing dwellings along Robin Points Road, and this reflects a public interest objective whereby the new dwelling comes into compliance with the character of the area.

52Through his testimony, Mr. Weatherell confirmed this and provided several examples (Exhibits 8,9,10 and11) at the Panel’s request. Each of these examples were relevant variances that the Tribunal carefully considered at the hearing and assisted in the Tribunal’s consideration of the variances before it.

53Mr. Robinson asserted that the roadside setback was intended to remove parking from the road allowance by orienting the garage doors facing east, allowing access for parking for up to four vehicles. Mr. Robinson provided evidence of numerous examples where existing garages were situated very close to the road allowance and that this new dwelling both improved those conditions for parking purposes and maintained consistency with the neighbourhood character.

54Mr. Robinson opined that the 216 sq m footprint is close to the size of other dwellings in the area and concluded that, although the Township believed it was too large and out of character, in fact, the footprint was consistent with numerous dwellings in the area and provided photographic evidence of this.

55Mr. Robinson opined that the proposed new dwelling in this case was a significant improvement on the current circumstances on the subject property. He further stated that the proposal is not out of character relating to other front yard setbacks in the area, and that the overall scale of the dwelling as-of-right does not add any inordinate, enhanced massing from a distance along the water and street level.

56Mr. Weatherell testified that he was not satisfied that the front yard setback was supported with evidence that there was no adverse impact on neighbouring properties and held firmly in his view that this setback variance was not appropriate for the character of the area.

57Mr. Weatherall asserted that, “the accumulation of the changes requested will have a change to character of the built form with the area.” He also noted in his statement that “no unusual constraints (trees, rock outcrops etc.) have been identified that would limit the appropriate development of the lot in the absence of variances” and that “staff have concerns about the driveway proposed as it will be located close to the property line whereas some trees will be required to be removed, and it would appear the residents will have to make a three-point turn to enter the garages”.

58Based on witness testimony and submissions, the Panel preferred and agreed with the testimony of Mr. Robinson in this regard and finds that the variances meet this third test and are desirable for the appropriate development or use of the land, building or structure. The shoreline setback of 10.8 m is appropriate, as it sets the proposed building back further than what presently exists and the new dwelling improves conditions for parking purposes, road maintenance and maintains consistency with the neighbourhood character and other built forms.

Minor in Nature

59Mr. Robinson opined that if one is to compare the neighbouring shoreline setbacks of numerous adjacent properties (Exh.3 p. 53) the subject application provides for a new dwelling that is setback further than most, if not all of those adjacent properties and improves on present conditions with the 10.8 m shoreline setback on this site. Therefore, Mr. Robinson opined that both proposed variances were minor in nature.

60Mr. Weatherell concluded in his report that:

in my professional opinion, this type of development is not appropriate in this circumstance. There are no constraints on the Subject Lands, and no restrictions on property size, shape, topography, or orientation that, without the variances, would limit usability of the land or building or interfere with the owner's reasonable use of the property. The Subject Lands are of equivalent size and topography of the surrounding lots.

61In his written statement, Mr. Weatherell concluded that “the reduced setback from the front yard requirement is also not minor in nature as there is no justification provided as to why the Application cannot meet the minimum front yard setback required.”

62Finally, regarding concerns from neighbouring property owners, it should be noted that throughout the hearing, the Panel provided Mr. Eplett the opportunity for an opening and closing statement as a Party to the hearing, the opportunity to provide his own testimony as a lay-person, and in each instance, the opportunity to cross examine the witnesses. In each of these instances, Mr. Eplett’s degree of participation was very limited, and he declined to cross examine the witnesses.

63Mr. Eplett did however state in both his opening and closing remarks that he “didn’t mind the applications” that are before the Tribunal, but that the Applicants are “seeking too many bedrooms, a 3-car garage and a significantly larger dwelling”. Finally, during his closing remarks, he stated that he was also contemplating a redevelopment of his own property.

64Based on witness testimony and submissions, the Panel preferred and agreed with the testimony of Mr. Robinson in this regard and finds that the variances meet this fourth and final test and are minor in nature. The application provides for a new dwelling with a shoreline setback further than most at 10.8 m, which is better than most of the adjacent properties, improves on present conditions and the front yard setback of 4.6 m is considered minor based on the 2.9 m difference with what exists currently.

ANALYSIS AND DISPOSITION

65The Panel considered all the oral testimony and written submissions and concludes that the shore side setback variance request of 10.8 m, does meet the ‘four tests’ of Section 45(1) of the Act, does conform with the PPS and GP and has regard to the matters of provincial interest set out in s. 2 of the Act. Additionally, the Tribunal does have regard for the decision of the COA and the information considered in the course of making its decision, as set out in section 2.1(1) of the Act.

66The Panel also carefully considered the front yard setback variance request of 4.6 m, from the 7.5 m requirement of the ZBL, and concludes that this variance also meets the ‘four tests’ of Section 45(1) of the Act, conforms with the PPS and GP and has regard to the matters of provincial interest set out in s. 2 of the Act. Additionally, the Tribunal does have regard for the decision of the COA and the information considered in the course of making its decision, as set out in section 2.1(1) of the Act.

67While the two variances were different in their scope and required careful analysis together and independent of each other, the Tribunal determined that in the context of the overall Application, they are both reasonable, justifiable, and considered minor variances in nature.

68The Tribunal appreciates that the concerns of the owners of 66 Robins Point Road, as expressed primarily in written statements and through limited oral testimony from Mr. Eplett, raise some relevant concerns when considering the two variances. Nonetheless, the Tribunal believes that these are more subjective concerns in scope and are not based on sound expert planning rationale. The Tribunal does not agree that basing a decision to deny the appeals on the number of bedrooms, or garage/parking spaces is appropriate and finds that the further setback from existing conditions at the front and rear yards improve current conditions at the subject property. Furthermore, the new side yard setbacks should be a welcome correction. The height and lot coverage of the new dwelling are within the existing ZBL requirements. The Panel agrees that both variances are compatible with the immediate character of the area and represent good planning.

69Finally, and more specifically, the SHS conducted by Tatham was the subject of considerable testimony from Mr. Trevers and very helpful in the final analysis regarding the shore side variance. The SHS ultimately concludes that the shore side variance, if implemented properly using the recommended engineering condition in this decision, can and will protect the new dwelling from any flooding with this extended setback to 10.8 m, to ensure public safety and protect shoreline structures. The SHS also recommends that the conditions referenced in the hearing, should form part of the final Order from the Tribunal.

ORDER

70THE TRIBUNAL ORDERS that, having been asked to consider an application which has been amended from the original application and the Tribunal having determined as provided for in subsection 45(18.1.1) of the Planning Act, that no further notice is required.

71THE TRIBUNAL FURTHER ORDERS that:

• Party status is conferred on Frederick Eplett.
• Participant status is conferred on Theresa Erskine.

72THE TRIBUNAL FURTHER ORDERS that the appeal is allowed, and the two minor variances to By-law No. 2000-57 are authorized subject to the following conditions:

• The Applicant shall be required to enter into an agreement pursuant to section 45(9.1) of the Act, the purpose of which is to establish that:

  1. The variances shall apply only to a dwelling, substantially in compliance with the Site Plan labelled M-1.2 and dated 2022-12-15, to be amended to provided “No Parking Permitted” between the front wall of the garage and the front lot line.

  2. As recommended in the Shoreline Hazard Study dated August 31, 2022, prepared by Tatham Engineering, that:

     a. Any minimum opening elevations shall be at least 178.5 G.S.C;

     b. The building foundations, lot grading and shoreline structures shall be designed by a professional engineer experienced in floodproofing.

     c. Any fill and shoreline works shall be designed to mitigate any potential impacts on adjacent properties and not aggravate the existing shoreline hazard.

“Steven T. Mastoras”

STEVEN T. MASTORAS

MEMBER

“T.F. Ng”

T.F. NG

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.