Anthony and Rhonda Saad v. Municipality of Leamington, 2025 CanLII 65387

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 02, 2025

CASE NO(S).: OLT-24-001004

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

Applicant and Appellant: Anthony and Rhonda Saad

Subject: Minor Variance

Description: To regularize an existing gazebo next to the Selkirk waterway

Reference Number: A-17-20

Property Address: 17 Rudgate Lane North

Municipality/UT: Municipality of Leamington/County of Essex

OLT Case No.: OLT-24-001004

OLT Lead Case No.: OLT-24-001004

OLT Case Name: Saad v. Leamington

Heard: November 29, 2024 and December 18, 2024

APPEARANCES:

Parties	Counsel
Anthony and Rhonda Saad	J. Hewitt
Municipality of Leamington	B. Kim

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 Anthony and Rhonda Saad(“Appellants”) to the Committee of Adjustment (“COA”) of the Municipality of Leamington (“Municipality”), under Section 45(12) of the Planning Act (“Act”), for the approval of three variances to maintain the existing gazebo at 17 Rudgate Lane North (“Subject Lands”). The COA heard the matter on August 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 August 28, 2024. The Municipality asked for Party status, and was granted the same because they were in opposition to the Appeal.

LEGISLATIVE FRAMEWORK

3Section 45.1 of the Act, provides that the Tribunal must be satisfied that the Applications meet all of the four tests as set out below:

• 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.

4The 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.

VARIANCES BEFORE THE TRIBUNAL

(1) Section 4.1[c], Accessory Uses, Buildings and Structures, to reduce the minimum interior side yard setback (south) for an accessory structure from the required 1 metre (“m”) to 0.6 m;

(2) Section 4.1[f], Accessory Uses, Buildings and Structures, to reduce the minimum setback from another accessory structure from the required 2 m to 1 m; and

(3) Section 4.49, Setbacks from Inland Watercourses and Municipal Drains, to reduce the minimum setback from an open municipal drain from the required 10.4 m to 0 m.

EVIDENCE

5Ms. Rita Jabbour, a land use planner appearing on behalf of the Appellants, was affirmed and recognized as an expert in land use matters by the Tribunal. Ms. Jabbour described the Subject Lands as being located within the Primary Settlement Area of Leamington, specifically on the West Side of Rudgate Lane North, and south of Alderton Street. Ms. Jabbour added that the Subject Lands are designated R2 on Schedule 'A', Zoning District Map 45, under Zoning By-law No. 890-09 (“ZBL”), the Municipality of Leamington ZBL and that these lands allow "residential uses" such as a Single Unit Detached Dwelling, and "buildings and structures accessory to the permitted uses in accordance with subsection 4.1 of the ZBL", such as a detached garage, shed or gazebo, or pool structure.

6Ms. Jabbour described the Subject Lands as containing one (1) Single Unit Detached Dwelling, one (1) accessory shed structure measuring approximately 10 metres squared (“m²”) (109 feet squared (“ft²”), and one (1) unenclosed accessory gazebo structure measuring approximately 28 m² (301 ft²). The accessory structures are located in the rear yard. Ms. Jabbour added that the rear portion also contains a segment of the Selkirk Drain, which is an open, municipal drain regulated by the Essex Region Conservation Authority (“ERCA”). Ms. Jabbour stated that as a result, the Subject Lands are located within a "Floodplain Development Control Area” (“Control Area”), and contain an easement registered in 1979, which transfers to the Municipality “free, uninterrupted and unobstructed right over the lands to construct, repair, replace, operate and maintain sewers and drains and lines of public utility services”. Ms. Jabbour emphasized that the easement does not prohibit the construction of buildings and structures within the part identified as the “Control Area”. Ms. Jabbour added that other lots on the West Side of Rudgate Lane North are also developed for Single Unit Detached Dwellings and most of the lots contain existing accessory structures such as sheds and pools within the rear yard, and within the registered easement of the Control Area.

7Ms. Jabbour described at some length, the details of what happened at the COA meeting on August 28, 2024, after the Application was submitted and the reasons why she believed that it had been turned down, resulting in the Appeal presently before the Tribunal. The Tribunal believes that it is important to note that the gazebo for which variances are being sought by way of this Appeal was built after the advent of COVID without prior authorization from the Municipality, which according to Ms. Jabbour, prevented the Applicants from obtaining permissions from the Municipality in a timely fashion.

8Ms. Jabbour stated that the variances requested in the Appeal, were different compared to what had been submitted to the COA, and that there was no need for further notice because the changes are “minor” being sought by way of the Appeal that were not part of the Application submitted to the COA The Municipality acknowledged that they were aware of the updated list of variances submitted in the Appeal, and had no objections with respect to the new variances. In response to a specific question from the Tribunal about the need for further notice regarding the updated variances, the Municipality concurred with the Appellants that there was no need for new notice. The Tribunal ruled that the further notice regarding the updated list of variances was not necessary under s. 45.18.1.1 of the Act, because the Parties agreed that the changes to the variances were “minor”

9Ms. Jabbour said that the Municipality Official Plan (“OP”) was applicable to the Subject Lands, which contained policies to ensure that there was adequate separation by way of setbacks from inland watercourses and buildings, and to prevent property damage as a result of flooding and erosion hazards. She explained that s. 2.1.1(R) and 2.5 of the OP directed development away from lands susceptible to flooding or erosion hazards, followed by an explication of the practical methodology to be followed for determining what the actual separation should be, which involves a consideration of the type of watercourse, bank stability, angle of bank slope, and drainage corridors for maintenance purposes.

10Ms. Jabbour explained that the actual methodology to establish the actual separation involved an application by the Appellant to the ERCA. In this case, Ms. Jabbour had indicated by way of correspondence on August 25, 2020, that they would not object to granting a permit if the Appellant guaranteed them by way of a written statement, that the gazebo in question would not be enclosed, and a professional set of plans demonstrating the same was provided. Ms. Jabbour also stated that in the same correspondence, ERCA had stated that a reduction in the required setback distance would be provided if an engineering study confirmed that the gazebo met the minimum stable slope allowance of three times the depth of the drain. It was also suggested that the setback could be further reduced if a deepened footing/foundation system were in place to ensure that the footing is below the stable slope line. Ms. Jabbour added that the Applicant had enclosed an Engineering Assessment and a “Profile Drain Section of the Selkirk Drain” completed by Chet Liu who is a Licensed Professional Engineer, and demonstrated that there was visible erosion in the area, and that the base of the columns of the gazebo were below the angle of repose for stable slope consideration. She emphasized that the study found the structure to be “sound and stable”, which would help meet the Ontario Building Code (“OBC”) standards.

11Ms. Jabbour discussed the contents of ERCA permit No.332-34, granted by the ERCA in response to the Application, which allowed for the construction of an open walled gazebo within the regulated area of the Selkirk Drain within +/- 0.5 m of the Top of the Bank. Ms. Jabbour then referred to the correspondence from the Drainage Superintendent for the Municipality, dated November 18, 2020, regarding the requested variances for the gazebo, which stated that the suggested setback of 0 m would not impede future drain maintenance because it is maintained within the channel, “since there is no area to work from the top of the bank”. Based on this discussion, Ms. Jabbour concluded that the setback recommended by the By-law is not applicable on this case. After stating that the drain cannot be accessed from the Subject Lands, Ms. Jabbour concluded that the variances would maintain the general intent and purpose of the OP, as well as the ZBL.

12Speaking to how the variances are minor, Ms. Jabbour described how the test to determine whether the variances, individually and cumulatively, are minor, is to consider the impact of the variances on the property and neighbourhood, if approved. Referring to objections brought up by the neighbours at the COA hearing, Ms. Jabbour informed the Tribunal that their concerns focused on possible flooding as a result of erosion of the drain bank, and the stability of the already built gazebo in the absence of a building permit. Ms. Jabbour reiterated that on the basis of the slope stability study completed by Mr. Liu, as well as the permit issued by the ERCA, there was no merit to concerns about the possibility of soil erosion. Ms. Jabbour also pointed to how the ERCA permit advised the Appellants to build an open walled gazebo, instead of a closed roof gazebo that the objectors had in mind and concluded that there would be little to no impact, if the variances were approved. She also pointed out that the Engineer’s study concluded that the structure was “sound”, and that it satisfied the OBC. Based on this evidence, she concluded that the requested variances are minor.

13Speaking to the test respecting appropriate development, Ms. Jabbour pointed out that s. 2.1.1 (b) of the OP encouraged the use of backyards for recreational purposes, especially for an aging community. She spoke to how the objective of this planning principle was challenging to meet if the 10.4 m setback prescribed by the ZBL were to be followed. Ms. Jabbour then spoke to how the requested variances struck an ideal balance between the recreational needs of the residents of the Subject Lands, including an accessory structure with pools and a shed within the required setback and their use of the rear yard for amenity and accessory purposes, as intended, without posing a risk to public health and safety as demonstrated by issuance of the ERCA permit, or enjoyment of neighbouring land. Based on this evidence, Ms, Jabbour concluded that the requested variances represented appropriate development of the Subject Lands.

14In response to a question from the Tribunal about the relationship between the requested variances, and s. 2 of the Act, Ms. Jabbour said that the proposal had appropriate regard for the applicable matters of provincial interest in s.2 of the Act, including but not limited to protection of natural resources, including waterways.

15Mr. Kim began his cross examination of Ms. Jabbour by pointing out that Ms. Jabbour was also employed as a planner by the city of Essex in addition to representing clients before the Tribunal. Mr. Kim had further asked her if she would have come to the same conclusions as she had on this Appeal if she had been acting for the city of Essex, to which she replied in the affirmative. When Mr. Kim asked Ms. Jabbour questions regarding how she had come to conclusions about drainage, flood and erosion issues when these topics were outside her expertise as a planner, the latter acknowledged that was not an expert in drainage or other drainage related issues, and stated that she had relied on information from ERCA, as well as discussions with the Municipality’s drainage officials, and engineering consultants retained by her clients to come to discussions. In response to Mr. Kim’s questions about whether she had visited the properties neighbouring the Subject Lands with gazebos for comparative purposes, Ms. Jabbour replied in the negative, and indicated that she had relied on aerial imagery and mapping tools to understand what processes and practices had been followed by the neighbours when they built gazebos. In response to Mr. Kim’s raising questions about the language contained in the ERCA permit regarding the easement, and his conclusion that buildings are not supported in the floodplain notwithstanding the use of the expression “free, unobstructed” use for maintenance purposes, Ms. Jabbour repeated that she was not a lawyer, and relied on her conversations with municipal officials, lawyers and consultants to formulate her conclusions that drainage was not impeded by the structure. In response to questions from Mr. Kim about the validity of the data, Ms. Jabbour relied on to formulate her conclusions since the information predated the year 2020, the latter stated that she was confident about her conclusions, because there was no information to the contrary.

16Mr. Chet Liu, a civil engineer specializing in water related resources profession, was affirmed, and recognized as an Expert Witness in the area of hydrogeology. Mr. Liu testified that he had been retained by the Appellant to carry out an ERCA Watershed review to determine the impact of the open wall gazebo on erosion along the Selkirk Drain, as well as discuss his conclusions regarding the stability of the built structure. He provided the details of his conclusions based on his site visit completed on October 4, 2023.

17Mr. Liu said that the gazebo was constructed with six large eight by eight pressure treated columns. Each of the posts were buried four-eight inches below grade for frost protection and were spaced 12 inches X 22 inches with intermediate posts at 11 inches. The roof was constructed with standard wood framing consisting of 2 x 6 rafters placed 24 inches apart, and 2x6 ridge beams also placed 24 inches apart. According to Mr. Liu, the resulting structure is structurally sound, and meets the requirements of the OBC. Addressing the stability of the structure, Mr. Liu described how the gazebo has open walls on all ends and provides a sun shelter for the rear-yard sitting area. Mr. Liu said that a four inch thick concrete deck pad was poured around the rear yard. The property is fenced around the yard and is generally levelled. Mr. Liu added that the rear yard fence is positioned within 0.5 m+/- at the top of the bank. The banks along both sides of the drain are covered with dense vegetation and shrubs. Mr. Liu emphasized that he did not detect any erosion and that the banks “seemed very stable”.

18Speaking to the stability of the slope, Mr. Liu said that the depth of the banks is approximately 8’ between the top and toe of the bank. He said that he had determined that the slope of the bank was 9:12 ( i.e. the bank’s measurements are 9 inches horizontally, and 12 inches vertically). Illustrating a Profile Drain Section submitted to the Tribunal along with the Gazebo location, Mr. Liu concluded that the base of gazebo, which has a 1 :3 slope, is below the Angle of Repose for stable slope consideration, which means that the base will not collapse. In response to a question from the Tribunal about the definition of “Angle of Repose”, Mr. Liu said that it is the steepest slope at which a granular material, like sand or gravel, can be piled without causing the pile of granular material to collapse.

19Mr. Liu added that while there was no way of predicting what the weather patterns would be in the future, he was confident that the gazebo would be stable even in the event of an “once in hundred years storm”, the guideline provided by the ERCA to applicants. Mr. Liu said that as a result of his conclusions, he was confident that the required variances were minor, and represented appropriate development. When asked if the soil would be stable when subjected to the combined weight of snow and the gazebo, Mr. Liu replied in the affirmative. He added that his calculations took the total weight into consideration to estimate the pressure on the soil, and the columns that supported the gazebo, and that the “soil did not distinguish between what caused the pressure that it was under, be it snow, water or any other weight”.

20In his cross-examination, Mr. Kim asked Mr. Liu when he had been retained by the Appellants, to which the latter said that he was retained in 2023, “about two thirds into the project”. Mr. Liu confirmed to Mr. Kim that he had largely relied on information provided by the Appellants about how the project had unfolded before he was retained. Mr. Kim pointed out that Mr. Liu had used Metric Units to measure distances in some of his charts, while using imperial units to measure distances in other charts, and asked if his calculations were consistent, and reliable. Mr. Liu narrated how it was common to use Imperial Units in Southern Ontario, because of the proximity to the U.S.A, and how material was often procured from U.S.A. Mr. Liu conceded that it may have been easier to understand the calculations had they used one system of measurement, but vigorously defended his calculations and conclusions. Mr. Kim pointed out that no geotechnical study had been submitted by the Appellants, to which Mr. Liu stated that geotechnical studies were “prohibitively expensive”, and that the important questions about the stability of the gazebo had been answered satisfactorily through his investigations. Mr. Liu pointed out that the Chief Building Officer could ask for a geotechnical study when a building permit had to be issued, and that the latter could be withheld or denied if a geotechnical study could not be produced.

21Mr. Kim referenced the Master Drainage Plan for Sturgeon Creek, and Selkirk Drain, which was completed for ERCA by Marshall, Macklin and Monaghan Ltd. (“MMM Report”) in 1988 and alluded to how the report concluded that “the sandy loamy soils of the Selkirk Drain makes them highly prone to erosion along the edge of each watercourse.” Mr. Liu said that he was aware of the conclusions of this report, but pointed out that the soil beneath the gazebo, responsible for the stability of the latter, consisted of “clayey top soil”, and that it overlay the “sandy, loamy soil” that was referenced in the MMM Report.

THE MUNICIPALITY’S EVIDENCE

22Mr. Spencer Philips, a planner for the Municipality, was affirmed, and recognized as an Expert Witness in the discipline of land use planning. He stated that he could confirm that there is no language that speaks to setbacks from drainage corridors in both the PPS 2024, and the OP after reviewing both documents.

23Mr. Philips stated that Residential uses, including accessory structures, are permitted in the residential designation in the OP. Given that the Appellants had satisfied s. 2.5 of the OP, by consulting with the ERCA, and had obtained an ERCA Permit, the requested variances maintained the intent and purpose of the OP.

24Speaking to the relationship between the requested variances, and the intent and purpose of the ZBL, Mr. Philips pointed out that under s. 4.1 of the ZBL Accessory Uses, the ZBL permits accessory buildings, which includes sheds and gazebos, but requires them to comply with the minimum required setbacks. He said that the proposed 1 m setback between accessory structures provides adequate building separation and the reduction to the southern interior side yard still allows for maintenance of the structure and property, resulting in the intent of the ZBL being maintained.

25According to Mr. Philips, s. 4.49 (Setbacks from Inland Watercourses and Municipal Drains) of the ZBL states that “no structure shall be erected closer than 8 m, plus the depth of the drain, measured from the top of the bank.” He explained that the drainage depth at the Subject Lands is approximately 2.4 m, requiring the accessory structures to be located a minimum of 10.4 m from the top of the drain bank. Mr. Philips added that the s. 4.49 setbacks have been established to ensure adequate maintenance space and to protect the drain from any development that may contribute to or cause erosion of the drain. Relying on comments provided by Drainage Services, Mr. Philips expressed concerns that the soil by the side of Selkirk Drain is “highly prone to erosion” due to the sandy loam soils and identified concerns with the location of the gazebo’s concrete encased wood post footings within the drain bank. He concluded that as a result of the drainage setback not being met, the application does not meet the general intent of the ZBL.

26Speaking to whether the variances were appropriate for the development of the Subject Lands, Mr. Philips pointed out that both the OP, and ZBL speak to amenity areas as appropriate for sensitive land uses, and that the location of the gazebo is not ideal due to concerns that he had expressed earlier regarding the maintenance and stability of the Selkirk Drain. He concluded that the accessory structures, as constructed, are not desirable or appropriate, for the development of the Subject Lands.

27Speaking to whether the variances are minor, Mr. Philips reiterated some of his earlier concerns, and referred again to the report from the Drainage Department which had indicated that the location of the gazebo at the top of the drain bank posed a significant risk to the drain because of possible erosion and damage to the drain. Mr. Philips expressed concerns about how the drain bank, if destabilized by the gazebo on the Subject Lands, could cause damage to the properties of individuals living upstream, and concluded that the requested variances were not minor.

28Mr. Hewitt pointed out that Mr. Philips had relied on the conclusions of Ms. Dougherty, and the Drain department, for many of his conclusions, and stated that he would rather ask questions of Ms. Dougherty than Mr. Philips. After obtaining an undertaking from Mr. Kim that Ms. Dougherty would be called upon to give evidence on a different day, Mr. Hewitt said that he had no further questions for Mr. Philips.

29Before Ms. Dougherty took the stand to give evidence, Mr. Kim stated that while she would be giving evidence, it would not be in the capacity of an expert on drainage issues, notwithstanding her submission of paperwork to reflect her expertise in drainage related issues.

30Ms. Janice Dougherty, Drainage Superintendent for the Municipality of Leamington, was affirmed, and spoke to why the drainage department did not support the reduction of setbacks from 10.4 m. to 0 m, as proposed by the Appellant. She referred to the MMM Report, which was prepared in December 1988, and pointed to how the Report noted that “the sandy loamy soils of the Selkirk Drain makes them highly prone to erosion along the edge of each watercourse.” Ms. Dougherty said that the gazebo was constructed with concrete encased wood post footings that were placed within the bank of the drain, which compromises its integrity. Ms. Dougherty added that when structures are built within the setbacks, their weight may exceed the weight which the bank can hold causing slumping and accelerates erosion or result in failure of the bank. She added that the concerns about erosion and slumping concerns could be exacerbated by heavy rainfall. She asserted that flooding events with rainfalls of 100-150 millimetres within a 24-hour period had occurred multiple times, resulting in bank failures throughout the Municipality. Ms. Dougherty concluded by saying that a bank failure could result in the collapse of the gazebo structure, causing blockages for the entire drainage system.

31Mr. Hewitt stated that he had no questions for Ms. Dougherty because she had not testified as an Expert.

ANALYSIS AND FINDINGS

32This Appeal is unusual because while it requests three variances, the only contentious variance looks to reduce the minimum setback from an open municipal drain from the required 10.4 m to 0 m. In addition to the evidence adduced by both Parties focusing on this variance, the Municipality conceded in Oral Argument, that they were opposed primarily to the reduced setback from the municipal drain. Given this perspective, and how key the reduced separation from the municipal drain is to the success of the Appeal, it would be appropriate for the Tribunal to focus on the contentious variance through a detailed analysis of the evidence presented by both Parties. Should this variance be approved, it would become necessary for the Tribunal to examine the Appellant’s evidence on non-contentious variances and determine whether they can be approved. In other words, it would not be necessary to examine the evidence on the non-contentious variances if the contentious variance is not approved.

33While the burden of proof rests with the Applicants, who are the Appellants in this Decision, it is necessary to understand the evidence put forward by the Municipality before analyzing the former’s evidence. The Municipality’s Planning evidence stated explicitly that the requested variances were consistent with the PPS 2024, and maintained the intent and purpose of the OP. The objections put forward by the Municipality’s planning witness rely heavily on the report submitted by the Municipality’s Drainage department, which in turn, relies heavily on the MMM Report dating back to 1988. It is important to note that the Municipality sought to have its planning witness qualified as an Expert in the discipline of land use planning but asked that its drainage witness not be qualified as an Expert, notwithstanding how the latter’s perspective informs the former. Given that the Appellant’s witness on drainage matters, Mr. Liu was qualified as an Expert, and the Municipality’s witness was not qualified as an expert, it is reasonable to assign more weight to the former’s evidence, when compared to the latter. This finding is fortified, and given extra weight because the evidence relies on a site visit, and calculations that take into account the physical conditions on the Subject Lands. This approach contrasts with the Municipality’s approach, which is centred on the MMM Report, buttressed with concerns expressed by the neighbours, who could not be examined by the Tribunal, and whose expertise, in drainage matters, cannot be determined on the basis of their correspondence with the Municipality.

34Besides the vintage of the MMM Report and its applicability to the existing conditions of the Subject Lands given the gap of 37 years from a chronological perspective, a major concern with relying on the aforementioned report is the lack of specific information about the extent of the “sandy loamy soils” on land adjacent to the Selkirk Drain, including the Subject Lands. While the concern about the sandy and loamy soils’ propensity for erosion is well articulated in the MMM Report, there is no information about the proportion of the loamy/sandy soils and the clayey top soil at any given spot, including the Subject Lands. The Appellant’s unchallenged evidence on this topic focused directly on the Subject Lands, and stated that the columns supporting the gazebo were supported by the clayey top soil, which does not interact with the loamy soil which lies four-six feet beneath the top soil. Likewise, the Appellants’ conclusions about there being no significant threat of erosion based on how the slope of the soil is less than the angle of repose, was also unchallenged, and is consequently assigned significant weight.

35The Tribunal notes the Municipality’s concern about the Appellant’s not commissioning a geotechnical report regarding slope stability, and finds that there is nothing in the evidence adduced before the Tribunal that raises concerns about slope stability, or demonstrates the necessity for a geotechnical study. The unrefuted evidence on the slope stability lands squarely in the favour of the Appellants, leading to the Tribunal’s finding that the slope on the Subject Lands between the drain will not be impacted significantly, is stable, not prone to erosion, and consequently capable of supporting the weight of the gazebo.

36Given the reasons provided above in Paragraph [34] as to why the Appellant’s evidence is preferred over the Municipality’s on the issue of slope stability, the Tribunal accords little weight to the latter’s evidence on the tests respecting the ZBL, minor and appropriate development, since it was centred solely on the issue of slope stability and erosion.

37The Parties were in agreement that the requested variances maintain the purpose and intent of the OP. The Tribunal notes the agreement between the Parties on this issue, and finds that the Appellants have done their due diligence by examining all the factors that contribute to slope stability, before determining that there is no risk of erosion. As a result, the Tribunal finds that the intent and purpose of the OP is consequently satisfied. As a result, the Tribunal finds that the contentious variance respecting the minimum setback from the municipal drain maintains the intent and purpose of the OP. Given the reasoning presented in Paragraph [32] of this Decision, the Tribunal finds that the remaining, non-contentious variances, also maintain the intent and purpose of the OP.

38The Tribunal finds that the variance looking to reduce the setback from the municipal drain from 10.4 m to 0 m maintains the intent and purpose of the ZBL, which is to ensure the stability of the existing gazebo, as well as access the drain for maintenance purposes. The Tribunal notes that the Municipality’s evidence supported the Appellants on the issue of maintenance purposes, while the ERCA permit substantiates the Appellants’ conclusions about slope stability.

39The Tribunal finds that the requested variance respecting the reduction in the setback is minor because it will not result in any unacceptable adverse impacts on the Subject Lands, or its neighbouring properties, by virtue of its ability to maintain slope stability.

40The Tribunal finds that the requested variance respecting the reduction in the setback satisfies the test of appropriate development, because it allows the Appellants to enjoy their backyard for recreational purposes. Further, it follows the OP by ensuring that the neighbouring properties will not be adversely impacted.

41By virtue of applying the Tribunal’s approach about the approval of the non-contentious variances, as stated above in Paragraph [32] of this Decision to the findings made in Paragraphs [37] -[40] of this Decision, the Tribunal finds that the non-contentious variances satisfy the four tests as set out in s. 45.1 of the Act of maintaining the intent and purpose of the OP, ZBL, minor, and appropriate development

42The Tribunal accepts the uncontroverted evidence of the Appellants with respect to s. 2 of the Act, and finds that the requested variances have appropriate regard for the applicable matters of provincial interest in s.2 of the Act, including but not limited to protection of natural resources, including waterways.

43The Tribunal finds that the requested variances satisfy all the applicable tests under s. 45.1 of the Act, and consequently finds it appropriate to order that the updated variances be authorized, as a result of which it allows the Appeal in part. There were no requests for any conditions to be imposed by either Party.

ORDER

44The Tribunal allows the Appeal in part, and authorizes the following variances:

1. Section 4.1[c], Accessory Uses, Buildings and Structures, to reduce the minimum interior side yard setback (south) for an accessory structure from the required 1 metres to 0.6 metres;

2. Section 4.1[f], Accessory Uses, Buildings and Structures, to reduce the minimum setback from another accessory structure from the required 2 metre to 1 metres; and

3. Section 4.49, Setbacks from Inland Watercourses and Municipal Drains, to reduce the minimum setback from an open municipal drain from the required 10.4 metres to 0 metres.

“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.