Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 25, 2025

CASE NO(S).: OLT-25-000524

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

Applicant/Appellant: Brian Ainge

Subject: Minor Variance

Description: To permit the widening of a legal nonconforming driveway and the modification of a street-facing façade to construct an Additional Residential Unit (basement apartment).

Reference Number: MV-2024-044

Property Address: 481 Jim Barber Court

Municipality/UT: Newmarket/York

OLT Case No.: OLT-25-000524

OLT Lead Case No.: OLT-25-000524

OLT Case Name: Ainge v. Newmarket (Town)

Heard: September 19, 2025 by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
Brian Ainge	Elena Pugacheva-Juncal
Town of Newmarket	Did not attend hearing

DECISION DELIVERED BY A. SNOWDON AND ORDER OF THE TRIBUNAL

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 Brian Ainge (“Appellant”) regarding the decision of the Town of Newmarket (“Town”) Committee of Adjustment (“CoA”) to deny the minor variance (“MV”) application for the property known as 481 Jim Barber Court, Newmarket (“Subject Property”).

2The Subject Property is located on the west side of Jim Barber Court in the Town. The Subject Property is surrounded by residential, open space, and a rail line. An existing townhouse dwelling is on the Subject Property.

3The Appellant requested two minor variances from Zoning By-Law No. 2010-40 (“ZBL”) to permit the construction of an Additional Residential Unit (“ARU”) in the Subject Property’s basement. The Appellant sought relief to permit widening the driveway and modification of a street-facing façade.

4On May 28, 2025, the CoA denied the MV Application citing that the requested variance(s):

a. Is not minor in nature; b. Does not maintain the general intent and purpose of the Official Plan; c. Does not maintain the general intent and purpose of the Zoning By-Law; and d. Is not considered desirable for the appropriate development of the lot.

STATUS REQUESTS

5The Tribunal did not receive any Party or Participant status requests prior to or during the Hearing.

SUBMISSIONS

6The Appellant submitted a Book of Documents, which was marked as Exhibit 1.

7The Town did not attend the Hearing, but they did submit a Proposed Set of Conditions if the MV Application is approved, which was marked as Exhibit 2.

APPLICATIONS/ VARIANCES REQUESTED

8The Appellant has appealed the CoA Decision and requested the following relief:

a. Relief from s. 6.2.2 Zone Standards to permit a driveway width of 9.58 metres (“m”) whereas the by-law permits a maximum driveway width of 3.00 m; and b. Relief from s. 4.5 Accessory Dwelling Units to permit the alteration of a façade (new doorway at grade) facing a street whereas the by-law does not permit the alteration of a façade facing a street.

SectionS 2 and 3(5) of the Planning Act

9The 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 Tribunal’s decision on the MV application must be consistent with the Provincial Planning Statement, 2024 (“PPS”).

10The Appellant stated that the MV application has regard for matters of Provincial interest as stated in s.2 of the Act. They highlighted that the proposed ARU is:

a. An orderly development of a safe community; b. Expands the range of available housing types; c. Provides an affordable housing option; d. Is in an existing developed area; and e. Preserves the identity of the neighbourhood.

11The Appellant stated that the MV application is consistent with the PPS in the following ways:

a. Increases the available housing supply; b. Provides a mix of housing options; c. Is gentle intensification; d. Is an efficient use of land in a built-up and fully serviced area; and e. Is compatible with the character of the neighbourhood.

Section 45(1) of the Planning Act

12When 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 (“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 Town of Newmarket’s Official Plan

14The Appellant stated that the proposed ARU is gentle intensification, and the OP permits and promotes ARUs.

General Intent and Purpose of the Zoning By-law

15Section 4.5 of the ZBL states that the external appearance of a buildings façade facing a street shall not be altered.

16The Town Staff Report, that was submitted to the CoA, explained that this by-law was enacted so that adding an ARU to a building “did not alter the character of the dwelling and that two doors were not visible from the street.”

17The Appellant stated that although the proposed ARU will alter the façade, it alters the rear façade so there will not be two doors visible from the street.

18The Town Staff Report agreed with this, stating that adding the door to the rear of the building “does not give the dwelling the appearance of a two-dwelling unit from either street.”

19The Appellant stated that the MV to increase the permitted driveway width is necessary to satisfy the ZBL requirements for on-site parking. Section 6.2.2 of the ZBL permits a maximum driveway of 3.0 m. The existing driveway is larger than the permitted width.

20The proposed driveway width is 9.58 m. The proposed ARU would maintain the existing driveway width at the street and widen the driveway by extending it, both in width and length, on the south side of the dwelling. The Town Staff Report states that the widening would allow “parking standards to be met while maintaining soft landscaping in the front yard and neighbourhood’s character.”

Desirable for the Appropriate Development or the Use of Land

21The Appellant stated that the MVs will not negatively impact the neighbourhood and is supported by the Town Staff Report.

22The Town Staff Report explained that the proposed ARU:

a. Contributes to a variety of housing types; b. Facilitates a modest increase in density; c. Supports the Town’s goals of providing more affordable housing options; d. Does not interfere with the intended use of the dwelling; and e. Does not negatively affect the character of the neighbourhood.

Is Minor in Nature

23The Appellant stated that the MVs are an incremental change with no negative impacts to the neighbourhood.

24The Town Staff Report states that the property can support the necessary number of vehicles as required by the ZBL and that the driveway will only be widened enough to allow vehicular access to the exterior parking space. The Town Staff Report states that this will not significantly impact neighbouring properties or the community.

Summation

25To summarize, the Appellant contends that the MVs:

a. Meet all policy requirements; b. Meet all requirements of s. 45(1) of the Act; and c. Meet the four tests.

REGARD FOR MUNICIPAL COUNCIL DECISION

26The Tribunal did not receive any Participant/public statements for this appeal, but 11 public statements were considered by the CoA in its decision. Under s. 2.1(2) of the Act, the Tribunal shall have regard for any information and materials that were used by the CoA in making its decision.

27Concerns raised, to the CoA, by the public were:

a. The driveway width is excessive; b. The street-facing basement door alters the character of the neighbourhood; c. Visual/character impacts on neighbourhood are negative; d. Drainage and flooding risk; and e. Property maintenance has been historically lacking.

28The driveway width, the street-facing basement door, and visual/character impacts have been addressed by the Appellant during their submissions for this Appeal.

29The Appellant stated that the concerns regarding drainage and flooding will be addressed, if the MVs are approved, through the conditions proposed by the Town.

30As for the property maintenance, the Appellant has stated that this responsibility will fall on the landlord/property owner and not the tenant. The Appellant stated that the landlord/property owner will maintain the property including hiring a professional property management company if needed.

TOWN CONDITIONS

31The Town has submitted three proposed conditions that they would like included in the Tribunal’s Order if the appeal is granted. The three conditions are:

a. The applicant will need to submit a sealed grading plan and servicing plan designed and stamped by a P. Eng of Ontario to the Town, complying with the Town’s standards for grading and drainage requirements. There should be no negative impacts on the grading and drainage of this property or neighbouring properties as a result of the proposed changes. Please be advised that this application will require a review by the Building Department. See Letter VA004M dated May 12, 2025; and, b. The Secretary-Treasurer shall receive a letter from the Town of Newmarket, Development and Infrastructure Services – Planning Services Division, indicating that satisfactory arrangements have been made with respect to the Town’s Tree Preservation, Protection, Replacement and Enhancement Policy prior to the issuance of any building permit; and, c. Metrolinx shall receive supporting documentation, such as architectural drawings, for their review and records. See letter dated May 12, 2025.

32The Appellant stated that they agree to these conditions.

FINDINGS

33The Tribunal accepts the evidence of the Appellant and finds that the requested variances have regard for the Provincial interests expressed in s. 2 of the Act, are consistent with the PPS, and satisfy all four tests of s. 45(1) of the Act.

34The Tribunal finds that the concerns raised by the public have been properly addressed and that they have not raised sufficient reason to deny the appeal.

35The Tribunal finds that the Town’s proposed conditions will help mitigate negative impacts to the neighbourhood.

ORDER

36THE TRIBUNAL ORDERS THAT the appeal is allowed and the variances to By-law No. 2010-40 are authorized subject to the following conditions:

a. The applicant will need to submit a sealed grading plan and servicing plan designed and stamped by a P. Eng of Ontario to the Town, complying with the Town’s standards for grading and drainage requirements. There should be no negative impacts on the grading and drainage of this property or neighbouring properties as a result of the proposed changes. Please be advised that this application will require a review by the Building Department. See Letter VA004M dated May 12, 2025; and, b. The Secretary-Treasurer shall receive a letter from the Town of Newmarket, Development and Infrastructure Services – Planning Services Division, indicating that satisfactory arrangements have been made with respect to the Town’s Tree Preservation, Protection, Replacement and Enhancement Policy prior to the issuance of any building permit; and, c. Metrolinx shall receive supporting documentation, such as architectural drawings, for their review and records. See letter dated May 12, 2025.

“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.