Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 24, 2024 CASE NO(S).: OLT-23-001253

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

Applicant/Appellant: Sean Lall Subject: Minor Variance Description: To permit the development of a family home Property Address: 85 Victoria Street L6Y 0A6 (PLAN TOR 11, LOT17 PART LOTS 12 AND 18, WARD 6) Municipality/UT: Brampton/Peel OLT Case No: OLT-23-001253 OLT Lead Case No: OLT-23-001253 OLT Case Name: Lall v. Brampton (City)

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Applicant/Appellant: Sean Lall Subject: Consent - refused by Approval Authority Description: To permit the development of a family home Reference Number: B-2023-0026 Property Address: 85 Victoria Street L6Y 0A6 (PLAN TOR 11, LOT17 PART LOTS 12 AND 18, WARD 6) Municipality/UT: Brampton/Peel OLT Case No.: OLT-23-001254 OLT Case Name: OLT-23-001253

Heard: March 1, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
Sean Lall (“Appellant”)	Self-represented*
City of Brampton (“City”)	Eugenia Bashura

DECISION DELIVERED BY F. Lavoie AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This Decision and Order arises from an appeal filed by Sean Lall pursuant to sections 45(12) and 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Planning Act”), in respect of the refusal by the City’s Committee of Adjustment (“CoA”) of his application for a consent severance (“Consent”) and minor variance, which sought to permit the development of a family home at the property municipally known as 85 Victoria Street (“Subject Property”).

BACKGROUND

2The Subject Property has a lot area of 0.92 acres and is currently developed with a single detached dwelling and detached garage on the northwest portion of the lot. The cottage is setback 1.46 metres from the interior yard lot line. The Appellant wishes to sever the Subject Property with a proposed severed lot of 0.247 acres and a proposed retained lot of 0.66 acres. The severed lot would include the detached dwelling and garage, while the retained lot does not yet have a proposed dwelling at the time of the application. The Appellant also sought the following variances for the proposed severed lot:

a. To permit a lot area of 1000.34 square metres, whereas ZBL 270-2004 requires a minimum lot area of 1350 square metres;

b. To permit a lot width of 25.95 metres, whereas ZBL 270-2004 requires a minimum lot width of 30 metres; and

c. To permit a lot depth of 34.2 metres, whereas ZBL 270-2004 requires a minimum lot depth of 45 metres.

(collectively, “Minor Variances”)

3The Subject Property has the following designations in the planning policies listed below:

a. Core Areas of the Greenlands System – Region OP, Schedule C-2

b. Open Space – City OP, Schedule A

c. Valleyland/Watercourse Corridor – City OP, Schedule D

d. Village Residential and Churchville Heritage Conservation District – Secondary Plan

e. Residential Hamlet Two, Special Section 1386 – Zoning By-Law 270-2004

4The Appellant applied to the City’s CoA for a Consent and Minor Variances to request the above relief from Zoning By-Law 270-2004. The City’s staff planning report, dated September 13, 2023 (“planning report”), recommended that the CoA refuse the applications. Among other things, the planning report held that because the lot was located within the floodplain and partially within the erosion hazard of the Credit River, the legislative tests were not met. The CoA refused to grant the Consent and Minor Variances applications.

THE HEARING

5The Appellant was self-represented at the Hearing. He called three neighbours as witnesses but did not call any expert witnesses.

6The City called two expert witnesses qualified to provide opinion evidence in the field of land use planning: Rajvi Patel, a land planner employed by the City, and Trisha Hughes, acting senior planner for the Credit Valley Conservation Authority.

7There were no requests for Party or Participant status.

THE FOUR TESTS FOR A VARIANCE AND CRITERIA FOR CONSENT

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.

9Pursuant to section 53(12) of the Planning Act, in considering whether to provide a consent, regard shall be given to the health, safety, convenience, accessibility for persons with disabilities, and welfare of the present and future inhabitants of the municipality and to the criteria enumerated in section 51(24) of the Planning Act:

(a) The effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2;

(b) Whether the proposed subdivision is premature or in the public interest;

(c) Whether the plan conforms to the official plan and adjacent plans of subdivision, if any;

(d) The suitability of the land for the purposes for which it is to be subdivided;

(e) If any affordable housing units are being proposed, the suitability of the proposed units for affordable housing;

(f) The number, width, location and proposed grades and elevations of highways, and the adequacy of them, and the highways linking the highways in the proposed subdivision with the established highway system in the vicinity and the adequacy of them;

(g) The dimensions and shapes of the proposed lots;

(h) The restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land;

(i) Conservation of natural resources and flood control;

(j) The adequacy of utilities and municipal services;

(k) The adequacy of school sites;

(l) The area of land, if any, within the proposed subdivision that, exclusive of highways, is to be conveyed or dedicated for public purposes;

(m) The extent to which the plan’s design optimizes the available supply, means of supplying, efficient use, and conservation of energy; and

(n) The interrelationship between the design of the proposed plan of subdivision and site plan control matters relating to any development on the land, if the land is also located within a site plan control area designated under of this Act or subsection 41(2) of this Act or subsection 114(2) of the City of Toronto Act, 2006.

ANALYSIS AND FINDINGS

10Ms. Patel’s planning analysis identified that the Subject Property was entirely within the floodplain of the Credit River, as shown on a map titled Regulation Screening - Credit Valley Conservation. This was undisputed by the Appellant. Further, Ms. Patel testified that because of the Subject Property’s location within a floodplain, the Applications are not consistent with the PPS, specifically policies 3.1.1(b), 3.1.2(c), and 3.1.2(d), set out below:

“3.1.1 Development shall generally be directed, in accordance with guidance developed by the Province (as amended from time to time), to areas outside of:

b) Hazardous lands adjacent to river, stream and small inland lake systems which are impacted by flooding hazards and/or erosion hazards; and

3.1.2 Development and site alteration shall not be permitted within:

c) areas that would be rendered inaccessible to people and vehicles during times of flooding hazards, erosion hazards, and/or dynamic beach hazards, unless it has been demonstrated that the site has safe access appropriate for the nature of the development and the natural hazard; and

d) A floodway regardless of whether the area of inundation contains high points of land not subject to flooding.”

11In Ms. Patel’s opinion, relying on Credit Valley Conversation Authority’s comment letter dated November 1, 2023, authored by Ms. Hughes, the proposed development location is not appropriate due to the potential flood hazards creating risks to safety and the inability to provide safe access.

12Further, Ms. Patel opined that the variance application does not meet the four tests for a minor variance. The Subject Property designations in the Regional and City Official Plans are intended for the preservation and conservation of natural features, such as the flood plain of the Credit River. For example, policy 4.7 of the City OP is not met, as residential dwelling on the proposed severed lot is not a permitted use under the Valleylands/Watercourses Corridor designation. With respect to the general intent and purpose of the Zoning By-Law, the prescribed minimum lot area and lot dimensions are intended to ensure the character, site access, and development generally is in keeping with the Churchville Heritage Conservation District Plan. In addition, the designation of Residential Hamlet Two, Special Section 1386, prohibits the development of new structures except in accordance with the regulations of the Credit Valley Conservation Authority. Ms. Patel opined that the relief from minimum lot area and lot dimensions would not maintain the general intent of the Zoning By-Law and that, in any event, the Credit Valley Conservation Authority found the application would not meet its regulations.

13With respect to whether the variances were desirable for the appropriate development of the land, Ms. Patel stated that the creation of new lots for residential development was not an appropriate development of the Subject Property, due to its designation as an Open Space and Valleyland/Watercourse Corridor. Finally, she also stated that, in her opinion, the variances were not minor.

14The Appellant and his witnesses’ testimonies were not relevant to the issue of whether or not the Applications for the Subject Property met the legislative tests for a consent and minor variance. Broadly speaking, the Appellant argued that other site-specific applications in the neighborhood had been granted, and that having his appeal granted “would not create a precedent”. It is trite law that other site-specific applications are not relevant in determining whether a particular application meets the legislative tests.

15Based on the land use planning evidence provided by the City’s witnesses and in the absence of contradictory planning evidence, the Tribunal finds that the requested variance application is not consistent with the PPS, does not maintain the general intent and purpose of the Regional OP, the City OP, and Zoning By-Law 270-2004, is not desirable for the appropriate development of the land, and is not minor in nature.

16Ms. Patel opined that criteria 51(24) (a), (b), (c), (d), (f), (g), and (h) were not met by the consent application. For 51(24)(a), the proposed development does not have regard for sections 2(a), 2(h), 2(o), and 2(p) of the Act, which require, respectively, the protection of natural features, the orderly development of safe communities, the protection of public safety, and the appropriate location of growth and development. For 51(24)(b), Ms. Patel states the proposed severance is not premature but is considered to create a risk to public health and safety. For 51(24)(c), the proposed severance does not conform to the City Official Plan. For 51(24)(d), the land is not suitable for subdivision due to its location within a floodplain. For 51(24)(f), the dimensions of the proposed severed lot are not in compliance with the zoning by-law. For 51(24)(g), the Subject Property is restricted by its Valleyland/Watercourse Corridor designation, which generally disallows development, subject to demonstrating no negative impacts on significant natural features. Finally, for 51(24)(h), flood control is an issue with the Subject Property being entirely located within a floodplain.

17While the Tribunal disagrees with Ms. Patel’s opinion that criteria 51(24)(b) is not met, the Tribunal finds that the consent application does not have regard to criteria 51(24)(a), (c), (d), (f), (g), and (h). Criteria 51(24)(b) asks whether the proposal is premature or in the public interest. Ms. Patel’s evidence concedes that the proposed severance is not premature, while asserting that it would create a risk to public health and safety. As public health and safety are already criteria to be considered in 51(24), the Tribunal finds that the public interest referred to in 51(24)(b) does not relate to public health and safety. On the whole, the consent application does not have regard to several 51(24) criteria, which the Tribunal finds is fatal to its granting.

ORDER

18THE TRIBUNAL ORDERS that the appeals are dismissed: the provisional consent is not to be given, and the variance to the City’s Zoning By-Law 270-2004 is not 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.