Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 14, 2024

CASE NO(S).: OLT-23-000715

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

Applicant and Appellant: Jasbir Kaur, Arshdeep Pannu, Navneet Pannu Subject: Minor Variance Description: To construct a new two-storey dwelling Reference Number: A-2023-0148 Property Address: 6 Brookdale Crescent, Brampton, ON, L6T 1M7 Municipality/UT: Brampton OLT Case No.: OLT-23-000715 OLT Lead Case No.: OLT-23-000715 OLT Case name: Kaur v. Brampton (City)

Heard: December 1, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel
Jasbir Kaur, Arshdeep Pannu, Navneet Pannu (“Applicants/Appellants”)	Gurpreet Rai
City of Brampton (“City”)	Austin Ray

DECISION DELIVERED BY JENNIFER GOLD AND ORDER OF THE TRIBUNAL

Link to Final Order

BACKGROUND

1The matter before the Ontario Land Tribunal (“Tribunal”) is an appeal filed by Jasbir Kaur, Arshdeep Pannu, and Navneet Pannu (“Appellants”) against the decision of the City of Brampton (“City”) Committee of Adjustment (“Committee”) dated June 20, 2023, in relation to the refusal of an application for three minor variances to the zoning provisions established by Zoning By-law No. 270-2004, as amended (the “ZBL”) concerning 6 Brookdale Crescent (the “Subject Property”). The Subject Property is designated Residential in the City’s Official Plan (“Official Plan”) and is zoned Residential Semi-Detached A(1) (R2A(1)) according to the ZBL.

2The Parties arrived at a settlement and this matter proceeded as a Settlement Hearing. The Tribunal received Minutes of Settlement that the Parties confirmed reflected the terms of settlement between the Parties. Prior to the hearing, Mr. Paul De Ruyte filed with the Tribunal a request for Party status as well as a request for Participant status. He attended the Hearing, although was late. Mr. De Ruyte was not prepared to call planning evidence, to question nor to cross-examine witnesses nor to participate in a Hearing. Attached to his Party and Participant Status Request forms were detailed submissions regarding the appeal and minor variances sought. Based on his oral submissions, it appeared that Mr. De Ruyte expected the Tribunal Hearing to be the same as a Municipal public Hearing. A Tribunal Hearing requires full participation in opening and closing statements, questioning, or cross-examining evidence, and essentially, in presenting a case. Given the nature of Mr. De Ruyte’s submissions, he was granted Participant status.

3The Parties did not call any witnesses and sought to rely on the City’s Planning Report, which was accepted by the Tribunal and entered as Exhibit 1.

The Hearing was held down to determine if the author of the Planning Report was available to give testimony. Counsel for the City was unable to reach him.

BACKGROUND

4The Appellants submitted an application to the Committee seeking three variances to the ZBL in order to facilitate the construction of a new two-storey dwelling after demolition of the existing one-storey detached dwelling and accessory structure in the rear yard. The application sought relief from the ZBL to allow an increased building height, a reduced rear yard setback, and an increased lot coverage. The three minor variances sought are specifically to:

(a) permit a building height of 8.41m (27.60 ft.) [whereas the ZBL permits a maximum building height of 7.6m (24.93ft.)];

(b) permit a rear yard setback of 8m (26.25 ft.) [whereas the ZBL requires a minimum rear yard setback of 8.38m (27.50 ft.)]; and

(c) permit a lot coverage of 34.94% [whereas the ZBL permits a maximum lot coverage of 30%].

5The Planning Report to the Committee indicated that the application was supportable, subject to the following conditions being imposed:

(a) that the extent of the variances be limited to that shown on the sketch a attached to the Notice of Decision;

(b) that the applicant obtain a Custom House Architectural Control approval prior to the submission of a building permit application;

(c) that failure to comply with and maintain the conditions of the Committee shall render the approval null and void.

6Despite the recommendations of the Planning Report, the Committee refused the application, and reasoned that:

(a) the variance is not desirable for the appropriate development or use of the land, building, or structure referred to in the application; and

(b) the variance is not minor.

7After the Committee refused the application, the Appellants appealed to this Tribunal on or about July 17, 2023.

LEGAL TEST

8An appeal to this Tribunal pursuant to s. 45 of the Planning Act (“Act”) is a hearing de novo and the onus of establishing that the four tests under s. 45(1) of the Act are met is on the Applicant. Section 45(1) of the Act establishes these “four tests”. In other words, to authorize a variance, the Tribunal must be satisfied that that the variance:

(a) maintains the general intent and purpose of the official plan;

(b) maintains the general intent and purpose of the zoning by-law;

(c) is desirable for the appropriate development or use of the land, building or structure; and

(d) is minor.

APPLICATION OF THE LEGAL TEST

Do the variances maintain the general intent and purpose of the Official Plan?

9The Subject Property is designated Residential in the Official Plan and Low Density 1 Residential in the Bramalea Secondary Plan (Area 3). The requested variances facilitate the construction of new two-storey dwelling. Such development conforms with the Official Plan and Secondary Plan and maintains the general intent and purpose of those plans. Section 4.2 of the Official Plan states that a variety in housing types is essential for meeting the needs of a diverse population and ensuring growth in economic activities. The construction of a new single detached dwelling is consistent with the Low Density category in the Official Plan. According to Section 1.1.1 of the Bramalea Secondary Plan (Area 3), “lands designated Low Density 1 on Schedule 3 shall only be developed for single-detached and semi-detached dwelling units at a maximum density of 35 units per net residential hectare”. The Appellants seek to build a new single-detached dwelling to replace the existing one. The variances and proposed development are consistent with the Bramalea Secondary Plan (Area 3).

Do the variances maintain the general intent and purpose of the zoning by-law?

10The Subject Property is zoned Residential Semi-Detached A(1) [R2A(1)], according to ZBL 270-2004, as amended. Section 15.2.1 of the ZBL indicates that land zoned R2A(1) shall only be used for the following purposes: (a) Residential: (1) a single-detached dwelling; (2) a semi-detached dwelling, (3) Supportive Housing Residence Type 1. Such dwelling shall be subject to the following requirements and restrictions:

(a) a maximum building height of 7.6 metres;

(b) a minimum rear yard setback of 8.38 metres; and

(c) a maximum lot coverage of 35%.

Section 10.27(c) of the ZBL prescribes a maximum lot coverage of 30% for older, mature neighbourhoods.

11Variance 1 is requested to permit a building height of 8.41 metres. The intent of the ZBL regarding the maximum building height is to ensure that there are no negative massing, shadowing, nor privacy impacts on adjacent properties. The requested variance seeks an increased building height of 0.81 metres, in comparison with what the ZBL permits. The building height, in this case, is calculated from the established grade to the mean height level between eaves and ridges for a peaked roof. The main façade of the proposed dwelling will have an approximate height of 6.4 metres to the eavestrough and a remaining 2.01 metres dedicated to the height of the roof. The variance for the increased height is due to the roof of the building. According to the Planning Report that was marked as Exhibit 1, “the increase in the building height is not anticipated to create any adverse impacts related to shadowing, privacy or massing” given the interior side yard setbacks to the neighbouring lots that will be sufficiently maintained. Therefore, Variance 1 maintains the general intent and purpose of the ZBL.

12Variance 2 is requested to permit a rear yard setback of 8 metres whereas the ZBL requires a minimum of 8.38 metres. According to the Planning Report, “the intent of the by-law in regulating the required rear yard setback is to ensure that sufficient space is provided for the rear yard amenity area for the property”. The Planning Report indicates that a reduction of 0.38 metres will not significantly limit the rear yard amenity area in a negative manner, particularly due to the proposed building footprint relative to the irregular shape of the lot, resembling a parallelogram. The rear yard setback from the other end of the building footprint is 9.8 metres, leaving sufficient rear yard amenity space and distance from any neighbour with a property adjacent to the rear lot line. Variance 2 also maintains the general intent and purpose of the ZBL.

13Variance 3 is requested to permit a lot coverage of 34.94% whereas the ZBL permits a maximum lot coverage of 30%. Lots in newer neighbourhoods are permitted a maximum lot coverage of 35%. The general intent of the ZBL is to ensure that the size of the dwelling is appropriate to the relative size of the property and does not detract from the provision of appropriate open space. Given the lot size and proposed building envelope, the increase in lot coverage will not limit nor detract from the provision of outdoor open space. The Planning Report concludes that the building will maintain adequate separation from adjacent properties, sufficient space will be maintained to ensure access to all areas of the property, and the increase in lot coverage is not anticipated to contribute to an over development of the lot. For these reasons, Variance 3 maintains the general intent and purpose of the ZBL.

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

14A concern raised by Mr. De Ruyte in his Participant statement is that the home is very different in size from the other homes in the neighbourhood and that such a larger home is not desirable. He is opposed to the proposal by the Appellants. His statement did not raise any concerns regarding shadowing, massing, or privacy. His concerns centred around the use of a larger home and that it did not fit with the neighbourhood. The variances do not significantly deviate from the requirements of the ZBL. The proposed two-storey dwelling is permitted by the R2A(1) Zone and is a single detached home. According to the Planning Report, the variances are not anticipated to impact the character of the area and they are desirable for the appropriate development or use of the land, building, or structure. In order to alleviate the Participant’s concerns, the Tribunal agrees with the condition that the proposed development will undergo the City of Brampton Custom Home Architectural Control Application, where City staff will review the design of the proposed development to ensure it conforms to the surrounding area and existing residential homes.

Is the variance minor?

15In considering whether a variance sought is minor, regard must be had to its impact. There is no evidence of any significant negative impact. The proposed variances do not represent a significant deviation from the ZBL, whether reviewed individually or together. The conditions of approval provide assurance that although larger than other homes in this neighbourhood, this home will conform, as much as possible, to the area and to desirable development in the area.

FINDINGS AND DISPOSITION

16In determining this matter, the Tribunal accepts the minutes of settlement filed by the Parties. The Tribunal also accepts the findings of the Planning Report. The Tribunal finds that the Appellants have met the legal tests for a minor variance with respect to all variances sought.

17Since the conclusion of the Merit Hearing held by the Tribunal, and prior to the issuance of this Decision, the Tribunal has reached out to the Parties to seek input if the passing of Bill 150, Planning Statute Law Amendment Act, 2023, which enacts the Official Plan Adjustments Act, 2023 (“OPAA”), which received Royal Assent on December 6, 2023, had any impacts on the potential outcome of this matter. The Tribunal did not receive any response from the Parties to indicate that Bill 150 impacts this matter.

ORDER

18THE TRIBUNAL ORDERS that the appeal is allowed and the variances to the zoning provisions established by Zoning By-law 270-2004, as amended, are authorized subject to the following conditions:

i. that the extent of the variances be limited to those requested in the Minor Variance Application, A-2023-0148, and associated sketches, as set out in Attachment 1 to this Decision;

ii. that the Owners obtain a Custom House Architectural Control approval prior to the submission of a building permit application;

iii. that service connection sizes shall be in compliance with O. Reg. 332/12: BUILDING CODE (Ontario Building Code) and the Region of Peel’s Design Criteria, as amended, which may require upgrades to the existing services at the sole expense of the Owners;

iv. that any changes to the underground water or sanitary sewer require review and approval by the Region of Peel, prior to issuance of building permit;

v. that all unutilized water and sanitary service connects shall be abandoned in accordance with the Region of Peel’s Design Criteria, as amended, at the sole expense of the Owners; and

vi. that failure to comply with and maintain the conditions as set out in this Order of the Tribunal shall render the approval null and void.

“Jennifer Gold”

JENNIFER GOLD

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.