Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 04, 2024

CASE NO(S).: OLT-23-000750

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

Applicant/Appellant: Thomas Rees

Subject: Minor Variance

Description: Approval of a reduced front yard setback

Reference Number: A08-23

Property Address: Novinka Island (B685)

Municipality/UT: Township of the Archipelago

OLT Case No.: OLT-23-000750

OLT Lead Case No.: OLT-23-000750

OLT Case Name: Rees v. Archipelago (Township)

Heard: December 7, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
Thomas Rees	Self-represented*
Township of Archipelago	Sylvain Rouleau

DECISION DELIVERED BY S. GOPIKRISHNA AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1This Appeal arises under s. 45(12) of the Planning Act (“Act”) from the refusal of a variance by the Committee of Adjustment (“COA”) of the Township of the Archipelago (“Township”) as submitted by Mr. Thomas Rees (“Appellant”) requesting the approval of a single variance to reduce the front yard setback to complete the construction of a half-built sleeping cabin (“Cabin”) at the site specified in Diagram 1, (“Site”/“Subject Lands”), located on the southern part of Novinka Island (“Island”), a private island owned by the Appellant. The Appellant seeks a reduced front yard setback of 0.6 metre, as opposed to the 7.5 metre setback, as stated in the Township’s Zoning By-law A2000-07 (“ZBL”)

2For the purposes of reciting the evidence adduced at the Proceeding held on December 7, 2023, it is important to note that the Township submitted a report to the COA to be considered for the Hearing completed on June 21, 2023, recommending refusal of the requested variance because it did not satisfy any of the four tests under Section 45.1 of the Act. The report specifically addressed the inability of the variance to maintain the intent and purpose of Sections 14.6, 14.23, 14.24, and 14.25 of the Township’s Official Plan (“OP), and concluded that the variance did not maintain the intent and purpose of the OP. The Report concluded that the intent and purpose of the ZBL was not satisfied because there was a 7.5 metre separation between any building on the Island and the high water mark. The report concluded that granting the variance will not result in appropriate development because the location will negatively impact the visual enjoyment of the island, as well as the neighbours’ enjoyment of their properties. It also concluded that the requested variance is not minor because the lack of adequate buffering or screening will have a significant adverse impact on the shoreline and surrounding community.

DIAGRAM 1- LOCATION OF THE PROPOSED COTTAGE ON NOVINKA ISLAND, PER APPELLANT

3At the Hearing completed on June 21, 2023, the COA considered the Application and refused it. On August 2, 2023, the Appellant appealed the COA’s decision to the Ontario Land Tribunal (“Tribunal”), which scheduled a Hearing by way of video conference at 10 a.m. on December 7, 2023. Mr. John McAllister requested for and was granted Participant status.

VARIANCES BEFORE THE TRIBUNAL

4To facilitate the construction of a sleeping cabin on Novinka Island, the Appellant requests an approval of the following variance:

1. A front yard setback of 0.6 metres, instead of the 7.5 metres necessary under the ZBL.

LEGISLATIVE FRAMEWORK

5In considering applications for variances from the ZBL, the Tribunal must be satisfied that the application meets all four tests under s. 45(1) of the Planning Act. The tests are whether the variances:

• Maintain the general intent and purpose of the Official Plan
• Maintain the general intent and purpose of the Zoning By-law
• Are desirable for the appropriate development or use of the land
• Are minor

6The proposed variance(s) must also be consistent with the Provincial Policy Statement, 2020 (“PPS). When making its decision, the Tribunal must have regard to the matters of Provincial interest 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 s. 2.1(1) of the Act, though it is not bound by that decision.

EVIDENCE FROM THE APPELLANT

7At the Hearing held and completed on December 7, 2023, the Appellant, represented himself, while the Township was represented by Mr. Sylvain Rouleau.

8Mr. Rees introduced himself as the owner of the Island. He described himself as a trained planner, and a certified Registered Professional Planner (“RPP”) in the Province of Ontario. After a brief discussion about the appropriateness of recognizing him as an Expert Witness given his professional qualifications, the Parties and the Tribunal agreed that Mr. Rees would not be recognized as an Expert Witness, because he had a subjective interest in how the matter would be determined.

9After being affirmed, Mr. Rees proceeded to give evidence in support of the proposal. He narrated how his grandfather had purchased the Island in the 1960s, and how he had inherited the Island. He described the Island as being a small Island in Georgian Bay, adjacent to the town of Parry Sound, in an area close to the waterfront called “Five Miles Beach”. He said that the only residential space on the Island was a cottage, which had been constructed in the 1960s, and that it was served by a boathouse on the northern part of the Island. Mr. Rees described the Island as being “relatively small and narrow, with minimal tree canopy”. The cottage, boathouse, and docks referred to in this paragraph are on the north half of this Island, and the Island is 350 m away from the South Channel and 630 m away from Massasauga Provincial Park, a large Provincial Park, as shown in Diagram 2, on the next page.

DIAGRAM 2- AERIAL PHOTOGRAPH OF THE ISLAND, SUPPLIED BY THE APPELLANT

10Mr. Rees said that the primary reason for his seeking the variance for the front yard setback was the location of the proposed sleeping Cabin close to the shoreline, which in turn was caused by the lack of an appropriate alternative site for the Cabin, anywhere else on the Island, given its narrow width and size. Mr. Rees said that there is very limited space for a sleeping Cabin that is 7.5 m+ from the shoreline, as per the ZBL, and that the alternative sites are at the peak elevation on the Island, which will make the sleeping Cabin visible from all sides and particularly prominent from the east side facing the South Channel and Massasauga Provincial Park.

11Mr. Rees said that there were only three cottages with a direct view of the proposed sleeping Cabin and shoreline, and that local traffic that passes by the proposed sleeping Cabin is generally limited to the occupants of the three cottages and occasional fishing boats. Through a photographic tour of the waterways surrounding the Island, Mr. Rees depicted how, in his opinion, the Cabin would appear to be “very small, low, and embedded into the island” by observers, looking east at the west side of the Island, and how it was not visible on approach from South Channel, the waterway for approaching the Island.

12Describing the efforts to make the Cabin appear unobtrusive from the main waterway, Mr. Rees referred to how the Cabin had been designed such that it was just 11.4 square metres (“sq. m.”), considerably smaller than the maximum allowable size of 50 sq. m. and close to the minimum size of 10 sq. m. He also discussed how the design of the single-sloped roof of the proposed Cabin minimized its height, especially when viewed from the South Channel.

13Speaking to the relationship between the requested variance and the Policies in the OP, Mr. Rees referred to the Report issued by the Township, referred to in Paragraph 2 of this Decision. Responding to the Township’s critique of how the variance did not maintain the intent and purpose of the OP, Mr. Rees said that the variance satisfied Sections 14.6, 14.23, and 14.25 of the OP. By way of an editorial comment, the relevant language from the Township’s Report is recited, followed by Mr. Rees’ comments on the Report:

• Section 14.6 advises that “Development must be appropriate for an area in terms of its density or prematurity”, to which Mr. Rees pointed out that the proposal of the undersized Cabin is appropriate for the Island, which itself is underdeveloped.
• Section 14.23 requires “The aesthetics of the Township’s waterfront lands will be preserved aesthetic control will include: screening, setbacks, and building location” – In response, Mr. Rees asserted that the location minimizes aesthetic impact from South Channel and Massasauga Provincial Park, which are reference points to evaluate development applications in the Five Mile Bay Neighbourhood.
• Section 14.25 specifies that “New buildings and structures will be sited to minimize their impact on existing development so that maximum privacy is provided”, to which Mr. Rees answered that the location maximizes privacy on Novinka Island and the privacy impact on surrounding residential properties is negligible since only 3 cottages have a direct view, and they are all too far away to affect privacy.
• Section 14.25 also states that “The preservation of the natural landscape is fundamental to maintaining the Georgian Bay and Inland Lake aesthetic visual impact shall be minimized through the limited size of buildings (i.e. area and height), sighting structures below and behind trees, using muted colours, and a building to fit with the natural landscape.” , to which Mr. Rees responded that the Cabin, cannot be hidden behind the trees because few of them exist on the Island, adding that muted colours will be used for the cabin.

14On the basis of the following evidence, Mr. Rees concluded that the proposed development maintained the intent and purpose of the OP.

15Mr. Rees discussed the relationship between the proposal and the ZBL by emphasizing that the proposed Cabin was “underdeveloped” because all parameters related to its size and height, such as the lot coverage and total floor area, were significantly less than what was permissible under the ZBL, with the exception of the front yard setback, which required a variance. The Tribunal understood Mr. Rees’ evidence to mean that the request for relief for a single variance, which ostensibly represented overdevelopment, offset the demonstrable underdevelopment with respect to all the other parameters, and therefore deserved to be approved, because the Cabin was underdeveloped when all parameters were considered together. On the basis of this evidence, Mr. Rees concluded that the requested variance maintained the intent and purpose of the ZBL.

16Speaking of the test of minor and appropriate development, Mr. Rees said that the proposal satisfied both tests because it requested the approval of one and only one variance, which in turn was applicable only to a corner of the proposed Cabin. He argued that the variance is minor because the proposed Cabin itself is minor in size, by virtue of being only 11. 42 sq. m. in size, which is very close to the minimum size of 10 sq. m., for such cabins, as specified in the ZBL.

17Mr. Rees pointed out that the request for the variance is at a location, that is primarily hidden from the South Channel, which is the main approach to the Island, as well as Massasauga Provincial Park, the other key location for observing the Island from the public realm. On the basis of the lack of visibility from these two observation points, Mr. Rees concluded that the variance is minor.

18In response to a specific question from the Tribunal about how the variance represented appropriate development, Mr. Rees repeated the points made earlier about how the Cabin would be visible only from a few islands close to the Island, and how the variance was appropriate, given the challenges of the Site with reference to vegetation and the size of the Island.

19Mr. Rees addressed the objections submitted by Mr. McAllister, the Participant, which focused on how the Cabin was visible from the vicinity of the Island, and detracted from one’s enjoyment of the natural environment, by repeating his argument about how the Cabin was visible only from the immediate vicinity of the Island, and that he did not agree with Mr. McAllister’s claim about the visual impact of the Cabin on the former’s property.

20Mr. Cale Henderson, the Manager of Development for the Township, was affirmed and recognized as an Expert in the discipline of land use planning.

21Mr. Henderson contextualized his evidence by emphasizing that the Island is part of the Five Mile Bay neighbourhood, in the Township, and that this neighbourhood is home to the Massasauga Provincial Park, a large provincial park classified in the OP as a “Natural Environment Park”. He added that while portions of the eastern part of the Five Mile Neighbourhood (“Neighbourhood”) are “relatively densely developed” with visible and large cottages and cabins, the area surrounding the Island itself, is less densely developed.

22Speaking to the Island and the Site, Mr. Henderson advised that the Island has a lot frontage, as defined by the ZBL, of approximately 50 metres (166 feet). He added that the Island, which is zoned Coastal/Island Residential (CR), is a “relatively small single-ownership island, characterized by barren rock along the shoreline and throughout the Site with a minimal amount of vegetation.”

23After reciting the history of the Application and how it resulted in the Appeal to the Tribunal, Mr. Henderson narrated how the Appellant commenced the construction of the Cabin without obtaining the requisite permission from the Township, and how a Stop Work Order had to be issued by the Township to stop the construction, resulting in a half-built Cabin, that he said was “clearly visible” in photographs submitted both by the Appellant, and the Township.

24Mr. Henderson provided a detailed history of how land development policies and zoning by-laws evolved in the Township. He repeatedly emphasized that, notwithstanding the constantly evolving nature of the OP and ZBL, the driving force behind the development of the lakefront and the islands always centered on the primary goal of preserving the environment and the natural waterfront character of the Georgian Bay area. He added that the aim of the land use planning philosophy has been to identify “the permitted uses within The Archipelago as those uses relating to water-oriented recreation, including single detached cottages, single detached year-round residence. Other land uses are restricted to existing recreational, commercial, and light industrial uses, which are incidental or complimentary to the recreational nature of the Township, and those uses associated with and necessary for the proper functioning of the recreational community of The Archipelago”.

25After the aforementioned preamble about the Township’s planning principles, Mr. Henderson discussed s 4 and Policies 5.1, 5.6, 10.27, 10.28, 14.6, 14.23, and 14.25 of the OP to emphasize that these Policies consistently and collectively ensured that the ”development and the built form is secondary to the natural landscape, which is the most unique and appealing characteristic of the Township of The Archipelago”. He added that these policies “set a very high standard with regard to development and that maintaining this standard is paramount to preserving the natural landscape and preserving the character and existing development patterns and density within the respective neighbourhood”.

26Mr. Henderson then dwelt upon how the OP recognized the uniqueness of the natural environment in the Township, and how its policies were intended to limit development, maximize the presence of the natural landscape, and preserve the overall waterfront character, which is the predominant attraction of the area, and the primary purpose for the original creation of the Township.

27Mr. Henderson then discussed how the concept of density, which he described as “measurement of scale or degree of development as traditionally understood”, has little meaning in the context of the Township, because the sparse amount of development is the most unique and appealing characteristic of the latter. He reiterated how the absence of such development did not distract from the aesthetic of the natural beauty of the islands and the Township.

28Mr. Henderson then reviewed Policies 14.11, 14.30, and 14.32 of the OP, which focus on boathouses and shoreline structures. He interpreted these policies to demonstrate how they preserve the unique and high-quality waterfront character of the natural environment, resulting in an experience that is aesthetically appealing to property owners and visitors who use the area. He discussed how these policies require the built form to be secondary to the natural character of the area to prevent interference with the natural beauty of the islands.

29Applying the principles highlighted in the previous paragraph to the requested variance for the Cabin presently before the Tribunal, Mr. Henderson highlighted the visibility of the unfinished Cabin from the waterway and neighbouring islands through photographs taken during his site visit. He said that as that portion of the Island where the proposed Site is located does not contain sufficient mature vegetation, the result accentuates the visibility from nearby islands and waterways. He agreed that while the proposed Cabin appears to be modest in size, the visual impact on the surroundings is significant so as to diminish the visual enjoyment of the environment, and that this issue is compounded by the lack of sufficient mature vegetation for screening purposes, results in an overall unacceptable adverse impact on the aesthetics of the area. On the basis of this evidence, Mr. Henderson concluded that the variance did not meet the intent and purpose of the OP.

30Discussing the relationship between the requested variance and the ZBL, Mr. Henderson reiterated that the Site was zoned Coastal Island Residential Zone (“CR Zone”), which applies to all waterfront residential lands fronting Georgian Bay. He emphasized that the permitted uses are limited to Residential Use as the main use, with accessory uses complementary to the residential use.

31Mr. Henderson stated that within the CR Zone, the applicable zoning standard of a minimum Front Yard Setback of 7.5 metres is applicable to both the main dwelling and accessory structures and buildings, save and except those accessory structures, which are required to be closer to water for functional purposes (i.e., dock, marine storage facility, etc.).

32Contrasting the proposed side yard setback of 0.6 metres from the front lot line to the high water mark with the recommended separation of 7.5 metres in the ZBL, Mr. Henderson explained that the intention of the setback requirement is to maintain an appropriate buffer between the water and to limit structural development (i.e., the built form) within 7.5 m (24.6 ft) of the high water mark. Emphasizing that the required setback applies to all main and accessory buildings and structures for safety purposes, he questioned the ability of the requested variance to maintain the intent and purpose of the zoning standard. He emphasized that the Cabin could not be categorized into the exceptions to the zoning standard, such as docks, boathouses (where permitted), saunas, and marine storage facilities, all of which require proximity to the water for functional reasons.

33Mr. Henderson opined that the proposed location does not appear to be necessary nor required, before reiterating how the proximity of the proposed Cabin to the shoreline would mean that it is visible from the waterways and detract from the ZBL’s intention of protecting the aesthetics of the shoreline, and minimizing the impact that a structure constructed near a shoreline would have on the environment and the aesthetic. On the basis of this evidence, Mr. Henderson concluded that the requested variance does not meet the intention and purpose of the ZBL.

34In response to the question of whether the requested variance is minor, Mr. Henderson stated that the Township’s intention, supported through both the OP and the ZBL, was to limit the number of structures and buildings in the shoreline area since they would detract from the natural beauty of the environment. He stated that an approval of the front yard setback, as requested, would result in increasing the visibility of the proposed Cabin, resulting in a situation that would be considered unacceptable adverse impact from a planning perspective and was consequently not minor.

35Addressing the test of appropriate development, Mr. Henderson conceded that while the proposed Cabin is modest in size, the Site, in conjunction with the lack of shrubbery to reduce its visibility from neighbouring islands and the waterway, would negatively impact the shoreline and adversely impact the neighbours’ enjoyment of their properties. Through the photographic tour, he demonstrated how clearly the Cabin was visible from Derbyshire Island, the neighbouring island, which had residences facing the Cabin. As a result, Mr. Henderson concluded that the variance was not appropriate for the development of the Site.

36On the basis of his evidence, Mr. Henderson recommended that the variance be refused because it did not satisfy any of the four tests under Section 45.1 of the Act.

37Mr. Rees did not offer any evidence by way of Reply.

ANALYSIS AND FINDINGS

38The Analysis Section sets out important principles relied upon for making findings before applying them to the Appeal before the Tribunal.

39The Tribunal notes that one of the issues canvassed by the Appellant was the suitability of the Site for the Cabin, which concluded that there were no alternative sites to build the Cabin. While the Tribunal acknowledges how the lack of a possible alternative may have influenced the Appellant’s decision to build on the Site, it has no jurisdiction over the question of what is the optimal site to construct the Cabin. The Tribunal will therefore refrain from exploring the suitability of other sites and confine itself to solely answering the question of the ability of the requested variance to satisfy the four tests under Section 45.1 of the Act in the context of the Site.

40The Tribunal notes that a major difference between the positions of the Appellant, and the Township is the impact of the visibility of the Cabin from neighbouring islands and the waterway used to access the Island. The Appellant acknowledged that the Cabin is visible from three islands in the immediate vicinity of the Island and the waterway but concluded that the visibility would not detract from the variance’s ability to satisfy the four tests. The Township argued constantly, consistently, and very forcefully that the very visibility of the Cabin from neighbouring islands, compounded by the lack of shrubbery to reduce the visual impact, impedes the variance’s ability to satisfy any of the four tests under Section 45.1 of the Act. The Tribunal notes that there is no disagreement between the Parties regarding the visibility of the Cabin even though there is a difference of opinion about the impact of the visibility.

41One of the very important questions on which a finding needs to be made is whether the visibility of the Cabin constitutes unacceptable adverse impact, because the lack of unacceptable adverse impact is the threshold for a variance to be considered minor- in this case, the determination of this question is also is crucial to understanding whether or not the variance maintains the intent and purpose of the OP and ZBL.

42The question of the relationship between the visibility and unacceptable adverse impact is found in numerous policies in the OP, which state, that any dwelling in the Five Miles Area has to be constructed such that it cannot detract from the natural beauty of the surroundings and that secondary dwellings, such as sleeping cabins, which are secondary to primary dwellings, have to be built such that they cannot disturb, much less detract from the natural beauty. The Tribunal relies on this leitmotif for the purpose of making a finding central to this Appeal namely that the very visibility of a secondary structure, such as the Cabin contradicts the OP.

43With respect to the evidence regarding the OP, the Tribunal notes that the Appellant’s evidence focused on how the size of the Cabin is smaller than what is allowed, as a consequence of which there would be no significant visual impact on its neighbours. It is important to emphasize that this approach concentrates on the size of the Cabin, as opposed to how the distance of the Cabin from the high water mark (otherwise referred to as the front yard setback) impacts the visibility. In other words, the Appellant’s evidence does not focus on the variance itself, but on the size of the Cabin, a question that is not before the Tribunal. The Township’s evidence, on the other hand, argues that the reduced front yard, juxtaposed on the lack of shrubbery, results in the creation of unacceptable adverse impact on the neighbours, notwithstanding the underdeveloped Cabin.

44The Tribunal finds that the visibility of the Cabin is accentuated by the narrow front yard setback, as a consequence of which it agrees with the Township that approving the variance will not result in appropriate development of the Site.

45Regarding the question of whether or not the requested variance maintains the intent and purpose of the ZBL, the Tribunal places significant weight on the Township’s evidence that the reason for a front yard setback is to maintain a reasonable distance from the structure to the high watermark in the water, applicable to all structures on the waterfront. As noted earlier, the Tribunal understands the Appellant’s evidence regarding the ZBL to mean that the overall underdevelopment of the Cabin, offsets in some inexplicable fashion, the Appellant’s preference for a smaller front yard setback. The lack of a planning-based rationale in this argument contributes to the Tribunal’s preferring the evidence of the Township, and results in its finding that the requested variance does not maintain the intent and purpose of the ZBL.

46As stated clearly in the Township’s evidence, the guiding and unvarying principle throughout the OP is that secondary structures, such as sleeping cabins, should not detract from the natural beauty of the surroundings and this principle is borne out in the Township’s interpretations of various policies in Chapter 4 as well as Policies 5.1, 5.6, 10.27, 10.28. 14.6, and 14.23. Since the visibility of the Cabin is not in question, and the Appellant’s evidence concentrates on the size of the Cabin, rather than the variance itself, the Tribunal prefers the evidence of the Township and finds that the variance does not maintain the intent and purpose of the OP.

47On the basis of its findings that the requested variance does not satisfy any of the tests under Section 45.1 of the Act, the Tribunal finds that the variance should not be authorized and dismisses the Appeal.

ORDER

48THE TRIBUNAL ORDERS THAT the Appeal is dismissed, and that the requested variance to Zoning By-law A2000-07 is not authorized.

“S. Gopikrishna”

S. GOPIKRISHNA
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.