Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 18, 2025

CASE NO(S).: OLT-25-000746

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

Applicant/Appellant: Victor & Daniela Martins

Subject: Minor Variance

Description: to permit a reduced side yard setback and other relieves for an as built cabana.

Reference Number: A-25-37

Property Address: 83 Faris Avenue

Municipality/UT: King/

OLT Case No: OLT-25-000746

OLT Case Name: Martins v. King (Township)

Heard: December 2, 2025 by Video Hearing

APPEARANCES:

Parties	Counsel
Victor and Daniela Martins	Michael Nemanic Malvika Bhanot

DECISION DELIVERED BY MATHIEU E. QUESNEL AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1The matter before the Tribunal is an appeal filed by Victor and Daniela Martins (“Applicant”) under section 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Act”), against a decision of the Township of King (“Municipality”) Committee of Adjustment (“COA”) in which an Application for Minor Variance (“Application”) was refused. The Application affects the land that is municipally known as 83 Faris Avenue, Nobleton, Township of King (“Subject Property”).

2The Applicant is seeking relief from section 3.2.2 a) of the Municipality Zoning By-Law (“ZBL”), which requires a minimum side yard setback of 3.6 metres (“m”) for 1.06 m. The Applicant have constructed a pool cabana and it is encroaching into the required 3.6 m side yard setback. The Applicant is requesting relief to permit reduced setbacks of 1.06 m.

3The Applicant is appealing the COA decision to refuse his Application.

4Notice of Hearing dated October 31, 2025, was sent by email by the Tribunal and was marked as Exhibit 1.

SITE AND CONTEXT

5The Subject Property is a residential lot located on Faris Avenue, northeast of Ellis Avenue and west of Wellington Street, and is approximately 0.15 hectares (“ha”) in area with a frontage of 25.14 m.

6The Subject Property is zoned Residential Single Detached “A” (R1A) in the ZBL and is designated “Established Neighbourhood” in the Municipality’s Official Plan, 2019 (“OP”).

7The Subject Property is currently occupied by an existing two-storey single detached dwelling and one-storey cabana, which is the subject of this application. The cabana was built without the necessary permit and is located in the back yard adjacent to an existing in-ground swimming pool.

8The Planning Division of the Municipality prepared a Staff Report detailing the particulars of the Application and supported the Application. The Staff Report was proposing one condition, but no one appeared on behalf of the Municipality to request that the condition be included in the decision, if accepted. The requested condition was as follows: That the application submitted for Building Permit be in substantial conformity with the application submitted for Minor Variance (“MV”). Even if the Municipality was not present, counsel for the Applicant indicated in his closing submission that the Applicant would not opposed that the condition be included.

9There was one request for Participant Status that was submitted in advance by Nino Francavilla, but at the opening of the hearing, Mr. Francavilla requested that his request be withdrawn and was now accepting the requested variances.

LEGISLATIVE TESTS

10The Tribunal’s authority to grant variances is given under section 45(1) of the Act, which sets out the four tests that must be satisfied by an Applicant when making an application for the authorization of variances. It must be noted that the hearing before the Tribunal is a hearing de novo and the onus of satisfying the Tribunal that the application meets these tests remains on the Applicant. The legislative tests require that the variances:

a. Maintain the general intent and purpose of the Official Plan;

b. Maintain the general intent and purpose of the Zoning By-law;

c. Be desirable for the appropriate development or use of the land, building or structure; and,

d. Be minor in nature.

11In addition, s. 3(5) of the Act requires the Tribunal’s Decision to be consistent with the Policy Planning Statement, 2024 (“PPS”).

12The Tribunal must also have regard to the matters of Provincial interest set out in s. 2 of the Act, as well as the decision of the COA and the information considered in the course of making its decision, as set out in s. 2.1(1) of the Act.

PARTIES AND EVIDENCE

13The Township was not present at the Hearing.

14The Applicant was represented by counsels Michael Nemanic and Malvika Bhanot and they called one expert witness. The witness was Peter Kulkarni, a planning consultant from Toronto. Mr. Kulkarni is Member of the Canadian Institute of Planners and a Registered Professional Planner. Mr. Kulkarni was called as an expert witness to give evidence in the areas of land use planning. After reviewing Mr. Kulkarni qualification, professional experience and Acknowledgement of Expert Duties, the Tribunal qualified him as an expert in land use planning and he was affirmed to provide opinion evidence. Mr. Kulkarni’s Witness Statement was file as Exhibit 2.

15The Affidavit of Peter Kulkarni affirmed on November 24, 2025, was part of the Document Book which was file as Exhibit 3.

PLANNING EVIDENCE

Matters of Provincial Interest

16Section 2 of the Act sets out a number of provincial interests and land use planning decisions are required to have regard to those relevant matters of provincial interest.

17Mr. Kulkarni opined that the MV have appropriate regard for the matters of provincial interest set out in the Act.

Provincial Planning Statement 2024

18When considering an application for MV, the Decision of the Tribunal shall be consistent with the direction of the PPS.

19Mr. Kulkarni testified that in his opinion that the MV is consistent with the high-level policies of the PPS.

20The Tribunal accordingly finds that the requested variance is consistent with the PPS.

THE FOUR TESTS

Does the variance meet the general Intent and Purpose of the Official Plan?

21In accordance with the OP, the Subject Property is designated as Established Neighbourhood.

22Mr. Kulkarni testified that the relevant policies in the OP are found in 5.5.1(1) and 5.5.2(8), and that a cabana is considered an accessory to the existing dwelling and is such a permitted use. It also respects the objectives of the OP regarding dwelling additions, which are to be constructed in a manner that maintains and protects the existing neighbourhood character.

23Mr. Kulkarni is of the opinion that the general intent and purpose of the OP has been achieved as the cabana is a permitted use and will respect the existing neighbourhood character.

24The Tribunal accordingly finds that the requested variance meets the intend and purpose of the OP.

Does the variance meet the Intent and Purpose of the Zoning By-Law?

25In in zone R1A, a cabana is subject to section 3.3.2 of the ZBL. This section state that no accessory building or structure shall be built closer to the side lot line than the minimum distance required by the ZBL for the main building on the lot. Section 6.3 of the ZBL requires a minimum side yard of 2 m for an accessory structure where the main building height is less than 6 m and a minimum side yard of 3.6 m for accessory structures when the height of the main building is more than 6 m. The main structure on the Subject Property is more than 6.0 m, therefore, a minimum side yard setback of 3.6 m is required.

26Mr. Kulkarni testified that there is still an adequate separation between the structures and the property lines for the purpose of access and maintenance, grading and drainage of the property. He further testified that the Municipality’s engineering staff have reviewed and confirmed that the proposal meets their engineering standards.

27Mr. Kulkarni opined that the MV meets the general intend and purpose of the ZBL.

28The Tribunal accordingly finds that the requested variance meets the intend and purpose of the ZBL

Is the variance desirable for the appropriate development or use of the land, building or structure?

29Mr. Kulkarni testified that the test of desirability of the development relates to the context of the application. These include matters relate to physical conditions, matters peculiar to the Subject Property as well as adjacent land, constraints related to the property and whether the restriction is unreasonable for the property.

30Mr. Kulkarni mentioned that the question of desirability is how the proposal responds to the conditions that exist on the Subject Property.

31Mr. Kulkarni also testified it is desirable for the appropriate development of land and structure as the “as-built” cabana is used for pool equipment storage and lounge area. As an accessory to the main building, the cabana provides and appropriate and practical use for the development of land for the enjoyment of the owners’ backyard and pool area.

32Mr. Kulkarni also testified that the neighboring properties have similar setup including pool and cabanas. He also added that the “as-built” cabana has no windows facing the neighbouring property, thus is protecting the privacy of the neighbours and there is a wooden fence along the property line which is already acting as a privacy wall for the neighbours.

33Mr. Kulkarni opined that the MV requested is desirable for the appropriate development of the Subject Property.

34The Tribunal agrees that the requested variance is desirable for the appropriate development or use of the land, building or structure.

Is the variance considered Minor in nature?

35Mr. Kulkarni testified that the determination of whether a variance is minor in nature is not a strict question of the quantum of the variance being requested, but rather if the variance results in unacceptable adverse impacts.

36The evidence provided by Mr. Kulkarni was that the requested variance is minor, will not have an impact on lands beyond the Subject Property and will not pose harm to the character of the area or the continued use of the adjacent properties for their current or future purposes.

37Mr. Kulkarni opined that the relief that is proposed is no expected to have any adverse impacts on the Subject Property or any adjacent properties. He testified that the Municipality staff has also confirmed such in their Staff Report, which is attached as Appendix G in Exhibit 3.

38Mr. Kulkarni opined that the variance requested is minor in nature.

39The Tribunal is satisfied that the requested variance is minor in nature.

FINDINGS

40The Tribunal accepts the uncontested evidence of Mr. Fulkarni that the requested variance for the Subject Property will have a minimal impact on the neighbouring and surrounding properties.

41The Tribunal accordingly comes to the same conclusion as Mr. Fulkarni and finds that the requested variance has regard for the provincial interests expressed in the Act, is consistent with the PPS, the OP and the ZBL, and satisfies all four elements set out in the Act.

ORDER

42THE TRIBUNAL ORDERS that the appeal is allowed and the variance is authorized with the following condition:

43The application submitted for Building Permit be in substantial conformity with the application submitted for MV.

“Mathieu E. Quesnel”

MATHIEU E. QUESNEL

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.