Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 22, 2024
CASE NO(S).: OLT-23-001016
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Lucas George
Subject: Minor Variance
Description: To increase maximum permitted lot coverage and to reduce the minimum required interior side yard setback for two proposed additions to the main dwelling
Reference Number: A-26-22
Property Address: 33 Augusta Drive, Leamington, Ontario Lot 22, PLAN 12M607
Municipality/UT: Municipality of Leamington
OLT Case No.: OLT-23-001016
OLT Lead Case No.: OLT-23-001016
OLT Case Name: George v. Leamington (Municipality)
Heard: February 8, 2024, by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Lucas George | Amanda Camlis |
| Municipality of Leamington | Charn Aha Kim |
DECISION DELIVERED BY David Brown AND ORDER OF THE TRIBUNAL
Link to Final Order
INTRODUCTION AND BACKGROUND
1The matter before the Tribunal concerns an Appeal filed by Lucas George (“Appellant”) pursuant to s. 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended (the “Act”) against a decision of the Municipality of Leamington (“Municipality”) Committee of Adjustment (“COA”) that refused an Application for Minor Variance (the “Application”) regarding an increase in lot coverage and a reduction in the side yard setback requirements. The Application affects the lands known municipally as 33 Augusta Drive (the “Subject Property”).
2The Subject Property is occupied with a two-storey detached residential dwelling with an attached two-car garage. The rear yard has an inground swimming pool surrounded by an extensive concrete patio area. Access to the rear yard is available on both sides, north and south, of the existing dwelling along concrete walkways to the fully fenced rear yard.
3Bordering the Subject Property on the north side and south side are two-storey detached residential dwellings of comparable and compatible architectural styles and finishes. Opposite the Subject Property, across Augusta Drive, the properties are occupied with two-storey detached residential dwellings also of comparable and compatible architectural styles and finish. To the rear of the Subject Property is a stormwater management pond.
4The Subject Property is located along a bend in the road which results in an irregularly configured lot shape with the larger lot frontage and the side lot lines not being parallel. The lot width narrows towards the rear of the Subject Property.
5The Appellant constructed a 23.78 square meter addition over a rear yard patio area (the “Covered Patio”) and a shed addition to enclose the pool equipment (the “Pool Shed”), measuring 3.0 meters (“m”) by 1.09 m, on the south side of the existing dwelling. The Covered Patio is open on two sides and includes a wall along the southerly side and attached to the existing dwelling on the remaining side. The Covered Patio measures 4.57 m by 4.57 m. The Pool Shed is located along the south side of the existing dwelling and encloses the pool equipment including the pool pump. The Pool Shed has a roll-up door facing the south side property line of the Subject Property.
6The Covered Patio and Pool Shed were both constructed without the benefit of a building permit.
7The Municipality issued an Order to Comply on September 29, 2021, directing the Appellant to obtain a building permit for the additions.
8The Appellant was advised by the Municipality that the additions do not comply with the Municipality’s Zoning By-law No. 890-09 (the “ZBL”) and that an Application for Minor Variance would be required.
9The Appellant filed the Application on December 22, 2022, and after an adjournment to allow the Application to be amended to include the Pool Shed, the Application was considered by the COA at its Hearing on August 30, 2022. The COA considered the Application, and the requested variances were denied. The COA, in its decision, concluded that the Application did not meet the four tests of a minor variance as set out in s. 45(1) of the Act.
10The Application requested the following relief from Section 8.1.3 of the Residential Zone (R3) regulations of the ZBL:
To permit the rear yard covered patio addition and the side yard shed addition increasing the lot coverage to 37.5% of the lot area, whereas a maximum lot coverage of 35% of the lot area is permitted, and
To permit the rear yard covered patio addition and the side yard shed addition to provide a south side yard setback of 1.2 m, whereas a minimum side yard setback of 1.5 m is required.
LEGISLATIVE FRAMEWORK
11The Tribunal, when considering an Application for Minor Variance, must be satisfied that the request meets the four tests of a minor variance as set out in s. 45(1) of the Act:
Does the request maintain the general intent and purpose of the Official Plan?
Does the request maintain the general intent and purpose of the Zoning By-law?
Is the request desirable for the appropriate development or use of the land, building or structure? and
Is the request minor in nature?
12The Act also requires that the Tribunal, when considering an Appeal under the Act, shall have regard to matters of provincial interest as set out in s. 2 of the Act, shall have regard to any decision made by the approval authority relating to the matters (s. 2.1(1)(a)), and shall have regard to any information and material that the approval authority considered in making its decision (s. 2.1(1)(b)). Section 3 of the Act requires that the decision of the Tribunal shall be consistent with the policy statements in effect on the date of the decision.
SUBMISSIONS AND ANALYSIS
13The Tribunal qualified Tracey Pillon-Abbs, a Registered Professional Planner, to provide opinion evidence as an expert in the area of Land Use Planning for the Appellant. Ms. Pillon-Abbs submitted a witness statement outlining her opinion in support of the Application, which was included in the Appellant’s Book of Documents filed with the Tribunal and marked as Exhibit 1.
14The Tribunal also qualified Michael Nelson, a candidate member of the Ontario Professional Planners Institute and Planner with the Municipality, to provide opinion evidence as an expert in the area of Land Use Planning. Mr. Nelson prepared the Staff Report which was presented and reviewed by the COA. A witness statement prepared by Mr. Nelson detailing his opinion and opposing the Application, was included in the Municipality’s Document Book and marked as Exhibit 2.
15The Planners agreed that the Application does not engage the Provincial Policy Statement, 2020 (“PPS”) and accordingly the Planners concluded that the Application is consistent with the PPS. Further, the Planners agreed that the Application conforms with the County of Essex Official Plan (“COP”).
General Intent and Purpose of the Municipality’s Official Plan
16The Municipality’s Official Plan (“MOP”) designates the Subject Property residential on the Land Use Plan (Schedule A-6E).
17The Tribunal was directed to Section 2.1 of the MOP which states that, “It is the intent of this Plan to ensure that development takes place in an orderly fashion while being consistent with a set of land use planning principles.”
18Further, the Tribunal was directed to Section 3.2.1 of the MOP which sets out the land use goal, “to provide areas in which residential development may occur in a controlled and progressive manner and to recognize existing residential development and areas presently designated for residential development.”
19Mr. Nelson submitted that the general intent and purpose of the Residential land use designation in the MOP, is to facilitate the development of a wide variety of residential structures while ensuring that the development is compatible with the surrounding area.
20Mr. Nelson acknowledged that the use of the Subject Property is residential, however, he opined that the additions do not represent orderly development. He proffered that the size and scale of the additions is not in keeping with the character of the surrounding area and represents an overdevelopment of the Subject Property.
21Ms. Pillon-Abbs testified that the existing use of the Subject Property is residential, and the additions are accessory uses to a residential use. There is no change in use and no impact on the surrounding residential uses resulting from the relief being sought for the additions. Ms. Pillon-Abbs proffered that there is no impact on the intent of the Residential designation as set out in Section 3.2 of the MOP.
22The Tribunal reviewed Section 3.2 of the MOP which sets out the intent of the Residential designation stating, “It is the intent of this Plan that a broad range of residential structure types be permitted on lands designated “Residential” in order to meet the needs of all households…” The Tribunal reviewed the planning policies referred to in Section 2.1 of the MOP and finds that they are not applicable to this matter, as they are high-level principles that appear to direct development on a greater scale within the Municipality and are not applicable to a Covered Patio or Pool Shed addition to an existing residential dwelling in this instance.
23The Tribunal further finds that the increase in lot coverage and the reduction in the side yard setback to permit the additions does not constitute overdevelopment but represents an orderly extension of the existing dwelling that is compatible with the surrounding dwellings.
24The Tribunal is of the opinion that the minor variance maintains the general intent and purpose of the MOP.
General Intent and Purpose of the Municipality’s Zoning By-law
25The Subject Property is zoned Residential (R3) in the ZBL. The R3 zone permits a residential dwelling and accessory uses including exterior patios, swimming pools and accessory structures.
26The maximum lot coverage permitted for a detached dwelling in an R3 zone is 35% of the lot area and is defined as the combined area of all buildings on the lot measured at the level of the lowest floor above grade in relationship to the area of the lot and expressed as a percentage.
27Mr. Nelson proffered that the ZBL regulates lot coverage to ensure that the following matters are addressed which constitute the intent and purpose of the lot coverage provisions. These matters are:
To regulate the intensity of the use of the property;
To allow for the movement of air and sunlight between structures;
To ensure that the mass of the buildings is appropriate and does not negatively affect the surrounding uses;
To prevent overcrowding and the issues that may come with it;
To ensure that the stormwater management infrastructure is not impacted; and
To assist with achieving consistency and uniformity within the development.
28Mr. Nelson opined that the exceedance in lot coverage represents an intensity of use that is not appropriate for the Subject Property, and the massing of the additions impacts the movement of air and sunlight around the property. He continued that the development represents an overcrowding of the Subject Property that does not maintain the uniformity of the area character, and that the additions impact the stormwater management for the Subject Property.
29Ms. Pillon-Abbs proffered that the additions are used for residential purposes, or uses accessory thereto as permitted by the ZBL. The additions are not visible from the street and have no impact on the character of the area. Further, Ms. Pillon-Abbs directed the Tribunal to the letters filed from the abutting neighbours on both sides setting out their support for the proposed development.
30Ms. Pillon-Abbs referred to the comments received from the Municipality’s Engineering Staff indicating no concerns with the Application, and to the comments received from the Essex Region Conservation Authority (“ERCA”) which advise that the lands are located partially within a regulated area as set out in Ontario Regulation No. 158/06 under the Conservation Authorities Act. The ERCA comment advised that they have reviewed the Application and they have no concerns from a stormwater management perspective. The ERCA provided their clearance for the additions.
31The Tribunal finds that the additions do not impact the streetscape or the character of the area. The additions do not create a massing concern and the Tribunal does not find that the Subject Property is overcrowded such that there would be an impact on air flow around the property, nor was any evidence tendered to support that contention. No concerns with shadow or light impact were raised other than speculation being proffered by the Municipality.
32The Tribunal finds that the opinion of Mr. Nelson that an intent of the ZBL to assist with achieving consistency and uniformity is contrary to the MOP which promotes a “broad range of residential structure types”. The intent and purpose to manage stormwater is shared by both Planners, and the Tribunal relies on the correspondence from the Municipality’s Engineering Section which identifies no issues relating to stormwater management. Further, correspondence from the ERCA addresses stormwater management specifically and identifies no concerns or issues.
33The Tribunal prefers the evidence of Ms. Pillon-Abbs and finds that the intent and purpose the ZBL with respect to the lot coverage provisions is maintained.
34The minimum side yard setback for a single detached dwelling in an R3 zone is 1.5 m and the measurement is defined in Section 3.263 of the ZBL as the minimum horizontal distance between the main building and the respective lot line measured perpendicular from the lot line.
35Mr. Nelson proffered that the setback requirements of the ZBL exist to create an appropriate separation between dwellings on adjacent lots, provide access for maintenance purposes, allow for appropriate site grading and drainage, and ensure structures are not overcrowding or negatively affecting surrounding properties.
36Mr. Nelson testified that the additions are “overbearing” on the neighbours and impact the character of the neighbourhood with the reduced side yard setback.
37Ms. Pillon-Abbs proffered that the intent and purpose of the side yard setback is to ensure access around the dwelling. She advised that the access along the northerly side of the dwelling is the primary access to the rear yard. The Pool Shed addition is located in the south side yard and notwithstanding that the north side yard access is the primary access to the rear yard, Ms. Pillon-Abbs proffered that the Pool Shed does not impede nor prevent access to the rear yard.
38The Tribunal does not find that the setback relief sought creates an adverse affect on the character of the area as the additions are in the side and rear yard and have no visible impact on the character of the area. The two immediate neighbours are the most impacted by the additions and they have provided letters of support for the development on the Subject Property. Access along the south side yard, at a width of 1.2 m, is sufficient to allow unobstructed passage to the rear yard.
39The Municipality’s Engineering Section comments did not raise any concerns with respect to site grading and drainage. The Tribunal finds that there are no issues pertaining to site grading and drainage and therefore that purpose of the side yard setback is maintained.
40The Tribunal finds that the intent and purpose the ZBL with respect to the side yard setback provisions is maintained.
Desirable for the Appropriate Development or Use of the Subject Property
41Ms. Pillon-Abbs proffered that the additions have been finished with high-quality materials that compliment and blend with the existing dwelling and do not impact the character of the area. The additions do not protrude or create an impact on the south side yard setback or access to the rear yard. The Subject Property has no rear neighbour and meets the rear yard setback requirement of the ZBL. The most impacted neighbour is the southerly neighbour who has provided a letter outlining their support of the additions.
42Ms. Pillon-Abbs explained that the Pool Shed encloses the pool pump equipment and mitigates the noise generated by the pump reducing the impact on the neighbour. The Covered Patio creates a more comfortable outdoor amenity area protected from the elements and provides some additional shade.
43Ms. Pillon-Abbs opined that the variances to permit the Covered Patio and Pool Shed additions are desirable for the appropriate development and use of the Subject Property.
44Mr. Nelson countered that the proximity of the Covered Patio and location of the Pool Shed impacts on the outdoor amenity area of the southerly neighbour and this is not desirable nor appropriate. The addition of the Covered Patio including the wall along the south side creates a significantly larger building on the lot which will result in overcrowding.
45The Tribunal prefers the evidence of Ms. Pillon-Abbs and finds that the additions will not impact the character of the area. The additions are desirable as the Covered Patio extends the living space area to include the outdoor patio area and the Pool Shed encloses the pool equipment in an orderly fashion.
46The relief sought for lot coverage and side yard setback are desirable to permit the appropriate development and use of the Subject Property and the existing structures located thereon.
Minor in Nature
47Ms. Pillon-Abbs proffered that the flow of air and access to sunlight is not impacted by the additions. There were no concerns expressed with respect to drainage raised by the commenting agencies and there is no impediment to access of the rear yard arising from the additions. The materials used in the construction of the additions is consistent with the high-quality materials used on the existing dwelling and the character of the neighbourhood will not be impacted.
48Ms. Pillon-Abbs submitted that the request will not set a precedent in the area as the COA considers each application on its own merit.
49Ms. Pillon-Abbs opined that the requested minor variances are minor in nature.
50Mr. Nelson did not share the views expressed by Ms. Pillon-Abbs and proffered that the existing dwelling was very close to the maximum permissible lot coverage before the additions were constructed. The additions increase the lot coverage which will impact the overall built form of the Subject Property resulting in a size and scale of development that is out of character with the neighbourhood. The Appellant has not confirmed the actual south side yard setback and Mr. Nelson contends that the reduced side yard setback contributes to the crowded appearance of the Subject Property when viewed from the road.
51Mr. Nelson opined that the impact of the additions on the neighbour to the south and to the character of the neighbourhood is not minor.
52The Tribunal expressed concerns that the site plan submitted by the Appellant with the Application does not include the south side yard setback to the Pool Shed and does not include the dimension of the setback to the Covered Patio as defined in the ZBL. The Tribunal raised this matter with Ms. Pillon-Abbs who acknowledged that any discrepancies between the relief granted by the Tribunal, should the Appeal be allowed, and the actual setback will have to be addressed prior to the issuance of the building permit.
53The Tribunal finds that the increase in lot coverage and the reduction in the side yard setback are minor in nature. The Covered Patio is part of the rear yard outdoor amenity area and the relief sought will allow for a greater utilization of this area. The Pool Shed encloses the pool equipment by mitigating the visual impact of the equipment and reducing the audible impact of the equipment without impacting the use of the side yard.
54Ms. Pillon-Abbs concluded opining that the Covered Patio and Pool Shed are compatible with the surrounding neighbourhood in terms of height, massing, and setbacks and create no negative impacts. The additions will not result in an overdevelopment or overcrowding of the Subject Property and access along the south side yard will be maintained.
55Ms. Pillon-Abbs opined that the Application has regard for the matters set out in s.2 of the Act, is consistent with the PPS, conforms to the COP and meets the four tests of a minor variance. She recommended that the Tribunal allow the Appeal and approve the Application.
56Mr. Nelson requested that the Tribunal not allow the Appeal as it is his opinion that the Application does not meet the four tests of a minor variance as set out in his testimony, witness statement, and the Staff Report that he prepared for the COA.
FINDINGS
57The Tribunal, having considered the viva voce testimony and witness statements of the Planners together with the materials filed, finds that the Application meets the tests of a minor variance and should be authorized.
58The Tribunal notes that the site plan drawing may be lacking in detail sufficient to confirm the accuracy of the relief being sought, however, the Appellant’s Planner has acknowledged that they understand that should the relief sought not be sufficient to permit the additions to remain in their current configuration, they will have to alter the existing structures to conform with the approval granted or alternatively seek a further application before the COA.
59The Tribunal notes the importance of preparing accurate and complete drawings as the basis for an application to the COA and cautions the Appellant that the Tribunal is not approving the existing additions in their current form through its approval. The Tribunal is approving the relief requested in the Application and should the lot coverage relief or the side yard setback relief not be sufficient to permit the additions to remain, the Appellant will have to revise their plans to conform or seek further relief.
60The Appellant constructed the additions without first obtaining a building permit and the Tribunal does not condone such an approach. Further, if the Appellant applied for a building permit prior to the construction, they may have been able to design the additions to conform with the ZBL or alternatively reduce the number and magnitude of the variances sought. The Tribunal notes that asking for forgiveness as opposed to asking for permission is not a sound practice in development. Accordingly, the Tribunal has considered the Application on the merits of the relief being sought. The existence of the additions does not affect the Tribunal’s evaluation of the merits of the Application.
61The Tribunal is satisfied that that the Application has appropriate regard, as applicable, for the matters of provincial interest as set out in s. 2 of the Act and is consistent with the PPS as it applies to the Application.
62The Tribunal reviewed the decision of the COA and noted the split decision resulting in the denial of the Application. Further, the Tribunal considered the Staff Report, the responses from various commenting agencies, and the letters of support filed from the neighbours.
63The Tribunal allows the Appeal and authorizes the relief sought for an increase in lot coverage and a reduction in the side yard setback, as requested.
ORDER
64THE TRIBUNAL ORDERS that the Appeal is allowed and the variances to By-law No. 890-09 are authorized.
“David Brown”
DAVID BROWN
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.