Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 08, 2024

CASE NO(S).: OLT-23-001295

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

Applicant/Appellant: Julian Mulcaster

Subject: Minor Variance

Description: To permit the installation of a back-up power generator

Reference Number: ANPL2023292

Property Address: 25 Pickerel Road

Municipality/UT: Norfolk/Norfolk

OLT Case No.: OLT-23-001295

OLT Lead Case No.: OLT-23-001295

OLT Case Name: Mulcaster v. Norfolk County

Heard: March 6, 2024 by Video Hearing

APPEARANCES:

Parties	Representative
Julian Mulcaster (“Appellant”)	Self-represented
Norfolk County (“County”)	(Did not appear)

MEMORANDUM OF ORAL DECISION DELIVERED BY F. Lavoie ON May 6, 2024 aND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This Decision and Order arises from an appeal filed by Julian Mulcaster pursuant to section 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Planning Act”), in respect of the refusal by the County’s Committee of Adjustment (“CoA”) of his application for a Minor Variance, which sought to permit a generator located 0.55 metres from an interior lot line, whereas the Zoning By-Law requires a minimum setback of 1.2 metres, at the property municipally known as 25 Pickerel Road (“Subject Property”).

BACKGROUND

2The Subject Property has a detached cottage and detached garage/boathouse, is zoned Resort Residential, and has a lot area of 0.193 acres. The cottage is setback 1.46 metres from the interior yard lot line. The Appellant wishes to place a generator between this interior yard lot line and the cottage, setback 0.55 metres from the interior yard lot line.

3The Appellant applied to the County’s CoA for a Minor Variance to request relief from the 1.2 metres minimum setback. The County’s staff planning report, dated November 15, 2023 (“planning report”), concluded that the proposal met the four tests for Minor Variance and recommended the CoA approve the application. The CoA refused to grant the Minor Variance application.

THE HEARING

4The Appellant was self-represented at the Hearing and did not call any expert witnesses.

5The County of Norfolk was not represented at the Hearing, neither by counsel nor planning staff.

6There were no requests for Party or Participant status.

7The Appellant advised the Tribunal that the planning report supported the application with an analysis of how the four tests were met. The Tribunal relied on the planning report and the Appellant’s oral submissions in adjudicating this matter.

THE FOUR TESTS

8Pursuant to section 45(1) of the Planning Act, an application for a minor variance may be granted if the following four tests are met:

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

b. The application maintains the general intent and purpose of the Zoning By-Law;

c. The requested variance is minor in nature; and

d. The requested variance is desirable for the appropriate development or use of the land, building or structure.

ANALYSIS AND FINDINGS

9The Subject Property is designated Resort Residential in the County Official Plan. This designation permits residential dwellings, vacation homes, and uses accessory to dwellings.

10The planning report commented that the installation of a generator, even within a required setback, is a use which maintains the intent and purpose of the Official Plan.

11The Subject Property is zoned “Resort Residential Zone (RR)” in the Zoning By-Law.

12The planning report states that the setback is intended to mitigate noise and nuisance to adjacent properties. It explains that the application’s generator would not result in noise or nuisance greater than an air-conditioning unit, which would be permitted within the minimum setback. In addition, it concludes that in this case, a 0.55 metre setback for the proposed generator will maintain the intent and purpose of the Zoning By-Law to mitigate noise and nuisance to adjacent properties.

13It was also staff’s opinion, as contained in the planning report, that the proposed variance is minor in nature, appropriate for the Subject Property, and would not result in negative impacts on adjacent properties.

14The Appellant’s testimony provided context as to the necessity of locating the generator on the north side of the cottage. He explained that flooding on the east side (backyard), a driveway on the south side, and that the west side (front yard) were not possible or appropriate for locating the generator.

15Based on the thorough review and evidence provided by the planning report and the Applicant’s oral submissions, the Tribunal finds that the proposal maintains the general intent and purpose of the Official Plan and Zoning By-Law, is minor in nature, and is desirable for the appropriate development or use of the land.

ORDER

16THE TRIBUNAL ORDERS that the appeal is allowed and the variance to the County’s Zoning By-Law No. 1-Z-2014 is authorized.

“F. Lavoie”

F. LAVOIE

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.