Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 22, 2025
CASE NO(S).: OLT-25-000023
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Simon Wong
Subject: Minor Variance
Description: To facilitate the construction of a ground supported balcony in the front yard
Reference Number: A2024-112
Property Address: 578 Guelph Street
Municipality/UT: Kitchener/Waterloo
OLT Case No.: OLT-25-000023
OLT Lead Case No.: OLT-25-000023
OLT Case Name: Wong v. Kitchener (City)
Heard: May 16, 2025, by Video Hearing
APPEARANCES:
Parties
Counsel/Representative*
Simon Wong
Self-represented*
City of Kitchener
Lesley MacDonald
Katherine Hughes (in absentia)
DECISION DELIVERED BY A. SNOWDON AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal concerns an appeal filed pursuant to s. 45(12) of the Planning Act, R.S.O. 1990, c.P.13 (“Act”) by Simon Wong (“Appellant”) regarding the decision of the City of Kitchener’s (“City”) Committee of Adjustment (“COA”) to deny the minor variance (“MV”) applications for a change in the minimum front yard setback and for a change in the minimum interior side yard setback at the property known as 578 Guelph Street, Kitchener (“Subject Property”).
2The Subject Property is located on the north side of Guelph Street between Floyd Street and St. Leger Street. The Subject Property previously contained a single detached dwelling and detached garage, which have recently been demolished to facilitate a severance application. The Subject Property is surrounded by residential properties.
3The Appellant requested MVs from Zoning By-Law No. 2019-051 (“ZBL”):
a. To change the minimum front yard setback from the required 6.6 metres (“m”) to 5.1 m to facilitate the development of a ground supported balcony for the second-floor dwelling unit; and
b. To change the interior side yard setback from the required 0.5 m to 0.1 m to facilitate an unobstructed walkway for an Additional Dwelling Unit (“ADU”) in the rear yard.
4On December 10, 2024, the COA refused the application, citing as its rationale:
a. the variances requested are not minor in nature;
b. that the application is not desirable for the Subject Property; and
c. that the intent and purpose of the ZBL and the City’s Official Plan (“OP”) is not maintained on the Subject Property.
STATUS REQUESTS
5The Tribunal received no Party or Participant status request prior to, or during the Hearing.
SUBMISSIONS
6The Appellant provided the City’s Staff Report, which was marked as Exhibit 1, and the COA Decision, which was marked as Exhibit 2.
7Tina Malone-Wright, a Professional Planner and the Manager of Development Approvals for the City, testified with respect to the evidence set out in Exhibit 1, dated November 29, 2024. Ms. Malone-Wright was qualified by the Tribunal to provide expert evidence in land use planning matters.
8The City attended the Hearing, but did not present any evidence or witnesses.
Section 45(1) of the Act
9The Tribunal must have regard to matters of Provincial interest as set out in s. 2 of the Act when making a decision regarding an MV application. Under s. 3(5) of the Act, the Tribunal’s Decision on the MV must be consistent with the Provincial Planning Statement, 2024 (“PPS”).
10Ms. Malone-Wright testified that the MV application has regard for s.2 of the Act, as it relates to matters of Provincial interest.
11The witness stated that the MV application is consistent with the PPS.
12When considering a proposed variance, the Tribunal must consider each of the four elements as set out in s. 45(1) of the Act, to determine if the requested variance:
maintains the general intent and purpose of the OP;
maintains the general intent and purpose of the ZBL;
is desirable for the appropriate development or use of the land; and
is minor in nature.
13The Appellant bears the onus of demonstrating that the four tests, as set out in s. 45(1) of the Act, have been met.
General Intent and Purpose of the City’s OP and ZBL
14Ms. Malone-Wright stated that the MV applications meet the intent of the City’s OP. The porch and balcony above are considered a natural extension. Ms. Malone-Wright indicated that the front setback is similar to neighbouring properties and supports a compatible public realm. Ms. Malone-Wright explained that the massing is comparable to neighbouring properties, and that the staff report was in favour of this MV.
15Ms. Malone-Wright stated that the side yard setback change supports safe access to the rear yard and the ADU. The OP supports safe access to dwellings. Ms. Malone-Wright explained that the primary concern with the side yard setback was for grading and drainage, but the designs show that there is sufficient grading and drainage on the opposite side of the dwelling.
Desirable for the Appropriate Development or the Use of Land
16Ms. Malone-Wright testified that the MV applications are appropriate, as the balcony and safe access pathway are good features. The balcony provides additional amenity space for the dwelling and the walkway provides safe and easier access along the side of the building.
Is Minor in Nature
17Ms. Malone-Wright testified that the MV applications are minor in nature. Ms. Malone-Wright stated that the change in setbacks don’t introduce any negative impact on the streetscape.
18It is Ms. Malone-Wright’s expert opinion that the MVs:
a. represent good planning,
b. meet all policy requirements,
c. meet all requirements of s. 45(1) of the Act,
d. meet the four tests, and
e. are in the public interest.
FINDINGS
19The Tribunal accepts the evidence of the Appellant and finds that the requested variances have regard for the Provincial interests expressed in s. 2 of the Act, are consistent with the Provincial Policy Statement, 2024, and satisfies all four elements of s. 45(1) of the Act.
ORDER
20THE TRIBUNAL ORDERS that the appeal is allowed, and the variances to the City of Kitchener’s Zoning By-Law No. 2019-051 as stated below are authorized:
a. to change the front yard setback to 5.1 metres, and
b. to change the interior side yard setback to 0.1 metres
“A. Snowdon”
A. SNOWDON
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.