Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 21, 2026

CASE NO(S).: OLT-25-000574

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Applicant/Appellant: Stephen and Katherine Ilines

Subject: Application to amend the Zoning By-law – Refusal of application

Description: To permit the demolition of an existing legal non-conforming dwelling and the construction of a new, larger dwelling

Reference Number: Z 51-24 LOB

Property Address: 1175 Dwight Beach Road

Municipality/UT: Lake of Bays/Muskoka

OLT Case No: OLT-25-000574

OLT Lead Case No: OLT-25-000574

OLT Case Name: Ilines v. Lake of Bays (Township)

Heard: March 18, 2026 by video hearing

APPEARANCES:

Parties Stephen and Katherine Ilines (“Applicant/Appellant”)

Counsel Stephanie Fleming Russell D. Cheeseman (In Absentia)

DECISION DELIVERED BY G. ROSS AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This Decision and Order arise from an appeal filed by Stephen and Katherine Ilines with respect to their application to permit the demolition of an existing legal non-conforming dwelling and the construction of a new, larger dwelling. The Subject Property is known municipally as 1175 Dwight Beach Road (“Subject Property”). The case is a Zoning By-law Amendment (“ZBA”) which falls under 34(11) of the Planning Act.

BACKGROUND

2Prior to the Hearing, the Township (“Municipality”) and District withdrew their requests for Status and did not appear. The Tribunal did not receive any additional requests for Party or Participant status.

3The Subject Property consists of .44 hectares lot area with 45.7 metres (“m”) straight line frontage on Lake of Bays. The current structures on the property include:

a. 710 square foot cottage; b. 1,111.7 square foot cottage; c. 1,060 square foot boathouse/dock; d. 146 square foot dock; e. 118 square foot deck; f. 605 square foot deck; h. 421 square foot detached garage (note this building has been removed)

4There are adjustments to the figures used in earlier submissions found in the Witness Statement submitted on March 6, 2026. The corrected proposed new dwelling footprint is 1,666.43 square feet (sq ft) (155 sq m) excluding the new covered porch entrance. The new covered porch would be 89.84 sq ft. (8.3 sq m). Together the new footprint would be 1,756.27 sq ft (163.2 sq m). The total gross floor area including two stories would be 2,708.48 sq. ft (252.6 sq m). An addendum was submitted to the Tribunal on March 27, 2026. The minor errors identified by the Expert Witness Lanny Dennis (“Dennis”) are found in paragraphs 10 and 65 of his Statement. These also impacted the figures used in paragraph 59 of the original March 6th Witness Statement.

5The Subject Property is located on lands designated under the Official Plan of the Township of Lake of Bays (“TOP”) within the District of Muskoka in the Community of Dwight. This area operates with a planning permit system. The area is a Settlement Tourist Commercial (“STC”) with site-specific provision C3-E33 related to environmental protection and site-specific protections.

6A previously approved ZBA permits two dwellings, a marina, and includes a detailed sketch locations of the areas of development.

7The Subject Property is located in an area that has been identified as being within a floodplain area. Note, however, that the floodplain calculations were challenged by both experts during their testimony with details included in the submissions below.

WITNESSES:

8Witness Dennis was affirmed and qualified as an Expert Witness in the area of Land Use Planning.

9Witness Dan Duke (“Duke”) was affirmed and qualified as an Expert Witness in the area of Civil Engineering. The Tribunal deemed it would assist in their understanding of the Floodplain figures provided by Dennis’ testimony and in the Report by Duke Engineering referenced in Witness Statement of Dennis.

EXHIBITS:

10The following materials were identified as Exhibits and marked as follows:

• Exhibit A: Affidavit of Service of Darlene Hornsby
• Exhibit B: Document Book of the Appellant (Includes Lanny Dennis Witness Statement and Acknowledgment of Expert Duty)
• Exhibit C: Acknowledgement of Expert’s Duty- Dan Duke
• Exhibit D: Curriculum Vitae - Dan Duke
• Exhibit E: Muskoka Map 1 and 172
• Exhibit F: Flood Study Report – Alex Cook, P. Eng, Duke Engineering
• Exhibit G: Referenced Sotjkovski v ERCA (OLT-23-001161 Decision)

POSITION OF THE PARTY (APPELLANT)

• The appeal should be allowed as the proposal:
• Is a Modest increase in size;
• Is a continuance of a legal non-conforming use allowing the owners to continue using their property;
• Would be a minor variance in an area without Community Planning Permit (“CPP”) By-law;
• Is an expanded use of the property, which is permitted, under s. 34(10) of Planning Act;
• Would be allowed as an “as-of-right”, if rebuilding on precisely the same site;
• Redevelopment permits the property to be wheelchair accessible for landowner. This accessibility would also benefit future use of the property;
• The proposed building is only slightly different in terms of footprint and positioned further back from potential floods;
• There is an error in Township and Region’s floodplain definition. The actual floodplain elevation, with the waves, is below the level necessary to avoid flooding hazards;
• There is no historical evidence of floodplain related damage to the property or to the access/egress to and from the property;
• There will not be any new hazards created as a result of the proposed changes. See paragraphs 85 - 92 in Exhibit “G” referenced as an applicable OLT case.

TESTIMONY/ EVIDENCE OF APPELLANT EXPERTS WITNESS’ DENNIS AND DUKE

11An overview submitted that the proposal would remove the existing dwelling and waterfront deck and replace it with a modest dwelling that allows accessible continued use. The draft site plan and elevations for this proposal are attached as Appendix “C” in the Document Book.

12The testimony relied on the Planning Act, R.S.O 1990 c.P.13, as amended; the Provincial Planning Statement 2024 (“PPS”); the District of Muskoka Official Plan (“DOP”), consolidation June 2025; the Township of Lake of Bays Official Plan (“TOP”), consolidated July 5, 2016, and the Township of Lake of Bays Community Planning Permit (“CPP”) By-law 2021-111.

13Dennis explained that the TOP is under a Planning Permit System area, and it is designated as Settlement Tourist Commercial with site-specific provision C3-E33 and that:

• The CPP is designated for the Community of Dwight’s planning system, previously approved to zone the subject lands C3-E33 which permits 2 dwellings, and a marina. The proposed new by-law will amend specific details to address the specificity of the proposal. See attached Appendix “C” in the Document book;
• The goals of reconstruction considered the landowner’s use of a wheelchair and related accessibility, including the covered entrance and that;
• If the new building had exactly the same footprint as the existing dwelling the proposed dwelling would be permitted as-of-right. As there is a modest increase to the footprint the by-law change is needed.

14Dennis emphasized that the proposed new dwelling is located further away from the flood line with as much of the existing dwelling on the original footprint as possible and that;

The proposal is for a dwelling footprint of 1,756.76 sq ft (163.2 sq m) including the 89.84 sq ft (8.3 sq m) covered entrance. The existing dwelling is 1,111.7 sq ft. The 25% allowable expansion would permit an increased floor area of 277.92 sq ft, totaling 1,389.62 sq ft. However, allowing for the previously removed additional 421 sq ft. garage and lean-to structure, the total allowable calculation would have been based 1,916.76 sq ft. The proposal is for a dwelling footprint 1,666.43 sq ft (154.8 sq m), not including the covered entrance. Therefore, the actual net increase to the footprint, when you consider the 421 sq ft. garage removal, would be 133.02 sq ft. These calculation results would be within the 25% increase cap requirement.

2024 Provincial Planning Statement (PPS)

15Dennis pointed to Section 2 of the Planning Act highlighting Provincial interests which includes appropriate location for growth, development, and build form to encourage a sense of place and high quality safe and accessible development.

16The PPS addresses economic growth as being important for a community to sustain a healthy municipality. Dennis testified that the Subject Property is in a settlement area where development is both intended and focused, submitting that in Section 2.3.1 related to General Policies for Settlement, “Planning Authorities shall support general intensification and redevelopment” and that:

Under this section of the PPS the subject lands are identified as a Settlement Area and the intent of the policy is to push development into urban settlement areas to optimize the use of existing municipal infrastructure.

17The testimony pointed to the Subject Property as being under C3-E33 - the lands are considered “employment lands” and that:

Under the PPS “..planning authorities shall plan for as well as protect and preserve employment areas for current and future uses.” The proposal does allows for continued use of the property. By retaining and improving the property for the future it would “accentuate the existing commercial use so it will help protect the long-term employment potential.”

18Pointing to Section 3.0 of the PPS, Protecting Public Health and Safety and the sections that addressed where flooding and hazards could occur and the health, safety and property damage issues that could result from natural and human-made hazards. Section. 31 and s. 3.2., states that:

The lands are in an urban settlement area on an intensely developed lot so the lands are already disturbed and that development will have no impact on any natural heritage features. However, he noted that during the pre-consultation process, staff identified that lands may be susceptible to flooding. As a result, Duke Engineering was hired to provide a flood study in Exhibit F.

19Concerns were addressed related to s. 5.2.2 and 5.2.3 of the PPS noting that in general development should occur outside of hazardous land adjacent to shorelines with flooding impact. Section 5.2.3 states that:

“Development and site alterations shall not be permitted within areas that would be rendered inaccessible to people and vehicles during times of flooding hazards… unless it has been demonstrated that the site has safe access appropriate for the nature of the development and the natural hazard” [Emphasis added]

20Dennis stated that the proposal’s access is from Dwight Beach Road and he was not aware of any history of flooding which prevented safe access. Regardless, given that the conditions reported to be of concern already exists, the proposal does not exacerbate the situation. Dennis pointed to Duke’s Engineering Flood Study attached as Appendix “D” in page 36 of the Document Book.

21Dennis referenced Section 5.2.5 PPS which states:

a) “Development and site alteration may be permitted in certain areas associated with the flooding hazard along river, stream and small inland lake systems”;

b) “In those exceptional situations where a Special Policy Area has been approved the designation of a Special Policy Area, must be approved by the Ministers of Municipal affairs and Housing and Natural Resources and Forestry prior to the approval authority”

District of Muskoka Official Plan (“DOP”)

22The (“DOP”) designates the Subject Property is as Community Area and relies on more detailed plans in the lower tier as noted in section J1.2 General Policies:

“The Area Municipal Official Plans shall contain more detailed policies addressing development in Community Areas” [Emphasis added]

These include area-specific policies and minimum or maximum densities and:

Section J1.1 referenced objectives of the plan promote “efficient use of existing and planned infrastructure and public service facilities by supporting opportunities for various forms of intensification, where appropriate” and;

The new dwelling, with removal of some structures, will help revitalize the existing commercial potential on the site. Dennis emphasized that lands are in an ideal location to augment the urban area, which optimizes the use of existing municipal services, and protects the long-term employment uses for any future landowner. There is a private onsite communal sewage with a previously approved existing septic bed that will be relocated and service both buildings, and which is permitted citing s. 12.2.5. and which supports future uses.

23Dennis addressed Section I2.4 of the DOP which similar to 5.2.3 of the PPS 2024 states that:

“Development and site alteration shall not be permitted within areas that would be rendered inaccessible to people and vehicles during times of flooding hazards and/or erosion hazards, unless it has been demonstrated that the site has safe access appropriate for the nature of the development and the natural hazard.”

24As stated in paragraph 28, in the case of the proposal, access to the Subject Property is already provided off of Dwight Beach Road.

25Dennis also notes that similar to the PPS 5.2.5 in Section I2.4 and 12.5 of the DOP that:

a) “Development and site alteration may be permitted in certain areas associated with the flooding hazard… in those exceptional situations where a Special Policy Area has been approved”.

b) “A Special Policy Area, and any change or modification to the official plan policies, land use designations …must be approved by the Ministers of the Provincial Ministries with jurisdiction prior to the approval authority approving such changes or modifications.”

26Dennis testified that the proposal conforms to the DOP.

Township of Lake of Bays Official Plan (“TOP”)

27The Subject Property is designated Community of Dwight s. G? contains the relevant policies:

G.31 states that “All new development will front upon and be accessible from a year-round maintained, public road, which is in a condition appropriate for the use proposed.”

The Subject Property does fronts on and has direct access from Dwight Beach Road, which is maintained year-round by the municipality.”

G.39 states that “Within a community designation, the permitted uses of land will be limited to residential and commercial uses.”

28The existing commercial zoning permits 2 dwellings on a single lot. There is no proposed change to the commercial zone so future commercial uses could still be developed. The modest change is proposed to recognize a slightly altered and expanded building footprint for one of the dwellings. The intended use is permitted, and the residential density is not increasing.

G.41 states that “An appropriate range and mix of housing types and densities, including second unit dwellings will be permitted within communities.”

29The amendment will recognize a slightly revised location for a new dwelling. The fact it is located on a commercial lot, provides a mixed-use type development and an alternate housing location and arrangement.

G.55 states: “Tourist commercial uses may be permitted within core areas and commercial areas or in another location within the community that is compatible with surrounding uses.”

30The existing zoning permits a marina and two dwelling units on the Subject Property. The existing zoning permits the intended dwelling replacement. The request is to reflect the slightly different footprint of the proposed dwelling, while staying within the existing footprint as much as possible.

31Dennis concluded that the Subject Property is:

a) Is considered employment lands located in an urban area;

b) That while the proposed dwelling contains a second story, it is located further from the shoreline, bringing the property into compliance. No variance is required for the height, as the proposed height does not exceed the maximum 11 m permitted height in the Township’s Development Permit By-law;

c) The proposed lot coverage will be reduced to 11.3% from 11.7%. The “existing” coverage calculation includes all the existing structures and the previous 421.71 sq ft detached garage and lean-to. The proposed coverage calculation excludes the previous garage and includes the new proposed dwelling and covered entry to be well under the maximum 15% permitted;

d) The footprint for the proposed dwelling is in roughly the same location as the existing dwelling, but will be slightly further back, minimizing disturbances to the Subject Property;

e) The proposed side yard setback matches the existing legal non-complying setback, and the immediate adjacent neighbouring property is commercial.

32Dennis noted that the TOP also contains similar policies to those noted in paragraphs 27 and 28, regarding development in a flood-prone area, and as set out below:

E.19 “New development, except for minor expansions to existing legal nonconforming uses, permitted marine related structures (such as docks, boathouses or pump houses, minor additions such as a deck or uses which by their nature must locate in a flood prone area including flood and/or erosion control works) will not be permitted within areas prone to flooding.”

E.20 “Site alteration, such as filling, channelization or construction will not be permitted within areas prone to flooding unless it is demonstrated that there will be no significant negative off-site impacts on flood depths and velocities.”

33Dennis testified that proposal also conforms to the TOP.

Township of Lake of Bays Community Planning Permit (CPP) By-law

34The existing community planning permit area is Settlement Tourist Commercial C3-E33.

35The zoning permits the intended dwelling. In this case the proposed dwelling is in a slightly different location and footprint size than that of the site-specific zoning, and amendment was requested by the Township.

36The interior side yard setback requirement is 4.5 m. The existing interior side yard set back is 1.87 m. The requested variance is to maintain the 1.87 m existing set back.

37The CPP Permit By-law addresses development in a flood prone area, as set out below:

3.7.2 states that: “Site alteration, such as filling, channelization or construction will not be permitted within areas prone to flooding unless it is demonstrated that there will be no significant negative off-site impacts on flood depths and velocities”.

3.7.3 states that: “All lands located below the following elevations are specifically recognized as being located within flood prone lands, and no new habitable building shall be located below the flood elevations except for minor expansions (up to 25% of the existing floor area) to existing legal non-conforming uses and permitted marine related structures”.

38Dennis explained that this proposal falls within the 25% maximum and further evidence is explained in the below flood related testimony that the proposal will not have negative impacts.

Flooding Concerns and continued Testimony of Dennis and Testimony of Duke

39Submission included that the Township had raised concerns regarding sections 5.2.2 and 5.2.3 of the PPS, I2.4 of the District Official Plan, and the issue of access to the Subject Property in the event of flooding.

40Dennis drew attention to the Township and District’s flood prone mapping, which mistakenly resulted in showing that Dwight Beach Road is unsafe during periods of flooding. He submitted that even if that was the case, it could necessitate improvements by the Township to ensure safe travel for all of Dwight Beach Road landowners who access the same road. That said, he indicated that those owners have been accessing their properties without apparent issue, as seen in the aerial image attached here at Appendix “E”.

41The “HATCH” District flood mapping illustrates the static flood line elevation as being 317.18 m. The error added waves to the flood line which were already in the calculations.

42On the request of the Tribunal, Duke clarified the statistics and the resulting impacts. He explained the calculation errors were acknowledged by the District who conceded that the calculations were problematic. See the Muskoka Map 1 where the wrong flood elevation was used. Taking this into account, the subject elevation should be 1 ft lower. This means the property is more protected than was concluded in review of the application. The spot elevations shown on the Tulloch Plan dated October 17, 2017, attached here at Appendix “D”, shows the Subject Property at a higher elevation than the static water levels. See red hatched lanes on red lines attached here at Map on Appendix “C”.

43Duke confirmed that water levels rise on lakes with less intensity and flow velocities than a riverine scenario and that:

The proposed dwelling, using the correct calculations, create a static flood level of 316.2 m Above Sea Level (“ASL”) which is above the regulatory/static/still water level of 315.84 m set out in plans attached to the report here at Appendix "D”.

44Dennis confirmed with the Public Works Supervisor that to his knowledge they have never had to close the road due to flooding. Further, the landowners stated that the Subject Property has never flooded to the point that it would pose a threat to public health or safety.

CPP PERMIT TESTIMONY

45As identified there are policies for exceptions that would permit development in an area of flooding under certain circumstances.

46Minor additions are permitted in all policy documents, allowing flexibility with the exception of the CPP By-law where "minor” is defined as an expansion of up to 25% if in a flood prone area and only for existing non-conforming uses s. 3.7.3. Given that the testimony demonstrates the new development does not fall within the flood prone area and that no other documents contained a numerical value in the policy documents, there would not be a conformity issue.

47An increase of 133.02 sq ft to the footprint is a minor expansion to the proposed dwelling.

48All habitable space in the proposal is located outside of the floodplain which is better than the existing dwelling. This further indicates that the construction would be 1 for 1 with no further planning approvals and that a new permit could be issued for the dwelling.

49Dennis concluded that the Proposal is consistent with the 2024 PPS, conforms to both Official Plans, and that the ZBL represents good planning.

FINDINGS AND ANALYSIS

50The below key issues have been considered by the Tribunal through the findings and analysis of this Decision:

• Have the applicable portions of the Provincial Planning Statement (“PPS”), Township Official Plan (“TOP”) and the District Official Plan (“DOP”) been met?
• Can the proposed new build be categorized as “continued use”?
• Is the increase to the footprint minor in nature?
• Does the new position of the dwelling negatively impact the Subject Property?
• How do the flood plain assumptions and calculations impact the appeal in terms of any negative impacts to access/agree of the property?

LEGISLATIVE FRAMEWORK / FINDINGS

51The Tribunal recognizes similar policy language across the PPS, TOP and CPP referenced in the Appellant’s testimony and evidence, which relied on the Planning Act (“Act”); the Provincial Planning Statement 2024 (“PPS”); the District of Muskoka Official Plan (“DOP”); the Township of Lake of Bays Official Plan (“TOP”), and the (“TOP”) Community Planning Permit (“CPP”) By-law 2021-111.

52The PPS supports a comprehensive, integrated and long-term approach to planning, and “recognizes linkages” among policy areas and build form. The Tribunal finds that these facts are appropriately applicable to the proposal.

53Section 2 (h.1) of the Act points to having regard for the “accessibility for person with disabilities”, which is an especially important consideration, which the Tribunal finds addressed in the proposal.

54The Tribunal recognizes that the General Polices for Settlement areas found in PPS s. 2.3.1 which promotes growth and development within settlement areas and that they should be focused in strategic growth areas and land use patterns based on densities and a mix of land uses. “Planning authorities shall support general intensification and redevelopment.” The Tribunal finds that this proposal does have regard for this relevant policy and is consistent to the PPS.

55Under 34(10) of the Planning Act, by-laws “can be amended as to permit an extension or enlargement of any land…. if the building continues to be used in the same purpose and in the same manner”. The Tribunal accepts that the proposal does have regard to the PPS under this framework as the use does not change nor does the number of people or their activities.

56The TOP relevant policies include G.31 which addresses accessibility being maintained year-round. Given evidence that the property is accessible from Dwight Beach Road, the Tribunal finds that the proposal conforms to the policy G.31 and that the new building continues to have direct access to Dwight Beach Road.

57The Tribunal finds that the pre-existing commercial zoning does address the permitted uses of land being limited to residential and commercial uses and therefore the intended use is permitted as it conforms to the TOP.

58Policy G.41 addresses appropriate densities and range of mix of housing types and second unit dwellings permitted within communities. The Tribunal acknowledges that the new dwelling is in a slightly revised location on a commercial lot and finds that it satisfies the intentions of policies and conforms to the TOP.

59Policy G.55 addresses Tourist commercial uses and to uses being permitted “in locations within the community that are compatible with surrounding uses.” Given that the neighbouring property is also zoned for commercial uses and that the existing zoning permits the current uses of the Subject Property and replacement of the dwelling, the Tribunal finds that although application does marginally increase the footprint, that it generally conforms to Policy G.55.

FLOODING

60The Tribunal accepts the historical evidence and finds that there have been no flood impacts over many years that impede access or egress to the property.

61The Tribunal accepts the testimony that the new building positioned slightly further from the shoreline also protects the Subject Property and finds that it is protected from potential future flood impacts.

62The Tribunal finds that the footprint is consistent with the PPS. While the footprint is marginally larger there is no impact resulting from the site alteration as any disturbances already exist.

63The Tribunal accepts the testimony that there are no new hazards created by the proposal and that there are no adverse environmental impacts that result from the new build.

64The Tribunal accepts the testimony that, but for a marginal increase to the footprint and position of the building, the owners had an as-of-right to develop. Those issues outside of this “right” are reasonable, and support the broader policy intentions found in the PPS, TOP and the CPP.

65The Tribunal accepts the evidence provided by the Dennis’ testimony and the supporting testimony by Duke, finding that errors in the figures on the attached District Map 1, Appendix “C”, were used by Planning to calculate the floodplain impacts. Those calculations added waves to the flood line, which already includes waves. The result is a subject elevation assumption higher than it should be. Using correct calculations, created a static flood level of the 316.82 ASL for the proposed dwelling. This means it is above the critical flood level at 315.84 ASL. The Tribunal finds that this demonstrates there is no potential flood impact to habitable space in the proposal.

CPP

66The Tribunal agrees that the proposal would be a minor variance in an area without a CPP By-law 2021-111 and agrees that an amendment to the by-law is appropriate.

67The Tribunal finds that the subject lands are previously approved under C3-E33 and that the proposed by-law amendment details address this Subject Property proposal.

68The Tribunal accepts that the testimony related to the proposed development under the CPP Permit By-law requirements and finds that the evidence does address issues that would otherwise be prohibited in flood prone areas of the development in s. 3.7.2 and 3.73 “demonstrate that there will be no significant negative off-site impacts on flood depths and velocities” and that “new habitable buildings” need to be located outside of the flood prone lands. The Tribunal finds that those requirements have been met.

69Based on the proposal of the Appellant, a permit is required. The Tribunal finds the Proposal to be consistent with the 2024 PPS, conforms to both Official Plans, and that the by-law amendment does appropriately resolve to bring the proposed development into compliance and that it represents good planning.

70THE TRIBUNAL ORDERS THAT the appeal is allowed, and Zoning By-law 2021-111 is hereby amended, as set out in Attachment 1 to this order. The Tribunal authorizes the Municipal Clerk of Lake of Bays/Muskoka assign a number to this by-law for record keeping purposes.

“G. Ross”

GAIL ROSS 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.

ATTACHMENT 1