Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 04, 2025
CASE NO(S).: OLT-25-000024
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Kevin Michael
Subject: Minor Variance
Description: To permit an increased maximum driveway width to accommodate parking for two proposed Additional Residential Units
Reference Number: A-2024-0429
Property Address: 4 Alderway Avenue
Municipality/UT: City of Brampton/Regional Municipality of Peel
OLT Case No.: OLT-25-000024
OLT Lead Case No.: OLT-25-000024
OLT Case Name: Michael v. Brampton (City)
Heard: March 17, 2025 by video hearing
APPEARANCES:
Parties
Counsel/Representative*
Kevin Michael
Self-represented*
City of Brampton
E. Bashura R. Usmanali
DECISION DELIVERED BY S. GOPIKRISHNA AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1This Appeal results from the refusal of an Application submitted by Kevin Michael (“Appellant”), to the Committee of Adjustment (“COA”) of the City of Brampton (“City”), under Section 45(12) of the Planning Act (“Act”), for the approval of a single variance to widen the existing driveway at 4 Alderway Avenue (“Subject Lands”, “Subject Property”). The COA heard the matter on December 10, 2024, and refused the variance.
2The Appellant appealed the COA’s refusal of the Application to the Ontario Land Tribunal (“Tribunal”) which scheduled an electronic hearing on March 17, 2025. Jim McKay, Kathleen McDermott and Robert Smith, all of whom are neighbours living in the vicinity of the Subject Lands elected for, and were granted Participant status, because they stated in their witness statements that they would be impacted negatively if the variance was approved, and the existing driveway widened.
LEGISLATIVE FRAMEWORK
3The proposed variance(s) must also be consistent with the Provincial Policy Statement, 2024 (“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.
4Section 45.1 of the Planning Act states that:
Minor Variance – S. 45(1)
In considering the applications for variances from the Zoning By-laws, the Tribunal must be satisfied that the applications meet all of the four tests under s. 45(1) of the Ontario Planning Act (2000). 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-laws;
are desirable for the appropriate development or use of the land; and
are minor.
VARIANCES BEFORE THE TRIBUNAL
5To permit a driveway of 8.1 metres (“m”) whereas the By-law permits a maximum of 6.71 m.
EVIDENCE
6At the beginning of the Hearing completed on March 17, 2025, the Tribunal advised the Parties not to discuss their concerns, or thoughts about the process followed by the COA to make a decision on the file, because the Appeal before the Tribunal is de novo. The Tribunal also advised the Parties not to delve into, or dwell upon the evolution of the process through which the final design of the driveway, resulting in the single variance presently before the Tribunal, since there are no findings to be made regarding how the process impacted the Appeal.
7The Appellant, Mr. Michael who was sworned in as a lay witness provided factual evidence in support of the proposal, which sought to increase the width of the existing driveway to 8.1 m, from the 6.71 m allowed under By-law No. 24-2004. Mr. Michael described the Subject Lands as being a corner lot with frontage on Alderway Avenue and Greystone Cres., having an approximate width of 18.29 m., and a lot depth of 30.48 m., or a lot area of 557 square metres (“sq m”), which is currently home to a single detached dwelling with no attached garage. After stating his intention to construct a dwelling with three residential units on the Subject Lands, Mr. Michael added that a “critical issue at the heart of the appeal” is that the existing driveway already accommodates two parking spaces within the lot boundaries. Combined with the two additional spaces within the City’s right-of-way, there are a total of four spaces, which ostensibly, is “more than adequate to service a three-unit dwelling”. However, the City’s refusal to recognize the two spaces in the right-of-way due to zoning reasons, meant that there were only two available parking spaces on the Subject Lands, when three parking spaces were required to fulfill the Appellant’s plans to develop their property as planned, which resulted in various applications to the COA, followed by the Appeal before the Tribunal.
8Mr. Michael described how the proposal had evolved as a result of discussions with the City’s planners, and stated that for evidentiary purposes, he would rely on the planning opinion, dated February 16, 2024, (“First Report”), by Aferdita Dzaferovska, a City planner who formerly worked on this file, and had supported the approval of three variances, including the variance respecting the driveway width, in the context of a former appeal to the COA. Mr. Michael read out excerpts from the Report stating that “Variance 3 is requested to permit a driveway width of 8.1 metres is not anticipated to facilitate the parking of an excess number of vehicles”. He added that “the widened driveway is not anticipated to detract from the streetscapes visually as ample permeable features remain on the property”, before providing an explanation, in layman’s language, about how the impact of the widened driveway on the streetscape, as well as the permeable space on the Subject Land would be minimal. According to Mr. Michael, a change in staffing with a different planner assigned to his file, was a significant change in the City’s position, and a new report released on May 21, 2024 (“Second Report”), recommended against the approval of the variances. Mr. Michael then described how he applied to the COA for the approval of a single variance respecting the widened driveway, resulting in the Appeal presently before the Tribunal.
9Mr. Michael discussed how “The More Homes, More Choice Act” (“Bill 108”) had received Royal Assent on June 6, 2019, and had impacted cities and municipalities across Ontario, by requiring them to update their official plans providing for two residential units in detached, semi-detached and townhouse dwellings. He stated that the City of Brampton is mandated to implement additional residential unit provisions and provide appropriate regulations through the Zoning By-law (“ZBL”)”.
10Mr. Michael asserted that the requested variance is consistent with Sections 1.1.1, and 1.4.3 of the Provincial Policy Statement, 2024 (“PPS 2024”) because it enables the creation of an additional residential unit on the Subject Property, thereby providing additional housing options within an established neighbourhood that made efficient use of existing infrastructure and services.
11Mr. Michael submitted that the requested variance maintained the intent, and purpose of the applicable Official Plan, by referring to how the City of Brampton Official Plan (“OP”) supports housing diversity, intensification, and additional unit development. He pointed out that the planned widening of the driveway is supported by Policy 4.2.1.14, which recognized the importance of driveway design in residential areas, and emphasized that the driveway width needed to be proportional to the dwelling size, as well as Policy 4.2.7, which encouraged “a realistic driveway design that is complementary to the house and lot size”. Mr. Michael said that a driveway 8.1 m, as requested, would “appropriately complement a house constructed on a large corner lot such as the Subject Lands, measuring 557 sq m”., and asserted that the proposed width of 8.1 m is proportional to the property size. On the basis of this evidence, Mr. Michael submitted that the requested variance maintained the intent and purpose of the OP.
12Mr. Michael relied on the First Report to explain the relationship between the proposal, and the intent and purpose of the ZBL. He stated how the First Report advised that widening the driveway to 8.1 m. would help the Site comply with the stated intention of Section 10.16(f) to ensure the existence of three legal parking spaces to correspond to the parking requirements of a three-unit dwelling. He explained how increasing the driveway width by 1.39 m from its existing 6. 81 m. would leave enough space for landscaping and would not interfere with water drainage, which are the main concerns raised by the City and the Participants. He explained that the variance is not anticipated to facilitate the parking of an excess number of vehicles, as evidenced in the City’s refusal to recognize two parking spaces in the right of way. Mr. Michael submitted that the requested variance maintained the intent and purpose of the ZBL based on this evidence.
13Speaking to how the variance corresponds to the test of appropriate development, Mr. Michael stated that approving the variance would enable compliance with the ZBL’s parking requirements for a multiple unit dwelling, an objective strongly supported by the PPS. Mr. Michael reiterated that approving the variance would not detract from the street view, nor affect the drainage significantly, but acknowledged the danger to pedestrians resulting from the widened driveway, and complimented the City for drawing his attention to how a “tapered driveway” could help prevent the safety concerns arising from the widening of the driveway. However, he countered the City’s concerns about how the driveway could impact the existing European Beech tree on the property, by referring to an arborist’s report that he commissioned, which had evaluated the condition of the Beech tree, and had concluded that the tree can “tolerate” the proposed driveway expansion. He quoted the following excerpt from the arborist’s report to demonstrate how there would minimal impact on the tree:
Considering the distance from the tree, the impact on the tree should be relatively minimal. The tree should continue to thrive the benefit the community.
14Mr. Michael added that if the variance were approved, he intended to follow all the recommendations in the arborist’s report to ensure the tree’s continued health. After stating that he was open to using permeable paving materials for the driveway extension to address any concerns about increased hardscaping and water infiltration, Mr. Michael submitted that the approval of the variance represented appropriate development of the Subject Lands.
15Speaking to why the variance is minor, Mr. Michael reiterated that the sole purpose of the requested widened driveway is to accommodate the minimum required parking for a three-unit dwelling, as opposed to creating excessive parking capacity. He asserted that the impact on the streetscape and neighbourhood character would be minimal, given that the neighbouring property at 2 Alderway Avenue has a driveway width of 9.1 m, and did not result in any adverse impact. He pointed out that the additional hardscaping resulting from the widening of the driveway was minimal, representing less than 2% of the total lot area of 557 sq m. Based on this evidence, Mr. Michael concluded that the variance is minor.
16In response to a question from the Tribunal about responding to the Participants’ concerns, Mr. Michael said that their concerns centred on the alleged impact of the requested variance on landscaping, drainage, both of which had been addressed in his evidence-in-chief. He acknowledged the neighbours’ concerns about the impact of the variance on the Beech tree, and reiterated the conclusions from his arborist’s report.
17The City briefly cross-examined Mr. Michael and established that he is not a planner by profession, nor had he retained a planning professional to help him with the proposal before the Tribunal. The City also noted that Mr. Michael had not summoned the City planner who wrote the First Report that had been relied upon on for evidentiary purposes. Mr. Michael confirmed that he did not summon the planner involved, and added that he was unaware that it was possible to summon the planner.
THE CITY’S EVIDENCE
18François Hemon-Morneau, a planner with the City was affirmed, and then recognized as an Expert Witness in the discipline of land use planning. He stated that he is the principal planner/supervisor of the City’s development department, and that he had reviewed the First Report, but had disagreed with the latter’s conclusions about the ability of the requested variance to satisfy the four statutory tests under Section 45(1) of the Act. The Tribunal notes that the witness did not provide the reasoning about why he disagreed with the conclusions of the First Report, or his coming to conclusions different from those of the First Report, notwithstanding a question from the Tribunal.
19Mr. Hemon-Morneau said that the approval, or refusal of this variance is not impacted by the Region of Peel Official Plan, but is impacted by the City of Brampton Official Plan (2006). He then reviewed Section 4.2.1.14 of the City of Brampton Official Plan, 2006, and explained that key elements relevant to the determination of appropriate driveway width for “residential areas are the sufficiency of landscaping for a lot, with special attention to corner lots such as the Site, because it is considered to be a focal location for the community”. He opined that the proposed driveway is overly wide, notwithstanding its location on a side lot, and pointed out that the Subject Property does not have a garage, detached or attached, that is conventionally used as a reference point to help determine the ideal width of the driveway. He briefly explained how a proposal for a third residential unit on the Subject Lands had been refused by the City earlier in 2024, and justified the adequacy of the existing driveway based on what the ZBL permitted for a single detached dwelling.
20Expanding on the nature of the negative impact on the Subject Lands if the driveway were expanded, Mr. Hemon-Morneau expressed concerns about how the widening of the driveway would negatively impact the existing mature European Beech tree on the Subject Lands, as well as the streetscape and character in the neighbourhood. He claimed that as a result of significant increase in the amount of hard surface in the front yard there would be an appreciable reduction of area available for water infiltration.
21Referring to Policy 4.2.7 which emphasized the avoidance of “excessive parking of vehicles on driveways”, Mr. Hemon-Morneau expressed concerns about how the Subject Property was large enough to allow for up to four cars to be parked on its corners. He then pointed out that in addition to 2 cars that can be parked on the existing driveway, resulting in a total of six cars being parked on the Subject Property, which he characterized as “excessive parking”. He expressed concerns about how the proposed wider driveway would require a curb cut of 1.9 m, and how such a significant curb cut could compromise pedestrian safety on both Alderway Avenue, and Greystone Crescent.
22Mr. Hemon-Morneau referred to the City of Brampton’s Development Design Guidelines (“Design Guidelines”) in Chapter 6 of the OP, which focused on the development of Built Form within Residential areas, before discussing how Guidelines 1.3.2 and 1.3.4 emphasized the “minimization of the impact of garages and driveways should be on the streetscape, resulting in architectural elements such as entrances, porches, windows to dominate, and define the streetscape”. Applying these guidelines to the requested variance, Mr. Hemon-Morneau concluded that a widened driveway would detract from a “balanced streetscape” through reducing landscaped space, disrupting visual continuity, and diminishing the overall aesthetic quality, thereby undermining the role of the Subject Property as a “focal point” in the community, as defined in Policy 1.5. On the basis of this evidence, Mr. Hemon-Morneau concluded that the proposal was not supported by the Design Guidelines.
23Mr. Hemon-Morneau pointed out that the Subject Lands are designated ““Community Areas” in the OP, which reflects where people live, shop, work and play in spaces needed for living within a 15 minute walk or bicycle ride from their homes. He added that Policy 3.1.1.27 of the OP encourages all new development to support a “high-quality streetscape” which includes reducing the importance of cars and garages on the streetscape. He added that this Policy bolstered his earlier conclusion about the inability of the variance to maintain the purpose and intent of the OP, Mr. Hemon-Morneau concluded that the requested variance did not maintain the intention and purpose of the OP, based on his analysis of its Policies and Guidelines. .
24Mr. Hemon-Morneau next discussed the relationship between the requested variance, and the intent and purpose of the applicable ZBL. Mr. Hemon-Morneau noted that the ZBL zones the Subject Lands as “Residential Single Detached B(R1B)”, before relying on Section 10 to explain that the minimum parking requirement in the ZBL is two spaces for each single, detached dwelling, exemplified by the existing house on the Subject Lands. Mr. Hemon-Morneau also discussed how Section 10.16 (f)(g) states that: “in addition to the parking required for the principal dwelling under Section 10.9 of this By-Law, one additional parking space shall be provided on lots containing more than one Additional Residential Unit (“ARU”)”. He reiterated how the City had refused a third ARU on the Subject Property, and justified the denial of the widened driveway because the existing driveway was adequate for a detached house with two cars.
25Mr. Hemon-Morneau read out Sections 10.9.1(2) and 10.9.1(5) of the ZBL, which stated that “the portion of the surface area of an interior lot in the front of the dwelling that is not part of a permitted unit, nor a permitted Residential Driveway, shall be used for Residential Landscaping”. He then argued that an approval would interfere with the ZBL’s intention to maintain the front yard of the Subject Property for landscaping to enhance the aesthetic appeal of the neighbourhood. He opined that the portion of the front yard not occupied by essential structures should be dedicated to residential landscaping, in order to foster a harmonious and attractive living environment.
26Mr. Hemon-Morneau reiterated his earlier evidence about the parking of up to six vehicles, including three vehicles, parked side by side, outside the Subject Property, and on the City’s right-of-way, as well as the need for a wider curb cut of 1.9 m, and how this could impede pedestrian safety on Alderway Aveune, and Greystone Crescent. He linked these issues to adverse impacts arising out of the proposed widening of the driveway, and concluded that the requested variance did not maintain the intent and purpose of the By-law.
27Regarding the test of appropriate development, Mr. Hemon Morneau repeated his earlier evidence about how approving the variance would have an adverse impact on the streetscape, and result in a situation where up to six vehicles can be parked on the Subject Lands, including three that could park on the portion of the City’s right of way. He also reiterated his earlier concerns about the possible impact of the widened driveway upon key architectural elements, such as the dwelling itself, and reduction of area available for drainage. Based on this evidence, Mr. Hemon-Morneau concluded that approving the variance would not constitute appropriate development.
28Speaking to why the requested variance is not minor, Mr. Hemon-Morneau pointed out that the requested increase in permitted width from the allowable 6.71 m. under the By-law to the proposed 8.1 m is a 20.71% increase, which he opined is not minor. After reiterating evidence recited earlier about the negative impact of the driveway on the streetscape, the possibility of up to six vehicles parking on the street, and the creation of a curb cut that could negatively impact pedestrian safety, Mr. Hemon-Morneau concluded that the variance is not minor.
29Mr. Hemon-Morneau opined that the requested variance did not meet any of the four tests under Section 45.1 of the Planning Act, and should be refused.
30Mr. Hemon-Morneau suggested that should the Tribunal decide to authorize the variance, the City would prefer the following conditions to be imposed:
(a) That the extent of the variance be limited to that shown on the sketch provided in Tab29 of the Document Book, reproduced below:
(b) That the Applicant submits a Tree evaluation Report and Plan for the Beech Tree, solely to the satisfaction of the City of Brampton Open Space Development and Forestry, in which it will be demonstrated that there is no impact on the tree from the proposed drive way widening.
(c) That despite the implementation of all required mitigation measures, the City shall be compensated should the Beech Tree sustain excessive damage, or show signs of decline, at its sole discretion.
(d) That no additional curb be permitted.
(e) That the proposed driveway be redesigned to taper towards the existing curb depression, aligning generally with the sketch provided in Tab 29 of the City’s Document Book
(f) That failure to comply with, and maintain the condition of the Ontario Land Tribunal shall render the approval null and void.
31By way of cross examination, Mr. Michael directed Mr. Hemon-Morneau to the Chart provided on Page 65 of the City’s Design Guidelines, and referred him to the Table that is reproduced in part below:
LOT WIDTH PROVISIONS
LOT WIDTH
GARAGE CAPACITY
SMALL SIZED LOTS
Less than 10.4 m
1 car
MID SIZED LOTS
10.4- 11.6 m
1 car+ storage
LARGER MID SIZE LOTS
11.6 to < 12.5 m
2 cars
12.5 to< 14 m
2 cars
LARGE LOTS
14 and greater
2 cars+ storage
32Mr. Michael questioned the City’s conclusion that a 2 car garage is best suited for the Subject Lands when they were classifiable as a “Large Lot”, based on information regarding the lot width from the chart reproduced above. Mr. Hemon-Morneau said that he would rely on the Zoning By-law for this determination, and dismissed the chart reproduced above as “not relevant”.
33Counsel for the City, Mr. Usmanali objected to the Appellant’s relying on information that they had not included in their Witness Statement submitted to the Tribunal. The Tribunal overruled Mr. Usmanali for reasons mentioned later in this decision.
34When Mr. Michael asked for the City’s rationale for issuing a second planning opinion, with recommendations diametrically different from the First Report, while there had been no significant changes to the proposal, Mr. Hemon-Morneau’s reply was that he did not agree with the recommendations of his predecessor, but did not elaborate on why he disagreed.
35When Mr. Michael challenged the City’s conclusion about a significant loss in drainage space because his calculations showed a reduction of 2% in the area available for drainage, Mr. Hemon-Morneau said that he relied on the City’s Engineering department for this conclusion, but did not expand, or provide any further explanation regarding this conclusion.
36By way of reply submissions Mr. Michael stated that he was in agreement with all the conditions required by the City, as recited in Paragraph 30 above, and would implement the same, if the variance were approved.
ANALYSIS AND FINDINGS
37The Tribunal finds it appropriate to be guided by PPS 2024 for the purpose of making findings, including its sharp focus on the creation of housing through a variety of means, including the addition of residential units to existing detached houses The Tribunal notes that the City did not challenge the Appellant’s evidence regarding the applicability of PPS 2024 to this variance, and finds that the proposal is consistent with the applicable policies of the PPS 2024.
38Before analyzing the Appellant’s evidence, it is important to make findings about a number of issues raised by the City with respect to the Appellant’s evidence. The City vigorously objected to the alleged inappropriateness of the Appellant’s relying on evidence from the First Report, because they had not authored this report. The Tribunal finds it acceptable for self-represented witnesses to rely on the contents of the City’s files, including planning reports. In this case, Tribunal finds that the Appellant relied on various statements found in the First Report, which he then explained and expanded on, albeit in layman’s language.
39The City also objected vigorously to the Appellant relying on the First Report because the proposal presently before the Tribunal is “different” from the proposal for which the First Report was written, and that as a consequence, the conclusions from the First Report are not applicable to the Appeal before the Tribunal. Prima Facie, there could be significant differences between two proposals requesting similar variances for the same subject property such that a planning report written in support of one proposal may not be automatically applied to another proposal, notwithstanding a commonality of variances. However, it is important that the Party alleging the inapplicability of evidence from one proposal to another, identify the differences through clear and cogent evidence, and establish that the differences between the proposals are so significant that evidence from one report may not be used to support the other proposal. However, the City did not establish how different the proposals are through their own examination-in-chief, or cross examination, with the result that the Tribunal has no evidence to support the City’s theory about the difference between the two proposals being so substantial such that a report written in support of the first proposal, cannot be relied upon to make submissions about the second proposal. As a result, the Tribunal prefers the factual evidence of the Appellant who stated that the planner’s conclusions regarding the widened driveway from the First Report are applicable to the second proposal because this variance has not changed, with respect to the specific question of whether the First Report can be relied upon by the Appellant for making submissions.
40The City also objected to the Appellant’s reliance on the Design Guidelines because he had not submitted them as part of his witness statement prior to the commencement of the Hearing. The Tribunal disagrees with this argument because the City itself had submitted the Design Guidelines with its witness statement. More importantly, it is common practice to refer to hitherto unintroduced documents for the purposes of asking the witness questions in cross-examination, as a result of which the Tribunal finds that it will include the question pertaining to the Design Guidelines for the purpose of making findings.
41A key question central to the determination of this Appeal is how many cars can hypothetically be parked in a garage on the Subject Lands given that none exists now. The Appellant’s position, based on the Chart provided in the City’s Design Guidelines, concludes that the Subject Lands ought to be classified as a “Large Lot” because it has a frontage exceeding 14 m, which means that a hypothetical garage could accommodate two cars and storage; the Tribunal understands that the Appellant interprets the “storage” space to accommodate a third car. The City, on the other hand notes that the existing dwelling is a detached residence, and consequently concludes that a garage with two cars would be adequate. – this perspective does not take into account the planned context, consisting of a dwelling with multiple ARUs, as opposed to the existing context, consisting solely of a detached dwelling. In this case, the Tribunal finds that the planned context, which consists of multiple ARUs is critical to the determination of how many cars can be parked in the hypothetical garage that is central to this discussion. Based on this reasoning, the Tribunal finds that the planned multiple unit dwelling, instead of the existing dwelling, should be the basis to make findings about the appropriateness of garages, and finds that a three-car garage would be appropriate for a multiple unit dwelling.
42It is common practice to assign greater weight to the evidence of a person qualified to provide opinion evidence as an Expert Witness when weighing evidence for the purpose of making findings, because the Expert Witness is bound to provide independent, non-partisan assistance to the Tribunal. This approach assumes that the Expert Witness can satisfactorily engage with alternative perspectives on planning as expressed by other Parties, and offer cogent advice to the Tribunal such that the latter arrives at the best decision possible. However, in this Appeal, based on its own analysis and findings listed below, the Tribunal finds that it did not get comprehensive and cogent advice from the Expert Witness, illustrated by the following excerpts from the latter’s evidence:
The City’s concerns about how up to six cars can be parked on the Subject Lands, including two on the City’s Right-of-Way. The Appellant’s unchallenged submission was that the very crux of this Appeal is the City’s refusal to count the two parking spaces on the Right-of-Way to be appropriate parking spaces. In the absence of relevant evidence, it is difficult to understand why the City concludes that two cars will be parked on the City’s Right-of-Way.
The City relied on circular reasoning to determine the appropriate width of the existing driveway because it relied, among other factors, on the existing width of the driveway to conclude that a two-car garage would be appropriate for the Subject Lands. It then relied on the conclusion about the appropriateness of a two-car garage to conclude that the width of 6.9 metres would be appropriate for the Subject Lands.
In cross-examination, the Expert Witness dismissed the chart from the Design Guidelines which discussed the relationship between the lot size, lot width and the capacity of the garage as” not being relevant” to determine the appropriateness of a two car garage without any further explanation. The Tribunal notes that the Expert Witness opined that the determination of the width of the driveway should be based on the ZBL, and points out that the tests under Section 45.1 focus on the “intent and purpose” of the ZBL and OP as opposed to the text of either document. The Tribunal notes that is common practice to interpret the OP to obtain advice on the appropriateness of a given variance, after consulting the ZBL about the magnitude of what is permitted in an ideal situation. In other words, while the numbers provided in a ZBL about a given parameter are a good starting point to determine the appropriateness of a variance, they do not constitute the proverbial “last word” regarding the magnitude of a variance, which can be adjusted based on the interpretation of the OP.
The City’s assertion about a “significant” reduction in space available for drainage, when the Appellant insisted that his calculations demonstrated no more than a 2% decrease in drainage space, from 75% of the lot area to 73% of the lot area, on a lot measuring 557 sq m. In response, the Expert Witness stated that he was relying on an opinion from the City’s Engineering Department without stating the details or the reasons.
In response to the Appellant’s references to his arborist’s conclusions about how the widened driveway would not impact the beech tree, the Expert Witness stated how it relied on a preliminary opinion,(not filed before the Tribunal), expressed by a different City department, which had apparently not reviewed the arborist’s report. The Tribunal finds that such an opinion is neither comprehensive nor fulsome because it does not comment on the arborist’s findings.
The City’s evidence about how the variance is not minor is based on the percentage increase of 20.71% from 6.9 m to 8.1 m. Even if one relies solely on the DeGasperis decision (Vincent v. DeGasperis 2005 CanLII 24263 (ON SCDC), 2005 O.J., No 2890) which the City referenced in argument, the issue of using a numerical analysis to determine whether a variance is minor, or not, needs to take into account whether or not the Appeal is the first such application in the neighbourhood, as seen below in Paragraph 12 of the decision:
A minor variance is, according to the definition of "minor" given in the Concise Oxford Dictionary, one that is "lesser or comparatively small in size or importance". This definition is similar to what is given in many other authoritative dictionaries and is also how the word, in my experience, is used in common parlance. It follows that a variance can be more than a minor variance for two reasons, namely, that it is too large to be considered minor or that it is too important to be considered minor. The likely impact of a variance is often considered to be the only factor which determines whether or not it qualifies as minor but, in my view, such an approach incorrectly over-looks the first factor, size. Impact is an important factor but it is not the only factor. A variance can, in certain circumstances, be patently too large to qualify as minor even if it likely will have no impact whatsoever on anyone or anything. This can occur, for example, with respect to the first building on a property in a new development or in a remote area far from any other occupied properties.
In the case of this Appeal, the neighbouring property at 2 Alderway Avenue. already has an existing driveway that is wider than 8.71 m, which is larger than the variance sought here. Secondly, while the above paragraph from DeGasperis advises that a significant numerical increase can result in a variance not being minor, there is no reference to the usage of percentages in the increase of the numerical value of the variance, to decide whether it is minor.
43As a result of the concerns stated above with the inadequacy and the lack of adequate explanation with the Expert Witness’ evidence, the Tribunal finds that it cannot accord extra weight to his evidence, as is usually the case nor can it rely upon such evidence as advice to make findings. To make findings regarding this Appeal, the Tribunal will analyze evidence/submissions from the City, and factual evidence /submissions from the Appellant through their alignment with planning principles.
44The City’s position regarding two of the tests, namely the inability of a widened driveway to maintain the intent and purpose of the OP and ZBL, may be summarized as:
(a) visual attention being detracted from the trees and the house dwelling onto the driveway when the property is viewed from Alderway Avenue.
(b) Reduction in the space available for drainage on the front lawn.
(c) Parking of up to 6 cars on the property, including three vehicles on the City’s Right-of-Way, where parking is forbidden.
(d) Compromising public safety on both Alderway Avenue and Greystone Crescent because of the curb cut resulting from a widened driveway.
45The Tribunal reiterates its earlier findings regarding the City’s concerns regarding the alleged over-parking, and alleged decrease in the drainage space, and finds that these concerns are not significant. With respect to the concern about how the driveway’s detracting visual attention from the dwelling if approved, the Tribunal notes that the Appellant was unequivocal about applying for the approval of another ARU on the Subject Lands if the variance was approved. In other words, an approval of variance means that the emergent dwelling or dwellings, constituting a multiple ARU will be very different from the existing dwelling. Given that the plans and elevations for the multiple ARU are not available, it is impossible to determine what the visual impacts will be. As a result, the Tribunal finds the concern to be unproven speculation, and gives the concern no weight for making findings.
46The Tribunal gives significant weight to the concern about public safety being compromised because of the wider curb cut needed as a result of the expansion of the driveway. However, the Appellant is in agreement with the City’s recommendation of a tapered design for the driveway such that there is no reason to increase the existing curb cut. The Tribunal finds that this design will minimize risk to pedestrian safety, and finds that there is no unacceptable adverse impact arising from the widened driveway.
47The Appellant emphasized that the Subject Lands are classified as a “Large Lot” in the Design Guidelines of the OP, and relied on Policies 4.2.1.14 and 4.2.7 to emphasize the need for proportionality between the size of the house and the driveway to conclude that a 8.1 m wide driveway would be appropriate for the Subject Lot. On the basis of the above analysis, the Tribunal finds that the variance, if approved, would not result in negative impacts, including visual interference, or an appreciable decrease in the overall space for drainage, or excessive parking. As a result, the Tribunal prefers the factual evidence and statements by the Appellant based on the First Report and finds that the variance maintains the intent and purpose of the OP.
48The Tribunal notes that a variance is deemed to maintain the intent, and the purpose of the ZBL, if it does not result in significant negative impact on the Subject Lands, or its surroundings. To establish the impact that the widened driveway would have on the European beech tree that presently exists on the Subject Lands, the Appellant referred to an arborist’s report that he had commissioned, and quoted from its conclusions to demonstrate that the Beech tree would survive if the driveway were expanded as requested. The Tribunal reiterates that the challenge from the Expert Witness to the Appellant’s submissions on this issue were based on a report not submitted to the Tribunal, and admittedly did not refer to the Appellant commissioned arborist’s report. As noted earlier, the Expert Witness stated a concern about the tree being impacted negatively if the driveway were expanded, but did not produce an independent report in support of their assertion. The Expert Witness also stated that it would be satisfied if the Tribunal imposed conditions requiring the Appellant to produce an arborist’s report solely to its satisfaction about the impact of the driveway on the tree, as well as a requirement to pay damages to the City, if the tree were impacted notwithstanding the precautions taken, to which the Appellant agreed. On the basis of this evidence, the Tribunal finds that the variance maintains the intent, and purpose of the ZBL. Regarding whether the variance is minor, the Tribunal prefers the factual evidence and submissions of the Appellant that there is no unacceptable adverse impact with respect to drainage, traffic and the trees on the Subject Lands, on the basis of his arborist’s report, which was not challenged by the City. On the basis of the analysis presented in Paragraph 42 of this decision, the Tribunal does not accord any weight to the City’s evidence and submissions, which rely on a percentage increase in the numerical value of the width to conclude that the variance is not minor.
49Regarding the test of appropriate development, the Appellant convincingly argued that a widened driveway, wider than 8.1 m, and big enough for three cars exists next door at 2 Alderway Avenue, as a result of which the requested variance is not new to the community, and will not result in a hitherto unexperienced adverse impact. While the Tribunal accepts the City’s evidence about the wide driveway at the 2 Alderway Avenue being “legal, non-conforming” by virtue of predating the ZBL, it notes that a pedestrian who does not know the legal non-conforming nature of the driveway at 2 Alderway Avenue, will observe two neighbouring properties with wide driveways, if this variance is approved. Based on this analysis, the Tribunal finds the variance constitutes appropriate development.
50As a result, the Tribunal finds that the variance satisfies all the four tests under Section 45(1), as well as the Provincial interests under Section 2 of the Planning Act. As a result, it authorizes the variance, and consequently, allows the Appeal upon conditions.
51The Tribunal imposes the conditions proposed by the City on the approval of the variance, and will withhold the Final Order contingent upon confirmation by the City’s Solicitor of the conditions imposed on the approval of the variance, as recited in the Order below.
52The Panel is seized for the purposes of reviewing the recommendations of the City Solicitor and Executive Director, Planning Department after the Appellant has submitted appropriate documentation, as stated in the conditions imposed on the approval, and will make its final Order after reviewing the relevant documentation.
INTERIM ORDER
53The Tribunal allows the Appeal, and authorizes the following variance:
- To permit a driveway of 8.1 m whereas the By-law permits a maximum of 6.71 m.
54The following conditions are imposed on the approval of the variance:
(a) That the Applicant submits a Tree evaluation Report and Plan for the Beech Tree, solely to the satisfaction of the City of Brampton Open Space Development and Forestry, in which it will be demonstrated that there is no impact on the tree from the proposed drive way widening.
(b) That despite the implementation of all required mitigation measures, the City shall be compensated should the Beech Tree sustain excessive damage, or show signs of decline, at its sole discretion.
(c) That no additional curb be permitted.
(d) That the proposed driveway be redesigned to taper towards the existing curb depression, aligning generally with the sketch provided in Tab 29 of the City’s Document Book, reproduced as Appendix “A” to this decision.
55The Tribunal allows the Appellant 6(six) months from the date of the release of this decision to satisfy all the conditions listed in paragraph [54] for the issuance of the Final Order. If the conditions cannot be fulfilled within the six months window, the Appellant and the City shall provide a written update to the Tribunal, regarding timelines required to satisfy the conditions. Should no update be received within the specified time period, the Tribunal may dismiss the Appeal.
“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