Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 05, 2024

CASE NO(S).: OLT-23-000271

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

Applicant and Appellant: Sandeep Kandola

Subject: Minor Variance

Description: To permit construction of a two-storey single detached dwelling

Reference Number: A4/23 W1

Property Address: 112 Cumberland Drive (112 Cumberland Drive)

Municipality/UT: Mississauga/Peel

OLT Case No.: OLT-23-000271

OLT Lead Case No.: OLT-23-000271

OLT Case Name: Kandola v. Mississauga (City)

Heard: February 14, 2024, and March 22, 2024 by Video Hearing

APPEARANCES:

Parties Sandeep Kandola (Applicant/Appellant)

Counsel Amber Stewart

Parties City of Mississauga (Respondent)

Counsel Katie Pfaff

DECISION DELIVERED BY ROBERT G. ACKERMAN AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION

1This Proceeding had been scheduled for a one-day hearing commencing on February 14, 2024, to consider the Appeal under s. 45(12) of the Planning Act (“Act”) by Sandeep Kandola (the “Appellant”) from the Decision of the Committee of Adjustment (the “COA”) of the City of Mississauga (the “City”) denying the Appellant’s requested minor variances. Upon convening the Hearing, the Tribunal was advised by both Counsels that a settlement in principle had been reached, and that revised plans and draft Minutes of Settlement had been prepared and were currently under review. Both Counsel asked that the Hearing be adjourned to be returned as a Settlement Hearing at which the Parties would be seeking the Tribunal’s Order approving the Settlement. On consent, the matter was therefore adjourned to March 22, 2024, for a Settlement Hearing.

2The Subject Property is municipally known as 112 Cumberland Drive in the City. The intent of the original Minor Variance Application was to facilitate the construction of a two-storey single detached home.

3The location of the Subject Property is within the Port Credit Neighborhood of the City, which is a well-established and highly desirable neighborhood characterized by an eclectic mix of low-rise residential built forms and detached dwellings of various sizes, heights and architectural styles. The neighborhood is also characterized by mature tree-lined streetscapes.

4The rear lot limit of the Subject Property abuts Lake Ontario and includes a water lot. The Subject Property comprises approximately 2,556 square metres (“m²”) in area, is deep, and has a frontage of 15.25 metres (“m”) onto the southside of Cumberland Drive.

5The original Minor Variance Application was submitted on December 13, 2022, and sought permission to construct a three-storey, 741.98 m² replacement dwelling with an integral garage. City Staff provided a Staff Report, dated March 1, 2023, prior to the Hearing scheduled for March 9, 2023. Planning Staff opined that the requested proposal was cumulatively of concern, and specifically that the proposed massing, depth and height were of concern and recommended deferral.

6The Application was heard by the COA on March 9, 2023, and the Application was denied and appealed to the Tribunal on April 12, 2023.

TERMS OF THE PROPOSED SETTLEMENT

7The terms of the settlement are the approval of four variances as requested in an Amended Application, as follows:

(i) Variance #1: An eaves height of 9.12 m whereas By-law No. 0225-2007, as amended, permits a maximum eaves height of 6.40 m in this instance;

(ii) Variance #2: A highest ridge height of 10.08 m whereas By-law No. 0225-2007, as amended, permits a maximum highest ridge height of 9.50 m in this instance;

(iii) Variance #3: A front yard setback of 11.569 m whereas By-law No. 02 5-2007, as amended, requires a minimum front yard setback of 12 m in this instance;

(iv) Variance #4: A dwelling depth of 28.55 m whereas By-law No. 0225-2007, as amended, permits a maximum dwelling depth of 20 m in this instance.

8Conditions to which the approval will be subject:

1. The proposed dwelling shall be constructed substantially in accordance with the following plans prepared by Archaus Architecture Inc. dated March 5, 2024:

a. Site Plan A0.01;

b. Side (West) Elevation and Front (North) Elevation A2.01;

c. Side (East) Elevation and Rear (South) Elevation A2.02.

EVIDENCE IN SUPPORT OF THE PROPOSED SETTLEMENT

9The Tribunal heard evidence in support of the proposed Settlement from the Appellants’ Professional Planner, Jim Levac, MCIP, RPP, who was qualified by the Tribunal to provide land use planning opinion evidence.

10The following documents were filed by counsel for the Appellants and entered as Exhibits:

Exhibit 1 Minutes of Settlement;

Exhibit 2 Affidavit of Jim Levac;

Exhibit 3 Appellant’s Document Book;

Exhibit 4 Appellants’ Photo Book Volume 1;

Exhibit 5 Appellants’ Photo Book Volume 2;

Exhibit 6 Settlement Plans prepared by Archaus Architecture Inc.;

Exhibit 7 City of Mississauga Document Book.

11At the commencement of the Hearing, the Tribunal was advised that the Application had been amended with respect to the requested variances and the Tribunal was asked to accept an Amended Application, on consent.

12As the Appellants are seeking reduced variances in the Amended Application, and as this request is being made with the consent of the City, the Tribunal finds that no further notice is required, and as provided by s. 45(18.1.1) of the Act, the Tribunal accepts and will proceed upon the basis of the Amended Application.

LEGISLATIVE TESTS

13An application for a minor variance must satisfy all four tests set out under s. 45(1) of the Act, namely that the requested variance:

(i) Maintain the general intent and purpose of the Official Plan (the “OP”);

(ii) Maintain the general intent and purpose of the zoning by-law (“ZBL”);

(iii) Is desirable for the appropriate development or use of the land, building or structure, and;

(iv) Is minor in nature.

14An appeal pursuant to s. 45 of the Act is a hearing de novo and the onus of establishing that the four tests under s. 45(1) of the Act are met is incumbent upon the Applicant/Appellant. In addition, in making a decision under the Act with respect to a minor variance, the Tribunal must have regard for matters of Provincial interest as set out in s. 2 of the Act and to the decision of the approval authority under s. 2.1. The decision must be consistent with the Provincial Policy Statement, 2020 (“PPS”) under s. 3(5) of the Act, and conform with the Growth Plan for the Greater Golden Horseshoe, 2020 (“GPGGH”).

[PLANNING ACT](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)–MATTERS OF PROVINCIAL INTEREST

15As stated above s. 2 of the Act requires that the Tribunal, in carrying out its responsibilities, has regard for matters of Provincial interest. It was the stated opinion of Mr. Levac as set out in paragraph 37 and 38 of his Affidavit (Exhibit 3), that the proposed variances have sufficient regard for matters of Provincial interest as set out in sections 2(a), 2(f), 2(i) and 2(p) of the Act.

PROVINCIAL POLICY STATEMENT, 2020

16It is the opinion of Mr. Levac as set out in paragraphs 39 to 43 of his Affidavit, referred to in his evidence, that the proposal in the Amended Application (“the Proposal”) is consistent with the PPS, as it meets or exceeds the following policies:

(i) Section 1.1.1.e – the Proposal will facilitate development in a compact form, while maximizing existing under-utilized lands in a Built-Up Area;

(ii) Section 1.1.3.1 – the Proposal will be constructed in a Settlement Area, in compact form and makes efficient use of a lot on full municipal services with access to existing transit and infrastructure;

(iii) Section 1.1.3.3 – The Proposal will provide for a gentle form of intensification which fulfills the objectives of appropriate development standards.

A PLACE TO GROW: GROWTH PLAN FOR THE GREATER GOLDEN HORSESHOE, 2020

17To the extent its policies are engaged by the proposal in the Application, it was the stated opinion of Mr. Levac, also set out in paragraph 44 of his Affidavit, that the Proposal conforms with the GPGGH, and in particular with the following:

(i) 1.2.1 provides for healthy, liveable and safe communities;

(ii) 2.2.1 provides for the management of growth by directing growth to Settlement Areas;

(iii) 2.2.2.3 is a gentle form of intensification within the delineated built-up area.

REGION OF PEEL OFFICIAL PLAN

18It is the opinion of Mr. Levac as set out in paragraphs 47 to 50 of his Affidavit and referred to in is evidence, that there are no applicable Site-Specific policies that are relevant to the Subject Property, and that, to the extent that its policies are engaged, the Proposal conforms to the policies of the ROP.

MISSISSAUGA OFICIAL PLAN (“MOP”)

19MOP was adopted by City Council in September 2010 and was partially approved by the Regional Municipality of Peel in September 2011. The Subject Property is located within the Port Credit Neighbourhood Character Area and is designated Residential Low-Density I in Schedule 10 of the MOP. The Subject Property is also subject to the Port Credit Local Area Plan and is located within the Port Credit South Residential Neighbourhood (Hiawatha) Precinct. There are no applicable Special Purpose Areas or Special Site Policies that apply to the Subject Property. Chapter 16.21 of the MOP states that further policy direction is provided by the in-effect Port Credit Local Area Plan.

20The Residential Low-Density I designation permits a range of low-rise residential built forms including detached dwellings, semi-detached dwelling and duplex dwellings as well as accessory structures. Overall, the MOP states that growth is to be directed to appropriate locations across the City’s Built-Up Area. Furthermore, intensification and development within stable Neighbourhoods is permitted. The Port Credit Local Area Plan further permits intensification and development within the stable residential areas, which form the Port Credit Neighbourhood Character Area.

21Mr. Lavac testified that a key policy objective of the MOP is that development is to be compatible. The MOP (section 1.1.4.r) defines compatible as follows:

means development, which may not necessarily be the same as, or similar to, the existing or desired development, but nonetheless enhances an established community and coexists with existing development without unacceptable adverse impact on the surrounding area.

22It is accordingly the opinion of Mr. Levac, set out in paragraphs 51 to 59 of his Affidavit, and referred to in his evidence, that the Proposal conforms to the MOP as the Subject Property is within the Urban Area Lands within the Residential Area component of the Town’s Structure, and is designated Low-Density Residential, where accessory structures are permitted.

CITY OF MISSISSAUGA ZONING BY-LAW NO. 0225-2007 (“ZBL”)

23The ZBL is By-law No. 0225-2007, and the Subject Property is zoned “Detached Dwellings – Port Credit, Exception 9 (R-15-9) where a detached dwelling is a permitted use. It is Ms. Levac’s opinion that the in-effect zoning reflects the neighbourhood’s eclectic mix of low-rise residential built forms and detached dwellings of various sizes, heights and architectural styles.

PLANNING OPINION

24Mr. Levac concluded his evidence by providing the Tribunal with his opinion that:

(i) the Amended Application is consistent with the policies of the PPS, and conforms to the policies of the GPGGH;

(ii) the Amended Application conforms to the ROP and the MOP which collectively encourage a mix of low-rise residential built forms and detached dwellings of various sizes, heights and architectural styles in the Urban Area;

(iii) the Amended Application complies with the ZBL, as amended;

(iv) the Application meets the criteria of s. 45(1) of the Act; and,

(v) that the requested variances, both collectively and individually, represent good planning and are in the public interest.

PARTICIPANTS

25The Tribunal granted Participant status to Mark Reeves and Gavin Clark, who each had filed Participant Statements.

26Mr. Reeves stated that he lived at municipal address 111 Cumberland Drive directly across the street from the Subject Property. He stated that the neighbourhood is in transition and that there have been some “significant housing developments” in the area. He stated that the lots on Cumberland Drive and large and deep, while many of the original homes are 80 years old, so it is to be expected that larger homes in terms of square footage, massing and height will be built to replace the older smaller homes. In this regard, he faulted the provisions of the ZBL for being extremely permissive in allowing this neighbourhood transition and the approval of new homes on a much larger scale. He conceded that “the bylaws, as they exist, allow for a significant-sized home to be built on the Subject Property”. In conclusion, he submitted that the variances requested regarding the front yard set back and the building depth were not minor in nature but provided no evidence in support of hi position.

27Gavin Clark stated that he did not reside or own property on Cumberland Drive and that he lived on Onaway Road, which is ”one street to the north” of the Subject Property. Mr. Clark submitted that the Subject Property was governed by a more restrictive zoning than the properties located to the west on Cumberland Drive, which had been introduced by the Council to achieve a gradual diminution in building height and mass as the properties approached the estate lands to the east of the Subject Property. No evidence was provided to support this assertion. Mr. Clark submitted that the Amended Application did not satisfy the four tests without providing any evidence to support this position.

ANALYSIS

General Intent and Purpose of the MOP

28The Tribunal accepts the evidence of Mr. Lavac and finds that the proposed development conforms with the general intent and purpose of the MOP which serves to protect and reinforce the existing character of the neighbourhood by introducing a built form that is complimentary to, and consistent with, those found in the surrounding neighbourhood. The Tribunal accepts Mr. Levac’s opinion evidence and agrees that the Proposal will maintain the prevailing building type and will maintain a scale, height, massing and architectural character of development that is consistent with built forms in the surrounding area.

General Intent and Purpose of the Mississauga ZBL

29There are a total of four (4) variances requested in the Amended Application. The first two (2) variances are related to height:

Section 4.6.2.9.6, By-law No. 0225 – 2007

a. A maximum eaves height of 6.4 m (approx. 21.00 ft) is required; and,

b. A maximum eaves height of 9.12 m (approx. 29.92 ft) is requested.

Section 4.6.2.9.4, By-law No. 0225 – 2007

a. A highest ridge height of 9.5 m (approx. 31.71 ft) is required; and,

b. A highest ridge height of 10.08 m (approx. 33.07 ft) is requested.

30Mr. Lavac testified that the requested variances are needed to facilitate the proposed dwelling. The requested variances are also reflective of the Site’s existing characteristics, including a gentle sloped topography towards the Lake Ontario shoreline.

31The Tribunal observes that the proposed dwelling is appropriately situated on the lot and is set well back from the street line. The Architectural Drawings show that the dwelling will appear as a two-storey house from the street, as the third storey is built within the roof, which is a hip roof that slopes away from all sides. Dormers are proposed to be located on the sides of the dwelling. The height of the eaves will be perceived from the street is 6.69 m. As such, the height is setback from the streetscape, allowing for the structure and overall appearance of mass to be imperceptible from the Cumberland Drive streetscape. Mr. Lavac stated his opinion that the requested increased height is reasonable as it is reflective of the site’s changing topography, is complimentary in terms of form, mass, scale and architectural features and is in keeping with the general purpose and intent of the Zoning By-law. The Tribunal concurs.

32The third variance is related to a front yard setback. Specifically:

Section 4.6.2.9.2, By-law No. 0225 – 2007

a. A minimum front yard setback of 12 m (approx. 39.37 ft) is required.

b. A minimum front yard setback of 11.569 m (approx. 37.96 ft) is requested.

33Mr. Lavac testified that a reduced front yard setback, as measured from the perimeter of the main wall of the garage to the front property line, is requested. He stated that, given the immediate surrounding context and in particular the position of the existing dwelling at 110 Cumberland Drive, the ZBL requires a greater minimum front yard setback than would otherwise be the case.

34Mr. Levac testified that, in his opinion, the proposed front yard setback results in an appropriate built form, which will not cause any impact to the streetscape and is in keeping with the general purpose and intent of the ZBL. The Tribunal concurs.

35The fourth variance is related to building depth. Specifically:

Section 4.6.1, By-law No. 0225 – 2007

a. A maximum dwelling depth of 20.0 m (approx. 65.62 ft) is required.

b. A maximum dwelling depth of 28.55 m (approx. 93.67 ft) is requested.

36An increased building depth of 28.55 metres, as measured from the main front wall to the main rear wall, is requested. Mr. Lavac testified that given the optimized site design and presence of the integral garage along the street line, the proposed dwelling is rectangular in orientation to provide for sufficient living space to accommodate the changing needs of the Appellant and his family, including details to facilitate aging in place, such as an elevator. Mr. Lavac testified that the requested permission for an increased building depth will facilitate an appropriate built form, which is well articulated with portions of the dwelling that are inset and stepped back. Overall, the proposed dwelling is proportional to the size and configuration of the Subject Property. The rear wall of the proposed dwelling will not project beyond the rear wall of either adjacent neighbour. The dwelling will be generally in line with the newer dwelling to the east, and substantially in front of (closer to the street) than the original vintage dwelling to the west. However, the proposed dwelling will be visually screened by privacy fencing, plantings and landscaped open spaces along the shared property lines which collectively eliminate overlook and privacy concerns.

37At Tab X of Exhibit 3, Mr. Lavac referred to a Building Depth Analysis for the surrounding neighborhood and a Building Depth Chart, which clearly demonstrated that dwellings with greater building depths have been approved and built in the surrounding neighbourhood.

38The Tribunal therefore finds that the requested building depth is within range of previous approvals and existing building patterns, is reflective of the unique circumstances of the Subject Property, and is therefore appropriate and is in keeping with the general purpose and intent of the ZBL.

Desirable for the Appropriate Development and Use of the Land

39In the Tribunal’s view, the evidence provided by Mr. Lavac establishes that the requested variances will allow for modest and appropriate residential intensification development to occur, which will be sensitive and contextually appropriate for the City, the neighbourhood and the Subject Property. The Tribunal therefore finds that the Proposal is desirable for the appropriate development and use of the land, building and structure.

Minor in Nature

40Mr. Lavac stated his opinion that the requested variances are minor in nature. The Tribunal agrees. The requested variances, both individually and cumulatively, are minor in nature, and the requested variances will not have any undue adverse impact on neighbouring properties. The requested variances will facilitate a development that is both compatible and complimentary to the Subject Property and the surrounding neighbourhood. The Proposal meets the general intent and purpose of the MOP and the ZBL. The redesigned proposed dwelling and the Amended Application show the intent of the Appellant to build an appropriate form that will be complimentary to the neighbourhood.

41In conclusion, Mr. Lavac provided his opinion that the Proposal is consistent with the PPS, and conforms to the GPGGH. The Proposal also conforms to the RPOP, the MOP and the ZBL. The Proposal meets all the tests as set out in s. 45(1) of the Act.

CONCLUSION

42The Tribunal has carefully considered the concerns voiced by the Participants, Mr. Reeves and Mr. Clark, and is satisfied based on the evidence before it that there will not be any undue adverse impacts from the development proposed in the Amended Application, and that the Appellant has mitigated any adverse impacts which may have resulted from the development proposed in the original Application.

43The Tribunal accepts the uncontested expert planning evidence and opinions of Mr. Lavac. The Tribunal finds that the Proposal has regard for matters of Provincial interest, is consistent with the PPS, and conforms to the GGHGP and the ROP.

44The Tribunal finds that the Proposal meets the general intent and purpose of the MOP, meets the general intent and purpose of the ZBL, is a desirable and appropriate use of the lands, and that the requested variances are all minor in nature.

45The Tribunal finds that the requested variances, both collectively and individually, represent good planning and are in the public interest.

ORDER

46The Tribunal having been asked to accept and consider the Amended Application, on consent, and the Tribunal having determined as required by subsection 45(18.1.1.) of the Act that no further notice is required as the amendment to the original Application is minor;

47THE TRIBUNAL ORDERS that the Appeal is allowed, and the Amended Application approved, and the variances to Zoning By-law No.0225-2007 as listed in Appendix A are authorized subject to the following conditions:

1. The proposed dwelling shall be constructed substantially in accordance with the following plans prepared by Archaus Architecture Inc. dated March 5, 2024:

a. Site Plan A0.01;

b. Side (West) Elevation and Front (North) Elevation A2.01;

c. Side (East) Elevation and Rear (South) Elevation A2.02.

“Robert G. Ackerman”

Robert G. ackerman

member

Ontario Land Tribunal

Website: 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.

APPENDIX A

No.	Zoning By-law 0225 – 2007 Regulation	Variance Request
1	Section 4.6.2.9.6 A maximum eaves height of 6.4 m. (approx. 21.00 ft.) is required.	To permit a maximum eaves height of 9.12 m. (approx. 29.92 ft.)
2	Section 4.6.2.9.4 A highest ridge height of 9.5 m. (approx.. 31.71 ft.) is required	To permit a highest ridge height of 10.08 m. (approx.. 33.07 ft.)
3	Section 4.6.2.9.2 A front yard setback of 12.0 m. (approx.. 39.37 ft.) is required	To permit a front yard setback of 11.569 m. (approx. 37.96 ft.)
4	Table 4.6.1 A maximum dwelling depth of 20.0 m. (65.62 Ft. is required	To permit a maximum dwelling depth of 28.55 m. (93.67 ft.)