Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 26, 2024

CASE NO(S).: OLT-23-000237

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

Appellant: The Corporation of the Town of Oakville

Applicant: Kristina Grys

Subject: Minor Variance

Description: To permit the construction of a second-floor addition to the existing two-storey detached dwelling

Reference Number: CAV A/026/2023

Property Address: 16 Arkendo Drive

Municipality/UT: Oakville/Halton

OLT Case No.: OLT-23-000237

OLT Lead Case No.: OLT-23-000237

OLT Case Name: Oakville (Town) v. Oakville (Town)

Heard: February 20, 2024, by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
Kristina Grys ("Applicant")	Bill Oughtred*
Town of Oakville ("Appellant")	Dennis Perlin, Siraj Syed (Student-At-Law)

MEMORANDUM OF ORAL DECISION DELIVERED BY S.L. DIONNE ON FEBRUARY 20, 2024 AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION AND BACKGROUND

1The matter before the Tribunal is a settlement of an appeal under subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”) filed by The Town of Oakville (“Appellant”) against a decision of the Committee of Adjustment for the Town of Oakville (“COA”) in respect of Minor Variance Application CAV A/026/2023.

2The appeal affects the lands municipally known as 16 Arkendo Drive in the Town of Oakville (“Subject Property”).

3On March 8, 2023, the COA authorized a request made by the Applicant for a variance from Zoning By-law No. 2014-014 (“ZBL”) in relation to the maximum permitted residential floor area ratio to allow for a second storey addition to the existing two-storey detached dwelling on the Subject Property, along with two conditions. Whereas the ZBL permits a maximum residential floor area ratio of 43 percent (“%”) or 239.72 square metres (“m²”), the decision of the COA was to permit a maximum residential floor area ratio of 51.2% or 285.43 m² to allow the second storey addition in accordance with submissions and drawings presented at the time of the COA meeting (“Original Proposal”).

4The Town Planning Department did not support the approval of the variance, and the Town appealed the COA decision due to concerns with the proposed massing and scale of the dwelling and its impact on the streetscape.

5Since that time, the Parties have been engaged in discussions that have resulted in a revised site plan and building elevation drawings for the second-storey addition, and the Parties entered into Minutes of Settlement dated December 20, 2023. The Parties collectively appeared before the Tribunal in support of the Settlement Proposal.

6Brandon Hassan, a Town Planner, was called upon to provide evidence in support of the Settlement Proposal. Mr. Hassan was qualified to provide expert opinion evidence in land use planning in this matter following the Tribunal’s review of his educational and professional work experience, including his past experience in appearing as an expert witness before the Tribunal.

7At the request of the Parties, the Tribunal received a Joint Document Book dated February 8, 2024, containing Mr. Hassan’s Affidavit evidence, and marked it as Exhibit 1.

8Based on the Affidavit and oral evidence of the Witness, and the submissions of the Parties in the Hearing, the Tribunal amended the Minor Variance Application and authorized the requested variance subject to two conditions, for the reasons that follow.

LEGISLATIVE CONTEXT

9When making its decision on the matter before the Tribunal in the Hearing, the Tribunal must have regard to matters of provincial interest as set out in s. 2 of the Act. It must also have regard to the decision of the COA and the information considered by it, as required under subsection 2.1.(1) of the Act, though it is not bound by that decision.

10The variance must be consistent with the Provincial Policy Statement, 2020 (“PPS”) and conform with A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2020 (“Growth Plan”).

11The Tribunal must also be satisfied that the requested variance meets the four tests as set out in s. 45(1) of the Act, namely:

1. Does the request maintain the general intent and purpose of the Official Plan?
2. Does the request maintain the general intent and purpose of the Zoning By-law?
3. Is the request desirable for the appropriate development or use of the land, building or structure? and
4. Is the requested variance minor in nature?

SETTLEMENT PROPOSAL / PLANNING EVIDENCE

12Mr. Hassan provided the Tribunal with an overview of the neighbourhood within which the Subject Property is located, the character of the neighbourhood, the Original Proposal, and the Settlement Proposal.

13The Settlement Proposal is more contemporary in its design aesthetic and includes a reconfigured second storey addition, stepped back from the front wall of the first storey as illustrated in the revised drawings prepared by Keeran Design dated July 24, 2023, and found in Exhibit 1 at Exhibit L. This translates to a residential floor area ratio of 49.52% (276.06 m²), being 9.37 m² less than the variance authorized by the COA (“Settlement Proposal”).

14It was Mr. Hassan’s opinion evidence that the Settlement Proposal has been revised to reduce the massing and scale of the proposed dwelling, has less impact on the abutting properties and streetscape, and is more compatible with the character of the neighbourhood.

15He also provided his planning analysis of the Settlement Proposal in the context of the applicable Provincial and Municipal policy framework. Notably, Mr. Hassan provided opinion evidence in relation to matters of provincial interest, the PPS, the Growth Plan, and how in his opinion, the Settlement Proposal meets the four tests of a minor variance.

16It was Mr. Hassan’s expert opinion that the requested variance is minor and meets the four tests under subsection 45(1) of the Act as follows:

i. It maintains the general intent and purpose of the Town Official Plan (“TOP”) in that, in keeping with policy 11.1.9 of the TOP and in consideration with the design guidelines, it would result in residential development that would maintain the neighbourhood character and be compatible.

ii. It maintains the general intent and purpose of the Zoning By-law in that the use of residential is expressly permitted, and the variance allows the proposed dwelling to meet the TOP policies in that the mass and scale of the dwelling would be compatible.

iii. The variance is minor in that it will not result in any adverse impacts.

iv. The variance is appropriate for the desirable use of the land and buildings.

17Mr. Hassan also opined that the revised drawings found in Exhibit 1, at Exhibit L prepared by Keeran Design dated July 24, 2023, and the amended variance represent good planning.

18Both Parties submitted that the revisions to the Application were considered minor, supported the revised variance and the revised drawings, subject to the following two conditions:

(a) That the approval expires two (2) years from the date of the decision if a building permit has not been issued for the proposed construction; and,

(b) That the dwelling be constructed in general accordance with the site plan and elevation drawings dated July 24, 2023, found in Exhibit 1 at Exhibit L.

FINDINGS

19The Tribunal relies on the uncontroverted Affidavit and oral planning evidence of Mr. Hassan in support of the Settlement Proposal and the Amended Application.

20Pursuant to s. 45(18.1) of the Act, the Tribunal amends the request as set out in this Order and, pursuant to s. 45(18.1.1), the Tribunal is of the opinion that the amendment is minor and, as such, no further notice in respect to the amendment is required.

21The Tribunal finds that the Settlement Proposal has appropriate regard for matters of provincial interest as set out in s. 2 of the Act, as the Settlement Proposal represents an efficient use of existing infrastructure and the promotion of built form that is well-designed.

22In consideration of s. 2.1(1) of the Act, the Tribunal reviewed the decision of the COA, the written submissions considered by the COA and the Staff Report and finds that the Settlement Proposal, specifically the reduction in the requested maximum permitted residential floor area ratio addresses and responds to the concerns raised by the Town Planners.

23The Tribunal finds that the Settlement Proposal is consistent with the PPS as it represents intensification that is cost effective, maximizes existing infrastructure, and promotes efficient land use.

24In consideration of the four tests, the Tribunal finds that the two-storey detached dwelling use is permitted by the TOP and the proposed dwelling is in keeping with the character of the neighbourhood. The Tribunal is satisfied that the Settlement Proposal meets the general intent and purpose of the TOP.

25The Tribunal is satisfied that the general intent and purpose of the ZBL is also maintained, in which a two-storey residential dwelling is permitted and all other provisions of the ZBL are met.

26The Tribunal, having considered Mr. Hassan’s evidence in relation to the context of the Subject Property and the neighbourhood within which it is located, along with the photo evidence provided, is satisfied that the Settlement Proposal is desirable for the appropriate development and use of the Subject Property.

27The Tribunal is satisfied that the requested relief to facilitate the Settlement Proposal is minor in nature, and the proposed dwelling will be in keeping with the character of the neighbourhood.

28In consideration of the above, the Tribunal allows the Appeal in part and authorizes the variance as amended, in accordance with the Settlement Proposal.

29The Tribunal, upon consideration of submissions of Counsel for the Town and the Witness’ evidence, finds that it is appropriate to impose two conditions as set out in the Order.

ORDER

30THE TRIBUNAL having been requested to amend the Application from the Original Application, and the Tribunal having determined that the requested amendment is minor, as provided for in subsection 45(18.1.1) of the Planning Act, the Tribunal is satisfied that no further notice is required.

31THE TRIBUNAL ORDERS that the appeal is allowed in part and the variance to By-law No. 2014-014, is authorized as to permit a Maximum Residential Floor Area Ratio for a detached dwelling on the property, with a lot area less than 557.50 square metres, to be 49.52 percent (285.43 square metres), whereas the By-law permits 43 percent (239.72 square metres);

32AND THE TRIBUNAL ORDERS that the variance authorized in paragraph [31] above be granted subject to the following conditions:

(a) That the approval expires two (2) years from the date of issuance of the Tribunal’s Decision if a building permit has not been issued for the proposed construction; and,

(b) That the proposed second storey addition to the existing two-storey detached dwelling on the Subject Property be constructed in general accordance with the Revised Site Plan and Elevation Drawings as prepared by Keeran Design dated July 24, 2023 and found in Exhibit 1.

“S.L. Dionne”

S.L. DIONNE 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