Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 12, 2025

CASE NO(S).: OLT-24-000145

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

Applicant/Appellant: Melissa Lloyd

Subject: Minor Variance

Description: MV to permit use of easement over Township Road

Reference Number: A-07/23

Property Address: 7083 Lake Street (Part Lot 3 RCP 427 Hamilton Part 1, 39R720,0 T/W NC315935 Township of Hamilton, PIN 511140485)

Municipality: Hamilton Township/Northumberland

OLT Case No.: OLT-24-000145

OLT Case Name: Lloyd. v. Hamilton (Twp.)

Heard: October 1, 2024 by Video Hearing November 6, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
Melissa Lloyd	R. Uukkivi
Township of Hamilton	J. Ng

DECISION DELIVERED BY S. GOPIKRISHNA AND ORDER OF THE TRIBUNAL

INTRODUCTION

1Melissa Lloyd (“Appellant/Applicant”) is the owner of the lot at 7083 Lake Street (“Subject Lands”), in the Township of Hamilton (“Township”). She applied to the Committee of Adjustment (“COA”) of the Township for the approval of minor variances to permit her to use her easement over an existing Township Road that is currently being used and maintained by a subdivision for access. The COA heard the Application on January 9, 2024, and refused the Application. On February 7, The Appellant appealed the COA’s decision to the Ontario Land Tribunal (“OLT”), which scheduled a hearing on October 1, 2024. The Proceeding was completed on November 6, 2024

LEGISLATIVE FRAMEWORK

2The proposed variance(s) must also be consistent with the Provincial Planning Statement, 2024 (“PPS 2024”). When making its decision, the Tribunal must have regard to the matters of provincial interest set out in s. 2 of the Planning Act (“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.

3Section 45.1 of the Act states that:

Minor Variance – S. 45(1)

In considering the applications for variances from the Zoning By-laws (“ZBL”), the Tribunal must be satisfied that the applications meet all of the four tests under s. 45(1) of the Act. The tests are whether the variances:

• maintain the general intent and purpose of the Official Plan;

• maintain the general intent and purpose of the ZBL;

• are desirable for the appropriate development or use of the land; and

• are minor

VARIANCES

4The following variances are requested:

(A) Section 5.26 of ZBL 2001-58 of the Township of Hamilton to permit the construction of a building on an unmaintained public road.

BACKGROUND

5In his opening remarks, Mr. Raivo Uukkivi, Counsel for the Appellant, explained the background of the Appeal, and stated that his client was applying for one and only one variance, namely the ability to construct a single detached dwelling on an existing lot of record that does not currently have frontage on a municipally maintained road maintained throughout the year, otherwise referred to as an “unassumed public road”. He stated that his client had opted to ask only for this variance, notwithstanding the Township’s suggestion that she apply for four different variances. After providing a brief history of this application, Mr. Uukkivi noted that the Municipality had entered into a subdivision agreement (“Agreement”) with developer Neil Denis (“Developer”) for six properties fronting onto Lise Court, which passes in front of the Subject Lands before opening into the Subdivision, the former is not part of the latter, and is consequently not included in the Agreement. Mr. Uukkivi added that notwithstanding his client’s holding a legal easement to the Subject Lands, she cannot construct a house at present because the Township insists that all developable properties have to front onto an assumed road. Mr. Uukkivi explained that having to wait for the Township to assume Lise Court before developing her property creates an undue hardship on his client, because the properties that are part of the Subdivision, including those that are adjacent to the Subject Lands, can be developed before the Township assumes Lise Court. Mr. Uukkivi emphasized that the Township was reluctant to allow his client to develop her property because of liability concerns arising from the exclusion of the Subject Lands from the Agreement. He then submitted that his witness would demonstrate that from a planning perspective, the Subject Lands are indistinguishable from six properties included in the Agreement, based on which the Tribunal should authorize the development of a residential house, without waiting for the Township’s assumption of Lise Court. He argued that the securities deposited with the Township by the Developer could be utilized to address any maintenance concerns caused to Lise Court as a result of his client’s attempts to build a house on the Subject Lands.

6Ms. Jennifer Ng, Counsel for the Township, stated that her witness would demonstrate that the planning regime (consisting of various official plans), applicable by-laws, and higher level provincial policies made it clear that a property could not be developed, unless it was accessible from a road assumed by the Municipality, or “covered” under an agreement between the Developer and the Municipality, because of the nebulousness arising from liability issues caused by damage to the access road if neither condition was satisfied.

EVIDENCE

APPELLANT’S EVIDENCE

7Ms. Hena Kabir, a land use planner retained by the Appellant, was affirmed and recognized as an Expert Witness in the field of land use planning. In her introductory remarks, she explained why the Appellant needs only one variance, which was with respect to s. 5.26 of the Township’s ZBL, which permits the construction of a building on an unmaintained public road. She stated that the Subject Lands are zoned ‘UR1 – Urban Residential First Density’, which permits a single detached dwelling, and that the original consent plan on the record on file (dating back to 1976) with the COA that shows that the lot to be severed was to accommodate a house on that lot, based on which she concluded that the intent of the ZBL always was to have a residential dwelling on the Subject Lands. Ms. Kabir described how the Subject Lands are designated ‘Rural Settlement Area’ in the Oak Ridge's Moraine in the Township's Official Plan (“THOP”) and added that Rural settlement areas on the Oak Ridge's Moraine are part of the Countryside Area's designation. She added that the purpose of the Countryside Area's designation is maintaining the rural character of the rural settlements, and that single detached dwellings on existing lots of record are permitted in the rural settlement area in the Oak Ridges Moraine designation. The Subdivision of six houses immediately abuts and surrounds the Subject Lands. She demonstrated that the Subject Lands enjoy a right of way registered in instrument CB 148-222 over Lise Court, and added that the Township knows and accepts that the legal access exists for both ingress and egress to the Subject Lands and is in place year-round.

8Ms. Kabir stated it was pertinent to provide important information regarding the “Agreement” between the Township and the Developer, to understand the relationship between the variance and the four tests under s. 45.1 of the Act. She explained that the ZBL zones the lands as ‘UR1 – Urban Residential First Density’, where land use permission is limited to single detached dwellings. and that the Subject Lands are included in the Oak Ridge Moraine part of the THOP. She alluded to how the new PPS 2024 emphasized the importance of creating housing, which was her client’s objective in developing the Subject Lands. She added that s. 2.3.3 of the THOP directed that the majority of the growth is to the designated settlement areas in the Township, which include the Subject Lands. Ms. Kabir asserted that the Township is aware of the legal access that the Subject Lands enjoy throughout the year from Lise Court by way of an easement, as documented in instrument CB 148-222. Referring to the Agreement between the Township and the Developer, which was registered on July 17,2020, Ms. Kabir stated that she understood the latter to be responsible for maintaining Lise Court to municipal standards of health and safety of the public, until the road is assumed by the Township. Ms. Kabir read out ss. 29 and 31 of the Agreement to demonstrate that the Township has the right to complete any faulty or incomplete work on the road at its sole discretion, including emergency repairs to any works or utilities, and that the Developer has to allow any individual so authorized by the Municipality, access to the road. Ms. Kabir then explained that under s. 32(E) of the Agreement, securities of the amount of $2,500 per lot are required to be provided to the Township to respond to any repair issues. Section 33 of the Agreement states the Developer is liable to the Township as a result of the Agreement. Ms. Kabir explained that s. 40 of the Agreement makes it clear that the Township can use the securities referred to under s. 32(E) to complete any outstanding repairs, and works which are not to its satisfaction. She highlighted s. 40 of the Agreement, which discusses the Developer’s obligations specific to winter maintenance that are inserted in the Agreement, and that the Township specifically retains the right to do winter snow plowing if the Developer does not arrange for Lise Court to be plowed. The Agreement also allows for the Developer to contract with the Township for undertaking plowing work in winter. Section 42 allows the Township to have securities and a guarantee that can be used to complete any work that may be outstanding, if not to the satisfaction of the Township. Lastly, Ms. Kabir explained how the Agreement specifies that 66% of the dwellings in the Subdivision needed to be occupied before the Municipality will grant a certificate of assumption (“Certificate”), and that this threshold had not been reached because around 60% of the dwellings have been occupied. According to Ms. Kabir, the uncertainty involved in waiting for the Certificate to be issued was prejudicial to her client because it prevented the Appellant from developing the Subject Lands.

9After repeating the salient highlights of the history behind the Appeal, Ms. Kabir discussed how the proposal was consistent with PPS 2024 because it supported the construction of a new dwelling, and added that approving the requested variance would result in the creation of a residential house, which was a step in the right direction given the housing shortage in the Province of Ontario. She said that the variance had regard for s.2 of the Act because it resulted in the development of orderly and safe communities through additions to available housing stock. Based on this evidence, Ms. Kabir concluded that the requested variance is consistent with the higher-level provincial policies.

10Speaking to the relationship between the requested variance, and the applicable official plans, Ms. Kabir said that the applicable plans were the County of Northumberland’s Official Plan (“CNOP”), in addition to the THOP. She referred to Policy E 2.2.5 of the THOP, which the Township had relied on in its report to the COA, and explained that it speaks to development of new private roads and extensions of existing private roads to provide access to a lot. Ms. Kabir pointed out that this Policy does not apply to the Subject Lands because Lise Court is not a private road but an unassumed public road, as the road is owned by the Township. She opined that the omission of unassumed public roads from Policy E 2.2.5 of the THOP can be interpreted to imply that it is not the intent of the CNOP to prohibit development on an unassumed road and concluded that the requested variance maintained the intent and purpose of the CNOP.

11In her discussion of the THOP, Ms. Kabir referenced the definition of “Public Road” as stated in the ZBL, which states that a “Public Road” shall mean a “highway”, as defined in the Highway Traffic Act, as amended, “which is under the jurisdiction of the Township of Hamilton, from which regular access may be taken to an abutting lot, which is dedicated and assumed by By-law in accordance with section 31-4 of the Municipal Act 2001, for maintenance on a year round basis by the Township of Hamilton”. She pointed out that “this definition of a township road or public road excluded a summer-maintained public road, as defined herein, unopened public road allowance, as defied herein, private road, as defined herein, or an unassumed public road, as defined herein”. Applying this concept to Lise Court, she concluded that it is an unassumed public road, which is a part of a Plan of Subdivision, and noted that including this definition would have demonstrated that the Subject Lands could be accessed through the road leading to the Subdivision, even if it had not been assumed.

12Ms. Kabir then referred to s. 11.1 of the THOP which says that all new developments shall have frontage on and direct access to an improved public road, maintained year-round by the Municipality or a public authority, and has sufficient capacity to accommodate traffic generated by new development. Ms. Kabir then opined that this lot is in a unique situation, because the Subject Lands are not part of the Plan of Subdivision, or of the Subdivision itself. However, it fronts onto an unassumed public road, which is maintained year-round and at all times by the developer, and is maintained throughout the year by the Township. After opining that Lise Court could be utilized to service the Subject Lands, and its development, just as it could be used to access the Subdivision, and houses there-in, Ms. Kabir stated that the requested variance would facilitate the development of the Subject Lands in the same way it facilitated the development of lots inside the Subdivision. After stating that while she was not aware of the reasons for the exclusion of the Subject Lands from the Agreement, Ms. Kabir opined that sound planning principles should have contemplated the development of lands adjoining the Subdivision, including the Subject Lands, and that access to the latter from Lise Court should have been given consideration. Ms. Kabir stated that the intent of any official plan does not include the creation of such unfairness and concluded that the variance would maintain the intent and purpose of the THOP, which is to help develop lots in Settlement areas.

13Discussing how the requested variance maintains the intent and purpose of the ZBL, she said that the intent and purpose of the ZBL is to ensure public safety, environmental conservation, and accessibility to lots that are being developed. Ms. Kabir focused on how Lise Court has been readied through the applications coatings of asphalt, such that it has a base level which was higher than the threshold when other permits were granted. Based on this development, Ms. Kabir concluded that Lise Court can be used to access the Subject Lands in the same way lots inside the Subdivision can be accessed for development purposes. Ms. Kabir also highlighted that analogous to the Subject Lands, there are four other houses of a legal, non-conforming nature that were constructed a long time ago but lie outside the Subdivision like the Subject Lands. She analogized the Subject Lands to be no different from the legal, non-conforming properties where houses have been built, and have housed families for many years.

14Relying on communications from the Township’s Chief Building Officer, Ms. Kabir emphasized that the latter was aware that the Subject Lands have an easement with right of way access to Lise Court, allowing for easy ingress and egress to and from the Subject Lands. Ms. Kabir asserted that the lack of a building permit does not prevent traffic, residents, guests, or construction vehicles going to and from the Subject Lands from using Lise Court. Section 5.29 Development on an unassumed public road, of the ZBL states: “Development on an un-assumed public road may be permitted in accordance with the applicable zone, and the provisions of this By-law”. She added that the ZBL contemplates unique circumstances where, despite other prohibitions, development may be permitted on an unassumed public road, and opined that this permission demonstrated how the ZBL explicitly contemplates a right to allow development of an unassumed public road, notwithstanding circumstances of s. 5.26 of the ZBL. She discussed the capacity of Lise Court to allow for the development of a Subdivision demonstrated that it had the ability to support the development of the Subject Lands. As a result, Ms. Kabir concluded that the requested variance maintains the intent of the ZBL because it ensures safe ingress and egress exists to access the Subject Lands and supports the development of the residential land use of the lands.

15Speaking to the test of how the variance represents desirable development, Ms. Kabir reiterated that the COA minutes from 1976, (when the land was originally severed resulting in the creation of the Subject Lands), demonstrate the intent to build a house on the Subject lands. She emphasized that with the completion of the severance, when the Township took ownership of Lise Court, the intent was clearly to build on this lot and the surrounding lands. Ms. Kabir said that it is in the public interest to facilitate the development of the Subject Lands because the development of a residential dwelling on the Subject Lands would be compatible with the existing pattern of development along the road, and within the neighbourhood. Reiterating that the building that will be developed on the Subject Lands contributes to the provision of housing, as strongly encouraged by the Province, Ms. Kabir concluded that the requested variance facilitates a desirable development and use of the Subject lands.

16Speaking to whether the requested variance is minor, Ms. Kabir reiterated that the construction of a house on the Subject Lands would bring to fruition the intent to build on this land, which had resulted from the COA decision of 1976, followed by the Township’s taking ownership of the land specifically to accommodate development, the intent was clearly to build on this lot. Ms. Kabir pointed to the houses being built in the Subdivision, as well as the legal, non-conforming properties outside the Subdivision off Lise Court, and asserted that the development of the Subject Lands would not have any negative consequence on the existing houses, let alone unacceptable adverse impact, which is the threshold for a variance to be considered “not minor”. Ms. Kabir asserted that any damage to Lise Court arising from the development of the Subject Lands, could be addressed by the Township, through the securities obtained from the Developer. Asserting that the utilization of these securities to repair and maintain Lise Court did not have any impact on the neighbouring properties, Ms. Kabir reiterated that from a planning perspective, there would be no unacceptable adverse impact on the neighbouring properties, the threshold to demonstrate that a variance is not minor, which meant that the variance is minor.

17The Township’s cross-examination of Ms. Kabir focused on how the Agreement between the Developer, and the Township did not contain any clauses which allowed the latter to use securities obtained from the former to address maintenance issues arising from damage to Lise Court as a result of the Appellant’s efforts to develop their property. Ms. Kabir agreed generally with the thrust of the Township’s questions about how there was no explicit statement in the Agreement that referred to development on the Subject Lands and said that she could not comment on liability issues, by virtue of being a planner, and not a lawyer. However, Ms. Kabir did assert that from a planning perspective, the development of the Subject Lands was no different from developing properties inside the Subdivision and should therefore be approved through granting the requested variance.

TOWNSHIP’S EVIDENCE

18Ms. Jennifer Current, a planner with the Township, was affirmed and recognized as an Expert Witness in the discipline of land use planning. Ms. Current confirmed that the Subject Lands are located in a designated settlement area, which are recognized by PPS 2024 as the focus of development, which need to be developed in accordance with the services available, upon assumption by the Municipality. She added that the Subject Lands were located in the Oak Ridges Moraine and that, analogous to the PPS 2024, the Oak Ridges Moraine Conservation Plan directed development to designated settlement areas. Ms. Current emphasized that while the Subject Lands are still eligible for a residential permit, once the infrastructure has been assumed by the Municipality, they cannot be developed before the assumption of Lise Court by the Municipality.

19Ms. Current described how the Subject Lands fronts on Lise Court, an unassumed subdivision road in the designated settlement area of the district of Bewdley within the Township. She stated that Lise Court was constructed as part of a Plan of Subdivision and that, while the part of Lise Court connecting the subdivision to the main road had been constructed, the final coat of asphalt had been applied to Lise Court. However, in her opinion, the application of the final coat of asphalt could not be interpreted to mean that the road was ready to be assumed by the Township because the Municipal Engineer, who inspected the road in August 2024, had identified deficiencies. According to Ms. Current, the Township would issue a Certificate of Completion only after the identified decisions had been addressed to the latter’s satisfaction as well as the completion of the required two-year maintenance period.

20Ms. Current said that in her opinion, the approval of the minor variance did not satisfy PPS 2024 which contains policies that require that development within settlement areas, such as the Subject Lands, make efficient use of land and services. She argued that development of the Subject Lands at this stage is premature because the Subject Lands fronts onto an unassumed road, with no clarity about the resolution of liability issues if maintenance issues arose during the construction of a house on the Subject Lands. Ms. Current said that while notice had been given within a 60-metre radius of the Subject Lands, for the purpose of the COA hearing, as per regulations, she wasn’t sure that the Developer was aware of this appeal before the Tribunal, and consequently didn’t know what their position was on this matter. She added that the lack of clarity on the important issue of liability did not constitute efficient development, which is key to development in PPS 2024. Ms. Current opined that once Lise Court has been assumed by the Municipality, it will be a public road and development would be consistent with the PPS 2024 policies, with reference to efficient development.

21Speaking to the relationship between the requested variance, and applicable official plans, Ms. Current confirmed that the applicable official plans are the CNOP, and the THOP. She said that she had concluded that the proposal was not consistent with the CNOP based on an opinion expressed by the County’s planning department before the COA Hearing, because the Subject Lands did not have frontage on an assumed road.

22Speaking to the relationship between the variance and the THOP, Ms. Current stated that for development to be permitted on the Subject Lands, it was necessary for the properties to have frontage on a year-round municipally maintained road. Ms. Current described how she had met with the Appellant and had tried to convince her of the importance of applying for a ZBL Amendment in order to develop the property, which in her opinion allowed for a fulsome assessment of the Subject Lands. She spoke about how it was not practical to develop the property, in the absence of the approval of other variances from ss. 5.27 and 5.29 of the ZBL 2001-58 which specifically addresses the development of a property that has to be accessed from an unassumed road. She explained that in her many decades of working with municipalities across Ontario, she had never seen any example of securities collected from the development of a subdivision being utilized to address maintenance issues arising from outside the subdivision. She concluded that the THOP did not allow for the development of a property that was on an unassumed road and concluded that the variance did not meet the purpose and intent of the THOP.

23Speaking to the relationship between the requested variance and the ZBL, Ms. Current stated that the requested variance does not maintain the intent of the ZBL which requires lots to have frontage on a year-round municipally maintained road in order to be eligible for development. The intent of the ZBL is to ensure that the properties can be accessed for emergency services. She hypothesized that if there were a snowstorm which required emergency services to enter Lise Court, which had been damaged prior to the storm as a result of the Subject Lands being developed, there would be unanswered questions about liability, which could impact accessing the Subdivision to assist individuals isolated by the storm. Ms. Current explained that the unassumed road is currently maintained by a private developer under the terms of a subdivision agreement and, under that same agreement, there is no responsibility on the part of the Municipality to maintain the road and ensure access. The subdivision agreement is registered on the title of all the lots created by that plan of subdivision and does not apply to the Subject Lands.

24Speaking to the test of minor, Ms. Current said that the Applicant has requested an elimination of the requirement to have frontage on a year-round municipally maintained road, not a reduction in zone requirements. This variance request is not minor because it represents a major change to the zone requirements beyond what should be considered minor, nor can it be considered appropriate for the development of the property.

25In response to a specific question from the Tribunal about whether the variance constituted appropriate development, Ms. Current discussed how approving the variance would result in development of a property on an unassumed road, resulting in unpredictable consequences, due to damages resulting from accessing the Subject Lands from Lise Court. As a result, Ms. Current concluded that approval of the variance did not represent an appropriate development of the Subject Lands.

26The cross-examination of the Township’s Witness concentrated on why a ZBA was not required to develop the property, nor were the four variances recommended by the Township required to develop the Subject Lands. Ms. Current was steadfast in her position about the inappropriateness of using a minor variance approach to develop the property, and reiterated that the approval of the single variance before the Tribunal was not adequate to result in a fulsome analysis of how development should proceed on the Subject Lands. When questioned about the Township’s position about the identification of Lise Court as an unassumed road based on definitions, based on the Highway Traffic Act, Ms. Current stated that she was not familiar with the latter. There was disagreement between the Parties about how a snowstorm would impact access to Lise Court as a result of damages resulting from the development of the Subject Lands before the assumption of the unassumed road.

ANALYSIS AND FINDINGS

27What makes this appeal unique is that there are two distinct and important findings to be made; the first is whether the requested variance satisfies the four tests under s. 45.1 of the Act. The second question is contingent on the approval of the variance, namely how would liabilities be apportioned between the Township, Developer, and the Appellant, should there be damage caused to Lise Court, an unassumed road as a result of construction on the Subject Lands.

28The Tribunal’s findings are restricted to whether or not the requested variance should be approved, to the exclusion of whether more variances are required for the development of the Subject Lands, as per the Township’s position. The Tribunal did not hear any evidence regarding three other variances, recommended by the Township, which were included in the application adjudicated by the COA.

29The Tribunal is struck by the contrast between the focus of the evidence of the Parties; to summarize, the Appellants’ evidence questioned the applicability of s. 5.26 to the Subject Lands, focused on demonstrating that Lise Court is an unassumed road, and that the requested variance satisfies all four tests under s. 45.1 of the Act because it would help develop the Subject Lands such that the house will reinforce what exists in the community today. The Township’s evidence focused on the liability consequences of the approval of the variance, and why this concern is so consequential that the variance ought to be refused. What the Tribunal finds striking about the Township’s evidence is how the issue of undetermined liability impacts their conclusions with respect to each test under s. 45.1 and how the determination of where liability lies in case of damages to Lise Court as a result of development on the Subject Lands before assumption, eclipses planning issues.

30The Township’s singular focus on liability issues results in situations where they begin the discussion of a test under s. 45.1 of the Act by emphasizing that development off an unassumed road will result in undetermined liability issues, before concluding that the impact is that the variance does not satisfy the test. As an example, the evidence regarding whether the variance exemplifies appropriate development notes that the variance requests for development for the Subject Lands from a road that has not been assumed, delves into a discussion of the lack of clarity regarding liabilities arising from the development of the Subject Lands before the assumption of Lise Court, and concludes that the variance does not exemplify appropriate development. In other words, the Township’s reasoning is circular because it begins with a cause and establishes the cause to be the effect. The iteration of the liability argument for all four tests, an issue outside the realm of planning issues no matter how central it is to the Township’s arguments, combined with the circular nature of the arguments demonstrated in this paragraph, results in the Tribunal’s assigning the Township’s evidence less weight when compared to the Appellant’s evidence on all four tests, which largely concentrated on planning issues, such as compatibility of the proposal with what exists on Lise Court and unacceptable adverse impact.

31Regarding the question of whether the variance is minor, it is common knowledge that the methodology to determine whether a variance is minor focuses on the planning impact on the Subject Lands, and other properties in the neighbourhood. It is trite to state that a variance is minor if and only if its impact does not result in unacceptable adverse impact. While the Appellant focused on the proposed variance’s lack of impact on the neighbourhood, the Township’s evidence discussed how the approval of the variance cannot be minor because it asks for the elimination of a zoning standard without discussing the impact of the variance, the question that is critical to the determination of impact. As a result, the Tribunal agrees with the Appellant that the variance is minor.

32By way of an obiter remark, the Tribunal observes that even if the Township’s conclusion about the elimination of a zoning standard were accepted prima facie, such flaws in the methodology would be relevant to the test of appropriate development because it is this test that focuses on the methodology, as opposed to the test of minor.

33The Tribunal notes that the reports put forward by the Township at the COA Hearing, which were also referenced by them before this Tribunal, made no mention of whether the requested variance exemplified appropriate development, and there was no oral evidence presented during the Examination-in-Chief of the Township. In response to a very specific question from this Tribunal, the City’s evidence was that the requested variance did not exemplify appropriate development because it would result in the development of a property on a road that has not been assumed, and potential liability issues. This reasoning again exemplifies the issue discussed earlier regarding how the beginning of the Township’s reasoning is identical to the conclusion; separated only by references to liability issues. The Appellant, on the other hand, demonstrated why the variance satisfies the test of appropriate development because the Subject Lands, when developed will be compatible with what already exists on the ground, and reinforce the same.

34Secondly, when discussing whether or not this variance is appropriate for the development of the Subject Lands, the Township’s evidence attempted to distinguish between the houses that existed before the ZBL was implemented and the houses in the Subdivision, which are clearly built after the implementation of the ZBL; the Tribunal understood their evidence to mean that the legal, non-conforming nature of the pre-existing houses meant that their presence was not to be factored for determining planning impact of the proposal before the Tribunal. When re-examined, the Appellant’s Witness correctly pointed out that for the determination of how the proposed development relates to the cumulative impact of what already exists on the ground, the legal, non-conforming nature of pre-existing properties is not to be considered in coming to conclusions regarding appropriate development. The Tribunal is persuaded by the reasons presented in this paragraph, as well as the previous paragraph, and finds that the variance is appropriate for the development of the property.

35The Tribunal notes that the Township’s evidence with respect to whether the variance maintains the intent and purpose of the ZBL explored a scenario of what would happen if Lise Court were impacted negatively because of a snow storm and how this could impact the ability of emergency services during such an unfortunate incident, implying that the issue of liability would have to be decided first, before any decisive action were to be taken to rescue the residents. The Appellant’s response was that should there be such an accident, the Township would respond to the emergency by ensuring access through immediately repairing the road and apportion responsibility later. The Tribunal finds that the latter course of action to be more plausible and appropriate because it would be in the public interest to take action, such that the public health and safety of the residents is prioritized over the determination of where the liability lies. While the Tribunal is not persuaded by the Appellant’s perspective about the Township’s use of the fees obtained from the Developer to address damage caused by the Appellant’s attempts to develop their property, it concurs with the latter about the Township acting first to rescue the residents, before making decisions about liability.

36On the question of whether or not the variance maintains the intent and purpose of the ZBL, the Appellants stated the performance standard, namely the safe development of the community, before demonstrating how the performance standard is being fulfilled by constructing a single detached home, something that already exists in the community. However, the Township’s evidence did not bring up a performance standard of the by-law, but focused instead on the inappropriateness of building on an unassumed road. As a result, the Tribunal finds that the variance maintains the intent and purpose of the ZBL because it identifies a pertinent performance standard and demonstrates how the variance satisfies the same.

37The Appellant’s evidence regarding how the variance maintained the intent and purpose of the THOP focuses on how the variance will help build a house in a settlement area, to which growth has been directed by the official plans. The Township’s evidence concurs with the location of the Subject Lands in a settlement area, before focusing on the inappropriateness of building on an unassumed road. As a result, the Tribunal concurs with the Appellants, and finds that the variance maintains the intent and purpose of the THOP. The Appellants’ explanation of why the CNOP does not apply is reasonable, while the Township’s decision to rely on a report written by the County’s Planning Department reiterates the issue about the lack of assumption, without establishing how this impacts the variance. As a result, the Tribunal agrees with the Appellant that the variance maintains the intent and purpose of the CNOP and THOP.

38The evidence of the Appellant was that this variance is consistent with PPS 2024 because it results in the development of a house, amidst a context where the Province has prioritized the construction of housing. The Township’s evidence was that this variance does not satisfy PPS 2024 because it does not result in an efficient use of infrastructure. Given how PPS 2024 defines infrastructure, it is not evident how the construction of a house on the Subject Lands will result in inefficient use of infrastructure, because efficiency in this case is to be interpreted as achieving the maximum result with what exists on the ground; the idea of assumption of a road by the Municipality does not result in efficient use of infrastructure. As a result, the Tribunal finds that the requested variance satisfies higher-level provincial policies.

39Given that the variances satisfy all the four tests under s.45.1, as well as s. 2 of the Act, the Tribunal finds it appropriate to authorize the variances, and allow the appeal.

40The Tribunal understands the importance and pertinence of the liability issue, which dominated the Township’s evidence. However, given that the issue of liability is outside the Tribunal’s jurisdiction, it is important to explicitly state that this decision does not make any findings. The Tribunal finds it appropriate to impose a condition requiring the Appellant and the Township to resolve the liability issue through mutual discussions, where appropriate, and revert to the Tribunal with their agreement, within a six month period, if one is reached. The six-month countdown begins with the issuance of this decision.

INTERIM DECISION

41The appeal is allowed on a conditional basis, and the following variance is authorized, subject to the condition recited below:

Relief from Section 5.26 of Zoning By-law 2001-58 of the Township of Hamilton (“Township”) to permit the construction of a building on an unmaintained public road.

42The authorization of this variance is subject to fulfillment of the following condition:

The issue of liabilities resulting from damages or maintenance issues arising from the development of the lot at 7083 Lake Street is to be resolved through discussions between Melissa Lloyd (“Appellant”), and the Township, where appropriate. The Appellant is given six months from the issuance of this Interim Decision to arrive at an agreement with the Township, and report on the same to the Tribunal. The Final Order will be issued after the Tribunal receives and reviews the agreement.

43Should the Tribunal not be made aware of the agreement within a six-month period regarding the issue of liabilities as discussed in Paragraph [42] of this decision, the appeal will be refused.

44The Tribunal may be spoken to if there is an issue with satisfying the timelines in this Interim Order.

“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.