0838392 BC Ltd v. Kenora (City), 2025 CanLII 74698

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 25, 2025

CASE NO(S).: OLT-25-000328

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

Applicant and Appellant: 0838392 BC Ltd

Subject: Minor Variance

Description: To permit a sleep cabin with a 6 m front yard setback.

Reference Number: D13-25-04

Property Address: 342 Bruckenberger Road

Municipality/UT: Kenora/Kenora

OLT Case No.: OLT-25-000328

OLT Lead Case No.: OLT-25-000328

OLT Case Name: 0838392 BC Ltd v. Kenora (City)

Heard: July 8, 2025 by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
0838392 BC LTD	Aaron Brown* (self-represented)
City of Kenora	Janis Pochailo*

DECISION DELIVERED BY A. SNOWDON AND ORDER OF THE TRIBUNAL

link to order

INTRODUCTION

1The matter before the Tribunal concerns an appeal filed pursuant to s. 45(12) of the Planning Act, R.S.O. 1990, c.P.13 (“Act”) by 0838392 BC LTD (“Appellant”) regarding the decision of the City of Kenora (“City”) Committee of Adjustment (“CoA”) to deny the minor variance (“MV”) application seeking relief from Section 4.5.3 (k) of the City of Kenora Zoning By-law 101-2015 (“ZBL”) to permit a sleep cabin with a 6 metres (“m”) front yard setback at the property known as 324 Bruckenberger Road, Kenora (“Subject Property”).

2The Subject Property is located at the end of Bruckenberger Road. The Subject Property is surrounded by a mix of residential and forested land on the edge of Black Sturgeon Lake. The Subject Property is a waterfront lot.

3An existing single detached dwelling is on the Subject Property, and a minor variance has been requested for a sleep cabin.

4The Appellant had the sleep cabin constructed in spring 2024 without receiving the required permits. The City issued a stop work order and requested that the cabin be lawfully permitted. The Appellant has since applied for the permits and requested the MV.

5On April 16, 2025, the CoA refused the application, citing as its rationale:

a. that the variance does not meet the intent of the City Official Plan (“OP”) by failing to meet s.2.2.2 of the OP regarding limiting shoreline development;

b. that the variance does not meet the intent of the ZBL by not providing a margin of safety from hazards associated with flooding and unstable slopes; and

c. the proposal is not minor in nature due to its impact on the nearby waterbody.

STATUS REQUESTS

6The Tribunal received no requests for Party or Participant status prior to or during the hearing.

SUBMISSIONS

7The Appellant provided visual evidence, which were marked as Exhibits 1-11 and Exhibits 14-15, and the building plans for the cabin, marked as Exhibit 13.

8The City provided the Staff Report (“Report”), dated April 11, 2025, that was used by the City Planning Advisory Committee. It was marked as Exhibit 12.

9The Appellant and the City attended the Hearing but did not bring any witnesses in support or against the appeal.

APPLICATIONS/ VARIANCES REQUESTED

10The Appellants have appealed the CoA decision and requested relief from the ZBL to change the minimum front yard requirement from 20 m to 6 m.

LEGISLATIVE FRAMEWORK

11The Tribunal must have regard to matters of Provincial interest as set out in s. 2 of the Act when making a decision regarding an MV application. Under s. 3(5) of the Act, the MV must be consistent with the Provincial Planning Statement, 2024 (“PPS”).

12Additionally, the Tribunal must be satisfied that the requested variances meet the four tests as described in s.45(1) of the Act and be considered good planning.

PROVINCIAL INTEREST

13The Appellant stated that the requested MV has regard for Matters of Provincial interest as the built form is well-designed and doesn’t impact the environment. He highlighted that the roof is metal, and the drainage/runoff is directed away from the lake towards the back of the Subject Property.

14The City did not contest this.

PPS

15The City stated that the MV is consistent with the PPS as the cabin is a permitted use for the Subject Property. The Report states that the PPS “promotes development on rural lands that can be sustained by rural service levels”.

Section 45(1) of the Planning Act

16When considering a proposed variance, the Tribunal must consider each of the four elements set out in s. 45(1) of the Act, to determine if the requested variance:

1. maintains the general intent and purpose of the Official Plan;
2. maintains the general intent and purpose of the Zoning By-Law;
3. is desirable for the appropriate development or use of the land; and
4. is minor in nature.

17The Appellant bears the onus of demonstrating that the four tests, as set out in s. 45(1) of the Act, have been met.

General Intent and Purpose of the City of Kenora Official Plan

18The City stated that the MV application does not meet the intent of the City’s Official Plan. Specifically, they indicated that the objectives of the OP, found in s.2.2.2, reference maintaining the integrity of the natural environment and limits shoreline development. The City highlighted that the Report states in s.4.8.3 of the OP that development “shall preserve rural character and the scenic quality of the rural landscape” while avoiding “densities that are more appropriately found in the settlement area”. The City stated that this development encroaches on the setback along the shoreline and doesn’t maintain the intent of the OP. The City is also concerned about the water quality of the lake due to this development.

19The Appellant stated that the building has no plumbing and runoff is directed away from the lake so this should help protect the lake. They also stated that if they were to relocate the existing development, they would have to remove a large amount of trees which would not be ideal for maintaining the natural environment.

General Intent and Purpose of the Zoning By-law

20The City stated that the ZBL requires a 20 m setback from the lake. The setbacks are intended to mitigate hazards associated with flooding and unstable slopes as well as protect the lake water quality. The City indicated that the requested 6m setback does not protect the water quality of the lake and therefore doesn’t meet the intent of the ZBL.

21The City stated that there are provisions within the ZBL to allow buildings closer to the shoreline, however this would require site plan control. Site plan control would require the Appellant to submit the site plan to the City and the City would provide mitigation strategies that the Appellant would implement to have the development be compliant.

Desirable for the Appropriate Development or the Use of Land

22The City stated that a sleep cabin is a desirable use of the land however they maintain that the building should have been built elsewhere on the Subject Property.

23The Appellant agreed that the cabin could have been built in another location but stated that it is not undesirable for the development in this location as multiple other properties on the lake have buildings closer to the lake than 20 m.

24The Appellant showed visual evidence that they had requested that the builder get the appropriate permits. However, the permits were not applied for and the Appellant admits that that was an error.

Is Minor in Nature

25The City stated that the MV is expected to have an impact on the water quality of the lake. They further stated that the MV is not expected to have an impact on the adjacent neighbour’s ability to enjoy their properties. The City does not consider the MV minor.

26The Appellant stated that the Ministry of Natural Resources (“MNR”) did not object to the MV or the development and that the Appellant considers this to support their position that the development will not impact the water quality of the lake. The Parties indicated that the MNR did not produce a report when commenting on this matter. The Appellant stated that no neighbours have complained about the development.

FINDINGS

27The Tribunal finds that the MV application has appropriate regard for matters of provincial interest under s.2 of the Act and is consistent with the PPS.

28The Tribunal finds that the cabin, while not ideally located, could mitigate potential risks to water quality through design elements and maintain environmental integrity. The Tribunal also finds that moving the as-built structure could have a greater environmental impact by the removal of additional trees than it would have by potentially modifying the built form to address the concerns of the City.

29The Tribunal finds that if the development were placed under site plan control, additional studies could be conducted prior to the issuing of the permits to ensure that flooding hazards, impacts to water quality, and unstable slope risk are addressed. Site plan control would allow this development to be placed closer to the lake than the required setback under the ZBL.

30The Tribunal finds that the proposed development is not an undesirable use of the land. While it is clearly closer to the shoreline than was intended by the ZBL, a sleep cabin is a permitted use.

31The Tribunal finds that protection of the lake water quality is a priority of the City and mitigation strategies to protect it need to be included in the design of the cabin to deem this MV minor.

ORDER

32THE TRIBUNAL ORDERS that the appeal is allowed and the variance, to permit a 6m minimum front yard setback for a sleep cabin instead of the required 20 m, to the City of Kenora’s Zoning By-Law No. 101-2015 is authorized, subject to the conditions set out in Attachment 1.

“A. Snowdon”

A. SNOWDON MEMBER

Ontario Land Tribunal Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

ATTACHMENT 1

The conditions set out in the April 11, 2025 Staff Report, are as follows:

1. That a Site Plan Control application be submitted and approved for the sleep cabin prior to the issuance of a Building Permit.
2. That any additional studies deemed required to support the Site Plan Control application and review be submitted.