Smith v. Cobourg (Town), 2025 CanLII 96341

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 18, 2025

CASE NO(S).: OLT-25-000511

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

Appellant: Andrew Smith

Applicant: Mary Josephine Bathe

Subject: Minor Variance

Description: To construct a 1-storey coach house dwelling with covered patio

Reference Number: A-08-25

Property Address: 349 Cottesmore Ave

Municipality/UT: Cobourg/Northumberland

OLT Case No.: OLT-25-000511

OLT Lead Case No.: OLT-25-000511

OLT Case Name: Smith v. Cobourg (Town)

Heard: September 5, 2025 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
Andrew Smith	Self-Represented*
Town of Cobourg	Laura Dean

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 Andrew Smith ("Appellant") regarding the decision of the Town of Cobourg's ("Town") Committee of Adjustment ("COA") to deny the minor variance ("MV") application for a change in the permitted lot coverage and for an accessory building built without adequate lot frontage at the property known as 349 Cottesmore Avenue, Cobourg ("Subject Property").

2The Subject Property is located on the west side of Cottesmore Avenue between King Street East and University Avenue East. The Subject Property is currently occupied by a single detached dwelling with a detached garage. The Subject Property is surrounded by residential properties.

3The Appellant requested MVs from Zoning By-law No. 85-2003 ("ZBL") to facilitate the development of a coach house dwelling in the rear yard:

a. By allowing the development to exceed the maximum lot coverage for a detached accessory building and structure from the required 8% to 13.3%; and

b. To permit the development with a lot frontage of 14.28 metres ("m") instead of the required 18.3 m.

4On June 17, 2025, the COA refused the application, stating that "In consideration of all materials and comments presented to the committee related to the subject application, the application is denied."

STATUS REQUESTS

5The Tribunal received three Participant status requests prior to the Hearing. On consent of all Parties, Susan Abel, Barry Kelly, and Carol Cameron were granted Participant status and have each submitted a Participant Statement, marked as Exhibit 3, Exhibit 4, and Exhibit 5, respectively.

SUBMISSIONS

6Cristal Laanstra, a Professional Planner and the former Director of Planning and Development for the Town, was retained by the Appellant and testified with respect to the evidence set out in their Witness Statement, marked as Exhibit 1, dated August 28, 2025. Ms. Laanstra was qualified by the Tribunal to provide expert evidence in land use planning matters.

7The Town submitted a Book of Documents that was marked as Exhibit 2.

8A Reply Statement was submitted by the Subject Property's owner, Mary Josephine Bathe, marked as Exhibit 6, in response to the Participant Statements.

Sections 2 and 3(5) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

9The Tribunal must have regard to matters of provincial interest as set out in s. 2 of the Act when making a decision regarding a MV application. Under s. 3(5) of the Act, the Tribunal's decision on the MV must be consistent with the Provincial Planning Statement, 2024 ("PPS").

10Ms. Laanstra testified that the MV application has regard for s. 2 of the Act, as it relates to matters of provincial interest.

11The witness stated that the MV application is consistent with the PPS because there is sufficient land for residential growth, the development increases the range of housing types available, and this facilitates intensification.

[Section 45(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html#sec45subsec1_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

12When considering a proposed variance, the Tribunal must consider each of the four elements as 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 ("OP");
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.

13The 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 Northumberland County OP

14The Subject Property is designated in Schedule A of the Northumberland County OP ("NCOP") as within the Built Boundary of the Cobourg Urban Area. An aim of the NCOP is to support the establishment of complete communities and Ms. Laanstra stated that the proposed development aligns with this aim as a form of residential intensification.

15It is Ms. Laanstra's professional opinion that the proposed development conforms to the NCOP.

General Intent and Purpose of the Town's OP

16Ms. Laanstra stated that the requested MVs meet the intent of the Town's OP ("TOP"). She stated that the Subject Property is designated a Stable Residential Area on Schedule A of the TOP. As such, new developments are evaluated on their ability to maintain the existing character of the immediate surrounding residential area.

17Ms. Laanstra opined that the size and scale of the proposed development is appropriate and in keeping with the character of the surrounding built form. She stated that the proposed development meets the TOP's definition for a 'garden suite', which is a permitted use on the same lot as a single detached dwelling.

18It is Ms. Laanstra's professional opinion that the proposed development conforms to the TOP.

General Intent and Purpose of the Town's ZBL

19The ZBL was passed in 2003 with amendments for accessory dwellings and coach house dwellings added in 2017.

20The Subject Property is located in the Residential 2 zone where single detached dwellings and associated accessory buildings/structures are permitted.

21Ms. Laanstra stated that the proposed development complies with all applicable regulations in the ZBL, except for:

a. The maximum lot coverage for an accessory building;

b. The minimum lot frontage;

c. The parking layout; and

d. The noise study requirements.

22Ms. Laanstra explained that the intent of the maximum lot coverage criteria is to ensure that the accessory structure stays subordinate to the primary dwelling. She stated that the proposed development is smaller, and being located in the rear yard, it would be largely out of view to the public realm. She also stated that the proposed development would maintain the appropriate rear yard amenity space for both the primary dwelling and the proposed development. She clarified that the total lot coverage for the Subject Property (for both the primary dwelling and the proposed development) was 34.09%, which is below the ZBL permitted limit of 40%.

23Ms. Laanstra explained that the minimum lot frontage is to ensure adequate space to accommodate coach houses without negative impacts on adjacent properties or the character of the neighbourhood. She stated that the proposed development complies with all setback requirements and the total lot coverage, as well as applicable parking/driveway regulations.

24Ms. Laanstra reviewed Ontario Regulation 299/19: Additional Residential Units ("Reg299"), which is considered to supersede the ZBL if inconsistencies arise. She stated that, under Reg299, a parking space for an additional residential unit may be a tandem parking space. She explained that this prevails over s. 5.28.2 of the ZBL that states that coach house parking be non-tandem.

25Ms. Laanstra stated that the Appellant has not completed the required noise study for new dwellings constructed within 500 m of a railway line, as required in s. 8.1.20(ii) of the TOP but that they have indicated that they are working on completing it.

26It is Ms. Laanstra's professional opinion that the proposed development conforms with the ZBL.

Desirable for the Appropriate Development or Use of Land

27Ms. Laanstra stated that the requested MVs are desirable because they would allow intensification without significant negative impact to the Subject Property, adjacent properties, and the neighbourhood. She stated that this is an appropriate form of intensification for this neighbourhood.

28It is Ms. Laanstra's professional opinion that the proposed development is a desirable use of land.

Is Minor in Nature

29Ms. Laanstra stated that the requested MVs are a minor change from the zoning regulations, which will not have a significant negative impact on the adjacent properties, and the existing lot fabric of the Subject Property is consistent with the surrounding neighbourhood.

Summation

30It is Ms. Laanstra's expert opinion that the MVs:

a. Represent good planning;

b. Meet all policy requirements;

c. Meet all requirements of s. 45(1) of the Act;

d. Meet the four tests; and

e. Are in the public interest.

PARTICIPANT/REPLY SUBMISSIONS

31The Tribunal received three Participant Statements in opposition to the requested MVs.

32The concerns raised by the Participants were:

a. Incorrect use of the driveway;

b. Overcrowding of the Subject Property;

c. Drainage and flooding;

d. Construction noise, dirt, and dust;

e. The ability to enjoy the use of their properties; and

f. Removal of a large tree in the Subject Property's rear yard.

33Additionally, issues related to the Residential Tenancies Act, 2006, S.O. 2006, c. 17, and the availability of other rental properties, were raised. These additional issues are not considered by the Tribunal in its decision.

34The Participants stated that the driveway, which is a double width driveway with half on the Subject Property and half on the adjacent property, would be misused with the Subject Property's tenants parking on the adjacent property's driveway. The Subject Property's owner, Ms. Bathe, in their Reply Statement, stated that no use of the adjacent property's driveway would be permitted. All parking would be on the Subject Property, as required by the ZBL. Ms. Laanstra commented that the layout of the parking is appropriate and the proposed development complies with all relevant regulations.

35The Participants stated that permitting an increase in the permitted lot coverage of an accessory structure from 8% to 13.3% would overcrowd the Subject Property. Ms. Laanstra noted that no MV is required for total lot coverage and the proposed development complies with all applicable setbacks, while providing appropriate amenity space.

36Participants noted that increasing the lot coverage may result in drainage and flooding issues for at least one neighbour. They stated that the neighbour's rear yard often has ponding in the spring or following heavy rainfalls. They commented that the increase in impermeable surface will increase the flooding risk. Ms. Bathe replied that the proposed development complies with stormwater management requirements. Ms. Laanstra stated that the Town's Engineering staff reviewed the proposed development and did not raise any concerns for drainage or flooding.

37The Participants were concerned with disturbances due to the construction of the proposed development. Ms. Bathe replied that these are temporary disturbances and that all municipal by-laws for noise, construction, and site management will be followed. She also stated that steps will be taken to minimize the impact on neighbouring properties during this period.

38The Participants stated that the proposed development will impact their ability to enjoy their own properties. They stated that an additional dwelling unit will impact their privacy, as well as the privacy of the proposed development's occupants, as they will be surrounded by six other dwellings.

39The Participants are concerned with the removal of a large Maple tree in the rear yard of the Subject Property. They stated that the Maple tree provides shade for multiple yards, helps mitigate flood risk, and is important with regards to climate change. The Appellant replied that tree removal would be carried out in accordance with municipal rules and replanting would be considered at a later date. Ms. Laanstra commented that the Town does not have any by-laws that prohibit the felling of a tree on private property.

FINDINGS

40The Tribunal accepts the evidence of the Appellant and finds that the requested variances have regard for the provincial interests, as expressed in s. 2 of the Act, are consistent with the PPS, and satisfy all four tests set out in s. 45(1) of the Act. The outstanding noise study is the only lacking criteria, which will need to be completed by the Appellant prior to the issuing of a building permit, according to Ms. Laanstra.

41With regards to the Participant Statement concerns, the Tribunal finds that:

a. There is no reasonable expectation that the parking is insufficient on the Subject Property to accommodate the additional required parking spot for the proposed development;

b. The issue of overcrowding does not apply as the proposed total lot coverage is under the permitted amount;

c. The drainage and flooding risk is acceptable based on the Town's Engineering staff's comments;

d. Construction disturbances are temporary and will be mitigated during construction, as was stated in the Reply Statement;

e. The ability of the adjacent properties to enjoy their land because the neighbours may be in their yard is not a sufficient reason to refuse the application; and

f. The removal of the Maple tree is not prohibited, and the Reply Statement states that Ms. Bathe intends to replant, when feasible.

42In conclusion, the Tribunal finds that the MV application is appropriate and may be approved.

ORDER

43THE TRIBUNAL ORDERS that the appeal is allowed, and the variances to the Town of Cobourg's Zoning By-law No. 85-2003, as stated below, are authorized:

a. To permit the maximum lot coverage of the detached accessory building/structure (coach house) to be 13.3%, and

b. To permit the minimum lot frontage for a detached accessory building/structure (coach house) to be 14.28 metres.

"A. Snowdon"

A. SNOWDON 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.