CORRECTION NOTICE

OLT CASE NO(S).:

OLT-23-000420

DECISION ISSUE DATE(S):

September 13, 2023

CORRECTION NOTICE ISSUE DATE:

September 14, 2023

RE: Link Charity Canada Inc. v. Brampton (City)

Correction to: the direction of the subject property on page 2.

Originally:

Corrected to:

2The subject property is located on the south-west side of Creditview Road and the north-west side of Nova Scotia Road.

2The subject property is located on the south-west side of Creditview Road and east of Nova Scotia Road.

“Euken Lui”

EUKEN LUI REGISTRAR

Ontario Land Tribunal

Website: 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.

ISSUE DATE:

September 13, 2023

CASE NO(S).:

OLT-23-000420

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

Applicant and Appellant:

Link Charity Canada Inc.

Subject:

Consent

Description:

To create two additional lots for residential purposes

Reference Number:

B-2023-0011

Property Address:

7780 Creditview Road, Part of Lot 14, Concession 4 WHS

Municipality/UT:

Brampton/Peel

OLT Case No.:

OLT-23-000420

OLT Lead Case No.:

OLT-23-000420

OLT Case Name:

Link Charity Canada Inc. v. Brampton (City)

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

Applicant and Appellant:

Link Charity Canada Inc.

Subject:

Consent

Description:

To create two additional lots for residential purposes

Reference Number:

B-2023-0012

Property Address:

7780 Creditview Road, Part of Lot 14, Concession 4 WHS

Municipality/UT:

Brampton/Peel

OLT Case No.:

OLT-23-000421

OLT Lead Case No.:

OLT-23-000420

OLT Case Name:

Link Charity Canada Inc. v. Brampton (City)

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O.

1990, c. P.13, as amended

Applicant and Appellant:

Link Charity Canada Inc.

Subject:

Minor Variance

Description:

To create two additional lots for residential purposes

Reference Number:

A-2023-0072

Property Address:

7780 Creditview Road, Part of Lot 14, Concession 4 WHS

Municipality/UT:

Brampton/Peel

OLT Case No.:

OLT-23-000422

OLT Lead Case No.:

OLT-23-000420

OLT Case Name:

Link Charity Canada Inc. v. Brampton (City)

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

Applicant and Appellant:

Link Charity Canada Inc.

Subject:

Minor Variance

Description:

To create two additional lots for residential purposes

Reference Number:

A-2023-0073

Property Address:

7780 Creditview Road, Part of Lot 14, Concession 4 WHS

Municipality/UT:

Brampton/Peel

OLT Case No.:

OLT-23-000423

OLT Lead Case No.:

OLT-23-000420

OLT Case Name:

Link Charity Canada Inc. v. Brampton (City)

Heard:

August 29, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel/Representative*

Link Charity Canada Inc.

H. Houtman*

City of Brampton

E. Bashura

MEMORANDUM OF ORAL DECISION DELIVERED BY P. TOMILIN ON AUGUST 29, 2023 AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The matter before the Tribunal is an appeal filed by Link Charity Canada Inc. (“Applicant” / “Appellant”) against the decision of the City of Brampton (“City”) Committee of Adjustment (“COA”) to deny Consent and a Minor Variance (“MV”) applications (the “Applications”) for the property municipally known as 7780 Creditview Road, Part of Lot 14, Concession 4 WHS (“subject property” / “Site”).

2The subject property is located on the south-west side of Creditview Road and the north-west side of Nova Scotia Road. The Site has approximately 30.5 metres (“m”) of street frontage on Creditview Road and approximately 3.66 m on Nova Scotia Road. The subject property has an approximate area of 2.87 hectares (“ha”) (7.1 acres (“ac”)) and is developed with a single detached dwelling located on the southwest portion of the Site and a barn near Creditview Road.

3The surrounding uses include Sid Manser Park and single detached dwellings to the North; single detached dwellings to the West and South; Open Space area and the Credit River are to the East of the Site.

STATUS REQUEST

4Prior to the Hearing, the Tribunal received a Party Status request from Sarabjit Aujla. The Tribunal questioned whether Ms. Aujla is intending to call any expert witnesses to testify at the Hearing. Ms. Aujla stated that she will not have any expert witnesses at the Hearing.

5The role of a Party at the appeal is to fully engage in the Hearing process – more specifically, to support the issues raised by them with expert planning or technical evidence. Given that Ms. Aujla was not calling any witnesses or proffering expert evidence, the request for Party Status was denied. Instead, the Tribunal granted Ms. Aujla Participant Status, and will consider the issues and concerns raised by her when making a decision.

THE DEVELOPMENT PROPOSAL

6The Applicant proposes to sever the lot to create two additional lots, for a total of three lots.

7The retained lot (Lot 1) will have approximately 30.52 m of frontage on Creditview Road and a lot area of 2.42 ha.

8The first severed lot (Lot 2A) currently contains an existing single detached dwelling and will be accessible by a mutual driveway easement shared with another severed lot (Lot 2B) that connects to Nova Scotia Road. Lot 2A would have a depth of approximately 45.21 m and an area of approximately 0.409 ha (1.01 ac).

9The second severed lot (Lot 2B) will be used for residential purposes and will be accessible by a mutual driveway easement shared with another severed lot (Lot 2A) that connects to Nova Scotia Road. Lot 2B would have a depth of approximately

45.21 m and an area of approximately 0.1665 ha (0.41 ac).

10The shared driveway will have a frontage of 3.66 m on Nova Scotia Road.

11The Appellant requested the following variances:

A. Lot 2A:

1. To permit a lot width of 3.66 m, whereas Zoning By-Law (“ZBL”) No. 270- 2004 requires a minimum lot width of 30 m (“MV 1”); and

2. To permit a side yard setback of 2 m whereas the ZBL requires a minimum side yard setback of 7.5 m (“MV 2”).

B. Lot 2B:

1. To permit no frontage onto a public street whereas the ZBL requires a lot to have frontage onto a public street (“MV 3”);

2. To permit a building or structure on a lot which does not front onto a street whereas the ZBL permits a building or structure to be constructed only on a lot which fronts onto a street (“MV 4”); and

3. To permit a rear yard setback of 8.3 m whereas the ZBL requires a minimum rear yard setback of 12 m (“MV 5”).

LEGISLATIVE FRAMEWORK

12The issue before the Tribunal is whether the Consent application meets the general requirements set out in the applicable Provincial Planning Legislation and municipal planning policies, the specific criteria of the Planning Act (“Act”) and represent good planning. The proposed severance must also meet the applicable policies of the Official Plan (“OP”), ZBL, and satisfy the relevant criteria set out in s. 51(24) of the Act.

13The Tribunal shall also have regard to matters of Provincial interest.

14An appeal pursuant to s. 45 of the Act is a Hearing de novo, and the Applicant bears the onus to demonstrate to the Tribunal that the criteria established in s. 45(1) of the Act has been satisfied:

1. The intent and purpose of the Official Plan is being maintained;

2. The intent and purpose of the Zoning By-law is being maintained;

3. Is desirable for the appropriate development or use of the land, building or structure; and

4. Is minor in nature.

15In addition to the four tests, the Tribunal must have regard to the matters of the provincial interests as set out in s. 2 of the Act, and the decision of the approval authority under s. 2.1 of the Act.

HEARING

16The Appellant did not call any expert witnesses at the Hearing. The Tribunal explained to the Appellant that all of his evidence will be limited to the factual evidence and not his opinion evidence, as the Appellant was not qualified as an expert. The Appellant intended to call Barrie Manser as his only witness, who owned a property next to the subject property. During the course of the Hearing, the Appellant stated that he did not have any specific questions for Mr. Manser and decided not to have him as a witness. The Appellant explained to the Tribunal the history of the subject property, and the intent of the Charity in regard to the Site. He played a video that was made by himself and Mr. Manser (Exhibit 7). During the course of the Hearing, the Appellant requested the Tribunal to accept and approve a modified version of the application that would satisfy the City. The Tribunal explained to the Appellant that it could only consider the version of the application that was the subject of the appeal unless the

Applicant/Appellant and the City consented to the modified version, which is not the case here.

17The City called three witnesses in support of the Applications: Alex Sepe – Land Use Planner, Trisha Hughes – Planner for the Credit Valley Conservation (“CVC”) and David Monaghan – Supervisor Traffic Planning, Engineering Division, Public Works and Engineering.

18Mr. Sepe provided his opinion evidence relative to the Planning instruments applicable to the subject property. He proffered that a part of the Site contains a portion of the slope and flood hazards associated with the Credit River and is subject to

s. 3.1.1b of the Provincial Policy Statement 2020 (“PPS”) that directs development to areas outside of hazardous lands adjacent to river, stream and small inland lake systems which are impacted by flooding hazards and/or erosion hazards. It is his opinion, that the location of the vehicular access of the retained lands to Creditview Road, is not appropriate due to the potential flood hazards.

19Mr. Sepe explained, and Ms. Hughes confirmed, to the Tribunal that the subject property is located within ‘Valleyland/Watercourse Corridor’ and is within the ‘CVC Regulation Area’ as per Ontario Regulation 160/06, which prohibits development in areas adjacent to river and stream valleys, hazardous lands, and wetlands without the prior written approval of the CVC. He offered that policy 3.1.2c of the PPS states that:

“development and site alteration shall not be permitted within areas that would be rendered inaccessible to people and vehicles during times of flooding hazards, erosion hazards and/or dynamic beach hazards, unless it has been demonstrated that the site has safe access appropriate for the nature of the development and the natural hazard”.

Full comments of Ms. Hughes can be found on p. 107 – 109 of Exhibit 1.

20Mr. Sepe testified that policy 4.6.8.1 of the City’s Official Plan (“COP”) requires that prior to development, Watershed Plans, Subwatershed Studies, Environmental

Implementation Reports, Natural Heritage System Studies or Vegetative assessments are to be undertaken. He stated that the Appellant has not provided any of the required reports or studies, thus, the applications do not demonstrate that there will be no negative impacts on these features.

21He proffered that policy 5.33.1 indicates that the City may require one or more impact studies in conjunction with the application and/or approval of a development related application such as, but not limited to: (vi) A committee of adjustment application and (viii) a land division application.

22Mr. Sepe stated that his report to the COA requested that the Applicant submit a scoped Environmental Impact Study (“EIS”) to assess the ecological impact of the proposed development on the Natural Heritage System and outline proposed mitigation measures to ensure the proposed development does not negatively impact and achieves no net loss of the Natural Heritage System. A Terms of Reference (“TOR”) for a scoped EIS is required to be reviewed by the City and CVC. Due to the absence of those reports, it is Mr. Sepe’s opinion that the proposed development does not conform to the applicable policies of the COP.

23Mr. Sepe reviewed the applicable Secondary Plan (“SP") policies and indicated that the Site is designated ‘Village Residential’ (the entire lands except for the north- east portion), ‘Churchville Heritage Conservation District’ (the entire lands except for the north-east portion) and ‘Valleyland’ (the north-east portion) as per Schedule SP40(a) in the SP. He further provided that:

“Policy 3.6.1 notes that lands designated ‘Valleyland’ on Schedule SP40(a) have been identified by the Conservation Authority as having inherent environmental hazards including flood and erosion susceptibility, but which contribute to the ecological integrity of the Credit River Watershed.

Designated Valleylands shall remain primarily in a natural state or be utilized for storm water management purposes and complementary uses in accordance with Part I, section 4.4 and other relevant policies of the City’s OP and the recommendations of the Bram West Subwatershed Management Study (Gartner Lee Ltd.). As per Schedule SP40(a), a portion of the Subject Property is designated as ‘Valleyland’ and also identified by the CVC as a

Regulatory Flood Plain, subject to Ontario Regulation 160/06. The ‘Valleyland’ portion of the Subject Property is located on the north-east portion of the subject parcel, fronting Creditview Road.

The proposed severance shows the retained lands having a singular access to Creditview Road on the north-east portion of the Subject Property, located within the ‘Valleyland’. I do not support this configuration as it creates in (sic) an unsafe development scenario where the retained lands are not accessible in the (e)vent of a flood.”

24Mr. Sepe explained that per s. 6.17.2 (b) of the ZBL, “the width of a driveway leading to any parking area shall be a minimum width of 3 m for one-way traffic, and a minimum width of 6 m for two-way traffic”. The development application indicates that the 3.66 m driveway will function as an access for the existing residential home on Lot 2A and the proposed three-storey, 382 square metres (“m2”) development on Lot 2B. In the opinion of Mr. Sepe, the proposed 3.66 m width of the driveway is not sufficient for two-way traffic.

25Mr. Monaghan confirmed to the Tribunal that the City requires that a mutual shared access to two separate properties provide for two-way traffic flow as outlined in the current ZBL, and be of sufficient width to allow for fire route access as identified in the Ontario Building Code (“OBC”) s. 3.2.5.6. It is his opinion that the existing 3.66- meter-wide driveway does not provide for the two-way traffic movements, as required by the ZBL, and does not meet the minimum driveway width as required by s. 3.2.5.6 of the OBC.

Consent

26In reviewing s. 51(24) of the Act, Mr. Sepe indicated that the development proposal does not have regard to s. 2(a) and 2(p) of the Act. He further opined that the proposed severance did not adequately demonstrate how Lot 2B would function with respect to vehicular access, emergency access and built form in relation to the ZBL, and did not conform to the COP policies, specifically policies 4.2.4.4, 4.6.6, 4.6.7, 4.6.8, 4.7.14, 5.33.1, and 5.17.13.

27He summarized:

“the Site is located within a regulated area of the CVC and City Natural Heritage System. Both the CVC and City raised objections due to lack of suitability of redeveloping the environmentally sensitive lands for residential purposes. The proposed 3.66 m drive aisle connecting to Nova Scotia Drive does not comply with the OBC. City Traffic Staff were also not satisfied that the access was adequate for emergency vehicles. The resulting dimensions and shapes of the proposed lots result in Lot 2B not having frontage onto a municipal right-of-way. Additional variances were proposed to accommodate reduced lot width, frontage, and setbacks. Development or site alteration is prohibited on lands designated ‘Valleyland’ and ‘Woodland’ subject to it being demonstrated that no negative impact will be had on the natural features and their ecological function. The Applicant has failed to demonstrate that there will be no negative impact on the natural features.

Comments provided by the CVC noted concerns due to the subject property being located within a regulated area of the CVC and regulatory floodplain. My Staff Report provided to the CoA requested the Applicant to submit an EIS to assess the impact on the natural heritage system. EIS was not provided.”

Minor Variances

Test 1 – The intent and purpose of the Official Plan is being maintained

28Mr. Sepe opined that the applications do not satisfy COP policies 4.2.4.4, 4.6.6, 5.33.1, 4.6.7, 4.6.8, 4.7 and 5.17.13. He explained that Lot 2A will have access to Nova Scotia Road through the existing 3.66 m driveway. Lot 2B will not have frontage onto a municipal right of way, unless a mutual access easement is granted in favor of Lot 2B over Lot 2A. In his view, the requested MV contravenes COP policy 5.17.13 requiring:

“each new lot created is to front on an existing public highway or street, except where the consent is acquired by a Conservation Authority for conservation purposes, or the consent is for the purpose of a public or private utility installation.”

29He also relied on the opinion of Ms. Hughes and Mr. Monaghan when concluding that the proposed development is not supportable due to the location of the access to Creditview Road being contained within a floodplain, and having a driveway width below what is required for the emergency vehicle access.

30It is Mr. Sepe’s opinion that the requested variances do not maintain intent and purpose of the OP.

Test 2 – The intent and purpose of the Zoning By-law is being maintained

31The ZBL requires a front lot line abutting a street, and does not permit any building on a lot not fronting onto a street, ensuring that adequate access is provided to the property from a street, and that the property is accessible and not land locked.

32MV 3 is requesting to deem the south lot line to be the front lot line, whereas the property does not have a lot line abutting a street. MV 4 seeks permission to build a building or structure on a lot which does not front upon a street, whereas the ZBL permits a building or structure to be constructed only on a lot with street frontage. It is Mr. Sepe’s opinion that the intent of the ZBL requiring a minimum lot width is to have adequate site access to ensure that a character is maintained for the property, and that the development is in keeping with the Churchville Heritage Conservation District.

33Section 11.5.2 (b) of the ZBL requires a minimum lot width of 30 m. The proposed severance will result in the retained Lot 2A having a lot width of 3.66 m (MV 1), which is 87% less than what is required by the ZBL. A mutual access easement is required to permit Lot 2B to access the 3.66 m wide drive lane. The 3.66 m driveway does not meet the OBC Div., B, 9.10.20.3 with respect to emergency vehicle access, and does not conform to s. 6.17.2(b) of the ZBL. A mutual access easement is required to permit Lot 2B to access the 3.66 m driveway.

34Mr. Sepe explained that the purpose of the rear yard setback is to ensure that sufficient space is provided for the rear yard of the property. The Applicant is seeking authorization of MV 2 and MV 5 in order to achieve reduced setbacks. Mr. Sepe opined that the existing dwelling on Lot 2A is surrounded by a large tree canopy, and the reduced side yard setback will not provide for sufficient space to access the rear yard.

The CVC also raised concerns with respect to insufficient space for the creation of a new lot that is completely outside of the slope hazard with an appropriate buffer. COP policy 4.6.13.7 requires a 10 m buffer from the limits of the development to the environmental features.

35Mr. Sepe brought to the Tribunal’s attention that as per the Consent sketch of B- 2023-0012, the proposed structure on Lot 2B will contain a dwelling 382.5 m2 in size. The ZBL permits a maximum dwelling size of 225 m2. The Applicant did not request a MV seeking to permit a 382.5 m2 structure.

36It is Mr. Sepe’s opinion that the requested variances do not maintain the general intent and purpose of the ZBL.

Test 3 – Is desirable for the appropriate development

37In the opinion of Mr. Sepe, the proposed development is not desirable, as it would not achieve the City’s and OBC access width specifications that are necessary for the issuance of a building permit. Concerns raised by the CVC with respect to developing outside of the limits of the natural slope hazard have not been resolved.

Test 4 – Minor in nature

38Mr. Sepe stated that the requested variances are not minor in nature. The Applicant did not provide a scoped EIS to assess the ecological impact of the proposed development on the Natural Heritage System, and outline proposed mitigation measures to ensure the proposed development does not negatively impact, and achieves no net loss of the Natural Heritage System. A TOR for a scoped EIS is required to be reviewed by the City and CVC. Thus, Mr. Sepe is not satisfied that the proposed development conforms to OP Policies 4.6.6.20 and 4.6.6.21.

ANALYSIS AND FINDINGS

39The planning evidence was clear. The Consent application does not satisfy

s. 51(24) of the Act.

40The Tribunal finds that the requested variances are not minor in nature.

CONCLUSION

41This Hearing was a Hearing de novo of the Consent and MV applications. The Appellant did not tender any land-use planning or engineering evidence to counter the evidence provided by the City.

42Based on a thorough review of the evidence before the Tribunal, including the correspondence from the CVC (Exhibit 2), the contents of the City’s Staff Report, the decision of the COA; taking into consideration the Participant Statement from Ms. Aujla, and taking into account the professional planning opinion of Messrs. Sepe and Monaghan, and Ms. Hughes, the Tribunal finds that the proposed Consent does not meet the criteria necessary under s. 51(24) of the Act, and the requested variances do not satisfy s. 45(12) of the Act.

ORDER

43THE TRIBUNAL ORDERS that the appeal is dismissed.

“P. TOMILIN”

P. TOMILIN 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.