Philip Young v. Prince Edward County, 2025 CanLII 85057

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 20, 2025

CASE NO(S).: OLT-25-000322

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

Applicant and Appellant: Philip Young Subject: Minor Variance Description: To adjust rear yard setback and maximum lot coverage to legalize an existing deck Reference Number: DS-15-2025 Property Address: 13 Twelve Trees Court Municipality/UT: Prince Edward/Prince Edward OLT Case No.: OLT-25-000322 OLT Lead Case No.: OLT-25-000322

Heard: August 11, 2025 by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
Philip Young	Self-Represented
Prince Edward County	Jason Reynar* Harleen Muker (Student at Law)

DECISION DELIVERED BY ERIC S. CROWE AND ORDER OF THE TRIBUNAL

Link to Order

BACKGROUND

1Philip Young (“Appellant”) applied for a minor variance (“MV”) to the Prince Edward County (“County”) Committee of Adjustment (“CoA”) from Zoning By-law No. 1816-2006 (“ZBL”) to adjust a rear yard setback and maximum lot coverage to legalize an existing deck at 13 Twelve Trees Court in the village of Wellington (“subject property”).

2The proposed development is the expansion of an existing deck, originating and attached to the rear of the dwelling. The expanded deck would extend 3.5 metres (“m”) into the rear yard setback, which is greater than the 1.5 m encroachment permitted.

3The County received an MV application that proposed a reduction in the rear yard setback and an increase in the maximum lot coverage to allow for an existing deck. The existing deck is approximately 20 square metres (“m²”) with a rear yard setback of 3.5 m with a maximum lot coverage of 48%.

4A MV was applied for after the Building Permit application was made, and the appellant was informed of the zoning issue. At this point, the deck was already built.

5County planning staff supported the MV application in that the application met all four tests of a MV, which the CoA then refused on March 19, 2025. That refusal is the subject of this appeal.

PURPOSE OF THE MINOR VARIANCE

6A MV is being sought to reduce the rear yard setback from 7.5 m to 3.5 m and to increase the maximum lot coverage from 45% to 48% in order to legalize an existing deck.

SUBJECT SITE AND AREA CONTEXT OVERVIEW

7The subject property is flat and rectangular in shape, like those in the surrounding area. The total area of the property is approximately 355 m². The property fronts onto Twelve Trees Court with a frontage of approximately 12.8 m. The property currently contains a single detached dwelling with an existing deck.

8The subject property is at the western side of Twelve Trees Court, being a cul-de-sac with an urban road cross-section (curb and gutter). This style and type of dwelling and the cross-section are consistent with the surrounding neighbourhoods within Wellington.

9Twelve Trees Court comprises primarily of low density dwellings. It is a mix of single detached dwellings and semi-detached units.

10ZBL No. 1816-2006, as amended, identifies the property as “Special Urban Residential Type 2 (R2-22)”. According to the Prince Edward County Official Plan (“PECOP”), the property is designated “Urban Centre” and according to the Wellington Secondary Plan, Schedule A – Secondary Plan Land Use Map, it designates the property as “Village Corridor Area”.

11When the neighbourhood was constructed in 2021, special provisions were implemented that allowed for custom zoning, including setbacks that are now law, as represented by the R2-22 zone.

HEARING

12The Appellant testified on his own behalf. The County brought forward one witness, Michael Sullivan, a planner retained by the County to provide expert opinion evidence in the area of land use planning, who was qualified by the Tribunal.

13The Parties submitted the following as Exhibits for this matter:

Exhibit 1 – Witness Statement of Michael Sullivan dated August 8, 2025 Exhibit 2 – Appellant - Summary and Conclusion Exhibit 3 – Appellant - Reasons for Deck Appeal Exhibit 4- Appellant - Support for Reasons of Appeal Exhibit 5- Appellant - Meeting Agenda Exhibit 6 – Appellant - Time Line Exhibit 7 – Appellant - Notice of Decision Exhibit 8 – Appellant – Notes of Verbal Submissions to Hearing

14There were no Participant statements.

Appellant’s position and SUBSection 45(1) of the [PLANNING Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

15When considering a proposed variance, the Tribunal must consider each of the four elements set out in s. 45(1) of the Planning Act (“Act”) to determine if the requested variance:

1. Maintains the general intent and purpose of an official plan;
2. Maintains the general intent and purpose of a zoning by-law;
3. Is desirable for the appropriate development or use of the land; and
4. Is minor in nature.

All four elements must be satisfied.

16Mr. Young testified that he relied on the County Staffing Report dated March 19, 2025 (Exhibit 5) that the MV application satisfied the four tests for a MV application and it should be approved pursuant to Subsection 45(1) of the Act.

17Mr. Young, in his support for reasons (Exhibit 4), asserts that the CoA based its decision on the fact that a non-complying deck had been erected and this is a Building Department and Building Permit issue and not that of the CoA.

18Mr. Young highlights the public comments (emails) by raising issues about setting precedents, privacy issues and the fact that he did not obtain a building permit prior to construction. Mr. Young contends these issues are not relevant to the application since the Planner for the City confirmed that any application for a minor variance is evaluated on its own merit, must meet the same four tests and is subject to the fees and levies of the Building Department. Mr. Young asserts that none of the neighbours that abut his property have any concerns or privacy issues and have signed a petition stating such.

CITY’S POSITION

19Mr. Sullivan, on behalf of the County, presented opinion evidence in the area of land use planning. The witness, who was retained on August 1, 2025, reviewed the County Staff report, Letter of Appeal, PECOP, County ZBL, and reviewed aerial photography and made a site visit (August 6, 2025).

20Mr. Sullivan testified that, based on his site visit, the primary point of access for the deck is through the house. A secondary access is via stairs built down the northern side of the deck. Mr. Sullivan provided photos of various locations of the dwelling including portions of the deck while acknowledging he didn’t have access to the subject property.

21Mr. Sullivan expressed the opinion that the requested variances did not satisfy the four tests of s. 45(1) of the Act at the outset of his testimony. Mr. Sullivan did clarify his witness statement (Para. 85) that the MV did not meet two of the four tests, instead of not meeting three of the four tests as stated in his statement.

22Mr. Sullivan testified that, in his opinion, the MV application only satisfied two tests out of the four for a MV. He advised based on his analysis the MV does not maintain the general intent and purpose of the ZBL and is not desirable for the appropriate development or use of the land.

EVIDENCE

The [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

23Mr. Young relied on the County Staffing Report (Exhibit 5), which advised that the application for the MV was deemed complete and the proposed application satisfies the criteria of the Act.

24Mr. Sullivan provided comments on the MV and its consideration of the provincial interests of Section 2 of the Act. Section 2 of the Act provides policies that indicate ‘good planning’, including:

(n) The resolution of planning conflicts involving public and private interests; (r) The promotion of built form that, (i) is well-designed, (ii) encourages a sense of place, and (iii) provides for public spaces that are of high quality, safe, accessible, attractive and vibrant.

25Mr. Sullivan advised that the proposal is for a deck, which requires a MV to comply with zoning. The deck extends further into the rear yard than other decks in the neighbourhood, which makes it more visible and out of character with this new development.

Findings

26However, in Mr. Sullivan’s opinion, with which the Tribunal agrees, this proposed application has regard for the Act.

PROVINCIAL PLANNING STATEMENT (“PPS 2024”)

27Mr. Sullivan highlighted section 2.1.6 “Planning for People and Homes” of PPS 2024, where development shall avoid land use patterns which may cause public health or safety concerns, and to promote well-designed built form.

28In Mr. Sullivan’s opinion, a rear yard deck encroaching significantly into the setback may create privacy and safety impacts for neighbouring properties.

29Mr. Sullivan also highlighted section 2.3.1.4 General Policies for Settlement Areas and 2.4.1.1 General Policies for Strategic Growth Areas which speak to intensification and redevelopment within built up areas.

30According to Mr. Sullivan a MV that permits a deck closer than permitted can introduce visual intrusion, reduced buffering and set a precedent for neighbouring properties, specifically in areas where zoning standards reflect adequate spacing for privacy and amenity. The proposed deck setback is out of character with the surrounding homes and has the potential to create a conflict.

31Mr. Sullivan advised that the PPS 2024 also highlights the need to consider the specific context of a property. The rear yard setback requirement is in place to ensure adequate space, privacy and livability between properties. Allowing a large reduction in the setback goes beyond what is reasonable, undermines the purpose of these rules, and does not meet the intent of the ZBL or PECOP.

32Mr. Sullivan advised through his witness statement and testimony that while the PPS supports intensification and modest variances in appropriate settings, especially where additional housing forms or accessory spaces are proposed, the County’s position is that granting a large rear setback reduction for a deck does not represent modest intensification nor well-planned development. Instead, it risks undermining the public interest in orderly growth that still preserves neighbourhood character and livability.

Findings

33However, in Mr. Sullivan’s opinion, with which the Tribunal agrees, the application is consistent with the PPS 2024 as it represents gentle intensification or appropriate development.

PRINCE EDWARD COUNTY OFFICIAL PLAN (“PECOP”)

34Mr. Young relies on the Staffing Report (Exhibit 5) that the subject property is designated Urban Centre in the PECOP. Under the Wellington Secondary Plan, the subject property is designated as a Village Corridor Area. The designation is intended to support a range of residential land uses on parcels with this designation. This MV is part of a residential land use and is consistent with the surrounding residential development. The proposed variance will respect the existing land use designation and conform to the policies of the PECOP (2021) and the Wellington Secondary Plan (2015).

35Mr. Sullivan advised through his witness statement that the PECOP places a strong emphasis on preserving neighbourhood character, maintain privacy between properties, and ensuring that development occurs in a manner consistent with established patterns of use.

36Section 5.1.2 of the PECOP specifically reinforces that variances must respect the character and amenity of surrounding residential areas. The Twelve Trees Court neighbourhood was thoughtfully designed as a waterfront development. Its dwellings are uniformly designed, which provides a consistent look and theme for the area. While hidden in the back yard, the requested variance represents a departure from this consistent style and standard. At issue are privacy and scale.

37The property is within the Wellington Secondary Plan’s Village Corridor Area, which supports residential uses that are compatible with surrounding development. The proposed deck is somewhat out of character with the established built form of the neighbourhood, where no other homes have rear decks projecting into the backyard to such an extent. While the neighbouring property has a similar sized deck, it does not project so far into the backyard as the subject property, due to the house being closer to the road.

Findings

38Nevertheless, in Mr. Sullivan’s opinion, with which the Tribunal agrees, this application meets the general intent of the PECOP and Wellington Secondary Plan policies and design standards.

Minor in Nature

39The basis for determining whether or not a proposed variance to the ZBL is minor in nature includes an assessment of impact. This determination is not solely a mathematical exercise, and even though a variance may constitute a considerable numerical change, the effect of the requested variance may still be considered minor in context.

40Both Parties concede that the MV is minor in nature. Mr. Sullivan testified that wholistically the MV is minor in nature but argued various points in his statement and in his testimony, however, he ultimately concluded that the proposed application is minor in nature when considered on its own merits.

Findings

41The Tribunal adopts the Parties’ consensus and evidence and finds that the MV is minor in nature.

General Intent and Purpose of the Zoning By-law

42Mr. Young relies on the Staffing Report (Exhibit 5). The subject property is zoned as Special Urban Residential 2 (R2-22) under the County Comprehensive ZBL 1816-2006. The R2-22 zoning permits one single detached dwelling and accessory buildings and structures. The proposed use would be a permitted use under the ZBL. The proposed application meets the general intent and purpose of the ZBL.

43Mr. Sullivan advised that the Zoning provisions, including special provisions granted to this subdivision, are intended to regulate building size, placement, and lot coverage to ensure adequate separation, privacy, and amenity space between properties.

44Mr. Sullivan testified that this subdivision already benefits from reduced standards compared to the standard Urban Residential 2 Zone. Despite this relief, the proposed deck fails to comply with key requirements, including rear yard setback and maximum lot coverage. This is based on the built form approach to this subdivision, with larger dwellings and smaller lot areas. This approach further exacerbates the out-of-character nature of the larger deck.

45According to Mr. Sullivan, the deck reduces the rear yard setback from the required 7.5 m to approximately 3.5 m and increases lot coverage from the permitted 45% to 48%. These deviations represent a departure from Council approved standards from 2021, which were custom designed for this development.

46Mr. Sullivan highlighted Section 4.1.12 of the Zoning which explicitly allows for minor projections, such as unenclosed porches, decks and patios, to encroach by up to 1.5 m into a required yard while maintaining a minimum setback of 1.2 m from the lot line. In this case, the subject property has already utilized this permitted 1.5 m encroachment with the original deck. The recently built deck, however, extends nearly twice this distance, fundamentally exceeding the intent of the by-law’s provisions for minor projections.

47Mr. Sullivan stated that, on its own merits, the increased encroachment seems minor. However, when considered for all R2-22 zoned properties along Twelve Trees Court, the smaller lots would be overwhelmed and considered overbuilt with the larger decks encroaching closer to the rear lot lines. Mr. Sullivan highlighted that a petition signed by neighbours, is supportive of this allowance for increased decks, presumably for their own benefit. So, while this hearing is focused on this property and its application, land use planning must consider the broader impact to the neighbourhood.

48Mr. Sullivan emphasized that the general intent of the ZBL is to manage built form and site design to protect privacy, maintain open space, and prevent overdevelopment of lots. By significantly reducing the required rear yard and exceeding the maximum lot coverage, the proposed variance undermines these core regulations.

49Accordingly, in the opinion of Mr. Sullivan the proposed deck does not meet the intent of the ZBL 1816-2006 or the requirements of the R2-22 zone, failing to respect the standards approved by Council for this development, set in 2021.

Findings

50The Tribunal prefers the evidence of Mr. Sullivan. Since Mr. Young relied on the Staffing Report (Exhibit 5), the Tribunal finds that although the proposed use (a deck) would be a permitted use under the ZBL the Staffing report analysis ends there. The intent and purpose analysis is lacking in the Staff Report and was not compelling in establishing how the MV met the intent and purpose of the ZBL.

51Mr. Sullivan testified that this specific subdivision already benefits from reduced standards compared to the standard Urban Residential 2 Zone. He advised that the built form approach to this subdivision, has larger dwellings and smaller lot areas.

52The Tribunal finds that by significantly reducing the required rear yard and exceeding the maximum lot coverage, the proposed variance undermines the core regulations.

53The Tribunal agrees with Mr. Sullivan that the proposed deck does not meet the intent and would undermine the purpose of the ZBL 1816-2006 and the requirements of the R2-22 zone, failing to adequately respect the standards approved by Council for this development, set in 2021.

54As stated by Mr. Sullivan, in which the Tribunal agrees, the deck reduces the rear yard setback from the required 7.5 m to approximately 3.5 m and increases lot coverage from the permitted 45% to 48%. These deviations represent an undue departure from Council approved standards from 2021, which were custom designed for this development.

55Therefore, based on the evidence presented, the Tribunal finds the MV does not meet the General Intent and Purpose of the ZBL.

Desirable for the Appropriate Development or Use of the Land

56Although the MV fails on not meeting one of the four tests under section 45(1) of the Act, the Tribunal finds it important to comment on whether the MV is desirable for the appropriate development or use of the land.

57Mr. Young relied on the Staff Report (Exhibit 5) which advised that the surrounding land uses are all residential, and this is a part of an existing residential land use. The deck is located in the rear yard and is of similar design to the other back decks in the neighbourhood. Due to the trees along the rear lot line, it is not expected to cause issues with the privacy of the neighbours to the rear. Submitted photos by the Appellant illustrate the tree cover that will protect the privacy of adjacent property owners. The proposed variance, as recommended, is an appropriate and desirable use of the lands.

58Mr. Young contends he has adequate screening with foliage and there are no overlook or privacy issues with surrounding properties.

59Mr. Sullivan testified the surrounding land uses are exclusively residential and while the deck is part of a residential property, its size and extent are not typical of the neighbourhood nor of the governing by-law. Although the deck is located in the rear yard and there are trees along the rear lot line, the scale of this structure exceeds what is commonly found and planned for in this subdivision.

60Mr. Sullivan acknowledged the dwelling immediately north of the subject property also has a larger rear deck. However, this dwelling is set further forward on its lot, resulting in no encroachment required into the rear yard for the deck.

61According to Mr. Sullivan, for the subject property, while the trees provide some screening, they do not eliminate the visual impact of this structure or the potential for overlooking into neighbouring yards, and this screening will be further reduced during winter months when foliage is diminished. Thus, privacy is an issue as the proposed deck will go closer to backyard neighbours’ private space than planned or desired.

62Mr. Sullivan testified this MV is neither appropriate nor desirable for the property or the surrounding neighbourhood as the size and proximity to the rear lot line is inconsistent with the character of the nearby homes and has the potential to set a precedent to the surrounding homes that they too can have a similar deck.

63In Mr. Sullivan’ opinion, this application is not desirable for the appropriate development of the site.

Findings

64In determining whether an MV is Desirable for the Appropriate Development or Use of the Land, the Tribunal looks at various factors which can include as described above, to ensure adequate separation, privacy, scale and amenity space between properties.

65In this case, there is no compelling evidence to suggest this MV is not desirable. There is no privacy issues since there is some foliage and trees in the backyard and whether a petition is self-serving as noted by Mr. Sullivan for abutting property owners, there were no Participant statements against this MV in this hearing de novo.

66The Tribunal finds there was insufficient evidence to determine if there was a visual impact of this structure or the potential for overlooking into neighbouring yards. The photos provided by Mr. Sullivan are considered inconclusive evidence concerning privacy issues since they were cursory photos, as he was not able to take them from the subject property.

67In regard to precedents, as noted by Mr. Young, the Planner for the County, an application for a MV is judged on the merits of each submission and does not set a precedent. The Tribunal agrees with this reasoning in these decisions that planning applications are determined based on their individual merits. However, the Tribunal understands there is a legal argument precedent and a planning precedent. The Tribunal is not unmindful of the fact that applicants and planning authorities in future planning applications will use comparable Tribunal decisions as to support their planning rationales. However, determinations in other cases are neither binding nor do they fetter the discretion exercised by the Tribunal. The Tribunal can exercise its discretion in cases, which it has done in this case.

68Therefore, based on the evidence, the Tribunal finds the MV application is desirable for the appropriate development or use of the land.

SUMMARY OF DISPOSITION

69The Tribunal concludes that the proposed minor variances have not met the requirements for the four tests for a MV. The proposed MV is not consistent with the general intent and purpose of the ZBL. Therefore, the proposed development does not satisfy all four tests required for a MV application under the Act.

70The Tribunal would note that the testimony of Mr. Sullivan was forthright, however, his witness statement analyses could have been more succinct. Even though Mr. Sullivan outlined various issues to each legislative component, he consented in the end that the MV application has regard to section 2 of the Act, is consistent with PPS 2024, meets the intent of PECOP and is minor in nature. This analysis only left the Tribunal trying to understand why these issues were raised in the first place.

71In regards, to Mr. Young’s concerns about the process of the CoA and the facts and reasoning of its decision, the Tribunal will only comment that this is a hearing de novo and considered all of Mr. Young’s evidence.

72The Tribunal also has a public interest mandate and notes the concerns of Mr. Young with his frustration with the CoA process and his effort to enjoy outdoor living with his mobility issues. However, even though he feels the deck restrictions are unreasonable as stated in his summary and conclusions document (Exhibit 2), when the neighbourhood was constructed in 2021, special provisions were implemented that allowed for custom zoning, including setbacks that are now law, as represented by the R2-22 Zone. This subdivision already benefits from reduced standards compared to the standard Urban Residential 2 Zone. This is based on the built form approach to this subdivision, with larger dwellings and smaller lot areas and consideration of the curved frontage of the subject property.

73In final submissions, the Tribunal heard from Mr. Sullivan and the County Counsel that they are committed to continuing to cooperate with Mr. Young on this, no matter the outcome of this hearing.

ORDER

74THE TRIBUNAL ORDERS THAT the appeal is dismissed and the variances to Zoning By-law No. 1816-2006 are not authorized.

“Eric S. Crowe”

Eric S. Crowe 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.