Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 05, 2025

CASE NO(S).: OLT-24-001046

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

Applicant/Appellant: Deepak Paradkar

Subject: Minor Variance

Description: Minor Variance to recognize an as-built gazebo

Reference Number: A-64/24

Property Address: 1042 Currie Street

Municipality/UT: Muskoka Lakes/Muskoka

OLT Case No.: OLT-24-001046

OLT Case Name: Deepak Paradkar v. Muskoka Lakes (Township)

Heard: December 10, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
Mandy Taylor, Deepak Paradkar	S. Lampert, N. Koschany
Township of Muskoka Lakes	E. Veldboom

MEMORANDUM OF ORAL DECISION DELIVERED BY S. GOPIKRISHNA ON DECEMBER 10, 2024 AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION

1This Appeal arises under s. 45(12) of the Planning Act (“Act”) from the approval of three variances to retain a gazebo, as constructed at the property municipally known as 1042 Currie Street in the Township of Muskoka Lakes (“Subject Lands”/“Site”) by Mandy Taylor and Deepak Paradkar (“Appellants”).

2The Appellants applied for the approval of three variances related to minimum lot frontage, minimum interior yard setback, and maximum permitted lot coverage to preserve a gazebo constructed at the back of the Subject Lands. The Township of Muskoka Lakes’ Committee of Adjustment (“COA”) heard the application on September 9, 2024, and approved all the requested variances, allowing the Appellants to retain the gazebo, but imposed conditions requiring them to:

• Remove the patio in front of the gazebo and dwelling; and,
• Enter into a satisfactory Site Plan Agreement (“SPA”) with the Township of Muskoka (“Township”) to retain and re-vegetate the shoreline buffer and the former patio area.

3On September 30, 2024, the Appellants appealed the COA’s decision to the Ontario Land Tribunal (“Tribunal”) with specific reference to the conditions imposed by the COA. The Tribunal scheduled an oral hearing for December 10, 2024, to be held by way of videoconference. On December 8, 2024, the Tribunal was made aware of a proposed settlement (“Settlement”) reached between the Appellants and the Township, allowing the Appeal in part, where the variances were identical to what was approved by the COA, and subject only to the imposition of a condition which required the Appellants to enter into a SPA with the Township, the purpose of which is to implement the planting plan agreeable to the Parties. The condition to remove a portion of the patio was not included.

4There were no requests for Party or Participant status. The Settlement Hearing on December 10, 2024, proceeded as an uncontested proceeding.

VARIANCES BEFORE THE TRIBUNAL

5The relief requested by the Appellants from the Township’s Zoning By-law No. 2014-14 (“ZBL”), after they reached a Settlement with the Township, consists of the following variances:

(a) The proposed minimum frontage of the lot is 40.5 feet while the permitted minimum lot frontage is 50 feet, under section 3.4.1.g of the ZBL;

(b) The proposed minimum yard setback is 4 feet, while the permitted minimum yard setback is 15 feet, under section 5.1.3 of the ZBL; and,

(c) The proposed maximum lot coverage is 22.8 percent of the Lot Area, while the permitted maximum lot coverage is 20 percent of the Lot Area, under section 5.1.3 of the ZBL.

LEGISLATIVE FRAMEWORK

6In considering applications for variances from the ZBL, the Tribunal must be satisfied that the application meets all four tests under section 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; and,
• Are minor.

7The proposed variance(s) must also be consistent with the Provincial Planning Statement, 2024 (“PPS”). When making its decision, the Tribunal must have regard to the matters of Provincial interest set out in section 2 of the Act. It must also have regard to the decision of the COA and the information considered by it, as required under section 2.1(1) of the Act, though it is not bound by that decision.

EVIDENCE

8At the commencement of the proceeding, Ms. Debbie Vandenakker, a land use planner, was affirmed to give evidence, and was qualified by the Tribunal as an Expert Witness (“Witness”) to provide opinion evidence in the discipline of land use planning. She appeared on behalf of the Appellants.

9Ms. Vandenakker briefly described the history of the gazebo in question, and described it as a “Gazebo built over a hot tub”. She stated that the Site is designated ‘Urban Residential’ in the Township’s Official Plan (“Township OP”), Schedule B2 and is zoned Community Residential (R4) in the ZBL. The Subject Lands have approximately 12.4 metres (“m”) of frontage on Lake Muskoka, a depth of 51.4 m and an area of 605.7 metres square (“m²”). Access to the Subject Lands is off Currie Street in the settlement area of Bala, which is included in the Township. According to Ms. Vandenakker, the existing use of the Subject Lands, which includes a dwelling, a boathouse, as well as the gazebo that is central to this Appeal, is residential. She described the gazebo as being 8 feet 8 inches by 8 feet 6 inches in size or 6.8 m² (73.6 square feet (“ft²”)). The required side-yard setback is 4.6 m and the gazebo has a side yard setback of 1.3 m (±4.1 feet (“ft”). The existing side-yard setback of the residential dwelling is approximately 0.8 m (±2.7 ft).

10Ms. Vandenakker stated that she relied on the following documents to formulate her planning opinion and conclusions:

• The Act;
• The PPS;
• The District Municipality of Muskoka Official Plan (“District OP”);
• The Township OP; and,
• The ZBL

11Ms. Vandenkerr described The Property as being designated as “Community Residential” in the District OP. The policies in Section J2- Community Areas support “complete, small-scale communities” that include a range and mix of residential uses. The District OP policy J2.2 d) provides that Area Municipal Official Plans shall contain more detailed policies addressing development in Community Areas.

12Ms. Vandenkkker said that based on the advice from Policy J2.2 d) of the District OP, she had determined that the policies of the Township OP are most relevant to the determination of the relationship between the variances and the four tests under Section 45(1) of the Act. She stated that the Site is designated “Residential” in the Township OP, and is governed by the policies recited below, from section J2 of the Township OP (Community Areas), which support “complete, small-scale communities that include a range and mix of residential uses”. Section J2 states that the objectives of the Community Areas are to:

a) Support the efficient use of land and infrastructure in Urban Centres to meet the needs of present and future residents and businesses; b) Support increases in density in new development areas to maximize the use of infrastructure and minimize the amount of land required for new development, provided the character of each of the Urban Centres is respected; c) Support and foster the unique characteristics of the Urban Centres by ensuring that new development: i) Reflects the existing small town character of the two Urban Centres; ii) Is compatible with the surrounding built environment; iii) Protects existing neighbourhoods and subdivisions

13Ms. Vandekker discussed how the gazebo had been developed such that the land on the Subject Lot has been utilized efficiently, given the contours of the existing land. She also explained how the gazebo is compatible with the surrounding built environment and reflects the existing small-town character of Bala.

14Ms. Vandenakker emphasized how the location of the Site on the shores of Lake Muskoka results in the applicability of Policy I6 of the Township OP, which requires a 20 m separation between residential structures and the shoreline, before explaining that the required separation of 20 m for residential structures does not apply to the gazebo because it exempts shoreline structures, including the gazebo. She then explained how the gazebo satisfies Policy N3 of the Township OP, which lists specific criteria to be considered when expanding, or redeveloping existing structures, such as:

• Cumulative impact on the environmental, visual/aesthetics, and lake character;
• Buffering from the lake and neighbouring properties;
• The current situation with respect to lot coverage and amenity area coverage; and
• Visual impact and impact on the natural shoreline.

15Ms. Vandenakker explained how the gazebo adheres to the redevelopment criteria listed above by pointing out that it is located on top of a concrete patio with an impermeable surface, such that no vegetation had been removed for the gazebo’s construction. She asserted that because the gazebo had been intentionally designed to blend with the existing structure, there would be no additional impacts, both of an individual and cumulative nature on the natural environment, other than such visual impact that was currently experienced. Ms. Vandenakker also emphasized that the visual impact was minimized because of the existing boathouse, which blocks the view of the gazebo from the lake at all angles, except for a narrow window of view between the Applicant’s boathouse, and the three-storey boathouse on the southeast of the Subject Lands. She claimed that the vegetation protection zone, resulting from the SPA, which had been recommended as a condition to be imposed on the approval of the requested variances, would help preserve the existing vegetation area and enhance the landscape.

16At this juncture, Ms. Vandenakker reviewed the Appellants’ concerns regarding the condition imposed by the COA, which resulted in this Appeal before the Tribunal. She explained how the removal of the existing poured concrete patio, as required by the COA, would have required hardscaping demolition, and removal of debris within close proximity of the lake, both of which could have impacted the lake, and shoreline negatively. She explained how as a result of the Settlement, a new condition requiring a SPA, which addressed the need to retain and re-vegetate the shoreline buffer and patio, had been agreed upon, with details of the siting of plants as described in Appendix A. According to Ms. Vandenakker, this condition meant that the vegetation could be preserved, without the need to demolish the concrete patio which could adversely impact the Subject Lands and the shoreline.

17On the basis of the aforementioned evidence, Ms. Vandenakker concluded that the requested variances maintain the intent and purpose of the applicable policies listed in Sections J2 and I6 of the Township OP. She highlighted how the frontage of the property was 9.5 feet less than what was required by the ZBL, though the area covered by the Subject Lands of 6519 sq. ft. is more than what is required by the By-law. Ms. Vandenekker said that the reduced frontage of the property will not impact access to the Subject Lands, nor its habitability, because the gazebo is an amenity, with no impact on the habitable space, which furthermore does not require servicing. Speaking to the variance respecting the minimum interior side yard setback, Ms. Vandenakker explained that this was the result of an earlier Zonal By-law Amendment (ZBA 51/92), and how the reduced setback contributed to the existing character of buildings and structures on the property. Lastly, Ms. Vandenakker spoke to the increase in permitted lot coverage from the allowable 21.7 percent x Lot Area to 22.8 percent x Lot Area, and acknowledged that this increase was because of the gazebo. She explained that there was no discernable impact of this increase on the built form, because the gazebo is an open structure. Based on this evidence, Ms. Vandenakker concluded that the requested variances maintain the intent, and purpose of the Township OP.

18Speaking to the relationship between the requested variances and the ZBL, Ms. Vandenakker stated that the purpose of the gazebo is to provide adequate privacy when the Appellants use their swimming pool, before reiterating how the sloping contour of the Site places restrictions on where the gazebo can be constructed. She explained that in light of this restriction, and the undersized nature of the lot per the definition expressed in section 3.4 of the ZBL, the requested variance seeking to increase the coverage to 21.8 percent coverage of lot from the allowable 20 percent size is “modest” because it would not be noticed from neighbouring properties, and would not cause any adverse impacts on the Site itself or its neighbours.

19Ms. Vandenakker demonstrated that the size of gazebo is significantly smaller than the allowable 23.3 m², under section 5.1.6 of the ZBL. She said that the size of the gazebo, in conjunction with the 3.5 m separation between the gazebo and the high water mark, which is well in excess of the required 1 m setback from the high water mark (per the ZBL), would result in the gazebo having minimal impact on the neighbourhood.

20Speaking to the variance respecting the side yard, Ms. Vandenakker stated that the existing legal non-complying residential dwelling has a side yard setback of 0.8 m, while the internal side yard setback requested for the gazebo was 1.3 m, which meant that there would be no additional encroachment of the gazebo into the side yard, when compared to the house. Ms. Vandenakker added that the encroachment of the gazebo, when compared to the placement of the house, would not be noticed from neighbouring properties, and she concluded that the requested side yard variance would maintain the intent and purpose of the ZBL.

21On the basis of the above evidence, Ms. Vandenakker concluded that the requested variances maintains the intent, and purpose of the ZBL.

22Ms. Vandenakker addressed the question of whether the requested variances are minor, and prefaced her remarks by stating that the test of minor focuses on impact, as opposed to numbers. She highlighted the minimal impact that the variances would have on the Site, as well as the neighbourhood, if approved, by reiterating her earlier evidence about the lack of further encroachment into the side yard if the variance respecting the side yard setback were authorized. She also reiterated that the lot coverage variance is the result of the substandard size of the lot, and will not have any impact on its neighbouring properties. As a result, Ms. Vandenakker concluded that the variances are minor in nature.

23Speaking to how the proposal is desirable for the appropriate development or use of the Site, Ms. Vandenakker stated that the gazebo is a permitted shoreline structure, and asserted that it aligns with the character of other neighbouring dwellings in and around the Subject Lands. After briefly recounting what she termed as the history of “modest development” at the Subject Lands, Ms. Vandenakker said that the gazebo would not further impact the lot, or surrounding properties in the neighbourhood. She concluded that given where the Subject Lands are located both on the waterfront, and part of the urban boundary of Bala, the modest gazebo structure is a desirable and appropriate use of the Subject Lands for recreational purposes.

24Regarding the proposed condition Ms. Vandanekker added that the purpose of the Siting Plan is to retain and re-vegetate the shoreline buffer and patio.

25Based on the above evidence, Ms. Vandenakker concluded that the requested variances satisfy the four tests under section 45(1) of the Act, and recommended that the variances be approved.

26Ms. Vandanekker recommended that all variances be approved, with the imposition of a single condition related to garden siting, recited below from the Settlement:

• That the Appellants enter into a SPA intended to illustrate the planting plan.

ORAL DECISION

27After the completion of the Appellants’ evidence, the Tribunal stated that it concurred with the Appellants’ evidence about how the requested variances satisfy all the four tests under section 45(1) of the Planning Act. On the basis of this finding, the Tribunal allowed the Appeal in part, and authorized all the variances, subject to the condition about the Appellants’ entering into an SPA with the Township.

ANALYSIS AND FINDINGS

28The Tribunal recognizes that the evidence presented at the Hearing is the result of a Settlement between the Appellants and the Township, and that the evidence from the Appellants’ Expert Witness is uncontroverted, resulting in its relying solely on her testimony to make findings.

29The Tribunal finds the variances maintain the intent and purpose of policies found in the Township OP, because they will result in the development of a compact, efficient structure that simultaneously reflects the existing small town character of which the Subject Lands are part of, while being compatible with the built environment.

30The Tribunal understands and concurs with the Appellants’ evidence about how the requested variances maintain the intent and purpose of the ZBL through minimizing the impact on the neighbourhood, and avoidance of any impact that is not already experienced as a result of the existing residence at the Site. As a result, the Tribunal finds that the requested variances maintain the intent and purpose of the ZBL.

31The Tribunal finds that the requested variances are minor because their impact, both individually and collectively, is minimal, and does not rise to the threshold of unacceptable adverse impact on the surrounding community, which is key to satisfying the test of minor.

32The Tribunal finds that the requested variances meet the test of appropriate development because the approval of the variances will result in the preservation of a gazebo, a structure typical of a community located on a shoreline, of which there are many other examples in the neighbourhood.

33Based on the above findings, the Tribunal finds that the requested variances satisfy all four tests under Section 45(1) of the Planning Act.

34The Tribunal finds that the variances are consistent with the PPS with specific reference to development of Settlement Areas.

35It finds that that none of the issues canvassed in the retention of the constructed gazebo rises to matters of Provincial interest, as discussed in s. 2 of the Planning Act.

36As a result, it allows the Appeal in part, and authorizes all the requested variances.

37The Tribunal imposes the following condition as per the Settlement between the Parties:

The Appellants will enter into a Site Plan Agreement (“SPA”) intended to illustrate the planting plan, provided in Appendix “A” attached to this decision, which illustrates the planting of trees and plants to retain and re-vegetate the shoreline buffer and patio.

ORDER

38THE TRIBUNAL ORDERS THAT the Appeal is allowed in part, and authorizes the following variances with respect to Zoning By-law No. 2014-14 of the Township of Muskoka:

(a) A minimum front lot is 40.5 feet is permitted, while the permitted minimum lot frontage is 50 feet, under section 3.4.1.g; (b) A minimum yard setback of 4 feet is permitted, while the permitted minimum yard setback is 15 feet, under section 5.1.3; and, (c) A maximum lot coverage of 22.8 percent of the Lot Area is permitted, while the permitted maximum lot coverage is 20 percent of the Lot Area, under section 5.1.3.

39The following condition is imposed on the authorization of the variances:

(A) The Appellants enter into a Site Plan Agreement (“SPA”) intended to illustrate the planting plan, provided in Appendix “A” attached to this Decision

“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.

Appendix A

Diagram to illustrate the Siting Plan as per the SPA