Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 01, 2024
CASE NO(S).: OLT-24-000866
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Tabish Syed
Subject: Minor Variance
Description: To permit a driveway variance to accommodate an accessory unit
Reference Number: A.08.24
Property Address: 52 Kentledge Avenue
Municipality/UT: The Town of East Gwillimbury/York Region
OLT Case No.: OLT-24-000866
OLT Lead Case No.: OLT-24-000866
OLT Case Name: Syed v. East Gwillimbury (Town)
Heard: October 28, 2024 by Video Hearing
APPEARANCES:
| Parties | Representative |
|---|---|
| Tabish and Saira Syed | Sukhdeep Bhangu |
DECISION DELIVERED BY G. ROSS AND ORDER OF THE TRIBUNAL
LINK TO ORDER
INTRODUCTION
1This is a Merit Hearing with respect to a minor variance appeal under section 45(12) of the Planning Act for the subject residential property located at 52 Kentledge Avenue in the Town of East Gwillimbury (“Town”). Tabish and Saira Syed (“Applicants” / “Appellants”) seek relief from the provisions of Zoning By-law 2018-043 sections 5.4(g), 5.2.6(a) and 5.2.4, which address maximum width, length and obstruction requirements for residential driveways.
2On July 31, 2024, the Committee of Adjustment (CoA) issued a decision denying the application, citing that it does not meet the tests to qualify as a minor variance.
VARIANCES REQUESTED
3The relief sought from Zoning By-law 2018-043 is to:
a) permit a driveway width of 7.97 metres (“m”) at its widest point, whereas Section 5.4(g) states the driveway can be 0.5 m wider than the garage (2.75 m plus 0.5 m totalling 3.25 m), resulting in a variance of 4.72 m;
b) to permit a parking space size of 2.75 X 5.22 m, whereas Section 5.2.6(a) requires an unobstructed length of not less than 5.8 m, creating a 0.58 m variance for the parking length; and
c) to permit a parking space that may potentially be obstructed when/if the designated parking is filled, whereas Section 5.2.4 states that all parking spaces be unobstructed at all times.
Parties and evidence
4Sukhdeep Bhangu (“Representative”) attended the Hearing, as the Applicants’ representative and non-expert witness. The Applicants attended and spoke in concert with their Representative. As the Applicants did not have legal counsel, the Tribunal gave some latitude to this approach to ensure that the Tribunal heard all of the relevant information necessary to arrive at a Decision.
5In advance of the Hearing, the Tribunal was informed by the City that it would not be participating. There were no additional Party nor Participant status requests and no counsel present.
6In advance of the Hearing, the Tribunal received a staff report (“Staff Report”) by Town Planner Nicole Schroder, dated July 31,2024, recommending that the Minor Variance be granted to permit: an increased driveway width to 7.97 m; to reduce parking space size to 2.75 m X 5.22 m; and to permit a parking obstruction to accommodate the required parking for an accessory apartment. The Staff Report recommended a condition that the lease agreement for the accessory apartment notify tenants that the parking space may be obstructed and that the owner would coordinate the moving of vehicles.
7The Representative cited the Staff Report, entered as Exhibit 1, stating that the proposed variances meet the four tests of a minor variance as set out in Section 45(1) of the Planning Act (“Act”), in that they:
a) maintain the general intent and purpose of the Town’s Official Plan;
b) meet the general intent of the Zoning By-law;
c) are desirable for the appropriate development of the land; and
d) are considered minor.
8The Representative submitted that the requested variance aligns with Town and Provincial goals to increase residential density and the encouragement of efficient use of existing properties contributing to the affordable housing initiative, as demonstrated by the More Homes Built Faster Act, 2022.
9The Applicants and their Representative turned to an amendment to the application provided to the Tribunal in advance of the Hearing. The revised site plan was marked as Exhibit 2. The change to the site plan relates to the materials being used for the portion of the increased parking area. This change was incorporated to mitigate any negative impacts of run-off. The Applicants confirmed that permeable interlocking materials will enhance water absorption and improve environmental management to address run-off, and that soft landscaping will include grassed areas in both front and rear yards to further address any potential impact with the increased driveway size.
10The Applicants and their Representative submitted that the driveway increase is entirely on their property and prevents obstruction for service vehicle access for such things as snow removal. The additional size of the driveway does not encroach on City property and therefore prevents additional street parking and improves the character of the streetscape. Managing the additional driveway space within their property would now be more attractive, given the permeable interlocking driveway which would assist in mitigating environmental concerns such as run-off.
Findings
11As a hearing de novo, the Tribunal must fully assess a minor variance application under the requirements of the Act, including consideration for the Decision of the CoA.
12The Tribunal accepts the evidence and submissions provided by the Applicants and their Representative as it was fair and reasonable and there was no contradictory evidence provided at the Hearing. The Tribunal accepts the unchallenged Staff Report as it provides the only land use planning evidence at this Hearing.
13The Tribunal finds that the sought variances are consistent with the Town’s Official Plan, which permits an accessory apartment to contribute to intensification (Section 3.3.4). The Tribunal concludes that the corresponding driveway will add to the viability of the accessory unit.
14The Tribunal finds that the general intent of the Zoning By-law 2018-043 has been met for residential parking and that the proposed surface treatment further assists in protecting the amount of paved area in the front yard by using permeable interlocking brick.
15The Tribunal further finds that the intention to use permeable materials for the additional parking space is not a change in the minor variance application because it does not alter the scope of the requested variances. Thus, no consideration of further Notice is required under s. 18.1 of the Act.
16The Tribunal finds that this application has regard for s. 2 of the Act, including: (h) the orderly development of safe and healthy communities; (j) the adequate provision of a full range of housing; and (p) the appropriate location of growth and development.
17The Tribunal finds that the requested variances are consistent with the Provincial Planning Statement, 2024 (“new PPS”). While no direct evidence on the new PPS was received at the hearing, the Tribunal notes that the Staff Report raised no issues with the former Provincial Policy Statement, 2020, and the Tribunal is familiar with the new PPS. The Tribunal finds this application to be consistent with the new PPS, including the s. 2.2 Housing policies: to provide an appropriate range and mix of housing options and densities; and for the efficient use of land and infrastructure.
18Based on the Staff Report, the Tribunal agrees with the Applicant that the requested variances maintain the general purpose and intent of the OP and ZBL, are desirable for the appropriate use of the land, and are considered to be minor in scope.
ORDER
19THE TRIBUNAL ORDERS that the appeal is allowed and the variances to Zoning By-law 2018-043 are authorized, subject to the following condition:
The Owner provide a letter to the Committee of Adjustment Secretary-Treasurer that the lease agreement for any future accessory apartment will indicate that access to and from the parking space may be obstructed by other vehicles, and that the Owner agrees to coordinate with the future tenants regarding moving vehicles on the subject property.
“G. Ross”
G. Ross
MEMBER
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.