Mann Kaler v. City of Brampton, 2024 CanLII 126165

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 12, 2024

CASE NO(S).: OLT-24-000853

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

Applicant/Appellant: Mann Kaler

Subject: Minor Variance

Description: To permit a parking space depth of 4.79 metres, and parking space width of 9.14 metres

Reference Number: A-2024-0184

Property Address: 20 Bridgend Crescent

Municipality/UT: Brampton/Peel Region

OLT Case No.: OLT-24-000853

OLT Case Name: Mann Kaler v. City of Brampton

Heard: October 21, 2024 by Video Hearing

APPEARANCES:

Parties

Counsel/Representative*

Mann Kaler

Self-Represented

City of Brampton

Kevin Dias*

DECISION DELIVERED BY S. BOBKA AND ORDER OF THE TRIBUNAL

Link To Order

INTRODUCTION

1The matter before the Tribunal is an appeal filed by Mann Kaler (“Applicant”) of a minor variance denied by the Committee of Adjustment (“COA”) of the City of Brampton (“City”) for the property municipally known as 20 Bridgend Crescent (“Subject Property”).

2The Applicant applied to the City for a variance regarding Zoning By-law No. 270-2004 (“ZBL”) to permit a parking space depth of 4.79 metres (“m”), whereas 5.4 m is required. The requested variance would support a curb cut application to widen the driveway to 9.14 m. The Applicant is permitted as of right to widen the driveway to 9.14 m and to use that space to park, but the variance is required since the Applicant’s proposal does not meet the minimum depth requirement of 5.4 m.

SUBJECT PROPERTY

3The Subject Property is approximately 586.97 square metres or 0.059 hectares in area. It has a lot width of approximately 18.28 m and a lot depth of 32.11 m. There is currently a single-detached dwelling with an attached garage thereon, with a registered additional residential unit (“ARU”) and four legal sized existing parking spaces. The Subject Property is surrounded by low density residential land uses.

LEGISLATIVE FRAMEWORK

4In determining this appeal brought under s. 45 of the Planning Act (“Act”), it must be noted that this is a hearing de novo. The Applicant bears the onus of demonstrating that the minor variance meets the following four tests:

a. It maintains the general intent and purpose of the Official Plan;

b. It maintains the general intent and purpose of the ZBL;

c. It is minor in nature; and,

d. It is desirable for the appropriate development or use of the land.

5In addition, s. 3(5) of the Planning Act requires that decisions of the Tribunal be consistent with the Provincial Planning Statement, 2024 (“PPS, 2024”). The Tribunal must also have regard to matters of Provincial interest as set out in s. 2 of the Act, as well as 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.

HEARING

6Mr. Kaler was self-represented at the hearing and did not call any expert witnesses. The Tribunal provided the Applicant with a fulsome explanation of the hearing process. It was Mr. Kaler’s plan to provide factual information regarding the application at the hearing. The Tribunal opted to affirm Mr. Kaler as a lay witness. Without objection from the City, this approach enabled the Tribunal to hear and separate the Applicant’s factual evidence from his submissions.

7The City called Rajvi Patel, a candidate member of the Canadian Institute of Planners and Registered Professional Planners in Ontario, and sought to qualify her as an expert in land use planning. Upon review of her qualifications and signed Acknowledgment of Expert’s Duty form, the Tribunal qualified Ms. Patel to provide opinion evidence in land use planning.

8The Tribunal marked the following as Exhibits:

Filed by:

Exhibit No.:

City

Exhibit 1: Witness Statement of Rajvi Patel

Exhibit 2a): City Document Book Volume 1 b): City Document Book Volume 2

c): City Document Book Volume 3 d): City Document Book Volume 4

Exhibit 3a): City Book of Authorities b): OLT Decision (PL160188)

Applicant

Exhibit 4: Drawings and Photo a): File A-2024-0184 (Mann Kaler)

b): A-2024-0168 c): 20240618_202817 Exhibit 5: Examples of Other Variances a) i): Staff Report -042021 – A -2021-0073 ii): Copy of Submitted Application – A-2021-

0073 b) i): A-2024-0351 – Staff Report ii): A-2024-0351 – Submitted Application c): A-2024-0168 – Submitted Application

9For the reasons that follow, the Tribunal finds that application does not meet the four tests under s. 45(1) of the Act and that it is not appropriate to authorize the proposed variance.

EVIDENCE

Applicant

10Mr. Kaler explained that he applied for a curb cut in March of 2024, but the application was refused by Zoning Staff. It was then that he learned about the depth requirement of 5.4 m which required him to obtain a minor variance. He stated that he had looked for other solutions and exchanged many emails with various City Staff members.

11He applied for the minor variance which went to the COA on June 18, 2024, but the matter was deferred as the COA members requested more information. He explained that on July 16, 2024, his application went back to the COA and was refused, which led to the current appeal before the Tribunal.

12Mr. Kaler identified that at the June COA meeting, another application, file No. A-2024-00168 (for 8 Palgrave Crescent) requested a variance for the same issue, that being shorter parking depth, which was approved by the COA. The shorter depth in that instance was 5.26 m, and he questioned why that application was granted when his own was denied.

13He also identified file No. A-2021-0073 (for 42 Dufay Road) which was approved in 2021. He questioned why this application was found acceptable with a depth of 5.1 m when his own was denied with a depth of 4.79 m.

14Finally, he identified file No. A-2024-0351 (17 Hudson Drive) which was also short on depth (with a depth of 5.23 m), and which went to the COA the week prior to this hearing. Mr. Kaler was not aware of the outcome of that proceeding.

15Mr. Kaler questioned the City’s position that pedestrian safety was an issue in his case, stating that he already had to be careful of pedestrians when exiting his current driveway, and would exercise the same caution when exiting an expanded parking area.

16Upon cross-examination, Mr. Kaler agreed that neither the property on Palgrave Crescent, nor the property on Dufay Road, had a sidewalk in front of it, while his own property did have a sidewalk in front of it. Regarding the Subject Property, he agreed that the City owned the sidewalk and that there was a right of way owned by the City.

City

17It was Ms. Patel’s overall opinion that the requested minor variance to permit a parking space depth of 4.79 m whereas the ZBL requires a minimum of 5.4 m failed to meet any of the four tests and did not represent good planning. She recommended that the Tribunal deny the variance.

The Four Tests

Maintains the Intent and Purpose of the Official Plan

18Ms. Patel explained that the proposed variance does not meet this test as it does not maintain the intent and purpose of either the City of Brampton’s Official Plan (2006) (“Brampton OP 2006”), nor the City of Brampton Official Plan (2024) (“Brampton Plan 2024”) which was approved and scheduled to take effect on June 6, 2024, excluding any sections subject to appeal.

19Regarding the Brampton OP 2006, Ms. Patel explained that the variance would not enhance the pedestrian experience since the resulting driveway would not meet the technical standards for a majority of vehicle sizes, would encroach onto the City’s right of way and would impact pedestrian safety. In addition, the proposed variance would increase the impact of the driveway on the streetscape, which is counter to Development Design Guideline 1.3. Finally, the proposal would impact the “safety and useability of the sidewalk for all pedestrians and persons with disabilities …”, which is contrary to Section V.1.1 of the Accessibility Technical Standards.

20In terms of the Brampton Plan 2024, Ms. Patel stated that the proposed variance was inconsistent with:

a. policy 3.1.1.27 regarding high-quality streetscapes, which focuses on the year-round comfort and experience of pedestrians, cyclists and transit-users;

b. policy 3.4.2.60 which states that parking garages and access points should maintain the primacy of pedestrians along the sidewalk at all times; and,

c. policy 3.4.2.61 which states that surface parking should provide “safe, direct and well-defined pedestrian and cycling connections between the public street and all buildings ….”

Maintains the Intent and Purpose of the Zoning By-law

21Ms. Patel stated that the driveway on the Subject Property currently accommodates four vehicles (two in the garage and two on the driveway) and that no additional parking space is required for a lot containing only one additional ARU. She highlighted that the intent of the ZBL regarding minimum parking space depth is to “ensure that adequate space is provided to accommodate the majority of automobiles within a parking space to avoid adverse impacts such as driveway functionality and pedestrian safety.” She stated that the proposed variance to reduce the depth to 4.79 m will not provide enough space for parking or maneuverability of a vehicle on the eastern portion and would result in vehicles encroaching on the City’s right of way. For these reasons, she opined that the proposed variance does not maintain the general intent of the ZBL.

Is Minor in Nature

22Ms. Patel explained that the proposed variance is not minor as it:

will permit the curb cut on the City’s right of way. The proposed reduction in the parking space depth from the required 5.4 m would result in insufficient parking depth space and would lead to a driveway that is not functional to park a majority of vehicles. A reduced parking space depth as requested would result in vehicles overhanging onto the City sidewalk, which would impact pedestrian safety and comfortability as a clear path of travel is not maintained. [Exhibit 1, p. 14, paragraph 104]

Is Desirable for the Appropriate Development of the Land

23Ms. Patel highlighted that there is a lack of minor variance approvals regarding driveway widening and parking space depth within a 500 m radius of the Subject Property. She found only one minor variance application (file No. A17-208) related to a reduced parking space depth, which was refused by the COA. It was her opinion that the proposed variance does not fit with the character of the neighbourhood.

24Again, she highlighted that the ZBL’s parking requirements for the existing registered ARU are met and that if an additional ARU is considered in the future, “the existing driveway conditions can accommodate the parking requirements for the principal dwelling, registered ARU, and a future ARU”.

25Finally, Ms. Patel opined that due to the impact of overhanging vehicles on the streetscape and on pedestrian comfort and safety, the proposed variance is not desirable for the appropriate development of the land.

Provincial Planning Statement, 2024 and Matters of Provincial Interest

26Ms. Patel highlighted that the PPS, 2024 came into force and effect on October 20, 2024, the day before this Hearing took place. She opined that the application is not consistent with the PPS, 2024 and does not have appropriate regard for matters of Provincial interest as outlined in s. 2 of the Act.

ANALYSIS AND FINDINGS

27Counsel for the City provided the Tribunal with numerous cases to support the position that the minor variance should not be authorized by the Tribunal. Mr. Dias highlighted Seeder v. Brampton (City), 2016 CanLII 53083 (ON LPAT) of the Ontario Municipal Board (a predecessor of this Tribunal), which states at paragraph 12: “In order for a minor variance to be authorized all four tests must be met. If one test is not met, the application must fail.”

28Mr. Dias also highlighted Gangaram v. Brampton (City), 2018 CanLII 67716 (ON LPAT) of the Ontario Local Planning Appeal Tribunal (another predecessor to this Tribunal) which states at paragraph 23:

The Tribunal understands Mr. Gangaram’s concerns that he is being unfairly treated given that other property owners in his neighbourhood appear to have widened driveways …. However, each property must be assessed on its own with respect to the Zoning By-law’s requirements. Even if others have contravened the Zoning By-law, it does not change the test that the Tribunal must apply under s. 45(1) of the Planning Act. [Emphasis added by Tribunal]

29While neither case is binding on this Tribunal, they are persuasive.

30Regarding the similar instances presented by Mr. Kaler where other variances related to reduced parking space depth were permitted, as explained during the Hearing, each appeal must be assessed on its own merits. In addition, the Tribunal notes that while those situations were similar, they were distinguishable as they were not in the same neighbourhood, featured examples with depths greater than 4.79 m and at least two of those properties did not have sidewalks in front of them, whereas there is a sidewalk in front of the Subject Property. In the current appeal, the Tribunal must determine, based on the evidence before it, whether the proposed variance meets the four tests of a minor variance.

31By Mr. Kaler’s own admission, he is not a Land Use Planner, nor did he choose to retain any expert in land use planning to support his case. It is up to the Applicant to demonstrate that the application meets the four tests, which was highlighted to Mr. Kaler at the start of the Hearing. Mr. Kaler did not present any expert planning evidence for the Tribunal’s consideration.

32The evidence provided by the expert witness, Ms. Patel, stood uncontradicted by any other expert. The Tribunal accepts her evidence and similarly finds that the variance does not meet the four tests of a minor variance, as it would result in vehicle encroachment on the sidewalk, would impact the streetscape, and would impact the safety and comfort of pedestrians and persons with disabilities.

33The Tribunal has had regard for the decision of the COA as well as the information considered by it.

ORDER

34THE TRIBUNAL ORDERS that the appeal is dismissed and the variance to Zoning By-law No. 270-2004 is not authorized.

“S. BOBKA”

S. BOBKA

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.