Toronto (City) v. Panourgias, 2023 ONTLAB 104

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2023-06-15

22 175338 S53 16 TLAB

22 175340 S45 16 TLAB

22 175341 S45 16 TLAB

22 175343 S45 16 TLAB

22 175339 S52 16 TLAB

Toronto (City) v. Panourgias, 2023 ONTLAB 104

DECISION AND ORDER

Issuance Date:

June 15, 2023

PROCEEDING COMMENCED UNDER Section 53, subsection 53(19), Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")

Appellant(s):

City of Toronto

Applicant(s):

Peter Higgins Architect Inc.

Property Address:

1 & 3 Talwood Dr.

COA File No.:

B0002/22NY, A0020/22NY, A0021/22NY, A0022/22NY, B0003/22NY

TLAB Case File No.:

22 175338 S53 16 TLAB, 22 175340 S45 16 TLAB,

22 175341 S45 16 TLAB, 22 175343 S45 16 TLAB,

22 175339 S52 16 TLAB

Hearing Date(s):

May 11 & 12, 2023

Decision Delivered By:

TLAB Panel Member R. Kanter

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Applicant

Peter Higgins Architect Inc.

Z. Fleisher

Owners

S. Panourgias

J. Papadopoulos

S. Panourgias

Expert Witness

M. Rendl

Appellant

City of Toronto

C. Dougherty

D. McMullin

Party (TLAB)

Don Mills Residents Inc. (B. Story)

C. Harris

Participants

J. Peacock

D. Peacock

V. Ma

N. Ma

M. Karami

M. Cresswell

INTRODUCTION AND CONTEXT

1On January 11, 2022, Peter Higgins (the "Applicant") submitted consent applications to sever 1 and 3 Talwood Drive into three lots, and minor variance applications to construct a single family detached home on each of the lots (the "Applications").

2On June 23, 2022, the Committee of Adjustment unanimously approved the Applications, subject to conditions (the "C of A Decisions").

3On July 12, 2022, the City of Toronto (the "City") appealed the C of A Decisions (the "Appeal") to the Toronto Local Appeal Body ("TLAB"). Don Mills Residents Inc. ("DMRI") obtained party status in support of the Appeal. Six neighbours also obtained participant status.

4The Appeal was originally scheduled to be heard by TLAB in January 2023. Counsel for the Applicant, with the consent of the City and DMRI, requested me to adjourn the hearing date to pursue settlement discussions, and I agreed to do so.

5On April 28, 2023, the Applicant submitted revised Architectural Plans, including a revised site plan and elevations. On May 3, 2023, the Applicant submitted a revised R-Plan showing proposed revised lot boundaries, and Zoning Notices listing revised variances. Collectively the revised Plans, and variances constitute the "Revised Applications". The City and DMRI did not object to the late filing of the proposed changes. However, the City continued to appeal the Revised Applications.

6On May 11 and 12, 2023 I heard the Appeal. I determined that the Revised Applications represent minor amendments to the variances in the Application, so that no further notice is required, pursuant to Subsection 45 (18.1.1) of the Planning Act.

THE LEGISLATIVE AND POLICY FRAMEWORK

7My decision will be subject to the following legislative and legislative and policy framework:

Provincial Policy – S. 3

The Tribunal shall have regard to, among other matters, matters of provincial interest such as . . .

(f) the adequate provision and efficient use of communications, transportation, sewage and water services and waste management systems

A decision of the Toronto Local Appeal Body (‘TLAB’) must be consistent with the 2020 Provincial Policy Statement (‘PPS’) and conform to the Growth Plan for the Greater Golden Horseshoe for the subject area (‘Growth Plan’).

Consent – S. 53

TLAB must be satisfied that a plan of subdivision is not necessary for the orderly development of the municipality pursuant to s. 53(1) of the Act and that the application for consent to sever meets the criteria set out in s. 51(24) of the Act. These criteria require that " regard shall be had, among other matters, to the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality and to,

(a) the effect of development of the proposed subdivision on matters of provincial interest as referred to in section 2 of the Planning Act;

(b) whether the proposed subdivision is premature or in the public interest;

(c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any;

(d) the suitability of the land for the purposes for which it is to be subdivided;

(d.1) if any affordable housing units are being proposed, the suitability of the proposed units for affordable housing;

(e) the number, width, location and proposed grades and elevations of highways, and the adequacy of them, and the highways linking the highways in the proposed subdivision with the established highway system in the vicinity and the adequacy of them;

(f) the dimensions and shapes of the proposed lots;

(g) the restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land;

(h) conservation of natural resources and flood control;

(i) the adequacy of utilities and municipal services;

(j) the adequacy of school sites;

(k) the area of land, if any, within the proposed subdivision that, exclusive of highways, is to be conveyed or dedicated for public purposes;

(l) the extent to which the plan’s design optimizes the available supply, means of supplying, efficient use and conservation of energy; and

(m) the interrelationship between the design of the proposed plan of subdivision and site plan control matters relating to any development on the land, if the land is also located within a site plan control area designated under subsection 41 (2) of this Act or subsection 114 (2) of the City of Toronto Act, 2006. 1994, c. 23, s. 30; 2001, c. 32, s. 31 (2); 2006, c. 23, s. 22 (3, 4); 2016, c. 25, Sched. 4, s. 8 (2).

Variance – S. 45(1)

In considering the applications for variances from the Zoning By-laws, the TLAB Panel must be satisfied that the applications meet all of the four tests under s. 45(1) of the Act. The tests are whether the variances:

• maintain the general intent and purpose of the Official Plan;

• maintain the general intent and purpose of the Zoning By-laws;

• are desirable for the appropriate development or use of the land; and

• are minor.

SUMMARY OF EVIDENCE

a) The Applicant's Planning Evidence

8I qualified Martin Rendl as an expert in land use planning to give evidence on behalf of the Applicant. Mr. Rendl introduced the following exhibits:

Ex. 1 - Document Book

Ex. 2 – Witness Statement

Ex. 3 – Revised Architectural Plans

Ex. 4 – Revised R-Plan

Ex. 5 – Zoning Notices

Ex. 6 – Revised Variances

Ex. 7 – "Expanding Housing Options in Neighbourhoods: Multiplex Study"

Ex. 10 – Lot Frontage Study

Ex. 11 – Planning Staff Study, 10 Cicada Court

9Mr. Rendl described the existing lots at 1 & 3 Talwood (the "Site"). 1 Talwood is flanked by Leslie Street to the west. It has a frontage of 19.81m and area of 690.8m2. 3 Talwood is flanked by Tangmere Road to the east. It has a frontage of 19.25m, and an area of 635.7m2.

10The Site is designated Neighbourhoods by the Official Plan (the "OP"). According to Zoning By-law 569-2013 (the "ZBL"), it is zoned RD (f15 a550), which requires a minimum lot frontage of 15m, a minimum lot size of 550m2 and minimum side yard setbacks of 1.8m.

11Mr. Rendl described the lots and variances approved by the C of A Decision:

• Each of the 3 lots would have the same frontage - 13.02m.

• Lot areas would decrease from west to east, from 558 m2 for the lot flanking Leslie St., (Lot 1), to 442 m2 for the middle lot (Lot 2), and to 426m2 for the lot flanking Tangmere Road (Lot 3).

• East and west side yard setbacks would be relatively consistent for each lot, ranging from .91-.91m for Lot 1, .92-.91m for Lot 2 and .92-1.5m for Lot 3.

12He then described lot frontages, sizes and side yard setbacks in the Revised Applications:

• Lot frontages would increase from west to east, from 12.1m (Lot 1), to 13.02m (Lot 2), and to 13.93m (Lot 3)

• Lot areas would increase from west to east, from 426m2 (Lot1), to 443m2 (Lot 2) and to 457m2 (Lot 3)

• Side yard setbacks would also generally increase from west to east, from .9m-1.2m (Lot 1), 1.22-1.22m (Lot 2) and to1.22-2.1m (Lot 3)

Following find a Table comparing the Revised Variances with the ZBL Requirements. The variances which the City and DMRI object to are bolded:

Table Comparing Revised Variances with ZBL Requirements

ZBL Requirement

Lot 1

Lot 2

Lot 3

minimum lot area 550 m2

426.29

443.26

456.96

minimum lot frontage 15m

12.10

13.02

13.93

side yard setbacks 1.8m; 3m for corner lot

west-.9; east-1.22

west-1.22; east-1.22

west -1.22; east – 2.11

coverage 34.5%

34.5%

34.5%

34.5

height 10m

10.25

rear deck: projection: 2.5m sys: 1.8m encroachment 1.5

3.37 .9

1.22

vehicle access, corner lot –flanking street

Fronting street

front porch above grade 1.2m sys 1.8

1.33 .9

entrance above gr.: 1.2m

1.46

canopy bldg. setback: no encr. sys: 1.8

encr. 1.22

encr.

parking space width: 3.2

3.06

side porch sb:1.5 m

1.64m

13Mr. Rendl referred to the Site Plan (Ex. 3, Page 1. It shows that Lot 1, closest to Leslie Street, would be the smallest proposed lot with the narrowest frontage and narrowest side yard setbacks. Lot 3, closest to the interior of the neighbourhood, would be the largest proposed lot with the widest frontage and the widest side yard setbacks. He also pointed out that the side yards of Lots 1 & 3 would appear much wider, due to the boulevards between 1 Talwood and Leslie St., and 3 Talwood and Tangmere Rd.

14In his opinion, the Site is unique for a number of reasons. It is located on the west edge of the neighbourhood, at an entry point from Leslie Street, a major arterial road. The Site faces only 2 other residential lots, 2 & 4 Talwood Drive. The Site is separated from the rest of the neighbourhood by a prominent City water tower located immediately east of 4 Talwood Dr.

15Mr. Rendl stated that the Site is located in the Don Mills Community, a neighbourhood bounded by Leslie Street to the west, Lawrence Avenue East to the south, Bond St. to the north and the Don Mills Trail to the east. He referred a table showing that there are a variety of lot frontages in the area ranging from 9m to 30m (Ex. 10), and another table showing a variety of reduced side yard setback and lot coverage approvals ranging from .56m to 1.5m, and coverage approvals ranging from 25.8% to 38.4% (Ex. 1 Appendix P. 38-39).

16Mr. Rendl identified a "sub-immediate context" from 1-17 Talwood Dr., and an "immediate context" consisting of 1, 2, 3 & 4 Talwood Dr. Lot frontages in these contexts ranged from 16m to 45m. He did not identify any reduced side yard setbacks in the immediate context.

17In Mr. Rendl's opinion, the Don Mills neighbourhood contains lots with a variety of physical characteristics. The Site, which flanks Leslie St., can be distinguished from other sites in the interior of the neighbourhood, since it has better access to transit and exposure to greater volumes of traffic.

18Mr. Rendl provided his planning opinion with respect to the consents. In his view, a plan of subdivision is not required to create 3 lots in a developed urban neighbourhood.

He opined that the creation of a 3^rd lot is consistent with the Provincial Policy Statement 2020 since it constitutes gentle intensification which promotes efficient land use and use of infrastructure. It also conforms with the Growth Plan for the Greater Golden Horseshoe which encourages intensification generally throughout delineated built-up areas.

19Mr. Rendl also referred to recent provincial legislation, the More Homes Built Faster Act passed in November 2022 which requires municipalities to allow 3 units on every lot (the "3 Unit Policy"). In his opinion, the 3 Unit Policy showed that the province was encouraging more development on existing lots. He also referred to a City Planning Staff Report titled Expanding Housing Options in Neighbourhoods: Multiplex Study, approved by City Council on May 10, 2023 (the day before the hearing) approving up to 4 units in one multiplex building on each lot (the "Multiplex Policy", Ex. 7). In his opinion, the Multiplex Policy showed that the City was moving to a better balance between an exclusionary and inclusionary policy for neighbourhoods.

20Mr. Rendl stated that the goal of the Central Don Mills Secondary Plan (the "CDMSP") is to preserve and protect stable residential neighbourhoods. In his opinion, the proposed development of 3 family size homes does not threaten the stability of the neighbourhood.

21Mr. Rendl emphasized Policy 5.6.1 of the City's OP. It requires the OP to be read as a whole, and its goal is to balance and reconcile a range of diverse objectives affecting land use planning in the City.

22He said that the proposed reduced lot frontages are reduced by less than 2m for Lot 3, and less than 3m for Lot 1. They respect and reinforce the prevailing existing physical character of the neighbourhood, since they are compatible with, although they do not replicate, existing lot frontages. Lot frontages are more significant than lot areas, since lot areas are not noticeable from the street.

23According to the Applicant's planner, reduced side yard setbacks are found in many recent new and rebuilt houses in the area. The side yard setbacks to the west of Lot 1 and the east of Lot 3 will be perceived as much wider than the numbers indicate. Consequently, the setbacks also respect and reinforce the character of the neighbourhood.

24He said that the proposed lot coverage of 34.5% is permitted in a number of other desirable Toronto neighbourhoods such as Lytton Park and Lawrence Park. It has also been allowed in new houses and renovations in the Don Mills neighbourhood, so it respects and reinforces the existing physical character.

25According to Mr. Rendl, the proposed height variance of .24m for the house on Lot 1 will result in a house that appears no taller than its neighbour on Lot 2.

26Mr. Rendl opined that the variances met the general intent and purpose of the ZBL as well as the OP. The proposed lots are each large and wide enough to accommodate a 2 story detached house with appropriate open areas surrounding each house. The variances are desirable since they will result in 3 single family homes that will fit into the neighbourhood, and are minor, since they create no undue adverse overlook or other impact on any neighbouring property.

27In response to cross examination by counsel for the City, Mr. Rendl agreed that there were many wider homes on wider lots in the neighbourhood; there was only 1 lot less than 550m. 2 & 4 Talwood were lots with areas of more than 1,400m2 and 1,189m2. There were no houses that looked like those in the rendering in the immediate context. He further agreed that 1 Talwood flanked, rather than fronted on, Leslie St., a major street.

28In response to questioning by counsel for the DMRI, Mr. Rendl agreed that Don Mills is a different geographic neighbourhood than Lytton Park or Lawrence Park. He also agreed that if a multi-plex were to be built on an existing lot in Don Mills, it would be required to maintain the existing low-rise built form of that neighborhood, including the prevailing size and configuration of lots

b) The City's Planning Evidence

29I qualified Denise McMullin as an expert in land use planning to give evidence on behalf of the Appellant City. Ms. McMullin introduced the following exhibits:

Ex. 8 – McMullin Witness Statement

Ex. 9 – City Document Book

30Ms. McMullin stated that the City's primary concerns were the reduced lot frontage and area resulting from the proposed consents.

31She identified a geographic neighbourhood with similar boundaries as Mr. Rendl. In her opinion, the neighbourhood is homogenous rather than diverse. She described the existing physical character as wide lots with sprawling houses with generous setbacks, contributing to a "cottage feel". Replacement dwellings and additions are typically larger in height, massing and scale.

32Ms. McMullin found that 99% of the lots in the neighbourhood are larger than the proposed lots; the average area of existing lots is 792m2.

33The City's planner noted that 92% 0f the lots comply with the required frontage of 15m. Most of the lots with narrower frontage are pie-shaped, with a wider rear width than frontage. The average frontage is 19.3m.

34Ms. McMullin found no material difference between the lots in the wider neighbourhood and those in the immediate context, which she identified as 1-17 Talwood Dr.

35She agreed with Mr. Rendl that the Revised Applications are consistent with the PPS and comply with the Growth Plan.

36Ms. McMullin did not agree that 3 Unit Policy or the Multiplex Policy applied to the Revised Applications. She pointed out that the Multiplex Policy focussed on what happens inside a building, not on changes to the building envelope.

37She did not agree that the consents conform to the CDMSP. She noted the statement that "Central Don Mills was planned and built in the 1950's as a self-contained community". She referred to Policy 2.1, that relevant objectives include preserving the scale, height and built form relationship originally provided for in the development concept of Don Mills; and to Policy 3.1.2, that change will maintain the existing pattern of density distribution.

38Nor did she agree that the consents conformed to the OP. Her statistical analysis showed that the proposed lots did not respect and reinforce the prevailing (most frequently occurring) lot frontages, lot areas or side yard setbacks in the neighbourhood. She noted that the only recent severance in the neighbourhood, at 48 Chatfield Drive, maintained the required lot size and frontage.

39Ms. McMullin disagreed that the Site included lots fronting on a major street, so it did not fall within the provision of Policy 4.1.5 of the OP allowing more intense development. Nor did it constitute infill development under Policy 4.1.5, since the existing lots at 1 & 3 Talwood did not vary from the local pattern.

40Ms. McMullin also took issue with the minor variances. In addition to her concerns with respect to lot frontage and lot area, she noted that increased lot coverage of 34.5% would interrupt the prevailing pattern of landscaped open space. Over one half of the recent applications for variances to side yard setbacks maintained setbacks wider than 1.2m. She opined that the variances did not maintain the general intent and purpose of the OP or ZBL, and were not minor.

41In cross examination by counsel for the Applicant, Ms. McMullin agreed that the minor variances did not fail the test of desirability, since the Revised Applications would have no undue impact on close neighbours. She also agreed that differences in lot frontage of 2 or 3m were not readily discernable from photos.

c) Evidence of Neighbours

42Brian Story gave evidence to the hearing as a Party. He is the Vice-President of DMRI, and also lived for many years at 15 Tadcaster Place, north of 2 Talwood across from the Site.

43Mr. Story supported the City's appeal. He referred to the history of Don Mills based on the garden city concept of small houses on large lots with a significant amount of green space and tree cover.

44His primary concern is with the consents creating 3 undersize lots, substantially smaller than the permitted minimum. The variances exacerbate his concerns. The reduced side yard setbacks resulting in houses close together might be acceptable in other neighbourhoods like Leaside, but were dramatically different than Don Mills. The difference would be striking to residents of the neighbourhood.

45Mr. Story agreed that the Revised Applications represent a significant improvement over the Applications approved in the C of A Decision.

46Several neighbours requested participant status in the hearing, but did not file participant statements as directed in the Notice of Hearing. Despite the absence of participant statements, I allowed the neighbours attending the hearing to make oral statements to TLAB, subject to cross-examination.

47The neighbour at 42 Tangmere Rd. lives directly south of the site. She could see that the proposed lots would be smaller in size from the side of her house and from Tangmere Rd. The proposed lots would look like row houses, and would stick out like a sore thumb.

48In cross-examination, she admitted she did not know that her lot had a frontage of 15.5m.

49The neighbour at 17 Tangmere objected to the proposed reduction in lot frontage from 15m to 12 or 13m, and to the proposed reduced side yard setbacks for large new homes.

50The resident at 39 Tangmere agreed with the objections of his neighbours.

ISSUES AND ANALYSIS

51This appeal raises the following key issues:

a) Do the consents meet the Planning Act criteria, particularly with respect to the OP?

b) What is the relevance of recent provincial and municipal planning initiatives?

c) If the consents meet the criteria, do the variances meet the 4 tests?

d) What is the effect of the changes resulting in the Revised Applications?

a) The Consents

52Mr. Rendl emphasized the qualitative aspects of the Revised Applications: "the OP policies for Neighbourhoods are primarily qualitative with respect to assessing physical character with a small degree of quantitative assessment." (Ex. 1 p. 19)

53He also addressed the quantitative requirements by explaining that lot frontage is more apparent than lot area; and the technical frontage variations from the ZBL requirements are modest – less than 2m in the case of Lot 3, closest to the interior of the neighbourhood.

54Counsel for the Applicant submitted several cases in support of Mr. Rendl's opinion that the consents should be granted because the primary test is qualitative: whether the proposed lots fit into the neighbourhood.

55The City's planner emphasized the quantitative aspects of the Revised Applications: the proposed lots would be the smallest in the existing neighbourhood, which is homogenous; and the reduced lot frontages are not prevailing in either the wider or immediate neighbourhood. The proposal to sever two existing lots into 3 undersize lots results in a change that is not gradual, does not fit within the existing physical character and could be replicated throughout the neighbourhood, compromising the continued protection and conservation of stable neighbourhoods.

56She devoted less attention to the qualitative aspects of the Revised Applications, but stated that a change to the lot area would affect the backbone of how the neighbourhood feels.

57Counsel for the City and DMRI submitted a number of cases in support of Ms. McMullin's opinion that the consents should be denied, primarily because they do not represent the prevailing (defined as the most frequent) size and configuration of lots in the neighbourhood.

58In my view, the consents must meet both a qualitative and quantitative test. The quantitative test requires analysis not only of the number of existing lots which are most frequently occurring, or occur in substantial numbers, but also whether the proposed lots can respect and reinforce the existing lots which are characteristic of the neighbourhood.

59On balance, I prefer the evidence of Mr. Rendl. I find that Mr. Rendl has demonstrated that the Revised Applications meet both the qualitative and quantitative tests for the consents. I agree with his opinion that lot frontage is a more important factor in determining conformity than lot area, which is more difficult to determine from the public realm.¹

60I find that the Revised Applications represent gradual change in the Don Mills neighbourhood which fit in with the existing neighbourhood. I further find the fact that both existing lots are flanked by public roads makes unlikely the widespread replication of these severances, resulting in destabilization of the Don Mills neighbourhood.

61I agree with some of the opinions of Ms. Mc Mullin, and submissions of counsel for the City and DMRI, with respect to the OP. The existing lots do not front onto Leslie, and consequently do not qualify for more intense development under Policy 4.1.5 and 4.1.7. Nor do they qualify for more intense development as infill development, since they do not vary from the local pattern of lot size and configuration, required by Policy 4.1.9.

62However, I find the City's reliance on the CDMSP to preserve the scale, height and built form relationship originally provided for in the development concept of Don Mills, planned and developed in the 1950's, risks leaving the neighbourhood frozen in time. Moreover, I find she has not refuted the Applicant's qualitative evidence that lots with frontages 2m to 3m narrower can respect and reinforce the larger lots characteristic of the neighbourhood.

63In my view, the OP can be interpreted along the lines set out in the recent TLAB case of 251 Old Forest Hill Road² submitted by counsel for the Applicant:

"An OP is a policy document which is intended to be read more as a conceptual framework or vision statement and not as a prescriptive instrument in the manner of a zoning bylaw. This is essentially stated in Section 3 of Chapter 1 of the OP. . . The question which must be approached on any application is whether its unique contribution reinforces the character of the neighborhood, the character involving the interplay of public and private realms, recognizing that each realm is naturally evolving by maturation and renewal. The judgment of ‘fit’ is at some level a visceral one and not simply a tabulation of data. That judgment properly comes from a ‘walk’ about the neighbourhood, what a pedestrian perceives from the street. This more holistic approach is grounded in the penultimate paragraph text in Policy 4.1.5 of the OP, which says that no changes will be made through rezoning, minor variance, consent or other public action that are out of keeping with the overall physical character of the entire Neighbourhood."

64I find the analysis in Old Forest Hill more applicable to this case than the analysis in 14 Brookfield, submitted by counsel for the City.³

"Unlike the former OP, which was qualitative, and allowed for the proclamation of a given area to be "eclectic" based on the co-existence of various types of houses, the new OP is more rigid, and requires rigour and vigour in order to identify the "prevailing type".

65Counsel for DMRI submitted several TLAB cases in opposition to the consents and variances. The case of Ran Kong v. City of Toronto⁴ was an application for consents to create 3 lots at 1 & 11 Charnwood, just north of Bond Avenue, the northern limit of the study area identified by both planners in the subject case. The application was refused, in part since there were no previous consents in the neighbourhood. In my view, the lack of existence of lots created previously by consents in a neighbourhood should not be a key factor in determining whether an application meets the criteria for a consent under S. 51 (24) of the Planning Act.

66The case of Katherine Keltie v. Franco Romano⁵ involved 48 Chatfield Dr. in the northeast portion of the study area. In that case, which I heard as the presiding TLAB member, I allowed a consent to sever one lot into two, with the second lot fronting on a different Street, noting that neither lot required variances for lot frontage or area. Allowing that consent which did not require variances does not necessarily lead to the converse, that no consent should be allowed which requires such variances. Again, the criteria in S. 51 (24) must be considered.

67I note that S. 53 (12) of the Planning Act requires an applicant for a consent to have regard to (emphasis added) the same criteria as an applicant for a plan of subdivision under S. 51 (24). Under S. 51 (24), regard shall be had, among other matters . . . to:

(a) the effect of the development of the [consent] on matters of provincial interest as referred to in section 2.

68S.2 includes the efficient use of energy, water, transportation, sewage and water services and waste management systems. In my view, the Revised Applications to add a single family home to an area well served by municipal services has regard for those matters of provincial interest.

69prescriptive than wording which appears in S. 3 (5)(b) of the Planning Act requiring conformity with the Growth Plan. In my view, the Revised Applications meet the lower burden of having regard to conformity with the OP.

b) Recent Planning Initiatives

70Counsel for the Applicant referred in his opening statement and submissions to a dynamic changing policy environment arising from the 3 Unit Policy and the Multiplex Policy. He submitted that 3 single family homes would fit the existing character of the neighbourhood better than 8 multiplex units on 2 existing lots.

71Counsel for the City and DMRI rejected the Applicant's position, noting that the draft OPA resulting from the Multiplex Policy:

"will maintain the low-rise built form of each geographic neighbourhood, including, in particular: . . .

b) prevailing size and configuration of lots";

In their submissions, the recent provincial and municipal initiatives applied only to the interior of building containing multiple units but respected the prevailing size and configuration of lots, rather than supporting the Revised Applications to create 3 undersize lots.

72I do not find the Applicant's evidence and submissions persuasive on this point. The Applicant is seeking permission to create 3 lots for single family homes, and must meet the criteria for consents for those lots, rather than raising the specter of a different form of development.⁶

c) The Variances

73I found the Revised Applications meet the criteria for consents to create 3 lots. Consequently, I will now consider the four variances requested by the Applicant which were challenged by the City and/or DMRI.

74I find that the variances for lot frontage and size meet the general (emphasis added) intent and purpose of the OP. As my colleagues have decided in previous cases, minor variances need not meet the specific requirements of the ZBL, as long as they are consistent with the goals and objectives of the ZBL.⁷ I find that the lot frontages and sizes allow for the use of the proposed lots for single family homes, with sufficient open space. They are minor since they do not represent a large numerical or quantitative deviation from the ZBL. They are desirable since do not cause any unacceptable adverse impacts on nearby properties. I note that the City planner does not disagree.

75I find that the variances for reduced side yard setbacks meet all four planning tests. The numerical setbacks represent relatively minor reductions to the setbacks required by the ZBL, from 1.5m to .9m for Lot 1, 1.2m for Lot 2 and 1.2m for Lot 3 (only on the west side; no variance requested for the east side), and are found in new approvals in the neighbourhood. I accept the evidence of Mr. Rendl that the west side yard setback of Lot 1 and the east side yard setback of lot 3 will be appear substantially greater than required, due to the boulevards along Leslie St. and Tangmere Rd.

76I find the variances for increased coverage of 34.5% meet the planning tests. Mr. Rendl provided illustrations of similar or greater coverage in the neighbourhood. Mr. Story stated that DMRI would accept coverage of 30%. In my view, the difference between 34.5% and 30% coverage is not significant.

77The remaining variances for items such as the rear deck, front porch and parking arrangements were not challenged by the City or DMRI. I find that they all, individually and cumulatively, meet the tests for variances in the Planning Act.

d) The Revised Application

78As noted in Par. 12 and illustrated by Ex. 3, 4, 5 and 6, the Applicant proposed revisions to the Applications in an attempt to resolve this appeal without a hearing. It appears that there were some discussions between the Applicant and DMRI, although the City does not appear to have participated.

79Mr. Story agreed that the Revised Applications represented a substantial improvement, although not sufficient to eliminate DMRI's objections.

80I commend the Applicant for its efforts to try to settle the matter, and DMRI for engaging in what appear to be helpful, if not determinative, discussions.

81Needless to say, I am not approving this application due to the Applicant's discussions with local residents. However, such discussions have resulted in Revised Applications which have mitigated the impact of the Applications, and contributed to my decision to approve the Revised Applications, subject to relevant conditions.

CONCLUSION

82I will allow the City's appeal in part, and approve the Applicant's Revised Applications for consents and variances, subject to conditions applicable to both the consents and variances.

DECISION AND ORDER

a) CONSENTS

83I approve the Consent applications shown in the Revised R Plan, prepared by A. Aziz Surveyors Inc., dated April 21, 2023, attached as Schedule 1.

84For greater certainty, the Consents shall be described as follows:

Retained PART 1 – (LOT 1)

Frontage is 12.10 m and the lot area is 426.29 m²

Conveyed PART 2 to be added to PART 3

Conveyed PART 3 to be added to PART 2 – (LOT 2)

Frontage is 13.02 m and the lot area is 443.26 m²

Retained PART 4 – (LOT 3)

Frontage is 13.93 m and the lot area is 456.98 m²

b) CONDITIONS OF CONSENT APPROVAL

The TLAB has considered the provisions of Section 51(24) of the Planning Act and is satisfied that a plan of subdivision is not necessary. The TLAB therefore consents to the transaction as shown on the R-Plan filed with the TLAB as Schedule 1, on the condition that before a Certificate of Official is issued, as required by Section 53(42) of the Planning Act, the applicant is to fulfill the following conditions to the satisfaction of the Deputy Secretary-Treasurer of the Committee of Adjustment:

1. Confirmation of payment of outstanding taxes to the satisfaction of the Revenue Services Division, in the form of a statement of tax account current to within 30 days of an applicant's request to the Deputy Secretary-Treasurer of the Committee of Adjustment to issue the Certificate of Official.

2. Municipal numbers for the subject lots indicated on the applicable registered reference plan of survey shall be assigned to the satisfaction of the Supervisor, Surveys, Engineering Support Services, Engineering and Construction Services.

3. One electronic copy of the registered reference plan of survey integrated to NAD 83 CSRS (3 degree Modified Transverse Mercator projection), delineating by separate Parts the lands and their respective areas, shall be filed with, and to the satisfaction of, the Manager, Land and Property Surveys, Engineering Support Services, Engineering and Construction Services.

4. One electronic copy of the registered reference plan of survey satisfying the requirements of the Manager, Land and Property Surveys, Engineering Support Services, Engineering and Construction Services shall be filed with the Deputy Secretary-Treasurer of the Committee of Adjustment.

5. Prepare and submit a digital draft of the Certificate of Official, Form 2 or 4, O. Reg. 197/96, referencing either subsection 50(3) or (5) of the Planning Act if applicable as it pertains to the conveyed land and/or consent transaction to the satisfaction of the Deputy Secretary-Treasurer of the Committee of Adjustment.

6. To the satisfaction of Engineering and Construction Services:

The sewer is not available at the frontage of the proposed lot#1 on Talwood Dr to service the subject land, (refer to Attachment A: plan view from Toronto Water Assets Geodatabase –TWAG, showing the sanitary sewers in the immediate vicinity of the subject land). The newly created lot must have its own sanitary connections to the municipal systems. The following conditions will apply:

a. The applicant is required to submit a site servicing engineering drawing, to the satisfaction of Engineering and Construction Services for the Construction of an extension to the existing 250mm sanitary sewer northwesterly along Talwood Dr to provide sanitary services to the subject land. Approval of the Ministry of the Environment, Conservation and Parks is required in this regard. The applicant will be financially responsible for all work proposed within the road allowance including the sanitary sewer and the sanitary connection and any costs arising from the relocation or removal of existing services and utilities which may become necessary through the development or use of this land.

b. The applicant shall enter into a financially secured Consent Agreement with the City of Toronto for the construction of the sanitary sewer, and water and sanitary service connections to service the proposed lot 1 as per a) above, and provide financial security, submit engineering and inspection fees and provide insurance as required, all to the satisfaction of the Chief Engineer & Executive Director of Engineering and Construction Services.

7. Once all of the other conditions have been satisfied, the applicant shall request, in writing, that the Deputy Secretary-Treasurer of the Committee of Adjustment issue the Certificate of Official.

8. Within TWO YEARS of the date of the giving of this notice of decision, the applicant shall comply with the above-noted conditions.

c) VARIANCES

85I approve the following variances, subject to the conditions set out in d) below:

Lot 1

1. Chapter 10.5.40.50(4)(C), By-law No. 569-2013

Platforms attached to or within 0.3 metres of a rear main wall, which are greater than 1.2 metres above the ground at any point. The proposed rear deck projects 3.37 metres from the rear wall

2(a). Chapter 900.3.10(5) - Exceptions for RD Zone, By-law No. 569-2013

The required minimum side yard setback is 1.8 m. The proposed East side yard setback is 1.22 m.

2(b). Chapter 900.3.10(5) - Exceptions for RD Zone, By-law No. 569-2013

The required minimum side yard setback is 1.8 m. The proposed West side yard setback is 0.9 m.

3. Chapter 10.5.40.50.(2), By-law No. 569-2013

A platform without main walls, such as a deck, porch, balcony or similar structure, attached to or within 0.3 m of a building, must comply with the required minimum building setbacks for the zone. The rear platform is set back from the west side lot line 0.90 m when the minimum required setback is 1.8 m.

4. Chapter 10.5.40.50(4)(A), By-law No. 569-2013

In the Residential Zone category, the level of the floor of a platform, such as a deck or balcony, located at or below the first storey of a residential building may be no higher than 1.2 metres above established grade. The proposed front platform is 1.33 metres above established grade.

5. Chapter 10.20.30.10. (1) A), By-law No. 569-2013

The required minimum lot area is 550 m². The proposed lot area is 426.29 m².

6. Chapter 10.20.30.20.(1) A), By-law No. 569-2013

The required minimum lot frontage is 15 m. The proposed lot frontage is 12.10 m.

7. Chapter 10.20.30.40.(1A), By-law No. 569-2013

The permitted maximum lot coverage is 25 % of the lot area: 110.54 m². The proposed lot coverage is 34.5 % of the lot area: 147.0 m² of Building Area.

8. Chapter 10.20.40.10.(1) A), By-law No. 569-2013

The permitted maximum height of a building or structure is 10.0 m. The proposed height of the building is 10.24 m.

9. Chapter 10.20.40.10.(6) 6), By-law No. 569-2013

The permitted maximum height of the elevation of the lowest point of a main pedestrian entrance through the front wall or a side main wall is 1.2 m above established grade. The proposed height of the main pedestrian entrance is 1.46 m above established grade.

10. Chapter 10.5.40.60.(1)(A)(i), By-law No. 569-2013

A platform without main walls, attached to or less than 0.3 metres from a building, with a floor no higher than the first floor of the building above established grade may encroach into the required front yard setback if it is no closer to a side lot line than the required side yard setback, 1.8m. The proposed platform encroaches into the required front yard setback and is 0.9 metres from the west side lot line.

11. Chapter 10.5.40.60.(2), By-law No. 569-2013

A roof, canopy, awning or similar structure above a platform meeting the requirements of regulation 10.5.40.60(1) may encroach into a required minimum building setback to the same extent as the platform it is covering. The canopy is covering a platform that does not meet regulation 10.5.40.60(1)

The maximum permitted driveway width is 3.06m, the width of the parking space behind the front main wall. The proposed driveway width is 3.19m.

13. Chapter 10.5.40.60.(2)(B)(i), By-law No. 569-2013

A canopy, awning or similar structure not covering a platform may encroach in a front yard if it is no closer to a side lot line than the minimum required side yard setback, 1.8m. The proposed canopy is 1.22m from the east lot line.

14. Chapter 200.5.1.10(2), By-law No. 569-2013

The minimum required parking space must have a minimum width of 3.2 metres. The proposed parking space(s) will have a width of 3.06 metres in width

Lot 2

1. Chapter 900.3.10(5), By-law No. 569-2013

The required minimum side yard setback is 1.8 m. The proposed East and West side yard setback is 1.22 m.

2. Chapter 10.5.40.50.(2), By-law No. 569-2013

A platform without main walls, such as a deck, porch, balcony or similar structure, attached to or within 0.3 m of a building, must comply with the required minimum building setbacks for the zone. The rear platform is set back from the west side lot line 1.22 m whereas the minimum required setback is 1.8 m.

3. Chapter 10.20.30.10.(1) A), By-law No. 569-2013

The required minimum lot area is 550 m². The proposed lot area is 443.26 m².

4. Chapter 10.20.30.20.(1) A), By-law No. 569-2013

The required minimum lot frontage is 15 m. The proposed lot frontage is 13.02 m.

5. Chapter 10.20.30.40.(1A), By-law No. 569-2013

The permitted maximum lot coverage is 25 % of the lot area: 110.54 m². The proposed lot coverage is 34.5 % of the lot area: 152.92 m² of Building Area.

6. Chapter 10.5.100.1.(1), By-law No. 569-2013

The maximum permitted driveway width is 3.37m, the width of the parking space behind the front main wall. The proposed driveway width is 3.47m.

Lot 3

1. Chapter 900.3.10(5) - Exceptions for RD Zone, By-law No. 569-2013

The required minimum West side yard setback is 1.8 m. The proposed West side yard setback is 1.22 m.

2. Chapter 10.5.80.40.(3) (B), By-law No. 569-2013

Vehicle access to a parking space on a corner lot must be from a flanking street that is not a major street. The proposed vehicle access to a parking space is from the fronting street, Talwood Drive, when the flanking street, Tangmere Road, is not a major street.

3. Chapter 10.20.30.10.(1) A), By-law No. 569-2013

The required minimum lot area is 550 m². The proposed lot area is 456.98 m².

4. Chapter 10.20.30.20.(1) A), By-law No. 569-2013

The required minimum lot frontage is 15 m. The proposed lot frontage is 13.93 m.

5. Chapter 10.20.30.40.(1A), By-law No. 569-2013

The permitted maximum lot coverage is 25 % of the lot area: 106.60 m². The proposed lot coverage is 34.5 % of the lot area: 157.69 m² of Building Area.

6. Chapter 10.20.40.70.(6) A), By-law No. 569-2013

The required minimum East side yard setback is 3.0 m for a corner lot where the required lot frontage is 12.0 m or more, and where there is an adjacent lot fronting on the street abutting the side lot line. The proposed East side yard setback is 2.11 m.

7. Chapter 10.5.40.60.(1) (E), By-law No. 569-2013

A platform without main walls, attached to or less than 0.3 m from a building, with a floor no higher than the first floor of the building above established grade may encroach into the required side yard setback a maximum of 1.5 m, if it is no closer to the side lot line than 0.3 m. The proposed East side porch encroaches 1.64 m into the 3.0 m required East side yard setback.

8. Chapter 10.5.40.60.(7), By-law No. 569-2013

A roof, canopy, awning or similar structure above a platform meeting the requirements of regulation 10.5.40.60(1) may encroach into a required minimum building setback to the same extent as the platform it is covering. The canopy is covering a platform that does not meet regulation 10.5.40.60(1)

d) CONDITIONS OF VARIANCE APPROVAL

1. Construction of the proposed dwellings shall be substantially in accordance with the Site Plan (Drawing No. A1) and Elevations (Drawings A-8, A-9, A10 & A-11 for Lots 1, 2 and 3 dated April 6-10, 2023 (revised and reissued) contained in the Architectural Plans prepared by Peter Higgins Architect attached as Schedule 2. Minor adjustments will be permitted in order to protect any mature trees in the rear yard as may be requested by Urban Forestry, in consultation with the City Solicitor.

2. The requirements of the Parks and Recreation, Urban Forestry Division: a. Submission of a complete application for permit to injure or remove privately owned tree(s) under Municipal Code Chapter 813, Trees Article III, Private Tree Protection.

3. The requirements of Engineering and Construction Services and Transportation Services:

a. Revise the Site Plan for each lots to dimension and identify driveway width and curb cut on the right-of-way.

b. Revise the Site Plan to dimension and identify all portions of the existing site driveway and existing curb cut that are no longer required and are intended to be closed.

c. The following notation must be included on the Site Plan: All portions of the existing driveway and curb cut that are no longer required must be closed and restored in accordance with applicable City standards to the satisfaction of the Transportation Services Division, and at no cost to the City of Toronto.

d. Revise the Main Floor Plan to demonstrate garage entrance width for each lots. e. Applicant shall submit revised site plan(s) overlaid on the survey, with the following revisions and notations to the satisfaction of the Engineering and Construction Services and Transportation Services, at no cost to the City;

i. Illustrate the existing and proposed grades at all corners along the property boundary;

ii. Revise the site plan to illustrate a positive slope of a minimum 2% to a maximum 4% that will be maintained on each of the proposed driveways, as measured between curb line of Talwood Dr to the proposed garage door entrance;

iii. Show and label the footprint of the existing house and driveway. Label any portion of driveway to be removed within the right-of-way as to be restored with sod.

iv. Show all the existing/ proposed corner elevations for all severed lots.

v. The site plans must be revised to clearly indicate the restoration of the redundant portion of the former driveway with sod, which shall be designed to municipal standards;

vi. Add the following notations to the Site Plan:

a. "The applicant is required to restore any redundant section of the existing driveway that is being closed with sod and a poured raised concrete curb within the municipal boulevard according to City of Toronto Design Standard;

b. "The proposed new driveways shall be constructed to the applicable City of Toronto Design Standards at no cost to the municipality";

c. "The applicant shall also submit a Municipal Road Damage Deposit (MRDD) prior to obtaining a Building Permit." The applicant is advised to contact Franca Mollo of our Right-of-Way Management Section at (416) 395-6266 regarding municipal road damage deposit requirements;" and,

d. "The applicant shall obtain the necessary authorizations and permits from the City's Right-of-Way Management Section of the Transportation Services before excavating within or encroaching into the municipal road allowance"

R. Kanter

Panel Member

As set out above, S. 54 (24) states that "regard shall be had" to whether the consent conforms to the official plan. That wording is less

Footnotes

1. 1See for example 171 Elmwood Ave.: 21 216352 S53 18 TLAB at par. 23
2. 2251 Old Forest Hill Road: 22110754 S45 08 TLAB at pages 10-11
3. 3141 Brookfield Rd.: 19 119013 S45 15 TLAB at page 29
4. 41-11 Charnwood, 18 151246 S53 25 TLAB at page 18
5. 548 Chatfield Dr.: 22 166439 S53 16 TLAB at par. 39
6. 6The submissions of counsel have led me to refine the views I expressed with respect to some of the City's earlier planning initiatives in 58 Muir Ave.: 22 239258 S53 07 TLAB, at par. 74-75
7. 721 Valley View: 22 108489 S45 11 TLAB at pages 4-5