Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 12, 2026

CASE NO(S).: OLT-25-000623

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant: 2115881 Ontario Limited

Subject: By-law No. 2018-050

Description: To rezone the subject properties

Reference Number: Z-16-14

Property Address: 556, 560, & 576 Conservation Drive

Municipality/UT: City of Waterloo

OLT Case No.: OLT-25-000623

OLT Lead Case No.: OLT-25-000623

OLT Case Name: 2115881 Ontario Limited v. Waterloo (City)

Heard: January 28 – 30, 2026, and February 12, 2026, by Video-Hearing

APPEARANCES:

Parties	Counsel
2115881 Ontario Limited	Denise Baker
City of Waterloo	Susan Smith

DECISION DELIVERED BY n. EISAZADEH ON AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This is an Appeal pursuant to s. 34(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended, for a revised zoning by-law amendment. The Appellant corporation is 2115881 Ontario Limited (“Mattamy”). The municipal authority is the City of Waterloo (“City”). The property in question are the lands municipally known as 556, 560 and 576 Conservation Drive (“Subject Property”).

BACKGROUND

2Between July 2016 and July 2025, Mattamy has been engaged in the municipal process of obtaining the necessary planning approvals to facilitate the development of a low-rise residential subdivision on the Subject Property (“Proposed Development”).

3A final proposed Draft Plan of Subdivision (“DPS”) and final Zoning By-law Amendment (“Initial ZBA”), along with supplementary technical and planning reports, were submitted by Mattamy to the City on May 29, 2025.

4The DPS establishes, inter alia, various blocks including a mixture of residential units and typologies. To facilitate the proposed DPS, the Initial ZBA proposed various changes in zoning from Zone Change Application (“ZC”) to Residential Beaver Creek Two (“RBC2”), Residential Beaver Creek Three (“RBC3”), Residential Beaver Creek Four (“RBC4”), Holding Residential Beaver Creek Four (“(H)RBC4”), Parks and Recreation (“OS1”), Conservation (“OS3”) and School (“S”) on the Schedule A Zoning Map to the City’s Zoning By-law No. 2018-050 (“ZBL 2018-050”). These RBC zones were established by the City’s By-law No. 2025-020 in respect of unrelated lands within the Beaver Creek Meadows District Plan area, as enacted on May 12, 2025, and requested by Mattamy as the base residential zoning for the Subject Property.

5The following table depicts the proposed uses within each subdivision block as set out by the DPS, along with the relevant zoning changes proposed by the Initial ZBA:

Blocks	Description	Area in hectares (“ha”)	Unit Range Minimum	Unit Range Maximum	New Zoning Category (per Initial ZBA)
1-20	Residential (Single Detached and/or Townhouses)	7.779	183	245	Residential Beaver Creek Two (“RBC2”)
21-26	Townhouses	2.342	98	128	Residential Beaver Creek Three (“RBC3”)
27-28	Multiple Residential	1.868	96	185	Residential Beaver Creek Four (“RBC4”)
29	Elementary School	3.198	N/A	N/A	School (“S”)
30	Park	1.408	N/A	N/A	Parks and Recreation (“OS1”)
31-32	Open Space (Beaver Creek)	4.938	N/A	N/A	Conservation (“OS3”)
33	Stormwater Management	1.173	N/A	N/A	Conservation (“OS3”)
34-35	Walkway	0.046	N/A	N/A	Parks and Recreation (“OS1”)
36-37	Trail	0.497	N/A	N/A	Parks and Recreation (“OS1”)
38-40	0.3m Reserve	0.016	N/A	N/A
41	Future Development (local road)	0.080	N/A	N/A
TOTAL		28.127 ha	377 units	558 units

6In addition, the Initial ZBA proposed several site-specific exemptions from the proposed RBC2, RBC3 and RBC 4 zones to accommodate Mattamy’s preferred residential built form including, namely, reduced setbacks for all yards, and exemptions for porches and balconies to extend into the front and flankage yards.

7On July 2, 2025, the City provided Mattamy with its staff planning report (“Staff Report”), to be considered by City Council at its meeting on July 14, 2025. The Staff Report recommended approval of the DPS, as well as approval of the Initial ZBA, subject to the recommendations set out within the Staff Report. Essentially, those recommendations rejected a number of the site-specific zoning revisions initially requested by Mattamy pertaining to various residential typologies within the RBC2, RBC3, and RBC4 zones, including to the minimum setback requirements for the front, side and rear yards, maximum porch and balcony requirements, maximum garage widths, minimum amenity area requirements, minimum street line setbacks, and interior lot line setbacks (“Staff ZBA”). The Staff ZBA, which in effect modified the initially requested site-specific exemptions within the Initial ZBA, has led to the present Appeal of Zoning By-law No. 2025-050 (“ZBL 2025-050”).

8In response to the Staff Report, Mattamy submitted supplementary commentary and an alternative zoning by-law amendment respecting site-specific exemptions for City Council’s consideration (“Second Alternate SS-ZBA”). The Second Alternate SS-ZBA included proposed alternatives to the required minimum front yard setback, minimum side yard setback, and maximum encroachments for a porch and balcony.

9At the July 14, 2025 City Council meeting, presentations by representatives for the respective Parties were made regarding both the recommendations within the Staff Report and Staff ZBA, as well as Mattamy’s Second Alternate SS-ZBA. City Council resolved to approve all recommendations associated with the Staff Report including the DPS and Staff ZBA and refused both the Initial ZBA and Second Alternate SS-ZBA. On the same day, the City enacted ZBL 2025-050 to give effect to the Staff ZBA in accordance with the Staff Report.

10The DPS received draft approval on August 12, 2025, and came into effect on September 2, 2025. A copy of the DPS is appended as Attachment 1 to this Decision. Mattamy has not filed an appeal in this regard and, therefore, the DPS is not before the Tribunal on the present Appeal.

11Mattamy subsequently presented a further revised Zoning By-law Amendment respecting site-specific exemptions to the City (“Third Revised SS-ZBA”). The Third Revised SS-ZBA included additional revisions to the zoning regulations pertaining to the minimum front yard/street line setback requirements, minimum side yard setback requirements, minimum rear yard setback requirements and maximum porch and balcony requirements for the RBC2, RBC3 and RBC 4 zones. The Third Revised SS-ZBA, was subsequently additionally revised (“Fourth Revised SS-ZBA”) and then further scoped (“Scoped SS-ZBA Exemptions”), as set out below, and is the subject of the present Appeal.

RESOLUTIONS, REVISIONS, AND WITHDRAWAL OF CERTAIN SITE-SPECIFIC ZONING EXEMPTIONS

12Mattamy tendered its Fourth Revised SS-ZBA dated January 28, 2026, marked as Exhibit 10 to the Hearing. The Fourth Revised SS-ZBA is the proposed instrument that is before the Tribunal on the present Appeal. It is replicated as follows, with those portions in both underlined and bold lettering representing the revisions from the Third Revised SS-ZBA, schedule of images omitted (emphasis added):

APPENDIX ‘C’ – Proposed Site Specific By-law C284

REVISED January 28 2026

Exception C284

Address 556, 560 and 576 Conservation Drive

Zoning RBC2, RBC3, RBC4, S, OS1 and OS3

File Reference By-law 2025-XXX

Location: 556, 560 and 576 Conservation Drive, as shown on Schedule ‘C1’ of this BY-LAW.

Site Specific Regulations:

a. Notwithstanding anything to the contrary, the following site specific provisions shall apply to the lands known municipally as 556, 560, 576 Conservation Drive (the “Lands”), as shown on Schedule C1 to this BY-LAW C284.

i. For the portion of the Lands zoned RBC2:

1. PRIVATE GARAGE width (maximum) attached to the main: 60% of the FRONT BUILDING FAÇADE length

2. REAR YARD setback (minimum): 6.3 metres, inclusive of any prescribed reduction permitted by subsection 34(1.4) of the Planning Act, and any regulations thereto.

3. Notwithstanding anything to the contrary, a one (1) STOREY unenclosed PORCH may encroach into the FRONT YARD by a maximum of one-point-two metres (1.2 m) for single detached dwellings within 120 metres of a wetland

ii. For the portion of the Lands zoned RBC 2 and identified on Area A in Images 1 hereto:

1. INTERIOR LOT AREA (minimum) for SINGLE DETACHED BUILDING: 245 m²

2. CORNER LOT AREA (minimum) for SINGLE DETACHED BUILDING: 319 m²

3. INTERIOR LOT AREA (minimum) for SEMI-DETACHED BUILDING: 204 m²

4. CORNER LOT AREA (minimum) for SEMI-DETACHED BUILDING: 242 m²

5. Average LOT DEPTH (minimum): 29.0 metres

iii. For the portion of the Lands zoned RBC2 and identified on AREA B in Image 1 hereto:

1. SIDE YARD setback (minimum): 1.2 metres on side, 0.6 metres opposite side for lots with a minimum LOT FRONTAGE of 11.0 metres or less

iv. For the portions of the Lands zoned RBC 3:

1. SIDE YARD setback (minimum): 1.5 metres

2. REAR YARD setback (minimum): 6.3 metres, inclusive of any prescribed reduction permitted by subsection 34(1.4) of the Planning Act, and any regulations thereto.

v. For the portions of the Lands zoned RBC 3 and identified as Area C on image 1 hereto:

1. INTERIOR LOT AREA (minimum): 143 m²

2. CORNER LOT AREA (minimum): 255 m²

3. CORNER LOT FRONTAGE (minimum): 8.5 metres

4. Number of units in linear TOWNHOUSE BUILDING for Blocks 21, 22 and 25 (maximum): 8 units

vi. For the portions of the Lands zoned RBC4 or (H)RBC4:

1. REAR YARD setback (minimum): 5.0 metres

2. REAR YARD setback (minimum) adjacent to Conservation (OS3) Zone: 7.5 metres

3. Density (maximum): 300 bedrooms per hectare

4. AMENITY AREA requirements shall not apply to STACKED TOWNHOUSE BUILDINGS

5. Number of units in linear TOWNHOUSE BUILDING (maximum): 8 units

6. Notwithstanding anything to the contrary, for CLUSTER DEVELOPMENT, a one (1) STOREY unenclosed PORCH and a BALCONY may encroach into the FRONT YARD by a maximum one-point-two metres (1.2m). For the purposes of this By-law, a BALCONY is defined as platform that projects from an upper floor of a BUILDING and is enclosed by a parapet or railing.

vii. For the portions of the Lands zoned (H)RBC4 and identified as Area D in image 1 hereto:

1. Notwithstanding anything to the contrary, a holding symbol is applied to the lands identified as “Area C” as shown on Image 1. Prior to the passing of a by-law to remove the holding (H) symbol, and prior to issuance of a building permit, the owner of the Lands shall submit a detailed noise study to the satisfaction of the CITY. The noise study shall evaluate transportation noise impacts on the proposed development, and confirm compliance with the more restrictive of: (i) the Province’s Environmental Noise Guideline NPC-300; and (ii) the noise criteria specified in the Regional Official Plan. The study shall be conducted when grading plans, elevations and floor plans are available, and in compliance with the City’s Terms of Reference for Noise Studies as amended from time to time. The owner shall make secure arrangements to implement the recommendations of the approval study and shall enter into an agreement with the City under the provisions of the PLANNING ACT.

13Counsel for Mattamy, Denise Baker, advised that this Fourth Revised SS-ZBA was arrived at as follows:

(a) Respecting RBC 2 lands:

(i) A revision to the one-storey unenclosed porch encroachment into the front yard by a maximum of 1.2 m such that this exception would only be applicable to single detached dwellings within 120 m of a wetland.

(b) Respecting RBC 2 lands and RCB3 lands:

(i) A revision to the minimum rear yard setback requirement from 6.5 to 6.3 m, inclusive of any prescribed reduction permitted by subsection 34(1.4) of the Act and any regulations thereto.

(c) Mattamy’s withdrawal of Issue No. 4 from the Issues List respecting appropriate front yard setbacks, as Mattamy was no longer seeking any relief from the zoning standards related to the minimum front yard setbacks within any of the RBC lands.

14The Tribunal was advised that on the morning of the first day of Hearing prior to its commencement, and through the cooperative efforts of the Parties and their Counsel, a settlement was reached in respect of all rear-yard setbacks as set out within the Fourth Revised SS-ZBA (those items being: a)i.B. and a)iv.B. within Exhibit 10). For clarity, the rear-yard setbacks now being sought by Mattamy, and as agreed to by the City, pertain to the RBC2 and RBC3 zoned lands as laid out at paragraph 13(i) of this Decision.

15Counsel for the City, Susan Smith, also advised that the City is no longer opposing the relief requested respecting:

a) the permitted porch encroachments into the front yard within the RBC2 zone, being in respect of single detached dwellings within 120 m of a wetland (item: a)i.C. within Exhibit 10); and,

b) the maximum number of 8 units for linear townhouse building for Blocks 21, 22 and 25 (item: a)v.D. within Exhibit 10).

SCOPED SITE-SPECIFIC ZONING EXEMPTIONS REMAINING IN DISPUTE

16Following the resolutions, revisions and withdrawal of the site-specific exemptions set out above, the Scoped SS-ZBA Exemptions which remain in dispute between the Parties and that form the principal focus of this Decision are as follows:

Site Specific Regulations:

iii. For the portion of the Lands zoned RBC2 and identified on AREA B in Image 1 hereto:

1. SIDE YARD setback (minimum): 1.2 metres on side, 0.6 metres opposite side for lots with a minimum LOT FRONTAGE of 11.0 metres or less

vi. For the portions of the Lands zoned RBC4 or (H)RBC4:

F. Notwithstanding anything to the contrary, for CLUSTER DEVELOPMENT, a one (1) STOREY unenclosed PORCH and a BALCONY may encroach into the FRONT YARD by a maximum one-point-two metres (1.2m). For the purposes of this By-law, a BALCONY is defined as platform that projects from an upper floor of a BUILDING and is enclosed by a parapet or railing.

WITHDRAWAL OF ISSUES AND MOTION TO STRIKE CITY WITNESSES

17Two preliminary matters were raised at the commencement of the Hearing: (i) An Objection to Mattamy’s withdrawal of an issue; and (ii) Mattamy’s motion to strike three City witnesses and their evidence.

Position of the Parties: Withdrawal of an Issue

18Mattamy advised it had withdrawn Issue No. 4 respecting relief from minimum front yard setback requirements. Notwithstanding Mattamy’s concession to the front yard zoning standards that would be applicable under the general RBC zoning standards as approved by City Council by way of ZBL 2025-050, the City objected to the withdrawal of front yard setbacks as an issue.

19Ms. Smith argued that two particular points remain of concern to the City with respect to the front yard setbacks which ought to be permitted to be explored. They are:

a. That regulation 7.17.4 within the RBC 2 zone should now be removed. Regulation 7.17.4 reads:

Notwithstanding anything to the contrary, where a minimum STREET LINE setback of seven metres (7.0 m) is provided to a PRIVATE GARAGE, the minimum FRONT YARD setback to the habitable portion of the main STRUCTURE shall be five metres (5 m).

b. That a site-specific regulation should be added to the Subject Property such that all garages should be required to be setback a minimum of 6.6667 m to ensure all driveways have a minimum length of at least 6 m.

20Ms. Smith explained that these two points of concern arise in response to Ontario Regulation 257/25 (“O. Reg. 257/25”). On June 5, 2025, the Protect Ontario by Building Faster and Smarter Act (“Bill 17”) received royal assent. Bill 17 adds new subsections 34(1.4) to (1.7) to the Act, which set out rules with respect to minimum distances that buildings on certain lands may be setback from parcel boundaries, subject to regulations. On November 21, 2025, O. Reg. 257/25 came into effect, which sets out the prescribed percentage of setback distance under s. 34(1.4) of the Act. Essentially, it allows setbacks to be treated as compliant if it is at least 90 percent of the setback as required in the zoning by-law.

21Ms. Smith argued that in light of O. Reg. 257/25, the front yard setback standards that were approved by City Council may now be interpreted as permitting a further reduction of 10 percent as-of-right, with limited exceptions. Ms. Smith submitted that O. Reg. 257/25 provides sufficient flexibility in the front yard setbacks such that regulation 7.17.4 is no longer required with respect to the Subject Property. Further, Ms. Smith contended that the additional site-specific regulation respecting garage setbacks would ensure the minimum length of 6 metres (“m”) that would not otherwise be guaranteed with the newly legislated prescribed percentage of setback distance. Accordingly, Ms. Smith submitted that the front yard setbacks for the Subject Property as approved by City Council have effectively been made inappropriate by operations of O. Reg. 257/25, which came into effect after City Council had made its decision approving ZBL 2025-50, and was therefore not known at that time. Ms. Smith further submitted that if Council had the knowledge of the prescribed percentage of setback distance set out under O. Reg. 257/25 at the time of making its decision on Mattamy’s Proposed Development applications, it would have had the opportunity to include further site-specific regulations or modify the zoning by-law as it deemed appropriate.

22Respecting the Tribunal’s authority to keep Issue No. 4 alive, Ms. Smith offered two primary grounds. Firstly, she stated that ZBL 2025-050 rezones the lands from ZC to the various RBC zones. The regulations under those RBC zones, which include front yard setback requirements, remain pertinent as they form part of the amendment at hand. Secondly, site-specific regulations were added to the respective RBC zones which are directly part of the Appeal letter submitted by Mattamy on the present Appeal.

23Accordingly, Ms. Smith submitted that the issue concerning front yard setbacks remains squarely within the Tribunal’s jurisdiction since the entirety of ZBL 2025-050 that is under Appeal is not in effect until the ultimate decision of the Tribunal. In other words, Ms. Smith stated that the standards respecting front yard setback requirements under the RBC zoning are not something that exist under regulations for the Subject Property outside of the amendments which were brought into effect by ZBL 2025-050. Since it is the entirety of ZBL 2025-050 that is under Appeal, Ms. Smith argued that Mattamy bears the onus of establishing that the entirety of ZBL 2025-050 satisfies the legislative tests and represents good planning – not just those site-specific exceptions which it is now seeking. She further submitted that there would be no prejudice to Mattamy as it has been aware of the City’s position on the two concerns raised by O. Reg 257/25 in relation to the front yard setbacks and has had a reasonable opportunity to respond to the evidence of the City in this regard. Ms. Smith stated that this Tribunal must therefore look at the entirety of ZBL 2025-050 within its analysis of whether the amendments constitute good planning.

24Ms. Smith submitted that in the alternative, O. Reg 257/25 constitutes new information and material that was not before City Council at the time of its decision. Pursuant to s. 34(24.4) of the Act, Ms. Smith submitted that the Tribunal has the authority to refer the matter back to Council to consider any recommendations it may make.

25In response to a question posed by the Tribunal, Ms. Smith confirmed that had Mattamy not appealed ZBL 2025-050, the City would not have appealed the by-law it approved. Rather, the likely course is that City Staff would conduct a comprehensive review to consider various areas that may be impacted, such as the driveway length in relation to front yard setbacks in this case, to make recommendations. Where safety or practical concerns arise as a result, she expected that City Staff would bring forward a “housekeeping amendment” (“Housekeeping Amendment”) that would apply to any impacted by-laws in order to address those areas of concern. Ms. Smith added that because the by-law was appealed by Mattamy in this case, however, that it was prudent to raise those concerns now rather than defer them to a future Housekeeping Amendment process.

26In opposition, Ms. Baker raised several concerns. Firstly, Ms. Baker emphasized it would be highly unusual for a municipality to attempt to propose more stringent zoning standards through a future Housekeeping Amendment in response to provincial legislative changes that are intended to streamline flexibility respecting zoning setback permissions. Notwithstanding, Ms. Baker argued that the City is now attempting to argue that the front yard setbacks are problematic for the sole reason that they are impacted by O. Reg. 257/25, when they have not completed the comprehensive review that, by Ms. Smith’s own submission, is necessary before making any recommendations. To now allow the City to reopen further amendments to the front yard zoning standards on the sole basis of the application of O. Reg. 257/25 would amount to a circumvention of provincial legislation, which the Tribunal does not have the jurisdiction to do.

27Secondly, Ms. Baker argued that front yard setback standards within the RBC zoning are not contained within ZBL 2025-050 itself but have been in force since May 2025 through ZBL 2025-020. She explained that to pull up the zoning standards applicable to any RBC lands, one must refer to ZBL 2025-020, and in particular its Schedule C, which establishes the zones themselves including their zoning provisions and regulation 7.17.4. It is therefore ZBL 2025-020 that applies to any land that is zoned RBC2, the Subject Property being one of multiple lands so designated. Ms. Baker submitted that Mattamy’s Notice of Appeal very specifically appeals only the approved ZBL 2025-050, and that Mattamy did not otherwise appeal the application of the RBC zones. Given that Mattamy is no longer seeking its site-specific relief from the RBC2 zoning standards related to front yard setbacks, the issue of further amendments to those setback standards contained within a separate instrument is not properly before the Tribunal.

28Finally, Ms. Baker explained that at the City’s insistence, the Issues List was drafted by Mattamy alone, with no issues generated by the City. Further, that on December 5, 2025, after O. Reg. 257/25 had come into effect, Ms. Smtih stated in an email communication that the City had no issues with respect to its approved by-law (Exhibit 1: “Ms. Smith’s December Email”). Accordingly, the City has had the opportunity to raise its concerns since November 21, 2025 when O. Reg. 257/25 came into effect, and has not only failed to do so, but has actually confirmed the opposite. Accordingly, Ms. Baker argues that the issues on the Issues List are Mattamy’s alone to withdraw. Given the Tribunal’s legislated mandate to provide for expeditious resolution of matters, and its general encouragement that Parties work cooperatively toward resolving and narrowing issues, Ms. Baker argued that those principles should be respected here.

Tribunal Ruling: Withdrawal of an Issue

29The Tribunal ruled that Issue No. 4 was properly withdrawn by Mattamy and was no longer before the Tribunal as a live issue.

30Ms. Smith’s December Email demonstrated that, at the insistence of the City, the Issues List was generated by Mattamy alone. The Tribunal agreed that the issues are therefore Mattamy’s to withdraw. What the City’s opposition fundamentally amounted to is a request to formally add issues to the Issues List on the day of the Hearing. The Tribunal agreed that it would have the jurisdiction to do so, as argued by Ms. Smith, but declined to exercise that jurisdiction for the reasons below.

31As set out within Ms. Smith’s December Email, this Appeal is not one arising from a non-decision by the City. Rather, it is an Appeal of an approved instrument. That approval required, and was indeed based on, the opinion of City staff (and any applicable department and commenting agencies) that the instrument in question satisfied the legislative tests and constitutes good planning. While it is the duty of the Tribunal to independently satisfy itself of the same, it is important to note that the issues raised on the present Appeal are not the same as would be the case under an appeal for non-decision which typically have no underlying Staff opinion at all. Here, there is indeed an opinion by City Staff recommending approval of the instrument in question, which recommendation City Council ultimately followed.

32The City now suggests that some of the original recommendations of its Planning Staff are no longer valid on account of the effect of recent legislative amendments. However, the Tribunal found the City’s position as one that would permit it to do through the “back-door”, what it would be otherwise unable to do through the “front-door.” This finding is supported by Ms. Smith’s own submissions. Ms. Smith confirmed that had Mattamy not appealed the instrument, the issues it now raises would not be before the Tribunal on its own appeal. Rather City Staff would have first conducted a comprehensive review to make recommendations for a possible Housekeeping Amendment that would be decided by City Council. However, no such comprehensive review has yet been completed to inform City Staff, nor City Council, for a position to be taken respecting the proposed Housekeeping Amendment.

33Additionally, the Tribunal found that the City’s request to consider additional amendments to the front yard setbacks it has already approved arises solely in response to O. Reg. 257/25, and for no other reason. The Tribunal therefore agreed with the concerns raised by Ms. Baker that to allow such a consideration amounts to an attempt to circumvent provincial legislation, which the Tribunal does not have the jurisdiction to do, as discussed further at paragraphs [51] to [56] below in this Decision.

34O. Reg. 257/25 is not specific to the Subject Property; it applies to lands province wide. For the Tribunal to now consider more restrictive zoning standards than that which was previously supported by City Staff, approved by City Council, and which applies to other RBC zoned lands elsewhere, would result in the application of inconsistent zoning standards in a manner that is directly contrary to the intent and purpose behind the newly enacted legislative amendments. The Tribunal cannot support such a result.

35Furthermore, the Tribunal’s ruling on this preliminary issue does not prevent the City from continuing its stated course of action, should it deem necessary, to address any concerns arising from the application of O. Reg. 257/25. Any future proposed Housekeeping Amendment may still be considered by City Council, and this Tribunal should an appeal arise therefrom, based on the comprehensive review to be undertaken. Any such Council (or Tribunal) decision would be decided on its own merits in a manner that more comprehensively considers the issue as would be applicable to the whole of the municipality.

36Finally, the Tribunal also denied the City’s alternative request to have the issue referred back to Council. By Ms. Smith’s own submissions, Council does not have the benefit of the comprehensive review or City Staff recommendations to provide comment. Furthermore, there is no indication that a comprehensive review is underway or that a completion date is in sight in the near future. A referral back to Council thus served to only unduly lengthen the Hearing to the prejudice of Mattamy. Additionally, the City will still have the opportunity to conduct and complete its comprehensive review, and initiate a Housekeeping Amendment, should it choose to do so. The Tribunal therefore found that a referral back to Council at this time would not provide the best opportunity for a fair, just and expeditious resolution of the merits of the proceedings, and denied the City’s alternative request.

Position of the Parties: Motion to Strike City Witnesses and Evidence

37Given the narrow focus of the Scoped SS-ZBA Exemptions remaining in dispute, a second pre-hearing motion was advanced by Ms. Baker who requested that the Tribunal strike three City witnesses and their evidence. The basis for the request was that neither of the witnesses, nor their evidence, were material or relevant to the discrete issues remaining before the Tribunal, nor to the statutory tests that must ultimately govern the adjudication of this Appeal. The three witnesses, and Ms. Baker’s position on their evidence, is as follows:

1. Chad Heise: Manager of Transportation Operations for the City

a) Mr. Heise’s statement, totaling 5-pages (with a 4-page Reply Statement, both excluding attachments), revealed that he was only engaged by the City on December 11, 2025. The extent of his review of materials involved only an email chain between Counsel for the Parties, the Notice of Appeal, the Third Revised SS-ZBA, the list of witnesses for the City, and the Issues List. Mr. Heise did not engage in any analysis of policy. The crux of his evidence related to the increased cost of snow removal. Namely, his witness statements centered around his opinion that the reduced front and side yard setbacks and porch encroachments would result in reduced functional space needed for winter maintenance operations including snow storage and plowing activities. He stated this in turn increased the likelihood of snow being pushed into sidewalks, roadways and adjacent properties, created safety hazards and ultimately elevated municipal costs for snow removal. Ms. Baker submitted that evidence in relation to the cost of municipal snow removal services is not a factor that is within the Tribunal’s jurisdiction to consider on an Appeal for a Zoning By-law Amendment (“ZBA”).

2. Jenny Renaud: Manager of Transportation Engineering for the City

b) Ms. Renaud’s statement, totaling 5-pages (excluding attachments), related solely to her opinion that the site-specific exemptions sought would impact the availability and adequacy of on-street short-term parking including for intermittently stopping emergency and service vehicles. However, Ms. Baker argued that there is no regulation within an applicable by-law, or otherwise, that mandates on-street parking at all. Additionally, Ms. Baker highlighted that Mattamy was not seeking amendments to the lot frontage or driveway widths which may have had an impact to on-street parking. The same cannot be said respecting exemptions for porch encroachments and side-yard setbacks, where the lot frontage and driveway widths would remain the same. Finally, Ms. Baker argued that any question that may arise in relation to the provision of on-street parking is addressed through the conditions of the DPS, which conditions are not under appeal nor before this Tribunal, including:

ii. Condition 12.4 of the standard conditions requiring a Driveway Location Plan at the time of servicing design that, inter alia, maximizes the availability of on-street parking;

iii. Condition 14.5 of the standard conditions requiring a warning clause to be included in agreements of purchase and sale or rental agreements for all residential units advising, inter alia, that it is the responsibility of the resident to manage their parking needs on-site without reliance on municipal lands; and,

iv. Condition 5.10 of the site specific conditions requiring a Driveway Location Plan to the satisfaction of the City which requires Mattamy to, inter alia, maximize the availability of on-street parking.

3. Joshua Beitz: Senior Landscape Architect for the City

a) Mr. Beitz’s statement, totaling 11-pages (excluding attachments, with a 6-page Reply Statement), related solely to landscape design and tree plantings. Distilled to its core, Mr. Beitz’s statement was premised on his opinion that the site-specific exemptions sought would result in lot frontages that would be insufficient for meaningful landscaped conditions between and in front of the subject lots. However, Ms. Baker submitted that there are no regulations or provisions in the City’s comprehensive Zoning By-law, or otherwise, that set out requirements for specific plantings on private property nor the manner of landscaping required. The only applicable regulation related to landscaping is the maximum amount of lot coverage against the landscaped open space requirement set out in the by-law, the latter being 30-percent. Ms. Baker submitted that Mattamy is not seeking any amendment to the 30-percent landscape open space requirement, as that standard is being met. Additionally, the DPS, through its conditions, deals specifically with landscaping provisions. To clear those conditions related to landscaping, Mattamy will have to comply with the City’s Comprehensive Engineering and Landscape Manual (“Landscape Manual”) to the City’s satisfaction. The DPS was not appealed, and therefore those provisions are not presently before the Tribunal.

38Ms. Baker contended that, collectively, this evidence ought not be permitted as admissible and deferred to arguments on weight because fundamentally the evidence is not material or relevant to the consistency and conformity exercises required of this Tribunal with respect to the applicable provincial policies, municipal plans and instruments.

39In response, Ms. Smith argued it would be an inappropriate approach for this Tribunal to determine the relevance of the witnesses and their evidence without having heard the evidence first. To the extent that the witnesses did not include a policy context or analysis within their statements, Ms. Smith contended it is because they are not Planners. Rather, they put forward their evidence within their respective areas of expertise and it is the City’s Land Use Planner, John Vos, who then relied on that evidence and tied it to the relevant policy and plan provisions. Ms. Smtih submitted that the three distinct areas of landscape architecture, road maintenance, and transportation planning in relation to on-street parking are all areas of concern that the OLT must consider in the context of the question of what constitutes good planning. In respect of the individual witnesses, Ms. Smtih submitted as follows:

1. Chad Heise: Manager of Transportation Operations for the City

a) Mr. Heise’s evidence does not solely relate to the costs of municipal snow services as he also addresses the City’s experience with road maintenance in other developments with similar setbacks as that sought by Mattamy for the Proposed Development. This experience includes safety issues arising from snow loading raising sight line and road encumbrance concerns. While Mr. Heise does not refer to any specific violations or mandated requirements, his evidence provides an understanding of the complications and issues that can arise from a technical and operational perspective. Mr. Vos then connects that evidence to the planning framework and specifically to s. 3.1 and 3.2 of the Provincial Policy Statement, 2024 (“PPS”) in relation to providing infrastructure and public services in an efficient manner and the delivery of transportation systems that are safe and energy efficient.

2. Jenny Renaud: Manager of Transportation Engineering for the City

a) Ms. Renaud brings her transportation and technical expertise in relation to on-street parking. Ms. Renaud’s evidence is then connected to the policy context by Mr. Vos in his discussion of the reduced opportunities for on-street parking where there is a reduction in side-yard setback without paired driveways. For instance, Mr. Vos refers specifically to s. 6.6.1 and of the City’s Official Plan (“COP”), respecting a safe and attractive vehicular parking area, and s. 6.6.1(4) setting out that the City may require on-street parking through residential plans of subdivision. This raises planning implications that are directly material and relevant to the question of good planning and impacts of the proposed further amendments to ZBL 2025-050.

3. Joshua Beitz: Senior Landscape Architect for the City

a) Mr. Beitz is the only professional qualified to provide an opinion with respect to landscape architecture, and particularly in relation to the feasibility of landscaping and impacts arising from the reduced side yard setbacks and porch encroachments. Notwithstanding that there is no zoning requirement for particularized plantings, there are a number of policy provisions which are referenced that set out the planning intention for landscaping on private property. Specifically, paragraph 16 of Mr. Beitz’s statement references the OP, the City’s Strategic Plan (“Strategic Plan”), the Beaver Creek Meadows District Plan (“BCMDP”), and the Urban Design Manual (“UDM”). Particular provisions are also cited including, inter alia, s. 3.1 of the OP respecting heat effect, s. 8.1 respecting the protection and expansion of urban forests, s. 8.2 regarding the implementation of planting programs including on private property, and s. 8.6 respecting tree planting and landscaping initiatives to enhance the urban forest. These themes of promoting environmental sustainability and planting in both public and private realms is reiterated down through the BCMDP.

40Ms. Smith emphasized that these considerations are relevant and material and go directly to the question of what constitutes good planning. She therefore submitted that the evidence ought to be admitted.

Tribunal Ruling: Motion to Strike City Witnesses and Evidence

41The Tribunal granted Mattamy’s motion to strike the City’s three witnesses, Chad Heise, Jenny Renaud, and Joshua Beitz, from being called to testify at the Hearing, along with their respective witness statements and reply statements (as applicable). To the extent that the substance of their evidence may be contained within the remaining witness statements of John Vos, Darren Scott, Kristen Barisdale or Ian Robertson, that evidence was also struck and would not be considered for any purpose in these proceedings. Any evidence of the remaining witnesses which may inadvertently or otherwise refer to the stricken evidence of the three excluded witnesses would also be disregarded.

42The Tribunal’s obligation to ensure procedural fairness must be afforded to both Parties. While the City in this case was at liberty to bring forward witnesses and evidence it deemed relevant to the issues, it was also within Mattamy’s rights as an Appellant to challenge the relevance of that evidence. Contrary to the submissions of the City regarding the appropriateness of excluding evidence before it is heard, it is well within the Tribunal’s authority to a make a determination on the relevance of evidence at the outset of a hearing. This is in line with the legislated mandate of the Tribunal to offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceedings.

43Having stood the matter down, the Tribunal had the opportunity to more fulsomely review the witness statements of the three City witnesses in question. After careful consideration of the submissions of the Parties, the Tribunal ultimately agreed with the submissions of Ms. Baker that the evidence outlined in the three statements (and reply, where applicable) of Mr. Heise, Ms. Renaud and Mr. Beitz, were not relevant to the ultimate issues that are before this Tribunal on the present Appeals, and importantly, not relevant to the statutory tests and policy framework that the Tribunal must consider in its ultimate deliberations.

44There are only two site-specific zoning exemptions which remain in dispute between the Parties within the context of the entire Proposed Development:

a) a reduction in side yard setbacks within RBC2 zoned lands having lot frontages of 11 m or less only, from 1.2 m to 0.6 m on only one side amounting to a total 0.6 m reduction; and

b) a 1-storey unenclosed porch and balcony encroachment of up to a maximum of 1.2 m, for only cluster developments within RBC4 zoned lands.

45Bearing in mind the narrowed focus of these two discrete issues in dispute, and in relation to the evidence outlines of the three City witnesses in question, the Tribunal found as follows:

1. Chad Heise: Manager of Transportation Operations for the City

a) Mr. Heise’s evidence outlined through his witness statements related predominantly to his conclusions regarding the increased costs of municipal services for snow removal which are not relevant to the planning issues before the Tribunal on an appeal of a ZBA. Where Mr. Heise raised theoretical safety concerns respecting sight lines and road encumbrances caused by reduced snow storage capacity, by Ms. Smtih’s own submissions, the Scoped SS-ZBA Exemptions sought do not violate any specific safety regulations or other mandated requirement. The provincial policies of the PPS, including ss. 3.1 and 3.2 highlighted by Ms. Smith, are higher order policy directions related to the provision of infrastructure and public service facilities, and safe and efficient transportation systems. These are not relevant to issues of snow removal services which are matters addressed through a separate municipal process pursuant to property standards by-laws and related enforcement proceedings.

2. Jenny Renaud: Manager of Transportation Engineering for the City

a) The evidence outlined by the witness statement of Ms. Renaud addressed, exclusively, the provision of on-street parking which is not relevant to the issues before the Tribunal on the present Appeal. Quite simply, and by Ms. Smith’s own submissions, there is no provision, zoning regulation or other requirement that mandates any on-street parking or a requirement for paired driveways related to parking configuration, at all. Additionally, Mattamy is not seeking any exemption in relation to lot frontages or driveway widths which will remain the same. It is, therefore, only the possible configuration of driveway locations that could be impacted. To the extent that Ms. Renaud raised concerns respecting possible driveway locations and parking configurations, these items are already addressed through the approved conditions of the DPS requiring a Driveway Location Plan which maximizes the availability of on-street parking to the satisfaction of the City. With respect to s. 6.6.1 of the OP, Mr. Vos refered to this policy in connection with the front yard setbacks which issue was withdrawn from the Hearing as set out earlier in this Decision.

3. Joshua Beitz: Senior Landscape Architect for the City

a) Mr. Beitz’s evidence outlined by his witness statements related solely to his opinion on the feasibility of meaningful landscaping options which is not relevant to the analysis that is required of the Tribunal on the present ZBA Appeal. The policies referred to by Mr. Beitz in his witness statement are provisions of higher order policies related to heat island effects, natural heritage systems and urban forests with no application to the narrow site-specific exemptions being sought. By Ms. Smith’s own submissions, there are no zoning regulations or other provisions that require any particularized plantings or mandated landscaped design at all. The relevant zoning provisions applicable relate only to the minimum landscaped open space requirement of 30%. Mattamy is not seeking an exception to this requirement. The balance of Mr. Beitz’s evidence in relation to the front yard and rear yard setbacks is also no longer relevant given the limited nature of the Scoped SS-ZBA Exemptions remaining in dispute, as addressed earlier in this Decision.

46The crux of Ms. Smith’s submissions centered around the relevance of these witnesses and their evidence to the question of possible impacts and what constitutes good planning. However, the question of good planning is not isolated from the statutory tests that govern the analysis required of this Tribunal – being the consistency and conformity exercises against the applicable provincial policy and municipal planning framework. Within the context of the two site-specific zoning exemptions at issue, concerns regarding municipal servicing costs for snow removal, and the provision of on-street parking and landscaped design where there are no regulated requirements for same, are a far reach from being rooted in applicable policy. Allowing in such evidence would serve only to unduly lengthen the Hearing to the prejudice of the Appellant with what is best described as concerns for “better planning”, not issues that impugn the test of good planning within the statutory and policy framework which does not compel requirements for any of the concerns raised. The witnesses and evidence in question were, accordingly, deemed not relevant or material to the issues in dispute and excluded.

ISSUES

47The balance of this Decision is organized in accordance with the key issues arising from the Hearing which may be summarized as follows:

I. Are the site-specific exemptions respecting side-yard setbacks appropriate?

a) To what extent does O. Reg. 257/25 factor into the required analysis?

b) Are there any adverse impacts to side yard grading and drainage?

c) Are there any adverse impacts to the purpose of function of side yards?

d) Is consistency with the character of the neighbourhood maintained?

II. Are the site-specific exemptions respecting porch and balcony encroachments premature, and do they present potential adverse impacts?

III. Does the proposed Fourth Revised SS-ZBA that is now before the Tribunal satisfy the applicable statutory tests for approval?

ANALYSIS AND FINDINGS

1. Side Yard Setbacks

Issue #1(a): Application of Ontario Regulation 257/25

48The City’s position is that the implications of O. Reg. 257/25 are relevant to, and must be considered in, evaluating any further reduced relief to the side yard setbacks that is proposed. Ms. Smith argued that the Tribunal could only fully appreciate the impacts of the proposed setback relief if the operation of the regulation is considered since it further reduces the side yard setbacks, as-of-right, from the 0.6 m that is being sought to 0.54 m. Where two lots with the reduced setbacks are immediately adjacent to one another, this could amount to a total separation distance between the dwellings of only 1.08 m, rather than 1.2 m if the 0.6 m setback is granted. The resulting impacts of the reduced side yard setbacks cannot therefore be fully realized if O. Reg. 257/25 is disregarded.

49Accordingly, the experts who testified on behalf of the City provided both the requested setback measurements, as well as the further reduced measurements by operation of the regulation throughout their evidence. Additionally, Mr. Vos indicated that the City has initiated a general amendment (the Housekeeping Amendment) to consider the implications of O. Reg 257/25 for all setbacks in the City’s ZBL 2018-050, in order to provide clarity, improve efficiency in applying the by-law, to consider the impacts of the new regulation, and ensure that function and safety is maintained.

50In contrast, Ms. Baker argued that O. Reg. 257/25 is not relevant to the inquiry before the Tribunal. Ms. Baker’s key argument was in relation to the purpose and intent of the regulation. That is, and as discussed below, to streamline and standardized the development approval process and reduce regulatory hurdles. To accept the City’s position, Ms. Baker submitted, would effectively amount to allowing the present Appeal to be used as a tool to usurp the intention of the Legislature. She stated it is not for the Tribunal to question the wisdom of the provincial legislation, nor within its jurisdiction to circumvent same.

Findings on Issue #1(a): Ontario Regulation 257/25 is Not Before the Tribunal

51The Tribunal finds that the impact of O. Reg. 257/252 is not properly before the Tribunal on the present Appeal; and is persuaded by the submissions of Ms. Baker and the evidence of the Ms. Barisdale (qualified to provide opinion evidence in the area of land use planning) in this regard.

52The Tribunal finds that the intent of Bill 17 and its associated regulations is to streamline and standardize the development approval process and reduce regulatory barriers to reflect the government’s continued commitment to increasing housing supply. This is supported by the language of the preamble to Bill 17 which states as follows (emphasis added):

The Government of Ontario is:

Protecting Ontario and responding to economic uncertainty with measures designed to speed up the construction of infrastructure and homes with the goal of supporting economic and community growth and keeping workers on the job.

Accelerating provincial transit and other critical provincial infrastructure projects.

Working in close partnership with municipalities to simplify and standardize municipal development approval processes and charges to help increase housing supply in Ontario.

53Indeed, Ms. Smith too agreed in oral argument that the intent and purpose behind the regulation is to facilitate and streamline development.

54In Ms. Barisdale’s opinion, with which the Tribunal agrees, the planning impact of O. Reg. 257/25 is to provide a level of flexibility in interpreting and implementing setback regulations in zoning by-laws in an effort to eliminate prolonged planning approvals for minor deviations. This in turn encourages compact and efficient development.

55In contrast, the Tribunal finds that Mr. Vos’ evidence and Ms. Smith’s submissions effectively request the Tribunal to “bump-up” zoning where the City deems potential concerns to arise contrary to the view of the Legislature, in direct and exclusive response to the intended effect of the newly enacted legislation. The Tribunal has no such power within its jurisdiction. When the Legislature enacts legislative amendments and related regulations, it does so in its wisdom. That wisdom presumably accounted for reduced setback scenarios such as in the case at present. This is made evident through the Bill 17 amendments to the Act which include exclusions to the application of the prescribed percentage of setback distance as set out in ss. 34(1.5) to (1.7) of the Act. Those exclusions do not carve out any exception for circumstances wherein exemptions to existing zoning setback standards have already been granted. The Legislature, then, has seemingly considered the implication of Bill 17 and O. Reg. 257/25 to such circumstances, and passed the legislative amendments without such further exception. The reasonable conclusion is that the prescribed percentage of setback distance in O. Reg. 257/25 was intended to be applicable to setbacks even where reductions to those zoning standards had already been granted. The Tribunal is left then with the conclusion that this Appeal must therefore be considered in the same manner as any appeal for setback relief that could have been brought before November 21, 2025.

56Notwithstanding the foregoing findings, the Tribunal also agrees with Ms. Barisdale that the 10-percent setback deviation within O. Reg. 257/25 is not automatic but rather engaged on a case-by-case basis. For instance, the Ontario Building Code requirements with respect to such things as building openings and easement consideration are also factors beyond zoning regulations that may prevent the full utilization of O. Reg. 257/25 to be applied in all instances. Additionally, the Tribunal’s findings on this issue does not prevent the City from continuing its work on the Housekeeping Amendment which Mr. Vos’ evidence indicated the City has initiated. As set out above at paragraph [35], that Housekeeping Amendment, if passed, would be the new applicable standard including for the Subject Property and is a matter to be determined through a separate process on a different day.

Issue #1(b): Adverse Impacts to Side Yard Grading or Drainage

57On the issue of side yard grading and drainage, both Parties called their respective engineering experts. Ian Robertson was qualified to provide opinion evidence in civil engineering, with a specific focus in municipal engineering, on behalf of Mattamy. Darren Scott, the current Manager of Development Engineering for the City, was qualified to provide opinion evidence in civil engineering on behalf of the City.

58There is no dispute between the engineers that the primary function of a side yard is for grading and drainage (Exhibit 8: Agreed Statement of Facts – Engineering Issues appended as Exhibit F to the Witness Statement of Ian Robertson). Significantly, Mr. Scott testified that Mr. Robertson’s evidence was correct in that the reduction in side yard setbacks to 0.6 m on one side would continue to allow for side yard swales to be designed to meet the City’s Engineering and Landscape Manual (“CELM”). Where Mr. Scott’s opinion diverges from that of Mr. Robertson regards his core concern that the result would force the design to the outer limits of tolerances, which he states is not good engineering practice. This is because the City requirement is for side yard swales to be constructed at a minimum 2-percent gradient along lot lines with a minimum of 0.15 m depth to ensure post-construction function. These prescribed minimums result in a 12.5-percent side slope on a combined 1.2 m wide side yard. Where in practice, Mr. Scott indicated swales would commonly be designed at a greater slope of between 2.2-percent to 2.5-percent to successfully achieve the in-field minimums, a 0.6 m side yard offers no practical tolerances.

59In Mr. Scott’s opinion, lot grading performance relies upon tolerances for construction variability, topsoil placement, settlement overtime, and predictability of homeowner behaviour. He testified, that in his experience, there is always variability in these tolerances. For instance, even the best contractors cannot achieve a precise grade unless implemented perfectly which is not typically the case, and there is usually some variance, even if in centimeters. Additionally, Mr. Scott testified that in his experience there are a set of homeowner modifications that are fairly standard. He stated that steeper side slopes generally encourage homeowners to modify grading with such things as paved or gravel walkways which have adverse effects on lot drainage by obstructing or removing side yard swales and inhibiting surface drainage. Mr. Scott testified that even the act of a homeowner traversing the side yard with materials to the rear, for instance to build back decks, can impact the grading of the side yard swale over time. To demonstrate his lived experience, Mr. Scott referred to photographs taken in the Kitchener and Cambridge areas within the Region of Waterloo depicting homeowner modification to reduced side yards and what he indicates is a general contrast between functional versus unfunctional side yards (Exhibit 11, Pgs. 533-561).

60Mr. Scott concluded that a combined side yard separation distance of less than 2.4 m is consistently associated with homeowner non-compliance and future drainage failures, obstruction of swales and increased reliance on municipal intervention after occupancy. It was his opinion that grading designs should therefore provide for additional width or steeper slopes than normal minimums to reliability meet certification requirements and to avoid future drainage failure issues.

61In contrast, Mr. Robertson testified that the City’s policy now requires developers to remain responsible for rectifying any concerns that may arise for a period of 2 years following lot grading certification. He states this provision would be included in the Agreements of Purchase and Sale between homeowners and the builder. Mr. Robertson explained that at the time of occupancy, his firm has made it a practice to deliver individual letters to new homeowners to educate them on the lot certification period, including the maintenance period. The letter also educates homeowners on the importance of talking to their builder about any modifications they may be considering. Mr. Robertson opined that to date, this process has helped to reduce conflicts with grading and drainage features. Additionally, he explained that the builder posts security to the City to ensure lot grading compliance, which security remains with the City for the 2-year period following certification. Mr. Robertson opined that this is an effective mechanism for coordinating concerns amongst new homeowners. Mr. Robertson concludes his opinion that based on the preliminary servicing report, preliminary stormwater management report, and the detailed design engineering drawings (ongoing), there will be no adverse impacts to grading or drainage issues associated with the reduced side yard setbacks.

Findings on Issue #1(b): No Adverse Impacts to Side Yard Grading or Drainage

62The Tribunal finds that the requested site-specific exemption respecting reduced side yard setbacks for those lots with less than 11 m of lot frontage within the RBC2 zoned lands will not result in adverse impacts to the side yard grading and drainage function of those lots in question. On the issue of grading and drainage, the Tribunal had before it two experts who both agreed that the reduced side yard setbacks will indeed comply with the engineering and landscape requirements set out by the City within the CELM.

63While Mr. Scott rejected the argument that compliance with the CELM ensures that swales will function appropriately within the reduced side yard setbacks, the Tribunal finds Mr. Scott’s evidence untenable. Mr. Scott opined that the purpose of the CELM is to define minimum geometric requirements for certain engineering functions. So, if it is the City’s position that best engineering practices for grading and drainage is to include increased buffer measurements to account for tolerances, quite simply, they have had the ability to initiate an amendment to their own manual to do just that. They have not done so.

64Rather, the Tribunal is persuaded by the submissions of Ms. Baker that Mr. Scott’s evidence amounts to the suggestion that the side yard setbacks for the lots in question should somehow be required to exceed the standards contained in the City’s CELM in order to avoid alleged long-term adverse impacts. The Tribunal agrees that this position is not supportable for two key reasons laid out by Ms. Baker. Firstly, Mr. Scott agreed that the CELM is a robust, comprehensive and sophisticated document containing up to date industry standards. It was not Mr. Scott’s evidence that the standards set out in the document are dated or deficient. The Tribunal agrees that accepting Mr. Scott’s position would therefore put the requirements set out in the CELM into question. Secondly, both engineers agreed that the City has the ultimate approval on all final grading and drainage plans through the process of clearing the conditions of the DPS. This ensures compliance with City standards.

65The Tribunal further agrees that the evidence of Mr. Scott respecting homeowner behaviour is speculative and therefore assigns little weight to this evidence. Homeowner modifications indeed do occur, but they may occur in respect of any property regardless of reduced setbacks. That is precisely the reason why the City has its Site Alteration By-law 2010-066, which states expressly it is “a bylaw to prohibit and regulate the placing or dumping of fill, the removal of topsoil and the alteration of the grade of lands within the City of Waterloo” (Exhibit 16). While Ms. Smith argues that good planning requires consideration of anticipated future impacts to be proactive rather than rely on enforcement, the Tribunal notes an important clarification that it is not relying on enforcement to satisfy itself of good planning. Rather, the statutory requirements and applicable policies, guidelines and manuals have been independently met as set out within this Decision. Any speculative concerns respecting homeowner compliance goes to a separate issue of enforcement that is simply not relevant to the Tribunal in determining whether a proposed planning instrument meets those statutory requirements.

66To conclude, and with consideration of the issues noted in the evidence of Mr. Scott, the Tribunal prefers and accepts the engineering evidence of Mr. Robertson. As explained by Mr. Robertson, the subdivision proposes to employ a clean water collector system which will connect downspouts to an underground storm sewer system. This directs roof runoff to a piped system rather than to the side yard swale, which in turn reduces the amount of surface drainage to the side yard swale. During a 2-year storm event runoff from rooftops will be captured by eavestroughs and be directed to the clean water collector system. During large storm events, it is expected that the eavestroughs will overflow to grade. Even still, and during a major 100-year storm event with flow estimates at 21 liters per second, the side yard swales with 4:1 side slopes, 0.15 m depth, and 2% longitudinal slope have an adequate estimated capacity of 44 liters per second. Accordingly, the Tribunal accepts Mr. Robertson’s conclusion that the proposed reduced setbacks are appropriate to convey anticipated storm runoff from the lots in question, and that grading and drainage can be successfully accommodated.

Issue #1(c): Foreseeable Impacts to the Purpose and Function of Side Yards

67Mr. Vos testified that side yards to residential dwellings serve the additional purpose and function of providing: safe access to the rear yard, space for utilities and mechanical equipment, the ability to maintain dwellings without trespass, space for private snow storage between driveways, and privacy. Given that the proposed exemption does not require the reduced side yard to be adjacent to the larger side yard on the adjoining lot, the total separation distance between dwellings could range between 1.2 m to 1.8 m. Mr. Vos opined that consequentially, adverse impacts arise in relation to each of the functions of a side yard as follows:

Safe Access to the Rear Yard

a) Access to the rear of the dwelling via either of the side yards will be impeded. This is because the reduced side yard will have a significant swale slope of 25-precent, and the opposite side yard with greater setback distance will be forced to house larger mechanical and/or utility servicing equipment which the reduced side yard cannot accommodate, therefore creating encumbrances and safety issues.

Utilities and Mechanical Equipment

b) Side yards with a total separation distance ranging between 1.2 m and 1.8 m on either side are insufficient to adequately accommodate mechanical and utility servicing equipment such as air conditioning units, hydro meters and electrical meters, while maintaining the other purposes and functions of a side yard. In this regard, utility providers have offered the following commentary:

i. Enova Power has indicated that a minimum of 1.2 m separation distance is required to accommodate the electrical meter and clearance distance for technician safety, along with an easement for reduced side yards to ensure no fencing is erected. (Exhibit 11, Tab 37: “Enova Power Email”)

ii. Enbridge has indicated that a minimum of 1 m clearance distance is required. (Exhibit 11, Tab 38: “Enbridge Email”)

c) The reduced side yard to 0.6 m on one side results in the function of that side yard to be directed and consolidated to the larger side. However, this erodes the planned function by directing all mechanical equipment, utility meters, and even landscaping and window openings to the same side which then impedes access to the rear of the dwelling including to transport things like lawn mowers or for garbage bin storage.

Trespass onto Neighbouring Lot

d) A Reduced side yard with consolidated use and function of the opposite larger side yard results in an inability to facilitate the maintenance of the side façade of the house, or maintenance of mechanical equipment and utility meters without encroaching on neighbouring properties, with insufficient space to safely prop up a ladder or scaffolding within the limits of the individual property boundaries. These encroachment issues lead to increased neighbour disputes.

Snow Storage Between Driveways

e) The reduced side yard setback results in a lack of private snow storage space within the reduced side yard between driveways. This further impedes safe access to the rear of the dwellings as well as compounds on-site snow storage.

Privacy

f) The decreased separation distance and impeded access to the rear yards, which raise easement requirements and encroachment issues, results in privacy concerns between neighbouring homeowners and increased neighbour disputes.

Increased Air Conditioning Usage

g) The reduced side yard setback eliminates the opportunity for windows on that side façade, in turn reducing the opportunity for fresh air within the dwelling, increasing reliance on air conditioning, and increasing energy consumption.

68Ms. Smith submitted that these impacts are not speculative, rather they are based in the direct observations by Mr. Vos in his experience and on his site visits to comparable subdivisions with similar setback variances as demonstrated through his photographic evidence (Exhibit 11, Tab 26), including: Wildflowers in Kitchener, Doon South in Kitchener, West Oak Trail in Kitchener, South Estates in Kitchener, Hunt Club in Cambridge, Townline in Cambridge, and Black Bridge in Cambridge.

69In contrast, Ms. Barisdale provided evidence of other Municipalities, including Kitchener, Cambridge, Guelph, Brantford, and Barrie, wherein the same reduced setbacks were designed and employed between 25 and 30 years ago. Ms. Barisdale opined that these longstanding comparable neighbourhoods serve to demonstrate that the 0.6 m reduced setbacks have been successfully applied throughout the province, in a functional manner for new residential development in greenfield areas without any adverse impacts and in a manner which promotes sustainable planning. (Exhibit 5, Tab U; Exhibit 7, pp.2-5).

70In response to the concerns raised by Mr. Vos, Ms. Barisdale referred to her Side Yard Setback Graphic (Exhibit 5, Tab T) which she opined demonstrates sufficient space for safe access and snow storage between single detached residential dwellings. Ms. Barisdale opined that any proposed dwelling on the reduced side yard lots will still be required to comply with all safety and building code requirements. Additionally, Ms. Barisdale noted that as demonstrated through the Side Yard Setback Graphic, there are architectural and design considerations, such as building bump-outs, alcoves and bay windows, that provide variation in the side yard setbacks for each unit with some points measuring greater than 1.2 m (or 0.6 m). Finally, Ms. Barisdale deferred to Mr. Robertson’s engineering evidence that the designed grading plans for the reduced side yards will accommodate lot grading standards as outlined in the City’s CELM, without any adverse impacts.

Findings on Issue #1(c): No Adverse Impacts to the Purpose and Function of Side Yards

71The Tribunal finds that the requested reduction for a side yard setback to 0.6 m on one side of the specified lots will not result in any undue adverse impacts as raised by the City respecting safe access, space for utilities and mechanical equipment, ability to maintain dwellings, space for private snow storage between driveways, or privacy. Before turning to its reasons, the Tribunal notes its concerns with the competing evidence respecting comparable neighbourhoods tendered by the opposing experts. While such evidence can be informative, ultimately each planning application must be assessed based on its own merits and can neither be approved nor denied on the basis of any alleged precedent alone. The Tribunal has instead focused on the ultimate task before it, respecting whether the application meets the applicable statutory policies and planning framework.

72Turning to each of the particular concerns raised by the City, the Tribunal finds as follows:

a) The evidence does not support legitimate safety access issues. The Tribunal accepts Mr. Robertson’s engineering evidence that the side yard swales on a reduced 0.6 m setback will continue to be capable of meeting the City’s CELM standards for grading with a maximum slope of 25%. This is a City published standard, and a maximum slope of 25% could not be endorsed by the City if it were to pose a slope safety issue. While Mr. Vos referenced the Crime Prevention Through Environment Design Guidelines (“CEPTD”), he also conceded that there is nothing within those guidelines that indicates the reduced side yard setbacks create safety issues.

b) The reduced setback continues to maintain a 1.2 m setback on the opposite side yard, which the City has endorsed as an acceptable side yard setback, and which the Tribunal endorses as acceptable regardless of the setbacks of the adjacent lot, which provides a route for safe access.

c) Mr. Vos’ evidence that the larger side yard will be forced to accommodate all consolidated uses, and will therefore impede access, is also rejected as follows:

i. Mr. Robertson’s evidence indicated that the residential air conditioning systems are intended to be installed on the rear wall. Even if that is not the case, the Tribunal accepts it is commonplace for homeowners to walk around their air conditioning units and utility meters on side yards without difficulty.

ii. The evidence did not establish that the 0.6 m side yards would be unable to accommodate all mechanical and utility equipment. The Enova Power Email confirmed the contrary. Enova Power indicated that its electrical meter measures only an approximate 20 cm and requires a 1 m safety clearance distance, for a total clearance distance of 1.2 m. Enova Power subsequently confirmed expressly that it has installed electrical meters on reduced setbacks, indicating that “a common example is 1.2 m from one household and 0.6 m from the adjacent property” wherein an easement prohibiting fencing would be required (emphasis added). Such an easement would be at the cost of the developer and would have to form part of the disclosure to any potential purchaser for their consideration and acceptance prior to purchase. The Enova Power correspondence further indicates that while usually on the opposite side from the gas meter, the electrical meter may be located on the same side, as long as there is a 1 m distance from the discharge opening of the natural gas meter. Accordingly, an electrical meter on a 0.6 m side yard setback, even where there may also exist a gas meter, is not a novel consideration.

iii. The Enbridge Email confirmed that its gas meter measures an approximate depth of 0.4 m and requires a total of a 1 m clearance area. It also stipulates that where the “gas main is located on private property, Enbridge will need to obtain an easement” and that they “typically do not secure easements solely to restrict the installation of fences within the required clearance area” (emphasis added).

d) Accordingly, with a range of between 1.2 m to 1.8 m of separation distance on either side of the lots, there is sufficient room for all utility and mechanical equipment to be installed with sufficient safety clearance distances as well as sufficient passage for a homeowner to get to the rear of their dwelling – any required easements are not novel issues, are at the expense of the developer, and are among the considerations to be made and accepted by the homeowners before purchase.

e) The concerns respecting trespass on neighbouring lots is not persuasive. The Tribunal agrees that the risk of trespass exists whether a side yard is setback 0.6 m or 1.2 m, as well as with Ms. Barisdale’s evidence that home maintenance may still require equipment such as ladders to be placed on a neighbouring property, even where the side yards are maintained at 1.2 m setbacks.

f) The concern respecting inadequate snow storage space within the reduced side yards between driveways is also not persuasive. Quite simply, there are no changes proposed to the lot frontages, front yard setbacks and importantly, the driveway widths. Accordingly, the Tribunal accepts that the availability of open space in the front yards and in between driveways wherein snow may be stored will ultimately remain the same, even if configured differently.

g) The concerns respecting increased energy consumption from increased reliance on air conditioning units is unfounded. Mr. Vos himself conceded on cross examination that that opening front and rear windows is an alternative to air conditioning use. Mr. Vos further acknowledged that the concept plans indeed demonstrate the option of recessed windows on the side façade of the house, providing further opportunity for fresh air over energy consumption.

Issue #1(d): Consistency with Character of the Neighbourhood

73Ms. Smith submitted that the reduced side yard setback does not respect historical patterns and precedents established throughout the City of Waterloo and fails to maintain the character and physical patterns of the existing neighbourhood. Her submissions were based on Mr. Vos’ evidence that the new lots with reduced side yard setback would not maintain consistency with the character of the adjacent Conservations Meadows neighbourhood to the east. He further opined that the proposed reduced setback shifts the transition point westward, creating inconsistency between housing within the subdivision itself. More specifically, Mr. Vos’ opined that the transition from one neighbourhood character to the next would shift from Roy Schmidt Road, being the boundary between the Proposed Development and Conservation Meadows, to Esker Lake Drive. Mr. Vos cites various policies from the COP, including policy 3.1, 3.5, 3.11.1, 3.11.5, 10.1, and 10.1.3, in relation to maintaining the character of the area, which he states the Proposed Development does not respect.

74In contrast, Ms. Barisdale testified that the proposed amendments, including reduced side yard setback, have been designed with the intent of encouraging more active community interaction while incorporating special considerations for building placement and setbacks to complement and be consistent with the existing low rise residential uses to the east of the Subject Property. She emphasized that the reduced side yard setback is only applicable to those lots internal to the site, and not to any lots that are adjacent to the existing low rise residential uses to the east. In her opinion, this provides consistency and similarity in the residential streetscape, including building massing, location, and scale, between existing single detached low rise residential uses of the east to the future single detached low rise residential uses. Given most of the Subject Lands is designated Low Density Residential within the COP, Ms. Barisdale opined that the proposal balances the various competing policies by offering a range and mix of housing types, including a range of lot sizes in low-rise residential areas, while complementing the existing low-rise character of the surrounding community.

Findings on Issue #1(d): Character of the Neighbourhood is Maintained

75In respect of the proposed reduction in side yard setback, the Tribunal prefers the evidence of Ms. Barsidale and finds that the character of the neighbourhood is maintained.

76Where Mr. Vos cites policies in relation to neighbourhood character, it appears he has read in terms that are not found in the actual text of the COP. For instance, Mr. Vos cites policy 3.5(1) of the COP and testified that the objective of planning for greenfield areas to be integrated with existing communities involves more than simply roads and service connections and includes “character”. The text of policy 3.5 reads as follows:

(1) Designated Greenfield Areas will be planned in a manner that integrates with existing communities and supports the City as a complete community. Development within the Designated Greenfield Areas will be guided by the policies of this Plan to support an urban form that is consistent with the objectives set out in this chapter.

77During cross-examination, Mr. Vos conceded that the term “character” does not appear in the text and he has read in that term based on his interpretation of the policy. The Tribunal finds this to be one example of the nature of Mr. Vos’ evidence as stretching to any policy which may justify his opinion, rather than his opinion being guided by the policies. Equally, during cross-examination Mr. Vos insisted that while the term “neighbourhood” was not defined by the COP, the proposed sub-division itself would not constitute a neighbourhood in and of itself, but form part of the larger neighbourhood within its surroundings. Accordingly, where policy 3.1(3)(i) of the COP states that the City’s objective is to plan for neighbourhoods that “are planned and designed to complement the existing or planned neighbourhood character” (emphasis added), Mr. Vos interpreted this to suggest that one would only look at a planned neighbourhood context if the proposed new subdivision lacked an existing greater neighbourhood by being bounded by only greenfield. He opined that because the Proposed Development sits within the broader Conservation Meadows neighbourhood, it should maintain that same character by regulating similar setbacks.

78The Tribunal rejects Mr. Vos’ interpretation and opinion. As accepted by Mr. Vos during cross-examination, the policies of the COP must be read as a whole. There is no hierarchical structure wherein one policy may trump another. In engaging in this balancing exercise, when one turns to the earlier policies of s. 3.1, and specifically s. 3.1(2)(e), it becomes clear that the policies which promote complementing existing neighbourhoods must be balanced with the objectives of providing communities with unique neighbourhoods. Policy 3.1(2)(e) specifically sets out that it is the City’s objective to develop an urban form that (emphasis added):

(e) Provides for a community of unique neighbourhoods that offer a range of safe, comfortable, lively and accessible spaces for people to interact;

79Mr. Vos conceded that use of the terms “unique neighbourhoods” does not set the expectation that new development is required to follow the blueprints of the first sub-division ever built. Indeed, if every new sub-division was required to follow the exact same regulations as all that were built before in the surrounding broader context, there would be no opportunity to offer unique neighbourhoods, nor a range and mix of housing types, sizes, costs and tenure as set out in policy 3.1(3)(b).

80The Tribunal further notes that there is no policy within the COP that requires the same exact neighbourhood characteristic to be maintained. Each of the policies cited by Mr. Vos use language such that new development is to complement existing or planned neighbourhoods (3.1(3)(i)); to respect the site context, enhance a sense of place, and be compatible (3.1(4)(b)); or to fit within the existing character and context (3.11.1(2)). Even policy 10.1.3(5) states that new development shall respect and reinforce general patterns including lot sizes and configurations and building setbacks. The policies do not use language that limits new development to identical sizes, configurations or setbacks. This would be in line with enabling the achievement of the other COP policies which encourage unique neighbourhoods and range and mix of housing types and sizes.

81The Tribunal acknowledges that the proposed reduction to the side yard setback amounts to a total of 0.6 m limited to one side of the dwelling only, and limited to only those lots which are 11 m or less in Area B within the RBC 2 zoned lands (Blocks 2 to 16 as shown on the DPS). These lots are internal to the proposed sub-division. The Tribunal is persuaded by the evidence of Ms. Barisdale and finds that this limitation restricts the side setback exemption from being appliable to lots that are adjacent to, or which interface with, the existing low rise residential neighbourhoods to the east of the Subject Property. For clarity, the dwellings within the new subdivision abutting the neighbourhood to the east, (on Blocks 1, 17, 18 and 19 as shown on the DPS), will not have the permitted exception allowing a reduced side yard setback and will maintain the 1.2 m setback on both side yards. Accordingly, the Tribunal agrees that the proposed amendment maintains the character of the abutting broader neighbourhood, while providing for appropriate transition into the context and character of the new planned development with its own unique character and which provides a range and mix of housing types and lot sizes within a low-rise residential designated area. The Proposed Development and side yard setback relief provides consistency and similarity within the sub-division itself, and residential streetscape including building massing, location, and scale. Those lots with the proposed reduced side yard setback fit harmoniously within the surrounding context of the new subdivision, and for the reasons set out above in this Decision, do not pose any adverse impacts.

2. Porch and Balcony Encroachments

Issue #2: Increased Encroachments Premature Without a Concept Plan with Potential Adverse Impacts

82The primary basis for Mr. Vos’ opinion against relief for porch and balcony projections for cluster development within the RBC 4 zoned lands (“Porch Encroachments”) is, as he testified, that such relief is premature without a detailed concept plan. Mr. Vos’ evidence is that the site plan review process is the more appropriate time to determine if the requested relief is warranted because only then can it be demonstrated how the Porch Encroachments are proposed to be integrated into the development. At that future time, if the requested relief is warranted based on the detailed concept plan, Mattamy may then resubmit a further planning application.

83Notwithstanding his primary position that the impacts of the proposed relief cannot be properly assessed absent a detailed concept plan, Mr. Vos set out some general concerns, which the City submits are only some which can be reasonably anticipated. Specifically, Mr. Vos’ concerns may be summarized as follows:

a. The proposed Porch Encroachments of 1.2 m will reduce the available space in the front yard resulting in inadequate availability of space for tree and shrub plantings, utility placement, snow storage, and the placement of walkways or stairs.

b. The reduction in the availability of overall front yard space will have a negative effect on the overall sense of place by reducing the amount of landscaping and vegetation as well as the separation between public and private spaces.

c. The reduced availability of space for landscaping and vegetation results in an inability to mitigate heat island effect through appropriate plantings.

d. A permitted Porch Encroachment of 1.2 m into the front yard area is not consistent with the Conservation Meadows neighbourhood.

e. A permitted Porch Encroachment of 1.2 m into the front yard area and closer to the street will not improve the streetscape and will result in reduced privacy.

f. A permitted Porch Encroachment of 1.2 m into the front yard area results in a negative impact on the general function and usability of the front yard space.

84In contrast, it was Ms. Barisdale’s opinion that the Porch Encroachments will provide increased usable outdoor living space for future residents without compromising the livable gross floor area. Ms. Barisdale’s evidence is that the Porch Encroachments serve to enhance a more vibrant streetscape by bringing activity closer to the street, reducing prominent views of driveways and garages, and allowing for sufficiently sized porches and balconies which facilitate usable and practical outdoor amenity space, in turn contributing to increased outdoor activity and community connection. Ms. Barisdale further testified that similar to the requested encroachments in the RBC2 zoned lands, which the City does not oppose, the encroachments sought in respect of the RBC4 zoned lands are limited in scope which mitigate Mr. Vos’ concerns, more particularly, as follows:

a. The Porch Encroachments are restricted to only cluster development, specifically Blocks 27 and 28, therefore do not apply to single detached or townhouse dwellings adjacent to a future municipal road.

b. The Porch Encroachments would only be applicable to cluster development with frontage on a private road, thereby the encroachments will not have a public face or impact on the public realm.

c. The Porch Encroachments, restricted to being only internal facing, will not have any impact on the subdivision to the east.

Findings on Issue #2: Concept Plan Not Required for Increased Encroachments and No Adverse Impacts

85On the issue of increased Porch Encroachments, the Tribunal rejects Mr. Vos’ evidence and prefers the evidence of Ms. Barisdale. The Tribunal agrees with the submissions of Ms. Baker that it is not appropriate to defer matters of zoning to the site plan stage and for further planning applications to be brought at a later date. To follow such a process would serve to create only increased and unnecessary bureaucratic hurdles. While Mr. Vos testified that he could not appreciate what was planned for in respect of the proposed Porch Encroachments without a detailed concept plan, the Tribunal agrees that this concern was turned on its head during his cross-examination. Indeed, Mr. Vos confirmed that the photographs within the City’s Book of Documents, which include photographs of existing developments with Porch Encroachments, represent what is currently being proposed in respect of the site-specific by-law exemptions for Porch Encroachments (Exhibit 11, Tab 26, Pages 559-560).

86Based on Ms. Barisdale’s evidence, the Tribunal further rejects the City’s arguments respecting the alleged adverse impacts and concerns which may be anticipated, and finds as follows:

a. The proposed Porch Encroachments totaling 1.2 m cannot be said to negatively impact the availability of front yard space for meaningful landscaping as there is no corresponding request for a reduction in the minimum landscaped open space requirement. There is also no regulation or other requirement for any specific plantings, regardless of the amount of landscaped open space provided.

b. As the minimum landscaped open space requirement is being maintained, and there is no regulation or other requirement for any specific plantings, there is nothing compelling an increased level of landscaping or vegetation in the absence of the proposed Porch Encroachments.

c. The proposed Porch Encroachments are applicable to only the internally facing lots, and to only cluster development with frontage on a private road. The proposed Porch Encroachments therefore do not interact with the municipal roadway nor with the subdivision to the east. To that end, they are limited in their interaction with the public realm.

d. Consistency with the neighbourhood is maintained through limiting the Porch Encroachments to only cluster developments on internally facing lots fronting on a private road within the new subdivision, without any interaction with the municipal roadway or the subdivision to the east. There is no requirement that the zoning regulations replicate what exists for the Conservation Meadows neighbourhood. Such a requirement would serve to stifle growth, the creation of unique neighbourhoods and the ability to provide for a range and mix of housing lots, types, sizes and housing options.

e. Providing future residents with front yard outdoor amenity space facing their neighbours contributes to a sense of place in providing for increased opportunities to have friendly interactions with neighbours and increasing a sense of community.

f. The provision of outdoor amenity space with opportunity for seating increases the general function and usability of the front yard space, it does not diminish it.

g. The proposed Porch Encroachments will enhance a more vibrant streetscape by bringing activity closer to the street and reducing prominent views of driveways and garages.

h. The proposed Porch Encroachments will further serve to provide increased usable outdoor living space for future residents without compromising the livable gross floor area of the proposed dwellings for the end user.

87Accordingly, the Tribunal finds that there are no adverse impacts resulting from the proposed Porch Encroachments.

Issue #3: The Proposed Instrument Satisfies the Statutory Tests

88To conclude, the Tribunal finds the evidence of Messrs. Vos and Scott to have been overall unsupported and therefore less reliable than Ms. Barisdale and Mr. Robertson.

89In respect of the reduction in side yard setbacks, and contrary to the submissions of the City, the Tribunal does not find Ms. Barisdale’s evidence to have lacked a consideration of impacts or to have minimized the functionality of side yard setbacks. The alleged impacts raised by the City have been carefully considered by the Tribunal as set out within this Decision, and it has been determined that the purpose and function of the side yards are maintained without any adverse impacts. With the key functions maintained, the Tribunal accepts Ms. Barisdale’s evidence that the reduced side yard allows the most efficient and optimal use of the narrower lots by maximizing the building area of the residential dwelling for an increase in interior livable space for the ultimate end user. The development of larger homes on narrower lots will consequently add to the range and mix of available housing stock at inherently more affordable prices as may be determined on a lot size basis. This furthers the policies of the PPS, Regional Official Plan (“ROP”), the COP, and the BCMDP, which encourage new development in compact built forms with a range and mix of housing options that address the full range of affordability needs and achieve complete communities.

90In respect of the proposed Porch Encroachments, and contrary to the submissions of the City, the Tribunal does not find the request premature. Matters of zoning should not be deferred to the site plan stage. Furthermore, it matters not that the blocks may be developed without this relief. The question is whether the relief satisfies the applicable legislative and policy tests which this Tribunal finds it does. The Tribunal accepts Ms. Barisdale’s evidence that the proposed Porch Encroachments contribute to development which is slightly more intensive in a compact low-rise built form and which maximizes the ability to accommodate livable gross floor area while providing meaningful outdoor amenity space. This furthers the policies of the PPS, ROP, COP, and the BCMDP, which encourage urban forms that provide for an appropriate mix of land uses in close proximity to one another, compact urban growth, efficient use of land in a manner that facilitates interaction and social connection between residents, and fosters a sense of community.

91In respect of the totality of the Fourth Revised SS-ZBA (Exhibit 10) that is before the Tribunal, inclusive of the balance of the exemptions sought which are no longer in dispute between the Parties, the Tribunal accepts the evidence of Ms. Barisdale and finds as follows:

a) The reduced side yard and rear yard setbacks, increased Porch Encroachments and number of units in linear townhouse buildings provide for a range and mix of housing options, sizes and types for future residents including single detached, townhouse, freehold townhouse and multiple-unit residential dwellings.

b) The residential uses are designed to minimize land consumption, maximize lot efficiencies and optimize building designs in terms of coverage, massing, and scale which helps to incorporate affordable home ownership consideration.

c) It makes efficient and optimal use of land, resources and infrastructure by maximizing the future building envelopes for dwellings to facilitate more compact form of low-rise residential urban development that will assist the Region and City in achieving their density objectives in designated greenfield areas.

d) The proposed exemptions collectively make efficient and optimal use of land, resources and infrastructure by maximizing the future building envelope for dwellings which create more compact residential communities.

e) The proposed exemptions collectively provide for slightly more intensive and compact low-rise development that is orderly within a designated greenfield area.

f) The proposed exemptions collectively help facilitate active community interaction through enhancing a vibrant streetscape and bringing activity closer to the street while incorporating special considerations for building placement and setbacks to complement and maintain consistency with the existing low rise residential uses.

g) The proposed exemptions are limited in their scope within the new subdivision itself, for instance the side yard setbacks are limited to single detached residential dwellings in the RBC2 zone and only to those lots internal to the subdivision, thereby limiting interaction with existing low rise residential uses to the east and maintaining consistency in the residential streetscape and neighbourhood.

h) The proposed exemptions allow the development of low rise residential dwellings that are designed to be consistent in character with the existing low rise residential uses including through the provision of a similar road pattern and extension of existing municipal roads from the east, while utilizing a combination of lot sizes and configurations to provide for diversity in the low rise design.

92Based on the foregoing, the Tribunal finds that the Fourth Revised SS-ZBA satisfies the applicable legislative and policy tests, including (but not limited to) the following key provisions:

a) It has regard to matters of provincial interest as set out in s. 2 of the Act, and in particular ss. (h), (j), (p), (q), (r) respecting the orderly development of safe and healthy communities, the adequate provision of a full range of housing including affordable housing, the appropriate location of growth and development, and the promotion of built form that is well designed, encourages a sense of place and provides high quality and vibrant public spaces.

b) It achieves consistency with the PPS, and in particular ss. 1, 2.2.1, 2.3.1.2, and 2.9.1 respecting increasing the housing supply and mix of housing options, responding to the needs of the community through design, efficient use of land, resources, infrastructure and public services, optimizing existing and planned infrastructure, and supporting the achievement of compact and complete communities.

c) It achieves conformity with the ROP including ss. 2.G.1.1 and 2.G.1.2, regarding designated greenfield areas as lands outside of the delineated built-up area that are required to accommodate a portion of the Region’s population growth to 2051, the thoughtful design of new greenfield communities to be compact, efficient and well-connected places which meet or exceed the minimum density targets.

d) It achieves conformity with the COP and in particular ss. 2.3, 3.1, 3.5, 10.1.1, 10.1.2, 10.1.3, and 11.1.62 respecting greenfield areas to accommodate a significant portion of population and employment growth in the existing urban area boundary through intensification and development of appropriate vacant lands including designated greenfield areas, to provide for an appropriate mix of land uses in close proximity to one another and compact urban growth, to provide for a range and mix of housing types, sizes, costs and tenure, to facilitate interaction and social connections between residents, to foster a sense of community, to complement the existing or planned neighbourhood character, to plan development in designated greenfield areas in a manner that integrates existing communities, and to encourage innovation in design of residential areas such to lower costs to purchasers.

e) It achieves conformity with the BCMDP and in particular ss. 2.2.1, 3.2.8, 3.4.2, 3.4.4, and 3.4.15 regarding to ensure diversity in housing forms and land uses including affordability, providing for transitions to existing build forms, ensuring compact form through a range of uses with a variety of density forms, to achieve cost effective and efficient design, to ensure visual diversity, and to be compatible with adjacent and neighbouring development by ensuring sizing and massing does not result in adverse impacts.

93The evidence of Ms. Barisdale supports that the Fourth Revised SS-ZBA has appropriate regard for the PPS, conforms with the ROP and COP, and conforms to the BCMDP. Across each policy framework, consistent findings are made that the proposed site specific exemptions help to facilitate low-density residential development within a designated greenfield area, through thoughtful design which not only provides a mix and range of housing options, but maximizes the efficient use of land in such a way as to provide future residents with more interior and exterior livable and usable space on a range of lot sizes that are inherently more affordable and which foster community interaction and encourage a sense of place. It also appropriately transitions to adjacent existing residential uses and supports community vibrancy and active transportation. Overall, the Fourth Revised SS-ZBA represents good planning and is in the public interest.

ORDER

94THIS TRIBUNAL ORDERS THAT the appeal against By-law 2025-050 of the City of Waterloo is allowed, in part, and the Tribunal directs the municipality to amend By-law 2025-050 to include a revised Schedule ‘B’ as set out in Attachment 2 to this Order.

“N. Eisazadeh”

N. EISAZADEH

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

ATTACHMENT 2