Ontario Land Tribunal
Tribunal ontarien de l'aménagement du territoire
ISSUE DATE: September 22, 2025
CASE NO(S).: OLT-24-000616
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Abu Naser Md. Imtiaz
Subject: Minor Variance
Description: To permit both a home-based business and an accessory apartment in the main dwelling of the subject property
Reference Number: A/14/24
Property Address: 31 Lumsden Crescent
Municipality/UT: Whitby/Durham
OLT Case No.: OLT-24-000616
OLT Lead Case No.: OLT-24-000616
OLT Case Name: Imtiaz v. Whitby (Town)
Heard: August 28, 2024 by video hearing
APPEARANCES:
| Parties | Representative |
|---|---|
| Abu Naser Imtiaz Md ("Appellant") | Self Represented |
| Town of Whitby ("Town") | Did Not Attend |
DECISION DELIVERED BY A. SAUVE AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1This Hearing stems from an Appeal under section 45(12) of the Planning Act ("Act") brought by the Appellant to permit both a home-based business and an accessory apartment in the main dwelling at 31 Lumsden Crescent ("subject property"). The subject property is on a corner lot with no sidewalk.
2The home-based business will offer beauty services performed solely by the homeowner (such as eyebrow threading, face threading, hair colouring and styling, and make-up services) in one room on the ground floor of the dwelling and will serve one client at a time. An accessory apartment was registered to the subject property in December 2023.
3Section 4 (ee)(1)(l) of Zoning By-law No. 1784 ("ZBL") states that a home-based business shall not exist on any lot containing an accessory apartment. The subject lands are currently designated as residential (R2B) in Zoning By-law No. 1784. The surrounding land uses are also residential. To permit this home-based business, one variance is required.
4The subject property is designated Residential in the Town of Whitby Official Plan ("OP").
5A Planning Report was created which recommended granting the minor variance. However, the Committee of Adjustment ("COA") denied the application on May 16, 2024. The COA found that the variance was not minor in nature and that the variance is not desirable for the property or its neighbourhood and, therefore, did not meet the legislative test.
EVIDENCE AND ANALYSIS
6This was an uncontested hearing as the Town did not appear. The Appellant represented himself at the hearing.
7An Appeal pursuant to s. 45(12) of the Act is a hearing de novo. The Appellant bears the onus of demonstrating that the four tests as set out in s.45(1) have been met, namely that the requested variances:
a) Maintain the general intent and purpose of the OP; b) Maintain the general intent and purpose of the Zoning By-law ("ZBL"); c) Are minor in nature; and d) Are desirable for the appropriate development or use of the land, building or structure.
8In addition, s. 3(5) of the Act requires the Tribunal's decision to be consistent with the Provincial Planning Statement 2024 ("PPS"). The Tribunal must also have regard to the matters of Provincial interest set out in s. 2 of the Act, as well as for the decision of the COA and the information considered while making its decision, as set out in s. 2.1(1) of the Act.
9The Tribunal received three Participant Requests from residential neighbours to the subject property. The three Participant Requests are opposed to the application. With no objection by the Appellant the following were granted Participant Status:
a. Laurie Robertson b. Gino and Betty Guatto c. Sam and Verna Kawasaki
10The Appellant informed the Tribunal that he would be calling two witnesses during the course of the hearing; himself and his wife Nafeesa Rashid.
11The following were made Exhibits at the hearing:
a) Staff Report b) Letter of support from neighbour c) Basement apartment permit d) Bill 23 e) Letter/Statement from Appellant
12The Tribunal did not hear any expert testimony but was brought to the Planning Report authored by the Planning and Development Department of the Town of Whitby on a number of occasions during the evidence of the Appellant. The author of the report did not testify.
13The Appellant testified that they have ben residing in that home for two years and would like to rent out the apartment to help with paying the mortgage and to help the housing issues in the community.
14The oral evidence of the Appellant and his wife had three themes:
a) Housing - There is a critical need for housing in Ontario and the Town of Whitby; b) Parking - The residential neighbourhood is very spacious, the subject property having a frontage of 24 meters, and there is ample street parking; and c) Traffic – No traffic issues would be created by granting the minor variance.
15Parking issues were raised in the Participant Statements and Mrs. Rashid, in her evidence, testified that their garage has two parking spots, and the driveway can accommodate another two parking spots. She also testified that her side of the street has ample street parking, but the other side does not because either the neighbours or their guests park on the street. Ms. Rashid informed the Tribunal that she instructs her customers to only park on her side of the street.
16The Appellant, when addressing the parking issue, brought the Tribunal to the Planning Report, which states:
Sufficient parking is provided as the property contains 2 garage parking spaces and 2 driveway parking spaces. The minimum requirement for parking is 2 spaces for the main dwelling and 1 space for the accessory apartment. On-site parking can therefore be provided for any clients of the home-based business.
17The Appellant also brought the Tribunal to Exhibit B which contains offers of support from four neighbours of the Appellant for the minor variance which were taken from the Referral Record from when the matter was before the COA.
18The Tribunal instructed the Appellant to address the legislative tests found in paragraphs 7 and 8 above.
19The Appellant testified that the application maintains the general intent and purpose of the OP by quoting the Planning Report:
The subject property is designated Residential in the Town of Whitby Official Plan. The predominant use in this designation shall be for residential purposes. The Official Plan aims to establish and sustain healthy, safe, attractive, and complete communities through the development and redevelopment of residential neighbourhoods. The Official Plan is supportive of home-based businesses in lands designated as Residential if they are appropriately scaled, if they remain accessory and subordinate to the main residential use, if the business does not create any adverse impacts for the residential neighbourhood, and if it meets all other applicable regulatory requirements. The requested variance to permit a home-based business in a dwelling with an accessory apartment meets the general intent of the Official Plan.
20The Appellant also brought the Tribunal to the Planning Report when discussing if the application maintains the general intent and purpose of the ZBL:
On their own, each accessory use would is permitted by By-law 1784. The home-based business meets all the provisions of Section 4(ee) with respect to home-based businesses, except for the provision stating that a home-based business is not permitted where a dwelling has an accessory apartment. Sufficient parking is provided as the property contains 2 garage parking spaces and 2 driveway parking spaces. The minimum requirement for parking is 2 spaces for the main dwelling and 1 space for the accessory apartment. On-site parking can therefore be provided for any clients of the home-based business … In conclusion, the requested variance is minor in nature, meets the general intent of the Zoning By-law, and is desirable for the appropriate development of the property.
21The Appellant testified that the requested minor variance is minor in nature because by right Bill 23 allows for two rental units and any of the neighbours can also construct two rental units on their property. Any increase in street parking or traffic would be the same from this application being approved for one rental unit and one home business than if it was for two rental units.
22The Appellant then discussed whether the application is desirable for the appropriate development and use of the land, building or structure. The Appellant testified that because of the acute housing crises, that two rental units being allowed as of right and because his wife has a medical issue that prevents her from working full time that this application is desirable and appropriate.
DECISION
23This was an uncontested hearing. No contrasting evidence was provided. The Tribunal notes that the Planning Report, which was relied on by the Appellant during his evidence, cannot be given the same weight as have a planner provide expert opinion evidence under oath. However, the Tribunal finds that the witnesses were able to provide their own context to support the conclusions in the report.
24Therefore, for reasons referenced previously in evidence and analysis, the Tribunal finds that the requested variances are desirable, have regard for matters of Provincial interest pursuant to the Act, and are consistent with the PPS and the City's OP. The variances also have appropriate regard for all the "four tests" pursuant to s. 45(1) of the Act. The Appeals shall be allowed in each instance, and the related variances in each of the Appeals shall also be authorized in the Order that follows.
ORDER
25THE TRIBUNAL ORDERS THAT the appeal is allowed and the variance to By-law No. 1784 is authorized
"A. Sauve"
A. SAUVE 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.