Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 05, 2024
CASE NO(S).: OLT-24-000199
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant/Appellant: Ysbrand Boekestyn
Subject: Minor Variance
Description: To permit the construction of a 58.3 square metre louvered pergola.
Reference Number: D13-MV-10-23
Property Address: Part of Lot 7, Concession 5 – 48726 John Wise Line
Municipality/UT: Malahide/Elgin
OLT Case No.: OLT-24-000199
OLT Lead Case No.: OLT-24-000199
OLT Case Name: Boekestyn v. Malahide (Township)
Heard: May 16, 2024 by Video Hearing
APPEARANCES:
| Parties | Representative |
|---|---|
| Ysbrand Boeketyn (“Appellant”) | Self-represented |
| Township of Malahide (“Township”) | (Did not appear) |
DECISION DELIVERED BY A. SAUVE AND K. HEWITT AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1This Decision and Order arises from an Appeal filed by Ysbrand Boekestyn pursuant to section 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Planning Act”), in respect to the refusal by the Township’s Committee of Adjustment (“CoA”) of his Application for a Minor Variance, which sought to locate an open pergola approximately 58.3 square metres (“m2”) and 3 metres (“m”) tall with open louvers. The Appellant is seeking relief from the Zoning By-law minimum side yard setback of 5 m to permit a 1.83 m setback, at the property municipally known as 48726 John Wise Line Aylmer, Ontario (“Subject Property”).
BACKGROUND
2The Subject Property has an existing dwelling and in-ground pool surrounded by a large, poured concrete pad. There is currently a 2.08 m high fence at the property line, is zoned Agriculture A1, and has a lot area of 28,307 m2. The Appellant wishes to place an open louvered pergola on the westerly side of the property between the existing fence and pool. The pergola will set at 1.83 m off the property line.
3The Appellant applied to the Township’s CoA for a Minor Variance to request relief from the 5 m minimum setback. Eric Steele of Monteith Brown Planning Consultants (“MBPC”) recommended to the CoA dated Jan 18, 2024, to approve the Application as it is minor in nature and with the following planning conditions: the Appellant obtain a building permit within two years; and the structure be constructed as per the details shown in the drawings as provided with the Application to the satisfaction of the Chief Building Official. The CoA refused to grant the Minor Variance Application.
THE HEARING
4The Appellant was self-represented at the Hearing and called Nicole McDowell as a witness. Ms. McDowell is not a Planner but is helping the Appellant with the Application.
5The Township 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 a submitted Justification Report deemed Exhibit 1. The Tribunal relied on the oral evidence of Ms. McDowell and the Planning Justification Report 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 A1 in the County’s Official Plan. This designation permits residential dwellings and uses accessory to dwellings.
10The Planning Report commented that the installation of an open louvered pergola, even within a required setback, is a use which maintains the intent and purpose of the Official Plan. The Tribunal concurs.
11The setback is intended to mitigate noise and nuisance to adjacent properties. There currently is a fence at the property line 2.08 m tall. There is a row of taller trees along the fence on the neighbouring property side of the fence. There is a poured concrete pad that is between the fence and the pool The Appellant’s evidence is that the open louvered pergola would not result in noise or nuisance greater than the current already established setting. It concludes that in this case, a 1.83 m setback for the proposed open louvered pergola will maintain the intent and purpose of the Zoning By-Law to mitigate noise and nuisance to adjacent properties. The Tribunal agrees with this assessment.
12Through the Appellant’s questioning of the witness, it was their 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.
13The Appellant’s testimony provided context as to the necessity of locating the open louvered pergola on the west side of the property. She explained that it is for the enjoyment of their property and their current existing infrastructure, i.e., their pool. While the lands are zoned A1, the subject lands are being used for residential purposes and not being farmed at this time, so no agricultural lands are affected with this Application.
14Based 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
15THE TRIBUNAL ORDERS that the Appeal is allowed and the minor variance to the Township’s Zoning By-Law No. 1-Z-2014 is authorized subject to the following conditions:
a. The Owner/Applicant obtain the necessary Building Permit within two years from the date of this Decision to the satisfaction of the Chief Building Official, ensuring that the approved minor variance applies only to the proposed accessory structure as illustrated with the Application; and
b. The structure be constructed as per the details shown in the drawings as provided with the Application (site location and architectural detail) to the satisfaction of the Chief Building Official.
“A. Sauve”
A. Sauve
MEMBER
“K. Hewitt”
K. HEWITT
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.