Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: March 3, 2026
CASE NO(S).: OLT-25-000321
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Iftekhar Syed
Subject: Minor Variance
Description: Minor Variance to seek relief to build on a newly proposed severed lot
Reference Number: MV 12/25
Property Address: 900 Vistula Drive
Municipality/UT: Pickering/Durham
OLT Case No.: OLT-25-000321
OLT Lead Case No.: OLT-25-000321
OLT Case Name: Syed v. Pickering (City)
Heard: September 5, 2025 by Video Hearing
APPEARANCES:
Parties
Representative
Iftekhar Syed (“Applicant”)
Self-Represented
City of Pickering
Did not attend
DECISION DELIVERED BY SHARON L. DIONNE AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The City of Pickering Committee of Adjustment (“COA”) considered two applications affecting the property municipally known as 900 Vistula Drive, Pickering (“Property”) at its Hearing in April 2025.
2The first is Consent Application LD 03/25, which seeks to divide the Property into two residential lots. It was conditionally approved subject to the fulfilment of several conditions (“Consent”). One of the conditions requires that both the proposed severed and retained lots comply with the City of Pickering Zoning By-law No. 8149/24 (“By-law”). The COA’s decision with respect to the Consent was not appealed and is not before the Tribunal.
3The second is a Minor Variance Application MV 12/25 (“MV Application”), which seeks a total of five (5) variances to the By-law. The COA conditionally approved the requested reduction in the minimum lot area requirement for the severed lot. The COA denied the other four variances requested to permit the construction of the Applicant’s proposed new residential dwelling (on the severed lot), because, in the COA’s opinion, the variances did not maintain the general intent and purpose of the City of Pickering Official Plan (“Official Plan”) and the By-law, were not desirable for the appropriate use of the Property and were not minor. The Applicant appealed the COA decision with respect to the MV Application.
4An appeal under s. 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended (“Planning Act”) results in a Hearing de novo before the Tribunal. This means that the MV Application for all the requested variances are a matter for the Tribunal to decide upon, and the onus falls on the Applicant to provide evidence to satisfy the Tribunal that the variances requested meet all the statutory tests.
5In this case, after considering the Applicant’s testimony and documentary evidence, the Tribunal finds that the Applicant has failed to demonstrate to the Tribunal that the four-part test under s. 45(1) of the Planning Act has been met with respect to each of the five variances being requested. The Tribunal finds that the requested variances do not constitute good planning, and the variances would allow for the construction of a dwelling that is too large on a corner lot which would be the smallest on the street. The Tribunal’s findings and reasons are as set out in this Decision.
LEGISLATIVE REQUIREMENTS
6For the Tribunal to authorize a variance, the Tribunal must be satisfied that a requested variance meets all parts of the four-part test as set out in s. 45(1) of the Planning Act, namely:
Does it maintain the general intent and purpose of the Official Plan?
Does it maintain the general intent and purpose of the Zoning By-law?
Is it desirable for the appropriate development or use of the land, building or structure? and,
Is it minor in nature?
7The Tribunal must also be satisfied that the MV Application is consistent with the Provincial Planning Statement, 2024 (“PPS 2024”) as required under s.3 (5)(a) of the Planning Act.
8When making its decision, the Tribunal must have regard to matters of Provincial interest as set out in s. 2 of the Planning Act and, as well, have regard to the decision of the COA and the information and material considered by it, as required under s. 2.1 (1) of the Planning Act. The Tribunal is not bound by the COA decision.
REQUESTED VARIANCES
9The MV Application before the Tribunal in the Hearing requests five (5) variances, as follows:
Variance 1 - To permit a reduction of Minimum Lot Area to 430 square metres (“m2”), whereas the By-law requires a Minimum Lot Area of 460 m2;
Variance 2 - To permit an increase in Maximum Lot Coverage to 37.5 percent (“%”), whereas the By-law permits a Maximum Lot Coverage of 33%;
Variance 3 - To permit a reduction in the Minimum Rear Yard Setback to 3.4 metres (“m”), whereas the By-law requires a Minimum Rear Yard Setback of 7.5 m;
Variance 4 - To permit a deck to encroach into the required Rear Yard Setback to a maximum of 3.05 m or half the distance of the Minimum required Rear Yard Setback (whichever is less), whereas the By-law allows a balcony, porch or uncovered platform to encroach into a required setback to a Maximum of 2.0 m or half the distance of the Minimum required setback (whichever is less); and,
Variance 5 - To permit a Maximum Driveway Width of 6.5 m, whereas the By-law permits a Maximum Driveway Width of 6.0 m.
THE HEARING
10The City did not attend the Hearing. The Applicant was accompanied by two of the other owners of the Property.
11The Tribunal explained to the Applicant that the appeal results in Variances 1 to 5 being before the Tribunal in the Hearing, and that the onus falls on the Applicant to provide evidence, be it factual, documentary, or opinion in relation to the merits of each of the requested variances to satisfy the Tribunal that the variances requested meet all of the statutory tests. The Tribunal also explained that although the Consent is not before the Tribunal, the requested variance related to the required minimum lot area for the severed lot is. The Tribunal recessed the Hearing to give the owners an opportunity to consider what was at stake. Upon resuming the Hearing, the Applicant advised the Tribunal that the owners understood and were prepared to proceed with the Hearing on the appeal and to provide evidence on each of the requested variances.
12The Tribunal granted Participant Status to two Individuals, Diana Burgess and Gillian Coleman. The two individuals reside on neighbouring lands thereby having the potential to be impacted by the development of the Property, and they provided written comments to the COA at the time of its consideration of the Consent and MV Applications. Their concerns include that the proposed development is not in keeping with the low-density residential character of the neighbourhood, does not maintain a larger setback on a corner lot, the proposed building is too large, and may result in negative impacts to neighbouring properties related to loss of privacy, noise, obstruction of sunlight, tree damage, increased stormwater runoff and drainage.
13The Applicant took the position that the comments and concerns outlined in the Participant Statements were not relevant to the matter before the Tribunal, and that the granting of the status requests was not necessary. The Applicant acknowledged, however, that it is in the Tribunal’s discretion as to how to deal with the requests. The Applicants’ response to the Participant Statements are discussed later in this Decision.
APPLICANT’S EVIDENCE
14The Applicant filed a compilation of documents contained within the Municipal Record (on file with the Tribunal), including the COA Decision, the City Report1, and the Applicant’s drawings/plans. The compilation is marked as Exhibit 1.
15Mr. Syed and Mr. Rahman, two of the owners who have direct knowledge of facts related to the proposed development and the processing of the Consent and MV Applications, provided testimony under oath in a panel format. Mr. Rahman provided his views on the merits of the variances in the context of the four-part test under s. 45 (1) of the Planning Act. The testimony is summarized as follows:
The Applicant is proposing to sever the Property into two residential lots while retaining the existing swimming pool located in the rear yard.
The Applicant advised that the Property is subject to Natural Heritage Features in the rear portion of the Property, being a protected ravine area, that requires a 10 m setback from the top-of-bank of the ravine. Initially the Toronto and Region Conservation Authority (“TRCA”) had reservations on the proposed severance. Through negotiations and revisions to the proposed lot boundaries, the TRCA’s requirements can be addressed, with the proposed rear lot boundary being set coincident with an 8 m setback to the top-of-bank, while allowing for some of the existing trees to be retained.
Variances 1 - 4 are necessary because of where the rear lot boundary for the proposed severed lot falls and are minor.
Variance 5, for an increase in driveway width is minor and is needed for access to the garage.
The Applicant directed the Tribunal to consider the COA Decision and the City Report as support for the requested variances.
16In response to the Tribunal’s questions concerning Variances 2, 3 and 4, the Applicant explained its preference to seek relief to the By-law as proposed, as opposed to considering a re-design of the proposed building to reduce its size to comply with the By-law.
ANALYSIS AND FINDINGS
17The Tribunal has reviewed and considered the evidence put forward by the Applicant.
Property, Surrounding Area, and Proposed Development
18The Property is a corner lot in an established low-density residential neighbourhood with mature trees located in the rear yard. It is located on the northeast corner of West Shore Boulevard and Vistula Drive, just south of Bayly Street in the City. To the rear of the Property is a townhouse development on Bayly Street where the Participants reside.
19The City Report describes the Property as designated “Urban Systems – Community Areas” under the Region of Durham Official Plan and as designated “Urban Residential Area – Low Density Areas” under the City of Pickering Official Plan (“Official Plan”). The Property is within the West Shore Neighbourhood and identified within Key Natural Heritage Features on Schedule III B - Significant Woodlands and Schedule III C - Shorelines, Significant Valley Lands and Stream Corridors. The Official Plan designations permit residential uses.
20The City Report identifies that the Property is zoned “R1E” under the By-law. A single detached dwelling is a permitted use in this zone.
21The Tribunal was advised by the Applicant that one of the factors in establishing the boundaries of the severed and retained lots involves addressing TRCA’s comments pertaining to the Natural Heritage Features. While not clear from the Applicant’s testimony, the documentary evidence is that the requirement for a 10 m setback to the top-of-bank of a ravine is to be addressed by having:
the proposed rear lot boundary for the proposed severed lot be coincident with the 8 m setback to the top-of-bank;
the remaining 2 m of the 10 m setback requirement to the top-of-bank is located within the rear of the proposed severed lot; and
the requirement for the full 10 m setback to be re-naturalized through plantings on both the proposed severed and retained lots as required by TRCA.
22The City Report describes the Consent as set out below:
the proposed retained lot would have a lot frontage of 17.5 m and a lot area of 806.8 m2; and
the proposed severed lot would have a lot frontage of 17.4 m and an area of 437.7 m2.
23Schedule A shows that the boundaries for the severed and retained lots are irregular and not based on a straight-line projection from the street line of Vistula Drive to the rear lot line of the property as would be typical from a planning perspective.
24In the alternative, the Applicant has proposed a lot boundary which extends in a straight-line from the Vistula Drive to a point near the rear corner of the existing dwelling and the footprint of the proposed dwelling, where it jogs around the swimming pool and then extends on an angle across the Property dividing the rear portion of the Property so that trees and the pool are within the proposed retained lot.
25The evidence suggests that the angled lot line is based on the 8 m setback to the top-of-bank of the ravine. This results in the retained lot wrapping around both the north and east sides of the proposed severed lot, and the proposed severed lot becomes the corner lot.
26The Tribunal reviewed the Site Plan Drawing A-1 found at PDF page 69 of Exhibit 1 which shows the surveyed boundary of the Property and the boundaries for the severed and retained lots, along with the existing and proposed buildings thereon. This plan is attached to this Decision as Schedule B (“Site Plan”). In comparing the figures in the City Report with the Applicant’s drawings and plans, it appears that the base plan used in the preparation of figures in the City Report is the Site Plan and is consistent with the underlying dimensions on Schedule A.
27The site statistics on the Site Plan show the retained lot has a frontage of 13.8 m and the proposed severed lot having a lot frontage of 14.47 m. These dimensions are inconsistent with the lot frontages presented in the City Report (17.5 m and 17.4 m for the retained and severed lots, respectively) and it is not clear to the Tribunal how the lot frontages set out in the City Report were determined.
28Additionally, the Tribunal is unable to reconcile the actual lot area of the Property because the City Report indicates the Property has an area of approximately 1,230 m2, however collectively the size of the proposed and retained lots cited in the City Report totals 1,244.5 m2, and what’s shown on the Applicant’s drawings total 1,239.52 m2.
COA Decision
29The Applicant relies on the COA Decision in support of Variance 1. The Tribunal reviewed the decision of the COA, as discussed below.
30At the time of making its decision, the COA had before it the City Report in which City Staff concludes that the proposed severance is appropriate and the requested variances are minor in nature, desirable for the appropriate development of the lands, and in keeping with the general intent and purpose of the Official Plan and the Zoning By-law. City Staff recommended, however, that the following condition be imposed if the COA approved the MV Application:
“That these variances apply only to the proposed severed lot (Part 2) and proposed development, as generally sited and outlined on the applicant’s submitted plans (refer to Exhibits 3, 4, 5 &62).”
31The City Report’s recommendation came with a caveat that the COA consider both agency and public input which had not yet been received. It appears that concerns and objections from several members of the Public were raised before the COA.
32The COA approved the reduction in minimum lot area of 430 m2, subject to the following condition:
“That this variance applies only to the proposed severed lot (Part 2) and proposed development, as generally sited and outlined on the applicant’s submitted plans (refer to Exhibit 3 contained in the staff report to the Committee of Adjustment, dated April 9, 2025.)”
33The COA was satisfied with the proposed severance of the Property in its configuration, as shown on Schedule A, and the COA’s approval of Variance 1 is subject to a condition, which is generally worded as recommended albeit without the reference to certain attachments (Exhibits 5 and 6 to the City Report) as there were in fact no such attachments.
34Interestingly, the Tribunal finds that the condition for Variance 1 applies to the severed lot and the proposed development (as shown on Schedule A), but the COA did not approve any of the requested variances that would allow the size and placement of the proposed development which is shown on Schedule A. The COA rejected the opinion of City Staff on the requested variances pertaining to Variances 2 to 5, which directly relate to the size and placement of the proposed dwelling, deck and driveway on the severed lot.
City Report
35The Applicant relies on the City Report in support of the MV Application. Without one of the authors of the City Report being called to testify, the Tribunal is left to interpret the comments and recommendations in the City Report on reading its content.
36The Tribunal reviewed and considered the City Report and notes that when the City Report was prepared, the Planning Staff were in receipt of input/comments from TRCA, Region of Durham, and various City Departments including Building Services, Fire Services, and Engineering Services. In addition to conditions of approval for the Consent Application, Engineering Services also commented on the MV Application that if any of the requested variances related to reduced rear yard setback, increased maximum lot coverage, and projection of the deck into the rear yard variances are approved, there is a need to ensure that the drainage patterns within the lot and surrounding area are not adversely affected.
37Overall, the City Report is supportive of a severance of the Property as desirable intensification of an underutilized lot.
38The City Report notes that TRCA agreed to accept the rear lot boundary of the severed lot to be based on an 8 m setback to the top-of-bank and re-naturalization of the typically required 10 m setback (8 m on the retained lot and 2 m on the proposed severed lot). Therefore, it is intended that the proposed dwelling and deck are to be located outside of the 10 m setback to the top-of-bank.
39City Staff view the staggered rear lot line of the severed lot to be acceptable, as it allows for preservation of the key natural heritage features along the rear of the Property (i.e. trees) and for no further development to encroach into the natural heritage features.
40Specifically in relation to the four-part test under s. 45(1) of the Planning Act, the City Report sets out the following:
a. Under the heading of Official Plan on page 3 of the City Report, Staff states that they are of the opinion “that the requested variances maintain the general intent and purpose of the Official Plan.” However, there is no elaboration how the City Staff arrived at their conclusion.
b. Similarly, on page 5 of the City Report, it states that “Staff are of the opinion that the requested variances are desirable for the appropriate development of the land and are minor in nature.” The discussion that proceeds this statement indicates that the requested variances will facilitate the development of a detached dwelling on the proposed severed lot and that Staff consider it desirable to intensify an underutilized lot.
c. The City Report provides discussion as to whether each of the requested variances maintain the general intent and purpose of the By-law, as follows:
i. Staff’s opinion is that the intent of the minimum lot area requirement is to ensure a usable lot size that is compatible with the neighbourhood. Staff’s opinion is that Variance 1 maintains the general intent and purpose of the By-law because the staggered rear lot line is acceptable and the Applicant has demonstrated a detached dwelling can be appropriately sited on the severed lot.
ii. Staff’s opinion is that the intent of the maximum lot coverage standard is to ensure that there is an appropriate amount of permeable yard space for landscaping and amenity areas uncovered by buildings on a lot and to ensure appropriate lot drainage. Staff’s opinion is that Variance 2 maintains the general intent and purpose of the By-law, because the proposed placement of the dwelling and deck will allow for sufficient space for landscaping and amenity areas due to a staggered setback ranging from 3.4 m to 9.5 m along the rear lot line.
iii. Staff’s opinion is that the intent of the rear yard setback and associated encroachment of decks (Variances 3 and 4) is to maintain sufficient outdoor amenity space within the rear yard, and to maintain an appropriate separation between structures and abutting rear yards to mitigate privacy/overlook concerns. Staff’s opinion is that Variances 3 and 4 maintain the general intent and purpose of the By-law because the dwelling and deck will have a 3.4 m setback along the eastern portion of the lot and 9.5 m in the western portion of the proposed severed lot, and the deck is seen to contribute to the overall amenity space in the rear yard.
iv. Staff’s opinion is that the intent of the maximum driveway width is to ensure sufficient space is maintained in the front yard for landscaping, to accommodate grading and drainage, and to maintain the character of the street. Staff’s opinion is that Variance 5 maintains the general intent and purpose of the By-law because access to the garage is required and the additional 0.5 m in driveway width is not expected to generate significant negative impacts to the streetscape.
41The Tribunal finds that there are some errors and omissions in the City Report, and inconsistencies between the City Report and other documentary evidence, namely the Applicant’s plans/drawings. As there was no representative from the City in attendance, and the Applicant did not summon one of the authors to appear before the Tribunal to provide clarification(s), the Tribunal is left with questions that have not been answered. Specifically, it is not known whether the types of concerns raised in the public’s comments were a consideration of Staff in formulating their opinions.
42The Tribunal also finds that there is little by way of “planning analysis” provided in arriving at the opinions on the requested variances. For example, there is no discussion on what basis the variances maintain the general intent and purpose of the Official Plan. There is no discussion or analysis related to the size of the proposed dwelling and deck. There is no assessment of whether there is any potential impact(s) associated with the granting of any one or more of the requested variances.
43Rather, the planning analysis in respect of the requested variances seems to suggest that the severance of the Property is a good idea, that the rear lot line is in existence, and that it represents some physical impediment. On that basis, City Staff accepts a premise that there “must be” relief applied to the zoning standards. The Tribunal does not accept this.
44In fairness, the City Report has been written to provide information and recommendations on both the Consent and MV Applications, and that has led to less in-depth analysis and discussion on the requested variances. It is however surprising that the City Report does not provide any evidence on matters of Provincial interest or consistency with the PPS 2024 which are legislative requirements on Consent applications.
45Given that it is difficult for the Tribunal to understand the basis upon which Staff opines that the requested variances meet the four-part test, and that this is coupled with the errors, omissions and inconsistencies in factual details related to the proposed development, the Tribunal finds that it is unable to rely on the opinions set out in the City Report.
46Therefore, the City Report on its own does not provide sufficient evidence to satisfy the Tribunal that the requested variances meet the four-part test, thus leaving the Tribunal to evaluate each of the requested variances on its own merits.
Variance 1 – Minimum Lot Area
47The By-law requires a minimum lot area of 460 m2 and a minimum lot frontage of 15.0 m for a residential lot in the R1-E zone. The requested variance seeks to permit a minimum lot area of 430 m2 for the proposed severed lot.
48The testimony in support of the requested variance is that the minimum lot area is a direct result of the Property being subject to TRCA regulation and the negotiated configuration of the severed lot for an 8 m setback to the top-of-bank. Mr. Rahman relies on the COA Decision and the recommendation in the City Report and is of the view that the proposed development is not against neighbourhood character as it is a single detached house as opposed to a commercial use, and that there will be no traffic or parking issues caused. He is also of the view that the variance is minor in that the relief requested is 30 m2 or less than a 7% reduction in lot area.
49The Tribunal finds that there is no evidence it can rely on with respect to whether the general intent and purpose of the Official Plan is maintained.
50The Tribunal finds that the general intent and purpose of the By-law is for the minimum lot area standard and the minimum lot frontage standard to work together to ensure that a proposed lot is of a sufficient size and shape to be usable for a permitted use. The Tribunal reasons that the lot should be appropriately configured to accommodate a residential dwelling, parking and driveway, landscaped and outdoor amenity areas, that can be adequately serviced, graded and drained. Consideration should also be given to whether the development on the lot is compatible with the surrounding area in terms of lot size, building size and placement, and if there may be any adverse impacts that either can or cannot be mitigated.
51Although the City Report claims that the Property is the largest along Vistula Drive and that other lots along Vistula Drive range in size between 470 m2 and 720 m2, in the Tribunal’s evaluation, should the reduced lot area of 430 m2 be authorized, the proposed area of the severed lot would be the smallest on the street, and would establish a new benchmark for comparison on lot areas. Additionally, the severed lot would be a corner lot which is typically known to be larger than interior lots to account for the possibility of a larger exterior side yard setback requirement. There is no reliable evidence to persuade the Tribunal that the severed lot as configured is in keeping with the surrounding area in terms of its size (lot area).
52The Tribunal finds that the Applicant’s plans/drawings do not actually demonstrate how the proposed residential dwelling can fit on the severed lot, with an area of 437 m2 (Schedules A and B), let alone on a smaller lot area at the requested 430 m2. To the contrary, the drawings show that the proposed dwelling is too large for the proposed severed lot and cannot be appropriately situated to comply with the By-law in terms of lot coverage, rear yard setback, deck encroachment into the rear yard, and driveway width.
53Having considered the documentary evidence and the testimony of both Mr. Rahman and Mr. Syed, the Tribunal finds that the requested reduction in the minimum lot area of approximately 30 m2 is not supportable in the context of the average size of other lots in the immediate vicinity.
54The Tribunal finds that it is not satisfied that Variance 1 for the requested minimum lot area of 430 m2 maintains the general intent and purpose of the Official Plan and By-law, is minor or is desirable for the appropriate development of the Property, particularly given it would also be a corner lot.
Variance 2 - Maximum Lot Coverage
55Variance 2 seeks to increase the permitted lot coverage from 33% to 37.5%. According to the City Report, the proposed dwelling represents 32 % lot coverage and the combination of the front porch and rear deck represents an additional 5.5% lot coverage.
56The testimony for the Applicant suggests that the lot coverage standard in the By-law allows for enough functional space to be constructed on the lot, while protecting from abuse in terms of the size of building which could be placed on a lot which may disrupt the neighbourhood. The Applicant says they are not asking for additional living space, that the house itself covers 32 % of the lot, and that they need the porch to satisfy the OP, and that it is the deck that triggers the need for the variance. The Applicant suggests that the yard has enough open space for drainage and the neighbourhood will not be impacted and that the request is minor.
57The Tribunal considers the building footprint size and lot coverage of the existing structures on the Property and notes the difference with the proposed building size on the proposed severed lot. According to the site statistics on the Site Plan (Schedule B), the existing dwelling has a ground floor area of 115.45 m2, plus a carport area of 21.73 m2, and a total gross floor area of 115.45 m2. The retained lot would have a lot area of 806 m2 and the building would represent a lot coverage of 17%. In comparison, the proposed building would have a ground floor area of 140.32 m2, a porch area of 4.18 m2, a rear deck area of 27.87 m2, and a total gross floor area of 280.64 m2, on a proposed severed lot of 433.52 m2. In other words, (on the severed lot) a lot of approximately half the size (lot area), the building size (total gross floor area) would be more than double that of the existing dwelling.
58The Tribunal is not persuaded that an increase in lot coverage to 37.5 % would be keeping with the character and fabric of the neighbourhood.
59As a result, the Tribunal is not satisfied that the increase in lot coverage maintains the general intent and purpose of the By-law, is desirable for the appropriate development or use of the Property and is minor. The Tribunal finds that there is no evidence it can rely on with respect to whether the general intent and purpose of the Official Plan is maintained.
Variance 3 - Rear Yard Setback and Variance 4 - Encroachment into Rear Yard
60Variance 3 seeks to decrease the required rear yard setback from 7.5 m to 3.4 m and Variance 4 seeks to grant relief from the permitted encroachment of a balcony, porch or uncovered platform (i.e, deck) into the required rear yard setback. The Tribunal evaluates Variances 3 and 4 together as they, individually and collectively, pertain to the size of the proposed dwelling and deck, and their placement on the severed lot in the rear yard.
61The Applicant submits that the variances are required due to the location of the rear lot boundary and that the location is dictated by addressing the TRCA requirements. As discussed previously in this decision, the Tribunal does not accept the premise that relief to the standards of the By-law “must be” granted based on this.
62The Tribunal asked the Applicant if there was any consideration given to re-visiting the design and size of the proposed dwelling and deck so as not to trigger the necessity for relief from the By-law. The Applicant’s response was that its application is supported by the City Report.
63The Tribunal reasons that the intent and purpose of the rear yard setback is to ensure that there is appropriate outdoor amenity area in the rear yard for the enjoyment of the occupants of the dwelling, for adequate permeable area for grading and drainage of the lot, and for adequate separation to the lot lines for the purposes of land use compatibility in terms of privacy, overlook, noise and shadowing.
64As shown on the Site Plan (Schedule B), the setback of the wall of the proposed dwelling to the rear lot line is approximately 5.54 m. The proposed deck is 3.05 m in depth, which results in structures located approximately 2.49 m from the rear lot boundary. However, the requested variance to the rear yard setback is 3.4 m.
65For Variance 4, it is also not clear how Staff are interpreting the permitted encroachment provisions of the By-law. The way the request is worded could be interpreted to enable the deck to encroach 3.05 m into the required rear yard. Therefore, if the request for a reduction of the required rear yard to 3.4 m were to also be granted, as a permitted encroachment into the required rear yard this could enable the deck to be as close as 0.35 m from the rear property line. The Applicant’s Site Plan shows a proposed deck at 2.49 m from the rear lot line, but there would be nothing to prevent the Applicant from revising their drawings when applying for a building permit to show something different.
66Attached to the City Report are recommended conditions of the Consent Application and one of the conditions requires naturalized plantings within the rear 2 m of the proposed severed lot to address TRCA’s comments. Through testimony the Applicant indicated that plantings in the rear were to be provided. The documentary evidence is that there is an additional 2 m setback to the top-of-bank still required and to be located within the rear of the lot proposed to be severed, and it is expected to be re-naturalized through plantings to the satisfaction of TRCA. In essence, there is the expectation of this as a 2 m ‘no touch’ strip along in the rear yard of the proposed severed lot. The requested Variance 4 will, if granted, conflict with this “no touch” strip.
67As noted previously, Engineering Services identified the need to ensure that the drainage patterns within the retained and proposed severed lots and the surrounding area are not adversely affected. There was no evidence provided in the Hearing that these comments have been considered and/or addressed to date, and the TRCA condition for a 2 m re-naturalized planting area would need to be factored into the design for grading and drainage.
68Based on the evidence, the Tribunal finds that the proposed dwelling and deck are too large for the proposed severed lot, placed too close to the rear lot boundary, does not take into account the space required for the long-term retention of a 2 m naturalized planting strip, and may adversely impact neighbouring lands by way of a loss of privacy and potentially negative impact on drainage. There is no evidence that the required plantings required for the re-naturalized planting strip would be of the sort to provide privacy to the neighbouring properties. The proposed dwelling and deck are to be located outside of the 10 m setback to the top-of-bank in line with the spirit and intent of the TRCA requirements.
69The Tribunal finds that there is no evidence it can rely on with respect to whether the general intent and purpose of the Official Plan is maintained. The Tribunal finds that it is not satisfied that the requested variances maintain the general intent and purpose of the By-law, are desirable for the appropriate development or use of the Property, and are minor. There is no evidence to establish that a re-design of the proposed dwelling is not possible and that the standards in the By-law could not otherwise be met.
Variance 5 - Driveway Width
70Variance 5 requests an increase in the maximum driveway width standard of 6 m under the By-law. The Applicant is seeking an increase of 0.5 m to be applied to the proposed severed lot to ensure that access is available to the proposed two-car garage.
71The Applicant suggests that the requested variance is minor in terms of increase in the width, only 0.5 m, and that in their opinion it will not affect the street or neighbouring properties. It also indicated that the increased driveway width would still allow for landscaping so the functionality of the lot would not be impacted.
72The Tribunal is not persuaded that a 6 m wide driveway prevents access to the proposed garage, and that an additional 0.5 m is necessary for access. It seems that it is more of a desire on the part of the Applicant. The Tribunal finds that there is insufficient evidence to satisfy the Tribunal that the four-part test is met.
Participant Statements
73In response to the Participant Statements, Mr. Syed acknowledges that there have been concerns expressed by neighbours about the condition of the Property, and that steps to rectify the situation including grass cutting, pool cleaning and precautions to comply with the property standards by-law have been taken. He advised the Tribunal that he believes the only comments that are relevant to the MV Application relate to loss of privacy, lot design, environment, parking and traffic. His response on those items is summarized below:
a. In terms of traffic and parking, the development proposal is a single detached house, not multi-unit residential or commercial, the same as the other houses in the area and that he does not believe there will be an increase in traffic and therefore should not be a concern to neighbours.
b. In terms of environmental concerns, TRCA has established the limits of the natural heritage features and top-of-bank setback, and that the development proposal will maintain the setback and meet the TRCA requirements.
c. In terms of the rear yard setback, the Applicant relies on the City Report that it is in keeping with the neighbourhood.
d. In terms of loss of privacy, its proposal satisfies the TRCA requirements, which include planting and chain link fencing, and that a fence would be maintained.
74The Tribunal, having reviewed the documentary evidence finds that several of the Participants’ comments related to tree preservation and removal, grading, drainage and stormwater management will be addressed by way of the conditions of Consent.
75On the point made in the Participant’s Statement related to corner lots being larger than other lots, the Tribunal agrees that it has been a long-established practice in planning for corner lots to be larger in lot area to accommodate for a larger exterior side yard than the side yard for an interior lot condition. Where this is not the case, the alternative is for the dwelling footprint on such lots to be slightly smaller.
76The Tribunal agrees with the Participants’ concern that the proposed building is too large and that the deck would be too close to the rear lot line resulting in adverse impacts related to loss of privacy.
Summary of Findings
77In summary, based on the above analysis, the Tribunal finds that Variances 1 to 5 fail to meet the four-part test under s. 45(1) of the Planning Act. The Tribunal concludes that the requested variances would result in a dwelling that is too large on the smallest lot on the street, which does not represent good planning.
Matters of Provincial Interest and Consistency with PPS 2024
78Given the Tribunal’s conclusions with respect to the four-part test, it is not necessary to consider matters under s. 2 of the Planning Act and consistency with the PPS 2024.
CONCLUSIONS
79The Tribunal has considered all the evidence on the MV Application before it. The Tribunal finds issues with the documentary evidence and is unable to rely upon the opinions set out in the City Report.
80The Tribunal finds that the Applicant has failed to provide sufficient evidence to satisfy the Tribunal that the requested variances meet the four-part test under s.45(1) of the Planning Act.
81The Tribunal also finds that the requested variances would allow for the construction of a dwelling that is too large on a corner lot which would be the smallest on the street, and do not constitute good planning.
82The Tribunal dismisses the appeal.
ORDER
83THE TRIBUNAL ORDERS THAT the appeal is dismissed and variances to Zoning By-law No. 8149/24 are not authorized.
“Sharon L. Dionne”
SHARON L. DIONNE
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.
SCHEDULE A
SCHEDULE B
Footnotes
- Report to the Committee of Adjustment for Applications LD 03/25 and MV 12/25, dated April 9, 2025.
- It is noted that although the recommendation refers to an Exhibit 5 and 6, the City Report filed in the Hearing and on file with the Tribunal as part of the Municipal Record does not include such Exhibits.