Gawri v Gravenhurst (Town), 2025 CanLII 59839

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

June 12, 2025

CASE NO(S).:

OLT-24-000409

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant

Ramesh Gawri

Subject:

Consent

Description:

to divide one lot into two lots

Reference Number:

Gravenhurst Application No. B/47/2023/GR

Property Address:

1262 Silver Lake Road K0J 1T0 (Part of Lot 10, Concession1)

Municipality/UT:

Gravenhurst/Muskoka

OLT Case No:

OLT-24-000409

OLT Lead Case No:

OLT-24-000409

OLT Case Name:

Gawri v Gravenhurst (Town)

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

Appellant

Ramesh Gawri

Subject:

Minor Variance

Description:

to reduce lot frontage of new lots

Reference Number:

Gravenhurst Application No. A/43/2023/GR

Property Address:

1262 Silver Lake Road K0J 1T0 (Part of Lot 10, Concession1)

Municipality/UT:

Gravenhurst/Muskoka

OLT Case No:

OLT-24-000410

OLT Lead Case No:

OLT-24-000409

Heard:

February 19-20, 2025 by video hearing

APPEARANCES:

Parties

Counsel/Agent*

Ramesh Gawri (“Appellant”/“Applicant”)

Nikolai Gagacev*

The Corporation of the Town of Gravenhurst Application (“Respondent/Town”)

Edward Veldboom

DECISION DELIVERED BY L.P. YOU AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This appeal arises under ss. 53(19) and 45 (12) of the Planning Act, R. S. O. 1990, c. P. 13, as amended (“Act”), by Ramesh Gawri regarding refusal of the Town’s Committee of Adjustment (“COA”) on the applications for Consent and Minor Variance (“Applications”) to create two lots with reduced lot frontage of the new lots and further to construct one dwelling on each new lot on the lands municipally known as 1262 Silver Lake Road (“Subject Lands”).

CONTEXT

2The Subject Lands have a frontage of 106.047 metre (“m”) on Silver Lake Road and a lot area of 2.403 hectares. The Subject Lands are currently vacant with steep slopes located on the west side of the property and have a wetland area running north-to-south through the central portion of the property.

3The Subject Lands are designated as “Rural Area”, and the central portion of the Subject Lands are designated as “Wetlands” in the District of Muskoka Official Plan (“District OP”), which identifies that no Provincially Significant Wetlands, Regulated Habitat, Areas of Natural and Scientific Interest or Heritage Areas and Sites are on or adjacent to the Subject Lands. Flood Risk Mapping of the District Official Plan excludes the Subject Lands or adjacent areas in either a Floodway or Flood Fringe.

4The District of Muskoka Floodline Mapping shows that the Subject Lands have no “wetlands with Significance” and are located outside the limits of the delineated Floodways, Floodlines, Static Floodline Elevation, 100-Year Floodline Elevation and the 15-metre Horizontal Buffer from these features.

5The Town Official Plan (“Town OP”) designates the Subject Lands as “Rural Area”. Schedule B (Natural Heritage and Development Constraints) of the Town OP delineates the “Wetlands” portion of the Subject Lands and includes no “Provincially Significant Wetlands”, “Deer Wintering Areas” or “Muskoka Heritage Areas”.

6The Subject Lands have split zoning with the front and rear portions zoned as “Residential Rural (RR-5)” and the central portion containing the watercourse and natural features zoned as “Environmental Protection (EP)” in the Town Zoning By-law No. 10-04 (“Town ZBL”).

7The Appellant sought to create a total of two residential lots and to permit a minimum lot frontage of 55.25 m, whereas the Town ZBL requires each new lot to have a minimum lot frontage of 60.0 m to accommodate appropriate entrances and to ensure that the character of larger lots remains in the rural area. The detailed provisions of the new lots are listed as follows (the figures in BOLD are the requested variances):

Town ZBL requirements

Lot 1

Lot 2

Minimum Lot Area (square metres)

10,000

11,783

12,163

Minimum Lot Frontage (metres)

60

53.024

53.024

Minimum Front Yard setback (Silver Lake Road) (metres)

18

18

18

Minimum Side Yard north setback (metres)

6.0

6.0

6.0

Minimum Interior Yard south setback (metres)

6.0

6.0

6.0

Minimum rear yard setback (metres)

30

195.6

205.5

Maximum Lot Coverage (square metres)

10%

1.7%

1.1%

Maximum Height (metres)

7.5 metres, or,10 metres if “A” Frame

7.5 metres, or,10 metres if “A” Frame

7.5 metres, or,10 metres if “A” Frame

8Town’s staff recommended that the Town’s Committee of Adjustment deny the lot creation on the basis that the proposed lot creation does not conform to the Town OP, that there are insufficient development areas outside of the Wetlands and Environmental Protection (EP) areas, and that the associated Minor Variance be denied.

NOTICE OF HEARING

9There are no issues with Notice of this Hearing.

STATUS REQUEST and concerns

10The Tribunal addressed two requests from individuals in the below list for Participant Status and granted the two individuals the requested status with consent from the parties:

1. Karen Edminson

2. Lisa Kean

11The Participants expressed their concerns about the impact of the proposal to the community character, traffic and environment.

eXHIBITS

12The following Exhibits were marked during the hearing:

1. Municipal Record (marked as “Exhibit 1”);

2. Expert Witness Statement of Michael Barton (marked as “Exhibit 2”);

3. Town Official Plan consolidated in March 2023 (marked as “Exhibit 3”);

4. Consolidated ZB July 2024 (marked as “Exhibit 4”);

5. Muskoka OP maps (marked as “Exhibit 5”);

6. Gawri map measurement (marked as “Exhibit 6”);

7. Mr. Anthony Jones’ Acknowledgement of Expert’s Duty and CV (marked as “Exhibit 7A and 7B”, respectively); and,

8. Mr. Adam Ager’s Acknowledgement of Expert’s Duty and CV (marked as “Exhibit 8A and 8B”, respectively).

ANALYSIS AND FINDINGS

13The Tribunal qualified Michael Barton, a Registered Professional Planner (“RPP”) and full member of the Ontario Professional Planners Institute ("OPPI”) with extensive professional experience in land use planning, as an expert witness in the area of land use planning.

14The Tribunal qualified L. Anthony (Andy) Jones, Chief Building Official of the Town, with sound experience in building code review, as an expert witness to assist the Tribunal by providing opinion evidence in Ontario Building Code implementation and septic system for the matter before the Tribunal.

15The Tribunal qualified Adam Ager, a Registered Professional Planner (“RPP”), full member of the Ontario Professional Planners Institute ("OPPI”) and Canadian Institute of Planners (“CIP”) with extensive experience and solid knowledge of land use planning, as an expert witness to provide opinion evidence in the area of land use planning to assist the Tribunal with the matter.

16Mr. Barton demonstrated that the proposal represented reasonable intensification of a large vacant lot and would increase the range of housing available in the Rural Residential zoning category without adverse impact to the existing rural character of the Subject Lands and surrounding areas, including key natural heritage and agricultural features and functions.

17Mr. Barton further stated that the proposed development, with safe and appropriate access, would be outside of the areas impacted by flooding hazards and would provide proper setbacks from to the Wetlands and Environmental Protection Areas. Mr. Barton also indicated that the proposed lot shapes and dimensions were appropriate and would be compatible within the existing Town Community.

18Mr. Barton concluded that the proposal had appropriate regards to relative matters as referred to s. 2 of the Act and was consistent with applicable policies of Provincial Policy Statement 2024 (“PPS 2024”).

Consent Application

19Mr. Barton presented to the Tribunal that the lot creation in the proposal was premature as public and private services were available or would be constructed. Mr. Barton further demonstrated that the proposal would facilitate proper and orderly development, which met applicable criteria set out in the s. 51(24) of the Act.

20Mr. Barton stated that the District and Town had completed detailed mapping delineating between the areas of the Subject Lands that were suitable for rural residential development and the areas that required protection of natural heritage features, including for flooding protection purposes, in their Official Plans.

21Mr. Barton expressed his opinion that the Subject Lands are suitable for development of single detached dwellings with septic systems and the new lots would be of sufficient size to allow for proper private servicing. Mr. Barton held the opinion that the proposal would support the Town to achieve its growth target in the community while natural resources were protected, and rural community character was maintained properly. Mr. Barton summarized his overview of the District OP and Town OP that the proposal of lot creation maintained the general intent of the District and the Town OPs.

22Mr. Barton confirmed that the Subject Lands were part of a cluster of at least seven properties located within a 400-m radius of one another that were zoned to permit single detached dwellings and were characterized by existing single-detached built form. Mr. Barton held the opinion that this proposal conformed to the policy E1.6.4 of the Town OP, which is detailed as follows:

E1.6.4 New rural residential lots shall be limited to a maximum of 3 lots per original 40.0 hectare lot, or an average lot size of 10 hectares per lot (including any retained lot) on other parcels. Consideration for an additional lots may be given where the proposed lot is located between two existing lots that are less than 100.0 metres apart or within an existing rural cluster of houses where there are more than 6 dwellings within a distance of 400.0 metres.

23Mr. Ager agreed with Mr. Barton that policy E1.6.4 of the Town OP had to be met to create a new lot that met minimum standards, but Mr. Ager disagreed with the implementation of this policy by Mr. Barton. Mr. Ager argued that one of the six properties listed in Mr. Barton’s Witness Statement was beyond the distance of 400 m from the rural cluster of houses. Accordingly, Mr. Ager concluded that the proposal did not meet policy E1.6.4 of the Town OP.

24Mr. Barton claimed that the distance of 400 m should be considered as a radius while Mr. Ager argued that the distance should be measured as a diameter.

25The Tribunal reviewed and considered the evidence from both parties and found the Town’s implementation of the policy E1.6.4 was more appropriate.

26Mr. Ager supported the opinion in the Town staff’s report that an Environmental Impact Statement (EIS) had to be submitted and satisfy the Town if the proposal would be located within 30.0 m of the Wetlands with respect to the District OP policy D15.5 and the Town OP policy I6.1.5. Mr. Ager further added that the EIS could not be deferred as it was the foundation to identify the EP boundaries, to assess the impacts of the development to natural features and functions, and further to confirm the feasibility of the development.

27Mr. Barton indicated that the development would be fully constructed within the “RR-5” zone and outside of the “Wetlands” and EP areas. Mr. Barton further held the opinion that there would be sufficient areas to facilitate new single-detached dwellings with private septic systems while the development complied to all the zoning regulations of the Town ZBL with the exception of the requirement of minimum lot frontage. Mr. Barton demonstrated that the proposal would provide buffers and appropriate setbacks from EP Areas and Wetlands. Finally, Mr. Barton concluded that the proposal maintained the general purpose and intent of the Town ZBL.

28Through Mr. Barton’s evidence, Town Counsel confirmed that the setbacks on the concept Site Plan were provided by the designer, who was not a professional planner and prepared the plan after implementation of the requirements of the Town ZBL.

29Mr. Ager confirmed that Town staff evaluated the Application based on the Appellant’s Conceptual Site Plan with EP zone overlay and presented to the Tribunal that the buildable areas were insufficient for the new dwellings and private septic systems while the setbacks were maintained as required. Mr. Ager specifically referenced the setback requirements of 30 m from the watercourse or 10 m from the EP zone, whichever was greater. Mr. Ager claimed that there would be insufficient area for the building envelop on the Site Plan beyond the 30.0-m setback from the Wetlands due to the narrow strip of lands between the road and the wetland and the requirement of separation distance between the building and the private septic system for each dwelling.

30Mr. Jones and Mr. Ager both confirmed that Town staff conducted site visits in Fall and Winter and verified that the site was wet, and the site conditions were not suitable for the development. Mr. Jones also explored the technical requirements of individual septic systems and wells for the proposed lots and demonstrated to the Tribunal that there was insufficient room for the development with private septic systems and wells for the new lots.

31The Tribunal finds that the Town’s analysis and evidence were more persuasive.

Minor Variance Application

32Mr. Barton indicated that the proposed lots exceeded the minimum lot area requirements of the Official Plans of the District and the Town in addition to the requirements of the Town ZBL. Mr. Barton expressed his opinion that the Appellant only sought the minor variance for the reduction of 10% of the minimum lot frontage and this relief would result in no adverse impacts to the rural character of the surrounding area or the natural heritage features and functions on the Subject Lands and in the surrounding areas relative to the minimum requirement of 60 m of the lot frontage. Mr. Barton had the conclusion that the proposal was minor in nature.

33Mr. Barton claimed that reduced lot frontage would make more efficient use of a currently vacant property, be compatible with the rural character of the surrounding area, maintain existing natural heritage features on and adjacent to the Subject Lands, and further achieve more housing availability within the community. Mr. Barton concluded that the proposal was desirable for the Appropriate Development and Use of the Subject Lands.

34The Tribunal prefers the opinion evidence of Mr. Ager and Mr. Jones presented at the hearing, and similarly finds that:

Consent Application

a. Fails to meet the criteria set out in 53(12) and 51(24) of the Act;

b. Is not consistent with the PPS 2024;

c. Does not conform to the District OP, the Town OP, and the Town ZBL;

d. Does not reflect the principles of good land use planning; and,

e. Is not in the public interest.

Minor Variance Application

35As the Consent Application having failed the tests, the associated Minor Variance Application fails the tests accordingly.

order

36THEREFORE, THE TRIBUNAL ORDERS THAT:

1. The appeals are dismissed;

2. The provisional consent is not to be given; and,

3. The variances to the Town Zoning By-law No. 10-04 are not authorized.

“L.P. You”

L.P. YOU

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.