Messow v. Lin, 2023 ONTLAB 119

40 Orchard View Blvd, Suite 211 Toronto, Ontario M4R 1B9

Date: 2023-07-31

2021 209053 S45 19 TLAB

Messow v. Lin, 2023 ONTLAB 119

DECISION AND ORDER

Issuance Date: July 31, 2023

PROCEEDINGS COMMENCED UNDER section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Appellant(s): M. Messow

Applicant(s): Memar Architects

Property Address: 290 Waverley Road

COA File No.: 21 112209 STE 19 MV (A0133/21TEY)

TLAB Case File No.: 21 209053 S45 19 TLAB

Hearing Date(s): November 4, 2022, February 16, 2023, and March 7, 2023

Deadline Date for Closing Submissions/Undertakings: March 31, 2023

Decision Delivered By: TLAB Panel Member S. Gopikrishna

REGISTERED PARTIES AND PARTICIPANTS:

People Type First Initial. Last Name Representative

Applicant X. Lin Z. Fleisher

Appellant M. Messow I. Flett

Expert Witness A. Dales

Expert Witness M. Manett

INTRODUCTION AND CONTEXT

1Xin Lin is the owner of 290 Waverley Road, located in Ward 19 (Beaches- York) of the City of Toronto, who applied to the Committee of Adjustment (COA) for the approval of variances in order to alter the existing two storey detached house , by constructing a rear two-storey addition, a third storey addition, as well as a detached garage in the rear.

2. The COA heard the Application on August 18, 2021, and approved all the requested variances.

3On 7 September, 2021, the neighbours living at 288 Waverley, Mark Messow and Petra Hubinette , filed an Appeal before the Toronto Local Appeal Body (TLAB) against the COA’s decision. It may be helpful to briefly discuss the hiatus between the time the Appeal was filed, in late 2021, and the hearing of the Appeal, which commenced on November 4, 2022. The TLAB scheduled a Hearing on January 18, 2022- this Hearing could not proceed because of the lack of availability of one of the Witnesses, who did not have internet access because of a significant snowstorm on the previous day. The case was then rescheduled to May 10, 2022, where the Hearing could not proceed, because of the unavailability of one of the Parties because of a confusion regarding scheduling. It was again rescheduled to July 8, 2022, which could not proceed because of the large scale Rogers outage on the same day, which impacted many across the country, as a result of which Counsel, Witnesses, and myself did not have internet access. Under the circumstances, we adjourned the Hearing to September 23, 2022.

4At the Hearing held on September 23, 2022, the Applicants were represented by Mr. David Bronskill, a lawyer, and Mr. Andrew Dales, a land use planner, while the Appellants were represented by Mr. Ian Flett, a lawyer, and Mr. Michael Manett, a land use planner. The Parties jointly asked for an adjournment, which was granted. It was agreed that the Proceeding would again commence on November 4, 2022.

5The first Hearing at which evidence was obtained, was held on November 4, 2022. The Applicants were represented by Mr. Zachary Fleisher, a lawyer, and Mr. Andrew Dales, a land use planner, while the Appellants were represented by Mr. Ian Flett, a lawyer, and Mr. Michael Manett, a land use planner. In response to an Interim Decision issued by me on October 5, 2022, requesting the Applicants to provide more information, the Applicants made a submission on October 31, 2022.

6However, during their Examination-in-Chief of the Applicants on November 4, 2022, the Applicants attempted to introduce new evidence, which was objected to by Mr. Flett, the lawyer for the Appellants, because it had not been revealed to him previously, resulting in “concerns about the resulting prejudice” to the Appellants case. The TLAB had to adjourn in order to allow the Appellants an opportunity to review the material.

7At the next Hearing respecting 290 Waverley, which was held on February 16, 2023, the Examinations-in-Chief, Cross-Examinations, and Re-examinations of the Witnesses for the Applicants, and Appellants, Mr. Andrew Dales, and Mr. Michael Manett respectively, were completed.

8On March 7, 2023, Oral Argument was completed, and the Applicants were given time until March 31, 2023, to complete their submissions. The submissions were completed in time- I take this opportunity to thank both the Parties for their timely submissions.

EVIDENCE FROM THE PARTIES

9By way of an editorial note, the Opposition, who are the Appellants in this case, focused their objections on how the proposal did not satisfy the purpose and intention of the Official Plan (OP). The Appellants did not dwell, or delve into the evidence of the Applicants, by way of Cross-Examination, on the other three tests under Section 45.1, namely the tests respecting the Zoning By-law, minor, and appropriate development. In Oral Argument, Mr. Flett, Counsel for the Appellants, confirmed that their opposition was “primarily based” on the test respecting the OP. As a result, the evidence of both the Parties respecting the relationship between the requested variances, and the OP, is recited in detail, while the evidence between the variances on other tests, is recited in brief, and at a very high level.

10Mr. Dales, the Land Planning Witness for the Applicants, was affirmed, and recognized as an Expert Witness in the discipline of land use planning. He described the Subject Site, as being situated in the southeast part of the former City of Toronto, within the neighbourhood known locally as the” Beaches”, which is north of the beaches that run along Lake Ontario- the Site is located at the southern boundary of the neighbourhood.

11The approximate boundaries of the Neighbourhood Study Area relied upon by Mr. Dales for coming to conclusions are from Victoria Park Avenue on the east, Kingston Road on the north, Dundas Street and Coxwell Avenue on the west, and Lake Ontario to the south. The Subject Site is located on the west side of Waverley Road, mid-block between Kingston Road and Norway Avenue. Waverley Road runs south from Kingston Road, past Queen Street East, and terminates where it bends to the west at Lake Ontario, where it becomes Kewbeach Ave. The Subject Site backs onto a rear lane that provides access to the parking garages of the houses fronting on Waverley Road on the east and Kenilworth Ave. on the west.

FIGURE 1 - NEIGHBOURHOOD STUDY AREA WITH 290 WAVERLEY IN BLUE

12Describing the community in which the Subject Site is situated, Mr. Dales stated that Waverley Ave. is “a residential street with a generous tree canopy”. He described the development pattern, as consisting of predominately narrow lots with modest front yards and stated that this” is a relatively consistent pattern of front yard setbacks, and a more varied pattern of rear yard setbacks and building depths”. He added that Waverley Ave. has a mix of two- and three-storey residential building types, including detached dwellings, and semi-detached dwellings of varying heights. Commenting on the architectural styles, he said that they vary, although high-quality Victorian, Edwardian, and new-style houses predominate. According to Mr. Dales, though many of the original houses in the Beaches were built in the 1920s and 1930s, the area “is experiencing a gradual transformation as existing vintage dwellings are expanded and improved, or replaced with new dwellings”.

13The Subject Site has the following dimensions-Lot Frontage: 6.28 m, Lot Depth: 38.40m and Lot Area: 227.17 sq m. It is a two-storey, detached dwelling, set back from their common side lot line with 288 Waverley Road by 0.48m. 290 and 292 Waverley Road are set back from their common side lot line by 0.46m and 0.52m respectively.

14Mr. Dales recited the variances, which are reproduced below. He said that when the Application was submitted to the COA, a Forestry Staff Report recommended that Standard Conditions, which are recited below:

Prior to the issuance of a building permit, the applicant/owner shall submit a complete application for permit to injure or remove privately owned tree(s) under Municipal Code Chapter 813, Trees Article III, Private Tree Protection, to the satisfaction of the Supervisor, Urban Forestry, Tree Protection and Plan Review, Toronto and East York District.
Prior to the issuance of a building permit, the owner shall submit a payment in lieu of planting one street tree on the City road allowance abutting the subject site or elsewhere in the community if there is no space, to the satisfaction of the Supervisor, Urban Forestry, Tree Protection and Plan Review, Toronto and East York District.
The proposal shall be constructed substantially in accordance with the architectural plans dated February 25, 2021.

15The final, updated list variances, as per the submission of the Applicants, dated March 8, 2023, are as follows:

REQUESTED VARIANCE(S) TO THE ZONING BY LAW:

Revised List of Variances

Chapter 10.10.40.10.(2)(A), By-law 569-2013 The maximum permitted height of all front and rear exterior main walls is 8.50 m. The height of the front and rear exterior main walls will be 9.57 m.
Chapter 10.10.40.30.(1), By-law 569-2013 The maximum permitted depth of a detached house is 17.00 m. The altered detached house will have a depth of 17.45 m.
Chapter 10.20.40.40.(1)(A), By-law 569-2013 The maximum permitted floor space index of a detached house is 0.60 times the area of the lot (136.30 square metres). The altered detached house will have a floor space index equal to 0.98 times the area of the lot (222.38 square metres).
Chapter 10.10.40.70.(3)(A)(i), By-law 569-2013 The minimum required side yard setback is 0.90 m. The altered detached house will be located 0.41 m from the north side lot line.
Chapter 10.10.40.70.(4)(A), By-law 569-2013 The minimum required side yard setback where there are no windows or doors is 0.45 m. The altered detached house will be located 0.30 m from the south side lot line.
Chapter 10.10.60.20.(1)(A), By-law 569-2013 The minimum required rear yard setback is 1.0 m. The detached garage will be located 0.2 m from the rear (west) lot line.

16Mr. Dales then briefly stated the reasons provided by the Appellants in the Notice of Appeal dated September 7, 2021, which are listed below:

a. FSI that is beyond the FSI that establish the prevailing character of the immediate and neighbourhood;

b. The rear exterior main walls are in excess of the prevailing character of the immediate and neighbourhood;

c. The overall massing of the proposed structure in terms of setbacks, height and FSI provide for a structure that is out of keeping with the prevailing character of the surrounding area; and

d. The proposed structure would have a “disharmonious” relationship to surrounding properties, further undermining the prevailing character of the area and causing adverse impacts on neighbouring properties, including opportunities for overlook, disproportionate massing over private open space and a deterioration of the prevailing character that includes mature vegetation in private open space areas

17Replying to these objections, Mr. Dales opined that the concerns of the owner of 288 Waverley Road regarding soils and geotechnical concerns are vague and have no bearing on the variances requested at 290 Waverley Road. He added that any possible impact of the proposal on “fire and emergency services” access between the two homes, would be addressed at the Permit Stage. Mr. Dales then stated that his evidence would solely focus on the third concern, brought up by the Appellant- namely, regarding the alleged impact of the proposed building depth, side yard setback, on the Beaches neighbourhood.

18Referring to Policy 4.1.5 in the OP, Mr. Dales pointed out that that the geographic neighbourhood is delineated by considering the context within the Neighbourhood including: zoning; prevailing dwelling type and scale; lot size and configuration; street pattern; pedestrian connectivity; and natural and human-made dividing features. Based on these criteria, he said that his geographic neighbourhood is bounded by the following streets:

Kingston Road to the north (not including the commercial frontage)
Woodbine Avenue to the west
Queen Street to the south (not including the commercial frontage), and
Lee Avenue on the east.

19According to Mr. Dales, there is a range of lot sizes, frontages and a mix of architectural styles; many but not all are traditional in style, within the Study Area, which lies completely in the “neighbourhoods” designation. The Study Area contains 2- and 3-storey, detached- and semi-detached dwellings that are generally well maintained and landscaped. The detached rear garages of the houses on the block of Waverley Road containing the Subject Site are accessed from a rear public lane. Front yard setbacks have some variability but are relatively consistent. Side yard setbacks are mostly narrow. He added that the neighborhood is stable and mature and that much of the housing stock is composed of well-maintained older homes.

20Mr. Dales emphasized that the overall neighbourhood is stable but not static, and is experiencing reinvestment in the form of renovations of existing structures and some replacement dwellings, and added that the replacement dwellings and expanded dwellings commonly have different architectural expressions and are larger and higher than the zoning permits.

21Mr. Dales discussed how the proposal was consistent with the Provincial Policy Statement (PPS, 2020), and the Growth Plan (2019), by virtue of intensification, and efficient use of land.

22Mr. Dales discussed the relationship between the requested variances, and the intent and purpose of the Official Plan.

23Discussing Policy 2.3.1, Mr. Dales said that his interpretation of the expression “respect and reinforce” in the expression “will respect and reinforce the existing physical character of buildings, streetscapes and open space patterns in these areas” is to demonstrate compatibility by responding to the existing pattern of development without replicating the precise architectural style, massing, or height, for example, of the existing housing stock. He said that the very change that is contemplated by the OP in Policy 2.3.1 has taken place in the community surrounding the Subject Site, and what was being contemplated at the Site is part of the change.

24Mr. Dales discussed the relationship between the proposal, and Section 3.1.2 of the OP next- he said that the proposal is a good fit with both its existing and planned context. The dwelling is sited to frame the street and will enhance the neighbourhood. Section 3.1.2 provides that the design elements of the exterior façade of dwellings, indicating how the nature, scale and placement of doors, roof, window, and decorative elements contribute to an engaging design that has a harmonious relationship to its context

25Speaking to Policy 4.1.5, Mr. Dales said that “development in established Neighbourhoods is expected to be “sensitive, gradual and generally ‘fit’ the existing physical character” in the geographic neighbourhood. Policy 4.1.5 provides the criteria for identifying geographic neighbourhoods, including the “prevailing”: size and configuration of lots, heights, massing, scale, building types, setbacks, landscaping etc.

26Mr. Dales emphasized that while the word prevailing is interpreted to mean “most frequently occurring”, before adding that the City OP also recognizes that some geographic neighbourhoods contain a mix of physical characters, and that the prevailing character will not preclude development that is not the most frequently occurring. He said that Policy 4.1.5 also describes the spatial extent of the area where the relevant physical character of the geographic neighbourhood is found. It includes “both the physical characteristics of the entire geographic area in proximity to the proposed development (the broader context) and the physical characteristics of the properties that face the same street as the proposed development in the same block and the block opposite the proposed development (the immediate context).”

27While discussing a counting exercise on the types of houses on Waverley Street, Mr. Dales said that the number of one storey houses are 4.4 % of the 91 houses on the Street, 2 storey detached houses are 67%, while 3 storeys constitute 22% of the houses. In response to a question from Mr. Fleisher in the Examination-in-chief about whether three-storeyed buildings could constitute a “prevailing type” when they constitutes 22% of the houses on Waverley Road, but where 67% are two storeyed buildings, Mr. Dales responded by saying that the OP allowed for more one type of prevailing type, and that there were significant numbers of three storeyed buildings on Waverley Street, and the NSA, such that they constituted a “prevailing type”. It is important to note that I asked the same question of Mr. Dales at a later stage in the Hearing, and received the same response.

28Mr. Dales asserted that there was no difference between the Immediate Context and the General Neighbourhood, and stated that the proposal “fits well with the general physical character of the NSA, which is evolving and regenerating as dwellings are renovated/expanded and in some cases replaced”. Referring specifically to the relationship between the proposal, and the “prevailing type”, Mr. Dales described the requested of 10.88 metre height, as “matching” the “prevailing height, because there are a variety of heights and architectural styles of dwellings throughout the General Neighbourhood”.

29With respect to the proposed density of 0.98 X Lot Size, Mr. Dales asserted that the scale and density of dwellings in the immediate vicinity, and in the NSA are not “consistent” enough for “there to be a “prevailing” density”. He opined that the massing and scale of the proposed dwelling, respect and reinforce the physical character of the neighbourhood, with respect to the length/depth of the proposed dwelling, the side and front yard setbacks, as well as the height of the building. He also discussed how the FSI could present a “distorted” view of any development, because it had to factor in the Lot Area, and concluded that the FSI was the “most useless” parameter to measure how the requested variances would result in a building that was consistent with what existed in the community.

30He then presented information about the FSIs in the Immediate Context, and the NSA in a tabular form. It is important to note that the average FSI for the NSA and the Immediate Context is 0.56 and 0.48 respectively, the corresponding medians are 0.55 and 0.48 respectively, minimum FSIs are 0.13 and 0.22 respectively, and the maximum FSIs are 1.64 and 0.75 respectively. The NSA includes 1343 properties, while the Immediate Context reflects data regarding 91 properties.

31Mr. Dales also provided additional information by way of his secondary Witness Statement, which was submitted in response to my instructions of the Interim Order, dated October 31, 2022, which is recited from Paragraphs [32]- [38] below.

32The information about overall height variance is not recited here because the variances respecting the overall height under Zoning By-laws 569-2013, and 438-86, are no longer before this Tribunal

33Addressing the issue of rear and front wall height variances in the NSA, Mr. Dales stated that the requested variance for the front and rear exterior main walls is 9.57 metres under Bylaw 569-2013 (measured from Average Grade to the top of the 3rd floor front and rear walls (below the peaked roof). The variance regarding front and rear exterior main wall height applies only to the partial third floor addition and rear portion of the dwelling which rises to a height of 7.02 metres. Mr. Dales then pointed out that within the NSA, the COA granted front and rear exterior main wall height variances 16 times, with an average height of 9.99 metres, which is 2.49 metres above the maximum permitted front and rear exterior main wall height of 7.5 metres. He emphasized that the average height approved in the NSA since 2006 is 9.99 metres, which is 0.42 metres above the 9.57 metres requested at 290 Waverley Road. Mr. Dales pointed out that of the 16 front and rear exterior main wall height variances noted above, the COA has granted 12 variances for front and rear exterior main wall heights that exceed the requested 9.57-metre height of the front and rear exterior main walls at 290 Waverley Road. According to Mr. Dales, 8 of the 12 variances specified above have been approved at over 10.0 metres, and that one of the eight variances approved by the COA is in the vicinity of the Site, at 166 Waverley Road.

34Speaking to the “Pattern of Building depth variance” approvals in the NSA, Mr. Dales said that the requested variance for building depth (depth measured from the required front yard setback to the rear main wall of the dwelling) is 17.45 metres, which is “a modest 0.45 metres beyond the as-of-right building depth of 17 metres”. He emphasized that the variance regarding building depth applies only to the rear two-storey addition, which rises to a height of 7.02 metres, and not the entire building mass. Mr. Dales also pointed out that within the NSA, the number of building depth variances approved since 2006 is nine, with an average of 20.71 metres, which is 3.71 metres beyond the 17 metre as-of-right building depth, and significantly beyond the 17.45 metres requested at 290 Waverley Road. Two of the foregoing variances were approved on Waverley Road, at 22.83 metres and 18.57 metres, again, well beyond the 17.45 metres requested at 290 Waverley Road.

35Mr. Dales then spoke to the pattern of side yard setback variance approvals in the NSA, and said that the request variance for the side yard setback is 0.41 metres, which is 0.49 metres less than the required side yard setback of 0.9 metres. The side walls of the proposed rear addition, and third storey addition at 290 Waverley Road are proposed to match the side yard setbacks of the existing dwelling. He emphasized that 11 sideyard setback variances have been approved since 2006, with an average approved setback of 0.45 metres, which is slightly higher than the 0.41 metres requested at 290 Waverley Road.

36Speaking to the Pattern of Side Yard setbacks for walls with no windows or doors variance approvals in the NSA, Mr. Dales pointed out that the requested variance is only 0.15 metres less than the required side yard setback. The average approved side yard setback for walls with no windows or doors is just 0.16 metres; all of the approved similar variances approved in the NSA since 2006 are at or less than the 0.30 metres requested at 290 Waverley Road. He then added that the variances for “this item approved within the NSA match the walls of the existing dwellings, as is the case at 290 Waverley Road”.

37Speaking lastly to the pattern of setback of garage from Rear Lot Line Variance Approvals in the NSA, Mr. Dales said that while there were no approvals for the setbacks of garages from rear lot lines in the NSA, the requested rear yard setback of the garage at 290 Waverley Road is 0.2 metres, which is only 0.8 metres less than the required 1 metre, before pronouncing it to be a “modest decrease which is not expected to impact the neighbouring dwellings”

38Based on the above evidence, Mr. Dales concluded that the proposal satisfied the intent and purpose of the Official Plan (OP).

39Mr. Dales next addressed the question of how the proposal satisfied the intent and purpose of the Zoning By-Law.

40Addressing the variance for an FSI of 0.98 x lot size, Mr. Dales said that the intent of the standard controlling FSI is to ensure that the size of a dwelling is not excessive for the lot that it is located on. He then said that while the proposed FSI variance of 0.98 times the lot area, exceeds the permitted FSI of 0.6 times the lot area by 0.38 times the lot area, “it will not result in the deployment of floor space that is out of keeping with the built form in the “immediate area””, and then referred to the COA table, which provided details of buildings which had been approved for FSI in excess of 0.6 x Lot Area..

41Speaking to the Building Depth, Mr. Dales said that the intention of the governing By-law is to maintain a generally consistent alignment of the rear building walls and rear yards. He then reiterated that the existing building depth of nearby properties north and south of the Subject Site, are similar to the proposed building depth and significantly larger building depth variances have been approved in the NSA. On the basis of this evidence, Mr. Dales concluded that the proposed building depth satisfied the intent and purpose of the By-law.

42Mr. Dales’ evidence regarding the overall Building Height under By-laws 569-2013 and 438-86 is not recited here because these variances are no longer before the tribunal.

43Speaking to the variance respecting the height of rear and front exterior main walls, Mr. Dales said that the intent of the restriction on wall height is to limit the effect of massing created by tall walls. He discussed how the front wall of the 3rd storey addition is “articulated”, and set back from the front wall of the existing 2nd storey wall of the front elevation, and how there is similar articulation at the rear of the house, because the “rear wall of the 3rd storey addition is set well back from the rear wall of the proposed rear 2nd storey wall of the rear addition”. He asserted that this variance fulfilled the intent and purpose of the By-law because they will have no detrimental impact on the massing of the house.

44With respect to side yard setbacks, Mr. Dales said that the performance standard for side yard setbacks is to achieve a uniform side yard setback of dwellings in relation to their side lot lines. In this case, the side yard setbacks matched what the neighbouring properties have, and that “smaller side yard setbacks have been granted by the COA in the neighbourhood since 2006”, based on which he concluded that the side yard setback satisfied the intent and purpose of the By-law.

45Lastly addressing the variance respecting the rear garage, he pointed out that the garage will be located “only 0.8 metres closer to the rear lot line than the required minimum setback of 1.0 metres”. He emphasized that notwithstanding “this minor encroachment “, “a generous rear yard” will be maintained, such that the placement of the garage “will be in keeping with the location of other garages in the area”. This variance maintains the general intent and purpose of the Zoning By-law.

46Based on this evidence, Mr. Dales concluded that the variances satisfied the intent and purpose of the By-law.

47Speaking to the test of minor, Mr. Dales stated that the variances satisfied the test because it did not result in any negative impacts on the neighbouring properties.

48Addressing the test of appropriate development, Mr. Dales opined that the variances will result in development that is appropriate and compatible with neighbouring properties, and that the size, scale and standards applied to the dwelling are appropriate and such reinvestment will be compatible with the neighbourhood.

49Based on this evidence, Mr. Dales concluded that all the variances be approved because they satisfied every component of Section 45.1 of the Planning Act.

50Mr. Flett then cross-examined Mr. Dales on behalf of the Appellants. Mr. Dales agreed with Mr. Fletcher that there were four building types in the NSA- two and three storeys, detached and semi-detached, and that there had been little change in the Immediate Context, compared to other parts of the NSA. When asked what criteria had been relied upon to determine the relationship between the proposal, and the Immediate Context, Mr. Dales said that he relied on the “trajectory of development”, or the emerging pattern of development, and further clarified that he did not rely on the FSIs for coming to conclusions because it is the “most useless” variable. When asked about the degree of inaccuracies found in the data, Mr. Dales replied that in “two thirds of the approvals since 2006- the FSIs are inaccurate”. When Mr. Flett probed further about what sources had been relied upon to doubt the accuracy of the data, Mr. Dales said that he had relied solely on the data provided through COA decisions, and its comparison with information from the City of Toronto data- he emphasized that on the basis of his analysis, the City data provided an FSI was that “0.28 times” less than the comparable COA data”. He agreed with Mr. Flett that he had come to this conclusion based solely on the comparisons between COA and City data alluded to, and that he assumed that all information from before 2006 was inaccurate. He agreed with Mr. Flett that in the Immediate Context, corrections were needed only for 297 and 318 Waverley. In response to more questions from Mr. Flett about the determination of the relationship between the proposal, and the NSA, Mr. Dales insisted that “a visual determination was better than reliance on FSI”, which suffered from a double whammy, namely “inaccuracies in data, and being the most useless variable”

51Mr. Michael Manett, a land use planner and Witness for the Appellants, was affirmed, and recognized as an Expert Witness in the discipline of land use planning. His review of the Site and its immediate surroundings is not recited here because it matched that of Mr. Dales, whose description has been recited at great length.

52Mr. Manett stated that while his Study Area is different from that of Mr. Dales, by virtue of being bounded by Kingston Road in the north, and Norway Avenue to the south. The broader neighbourhood context area includes all the properties on Kenilworth Avenue, Waverley Road, and Bellefair Avenue between Norway Avenue and Kingston Road; the west side of Wheeler Avenue and on Juniper Avenue between Bellefair and Wheeler Avenue; the east side of Elmer Avenue between Norway Avenue and Kingston Road; and Rhyl Avenue east of Elmer Avenue. The Immediate Context area focuses on the properties on Waverley Road between Norway Avenue and Kingston Road, which, according to Mr. Manett, is distinguishable from other parts of the NSA by the significantly lower quantum of change, which means that the older buildings, built in the 50s and 60s are still found in significant numbers in the Immediate Context (IC).

53Speaking to the Official Plan, Mr. Manett emphasized that the FSI variance is for a density of 0.98 X Lot Area, in a zone that has a permitted maximum FSI of 0.60 X Lot Area. He said that requested density is inconsistent with the prevailing density and massing in the immediate context, where the overwhelming majority (79.1%) of properties, are under the permitted maximum of 0.6 FSI. Mr. Manett went to some length to explain that densities over 0.90 X Lot Area have never been granted on the street, an FSI of 0.98 X Lot Area, if approved, would represent the highest density property on the street.

54According to Mr. Manett, the proposal requires a number of variances related to floor space index, building height, wall height, depth, and setbacks, which in conjunction with the “excessive” FSI would result in a dwelling that is inconsistent with the prevailing massing, scale, and density of nearby residential dwellings in the immediate context, the variances are to be refused.

55The overdevelopment of the Site is reflected most clearly through the requested floor space index and the height of the front and rear exterior main walls. Referring to the COA table, Mr. Manett pointed out how variances for FSI are “relatively uncommon” in the Immediate Context on Waverley Road. A large majority (79.1%) of properties are under the permitted maximum and only two properties are over 0.9. The 0.98 FSI requested would be the largest FSI ever permitted on the street. The front and rear exterior main walls are 2.07 metres over the permitted maximum permitted wall height. According to C of A decision notices for the area, variances from this regulation of the by-law are rare and this would be the largest variance recently permitted.

56Mr. Manett expressed concerns about how an approval of the requested variances, particularly the FSI and front and rear exterior main wall variances, would result in a property that is of a height, density, scale, and massing that is inconsistent with the prevailing neighbourhood character, and do not respect and reinforce the existing physical character of this geographic neighbourhood. Based on these concerns, Mr. Manett concluded that the proposed variances do not maintain the general intent and purpose of the Official Plan.

57Discussing the relationship between the requested variances, and the By-Laws, Mr. Manett said that the purpose and intent of this regulation of the By-law is to control building height which impacts the building massing. He said that the building height exceeds the permitted maximum height and the overall massing of the proposed dwelling, and when assessed in conjunction with Variance 2 (the proposed height of front and rear exterior main walls), is inconsistent with properties in the Immediate Context

58Variance 2 is related to maximum permitted wall height. The maximum permitted height of all front and rear exterior main walls is 7.50 m. The height of the front and rear exterior main walls will be 9.57 m. The purpose and intent of this regulation of the by-law is to regulate the wall and overall building height, which contributes to the overall building massing through controlling the shape of the roof. The proposed dwelling exceeds the maximum permitted front and rear exterior main wall height by 2.07 m and the overall building height by 0.88m. Again, this contributes to a dwelling with a scale and massing inconsistent with the immediate context. As a result of this analysis, Mr. Manett concluded that the requested variances for overall height, as well as the height of the front and rear exterior main walls, did not maintain the general intent and purpose of the By-law

59Variance 3 is related to maximum permitted depth. The purpose and intent of this by-law is to regulate building depth and ensure a consistent built form and rear yard amenity space and also acts as part of the control of the overall massing and density of the dwelling. The proposed dwelling exceeds the maximum permitted building depth by 0.45 m, while a garage is also proposed to be constructed at the rear of the property. Mr. Manett was concerned that this variance will reduce the rear yard amenity space and, when combined with all of the other variances, contributes to a massing on the site that is inconsistent with the prevailing massing and density in the immediate neighbourhood. Therefore, the requested variance does not maintain the general intent and purpose of the by-law.

60Variance 4 is related to maximum permitted floor space index- speaking to this variance, Mr. Manett pointed out that the maximum permitted floor space index of a detached house is 0.60 times the area of the lot (136.30 m2). The altered detached house will have a floor space index equal to 0.98 times the area of the lot (222.38 m2). He opined that the purpose and intent of this By-law is to control the density and massing of the building, in order to ensure compatibility with, and reduce impact on, neighbouring properties. Given the proposed massing, and the increase in GFA, Mr. Manett reiterated that the proposed house would have the highest FSI in the Immediate Context, raised questions about how such a house would be compatible with what exists on the street, before concluding that the requested variance does not maintain the general intent and purpose of the By-law

61Speaking next to Variances 5 and 6, Mr. Manett said that these variances are related to the minimum required side yard setback along the north and south lot lines. The minimum required side yard setback is 0.90 m at the north lot line, and 0.45 m at the south lot line, where there are no windows and doors. The altered detached house will be located 0.41 m from the north side lot line, and 0.30 from the south lot line. The purpose and intent of this By-law is to ensure sufficient space for air circulation, maintenance, and access between dwellings. According to Mr. Manett, the proposed north setback, (which is half of the required setback), and the south setback are not large enough to provide sufficient space for air circulation, maintenance, and access. As a result, he concluded that these requested variances do not maintain the intent and purpose of the by-law.

62Speaking to Variance 7, which is related to minimum required rear yard setback, Mr. Manett said that the minimum required rear yard setback is 1.0 m, while the proposal requested for a detached garage to be located 0.2 m from the rear (west) lot line. Stating that the purpose and intent of this regulation is to ensure sufficient space for maneuvering a vehicle from the laneway into a garage for parking, Mr. Manett said that the proposed garage will be very close to the laneway, affecting ease of access from the laneway into the garage. He added that there would be issues pertaining to snow clearing in this area, and the narrow separation between the garage and the laneway, would “further alleviate” this concern. As a result, Mr. Manett concluded that the requested variance does not maintain the general intent and purpose of the By-law.

63Mr. Manett’s objections to Variance 8 is not repeated here, since it relates to the overall height of the building, which is no longer before the Tribunal.

64Based on the above analysis of the requested variances to the Zoning By-law it Mr. Manett concluded that the requested variances do not maintain the general intent and purpose of the Zoning By-law.

65Speaking to the test of appropriate development, Mr. Manett said that the requested variances for the proposed development provide for a dwelling that is inconsistent with other properties in the immediate context in its scale, height, density, and massing. The heights of the front and rear exterior main walls exceed the permitted maximum by over 2 metres and this magnitude of variance, that is rare in the broader and immediate context. He reiterated that the floor space index would be the highest in the Immediate Context, and is inconsistent with the prevailing massing and densities on proximate properties. Based on this reasoning, Mr. Manett concluded that the proposal did not satisfy the test of appropriate development.

66Discussing the test of minor, Mr. Manett said that the proposal requires multiple variances that would usher in a dwelling that is of a scale, massing, and density that is inconsistent with the prevailing neighbourhood characteristics. He emphasized that while all the requested variances contribute to the massing and scale of the proposed dwelling, the height and density related variances are the most egregious because of how significantly they deviate from the by-law. Reiterating that the variances will allow for a dwelling that is inconsistent with the neighbourhood character of what exists in the Immediate Context, Mr. Manett concluded that approving the variances will result in a house that will have an unacceptable adverse impact on the neighbouring properties and the neighbourhood, and consequently not satisfy the test of minor.

67Mr. Fleisher cross-examined Mr. Manett on behalf of the Applicants. In response to a question from Mr. Fleisher about the lack of statistical data, and pictures from the larger Neighbourhood, Mr. Manett reiterated that he agreed with Mr. Dales’ information on the larger Neighbourhood, but differed from the latter in that he saw the need for focusing on the Immediate Context, because it was distinguishable from the NSA. When Mr. Fleisher asked Mr. Manett if the Official Plan could be interpreted to mean that only a certain range of FSIs were appropriate to establish the relationship between the proposal, with what exists presently, Mr. Manett said it was “certainly possible”, and quite true of this case, where the FSI proposed at the Site was significantly different from the vast majority of the houses, whose FSIs complied with the By-law. When Mr. Fleisher asked how the built form of the house impacted its neighbours, Mr. Manett said that his conclusions about the proposal were premised on its inability to satisfy Section 4.1.5 of the OP, as opposed to the built form. Mr. Fleisher asked questions regarding the appropriateness of the mitigation measures undertaken by the proposal to reduce the impact of the proposed massing at the second and third floors, including a step back on both floors, only to have Mr. Manett reiterate that in his opinion, it was the overall massing that made the proposal incompatible with what exists in the community, notwithstanding efforts made by the Applicants to reduce the impact of the massing. Mr. Fleisher showed Mr. Manett a few examples of houses with a discernable difference in FSI (one below the Zoning By-law and other in excess of the Zoning By-law), and asked if he could tell the difference between the two by looking at them from the street. Mr. Manett said that he couldn’t tell the difference from the street, because the difference in FSI was probably because of what had been constructed at the back of the houses.

68Mr. Fleisher asked Mr. Manett questions about the TLAB Decision respecting 50 Addison Crescent, in North York, where the latter had represented the Applicants, and asked why his evidence was “ so different” with respect to the proposal’s ability to respect and reinforce what exists in the community, when compared to his evidence for the Subject Property, to which Mr. Manett kept stating that the context of the Properties, and the requests for the two were very different.

69Both in his Opening Statement and Oral Argument, Mr. Fleisher, Counsel for the Appellants argued that the Official Plan must be interpreted as a conceptual framework, “which is open to broad interpretation, rather than a prescriptive, numerical interpretation”. In support of his position, Mr. Fleisher relied on the TLAB Decision respecting 251 Old Forest Road, by Member Swinkin (22 110754 S45 08 TLAB)

It is this panel’s view that 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 purely arithmetic approach adopted by Mr. Manett has the effect of removing context from the assessment of the proposal and diminishing the qualitative features from their role in an all encompassing judgment.

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 (emphasis added).

70The Appellants’ Response is best reflected from the following words from the opening statement of Mr. Flett, Counsel for the Appellants

“As Michael Bloomberg, the former Mayor of New York famously said “In God we trust, everybody else bring data”

71Another argument that came up a few times was the accuracy of the data. Both the Witness and Counsel for the Applicant focused on how the data from the City was inaccurate, when compared to the “accurate” data obtained from the Committee of Adjustment Records for the same site, and questioned the impact of the “inaccurate” data on their ability to come to supportable findings.

72By way of cross-examination, as well as in my questions of the Witness for the Applicants, the question of the threshold to distinguish “inaccurate” data points, from “accurate” data points was raised numerous times, but did not receive a clear, nor a satisfactory answer from the Applicants - I understood their evidence to mean that any and all data that was not a 100% accurate, had to be deemed as being “inaccurate” , and could not be relied upon by the Parties for coming to supportable conclusions, and the Tribunal to come to reliable findings.

ISSUES AND ANALYSIS

73I herewith list the principles, which will be relied upon for decision making purposes in this Appeal:

a) The burden of proof is on the Applicant, even when they are not the Appellants by virtue of the Application being heard de novo. The Applicant’s disproving the case of the Appellant does not prove their case, because evidence is not a zero-sum game where there are only two outcomes- namely, the Applicant is a 100% correct, or the Appellant is a 100% correct, in which case the Applicants’ disproving the Opposition’s case, automatically results in their evidence being preferred.

b) Under Section 45.1 of the Planning Act, there are four tests which must be satisfied by the requested variances individually and collectively. The four tests, each of which contributes equally to the final decision, are listed below:

The variances should maintain the general intent and purpose of the Official Plan;
The variances maintain the general intent and purpose of the Zoning By-laws;
The variances are desirable for the appropriate development or use of the land; and
The variances are minor.

In other words, a given variance, or group of variances may be refused if they fail even one of the four tests listed above.

c) No weight is given to a TLAB Decision from a different part of the City, because of identified commonalities between the Witnesses who testified regarding the Properties, and/or Counsel. What is important in terms of a comparator is the context of the application, such as the geographical neighbourhood, in which the Site is located. As a result, the references to the TLAB’s Decision respecting 40 Addison Crescent, is given no weight, though the Applicants brought it up by way of cross-examination.

d) While the Appellants submitted a Witness Statement by an arborist, there was no evidence provided by the Appellants on the issues raised in the arborist’s report, either by way of their Witness, or the arborist- as a result, the contents of the submission are not reviewed in this Decision, nor is any finding made on the applicability of the concerns

74I find that it is important to address the following questions, which will become the basis for making findings on the requested variance:

75Is there a difference between the General Neighbourhood and the Immediate Context?

The Parties provided two different General Neighbourhoods/ Neighbourhood Study Areas, henceforth abbreviated to GN/NSA, such that the Appellants’ area is slightly smaller than the Applicants’ area. However, there is no need to come to a finding about whose GN is to be preferred, because the Appellants said that they would not take issue with the Applicants’ GN, because their conclusions would not change even if the Applicants’ GN was accepted as the frame of reference. The question to be answered here is whether or not there is a difference between the GN and the Immediate Context (IC), which is defined as the block opposite, and the block on which the Subject Site is located.

76It is important to note that both Parties make reference to the Immediate Context (IC)- the Applicants don’t make any references to the IC in their original statement, but make reference to the houses in the IC, in the context of their being granted variances by the COA. However, their oral evidence was that there is no difference between the IC and the GN, though the reasoning behind this conclusion is not clear.

77The Appellants on the other hand, argued that since the COA had granted very few approvals in the IC since 2006, there had been little change in the IC compared to other parts of the NSA. Based on the COA decision table submitted by the Applicants, that reflects approvals and refusals since 2006, the quantum of change in the Immediate Context, measured on the numbers of approvals by the COA/TLAB, and the maximum FSI of 0.85 X Lot Size, that was approved, provides a strong contrast to the more substantial numbers of approvals, as well as the maximum FSI approved in the larger GN, outside of the IC- these changes have resulted in bigger houses to a greater extent in the NSA, rather than the IC, which in turn result in a very perceptible change to the Neighbourhood Character, as was evident in the photo tours. I therefore find that there is a perceptible difference between the GN/NSA and the IC, which means that the changes in the latter are determinative to deciding whether the variances should be approved. The changes in the larger GN/NSA will not be taken into account for decision making purposes.

As a result, I find that the Immediate Context is determinative, and will be relied upon for making findings.

78Does “inaccurate” data prevent the Parties and decision makers from coming to supportable decisions?

To reiterate, the Applicants’ position is that there are significant errors in the City data regarding the GFA (Gross Floor Area) of various residences, which results in erroneous data of the FSI (Floor Index Area)- the Applicants established these errors through a comparison of the GFA for properties where variances were approved by the COA, through comparing the City data, with the actual GFAs based on the approvals by the COA

79I accept that could be discrepancies, if not significant errors, established between the two data sets, but also point out that the generic statistical approach assumes that there are measurement related errors in any given dataset. The process of statistical analysis looks to measure the extent of error in the collective set, before determining how to minimize the impact of the collective statistical error when it is so significant, that it results in inaccurate predictions. In response to a question from the Counsel for the Appellants, the Applicants’ Witness stated that there were a few data points of the 91 houses in the Immediate Context, where errors had been noticed. A follow up question about what efforts had been made to analyze the data with the exclusion of the data points, was responded to in the negative.

80More importantly, the Applicants could not respond satisfactorily to questions from opposing Counsel, as well as myself, about the threshold in terms of error, to distinguish between accurate and inaccurate data points/ data sets - the Applicants’ answer about all data points that are not “accurate” automatically being classified as “inaccurate” is itself inaccurate, because no efforts have been made to establish the “standard deviation” within the statistical data set- the “standard deviation” indicates how dispersed the data is with respect to the mean of the data set, and how this dispersal of data includes, or excludes individual data points where discrepancies are suspected/proven.

81While there may have been “significant” errors with respect to individual data points, there is no evidence before me to indicate that the errors in question have tainted the data set to the extent that no meaningful inferences can be drawn from the data set. As a result, I disagree with the Applicant’s contention about not being able to use the data set to come to supportable findings.

82How much weight has to be accorded to the “trajectory of development”?

In their evidence, the Applicants chose to dwell on the “trajectory of development” in the IC, which may be defined as the trend of development, where in three storeyed buildings become more common, than before.

The expression “trajectory of development” is not defined, nor recognized, as a standard planning expression, as was confirmed by the Applicants’ witness in response to a question from myself. While the OP recognizes that all communities experience change, and that growth should be slow and steady, so as to not destabilize the community, there is no mention, nor recognition of the expression “trajectory of development” in this discussion.

As a result, no weight is accorded to the expression, or concept of the “trajectory of development”

83Is there a correlation between the FSI and other requested variances?

In this Appeal, there are requests for variances related to depth of the house, various side yard setbacks, as well as main wall height, in addition to the FSI, under By-law 569-2013.

84I find that many of the variances are interdependent on each other because the Appeal involves variances for FSI, depth of the house, and various side yard setbacks. Given that FSI= Gross Floor Area/ Lot Area, it is obvious that changes to Gross Floor Area, would automatically result in changes to the FSI, since the Lot Area is an invariable constant. In other words, I find that changes to the depth of the house and the side yard setbacks, impact the GFA, which in turn impacts the FSI- while the exact nature of the correlation between the stated variances, and the FSI may be difficult to determine, there is undoubtedly a correlation, since increases to the depth of the house, can result in increases to the FSI. Likewise, decreases to the side yard setbacks, can result in increases to the GFA, which in turn increases the FSI.

85The main wall height variance under By-law 569-2013, requests variances for the front and rear main wall heights. The FSI calculation in the City of Toronto includes the GFA of all floors (with the exception of finished basements, and unfinished attics), if the height of the proposed building is higher than 4.5 metres, which is the case with this proposal. This means that the numbers of floors, and the heights of the main walls also influences the FSI, which means that there is a correlation between all the requested variances and the FSI variance.

86As a result, the relationship between the variances related to side yard, depth and the FSI is such that if the FSI variance fails, the proposal, as designed, is not viable. In such an eventuality, it would not be appropriate to approve variances which can interact with, and influence the FSI variance- in other words, the other variances should fail, should the FSI variance fails.

87Can the interpretation of the OP as “Policy Document” or a conceptual framework, allow analysis of a non-numerical nature to demonstrate that proposal maintains the intent and purpose of Policy 4.1.5?

Both by way of Opening Argument, and Oral Argument, the Applicants emphatically stated their preference for qualitative analysis over quantitative analysis, and made repeated references to the Decision made by Member Swinkin, respecting 251 Old Forest Road (22 110754 TLAB). They recited, and reiterated the following paragraphs from the Decision:

88I agree with the finding that the” 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”, and note that one of the major differences between the Official Plan, and the Zoning By-laws is how the former is qualitative and canvasses concepts, which are converted by the latter into quantitative measures, which describe what can be built as of right. The conversion of the OP into the Zoning By-law is aptly captured in Policy 4.1.8, which is recited below:

Zoning by-laws will contain numerical site standards for matters such as building type and height, density, lot sizes, lot depths, lot frontages, parking, building setbacks from lot lines, landscaped open space and any other performance standards to ensure that new development will be compatible with the physical character of established residential Neighbourhoods

89The underlined expressions “performance standards” and “site standards” make it clear that the role of the Zoning By-law is to establish site specific numerical measures, which help ensure that the proposal is compatible with the existing character of the neighbourhood. I find that the concept of “prevailing”, which is defined in Policy 4.1.5 of the OP, as recited below, refers to a concept, as opposed to a performance standard. It is facile, and more importantly erroneous, to describe the concept of “prevailing” as the equivalent of a numerical standard, just because the concept of “prevailing” relies on a counting exercise to establish the most commonly occurring form of development. The only commonality between the concept of “prevailing”, as found in the OP, and numerical standards in the By-law is the reliance on numbers, which are different in every other aspect- the fluidity in how the prevailing type can change based on the GN or IC selected by a Party, is a stark contrast, to the rigidity of numerical standards in By-laws, which are Zoning dependent, and don’t change should a different GN or IC be chosen. For ease of reference, the definition of the Prevailing Type from Section 4.1.5 of the OP is recited below:

The prevailing building type and physical character of a geographic neighbourhood will be determined by the most frequently occurring form of development in that neighbourhood.

90As a result, I find that the above findings about conceptual frameworks, and prescriptive measures recited by the Applicants do not apply to Policy 4.1.5, because the methodology described above is not a prescriptive performance measure, but a translation of a qualitative concept of “prevailing” into a quantitative parameter that can be enumerated on the basis of the methodology described above.

91Are the requested variances consistent with the Provincial Policy Statement (2020), and the Growth Plan for the Greater Golden Horseshoe ( 2019)?

I find that the variances are consistent with the PPS (2020), and the Growth Plan ( 2019), because the proposal looks to make efficient use of the existing land.

92Do the requested variances maintain the intent and purpose of the OP?

The main policies from the OP that apply to any proposal are Policies 2.3.1, 3.1.2 and 4.1.5, all of which were canvassed in this Proceeding. It is important that the proposal satisfy all the applicable policies in order to establish it maintains the intent and purpose of the Official Plan (OP). It is important to note that all applicable policies have to be fulfilled in order for the variances to be approved.

93With respect to Policy 4.1.5, it is important to determine the “prevailing” type, with respect to any of the variables listed in the Policy, and recited below, before the relationship between the proposal, and the concept of “prevailing” can be determined:

Development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including in particular:

a) patterns of streets, blocks and lanes, parks and public building sites;

b) prevailing size and configuration of lots;

c) prevailing heights, massing, scale, density and dwelling type of nearby residential properties;

d) prevailing building type(s);

e) prevailing location, design and elevations relative to the grade of driveways and garages;

f) prevailing setbacks of buildings from the street or streets;

g) prevailing patterns of rear and side yard setbacks and landscaped open space;

94The Applicants’ initial reaction to this issue, by way of evidence and the Expert Witness Statement of December 2021, was to point that the OP allows for multiple prevailing types to co-exist in a given NSA, apply this idea to their NSA, and then conclude that the NSA could have multiple prevailing types, including the development type proposed at the Site, which is a detached house with three floors. The issue with this approach is that it does not even scratch the surface of the process through which the “prevailing” type is to be determined, clearly stated in the OP as “The prevailing building type and physical character of a geographic neighbourhood will be determined by the most frequently occurring form of development in that neighbourhood. Instead, the methodology makes an assumption about the existence of multiple prevailing types, and then elevates the assumption to a conclusion, without testing the evidence.

95Given my lack of satisfaction with how the Applicants responded to the question of “prevailing”, I indicated to the Applicants at the Hearing completed on September 23, 2022, that I expected to see, and hear fulsome evidence on the relationship between the proposal, and Section 4.1.5 of the OP. In addition to oral instructions, I released an Interim Decision on October 5, 2022, from where the relevant direction is recited:

The Applicants are ordered to make a submission to the TLAB by October 31, 2022, wherein they rely on one or more of the variables listed in Policy 4.1.5 for the purposes of establishing the “prevailing type(s)”, or a type that exists in “substantial numbers” even not being the prevailing type, on the basis of a counting exercise utilizing the variables in question, in the Geographic Neighbourhood, or Immediate Context of their choice

96The Applicants sent in a submission focusing on the FSIs based on data collected from the City, and by way of evidence, relied on this submission to compare data points taken from the former with data obtained by way of COA decisions. The Applicants concluded that the City data was “significantly” flawed, which according to them, meant it could not be relied upon to come to supportable decisions regarding the Prevailing type. They also criticized the use of the FSI parameter for establishing the prevailing type, because “it is the most useless” variable.

97From the evidence given by the Witness for the Applicants, it became clear to me that they were interpreting my Interim Order to emphasize the use of the FSI parameter to “establish” the Prevailing Type.

98It is important for me to point out that the direction given to the Applicants, as recited above, makes it crystal clear that “one or more of the variables listed in Policy 4.1.5” could be used to establish the Prevailing type; I have to emphasize that there was no explicit direction in my directions to use the FSI variable to establish the “Prevailing type”.

99I now address the question of whether or not the evidence of the Appellants established an acceptable relationship between their proposal, and the concept of “Prevailing”.

100While the Applicants may have provided the right definition of “Prevailing”, it is evident that their evidence regarding the Prevailing type is erroneous, because in their examination in chief, they insisted that houses with three storeys, is one of the prevailing types of dwellings, notwithstanding the fact that 67% of the houses in the Immediate Context were two storey detached buildings. When I repeated the same question to the Applicants later, and pointed out that 67% of the buildings are two storey detached buildings, clearly making them the prevailing type, the answer given to me was two storey buildings, as well as three storey buildings were “one of the prevailing types because many houses in the NSA belonged to each of these categories”- both answers are clearly wrong because the development type with more than 50% of the houses in the GN is not merely the prevailing type, it is the overwhelming majority. Secondly, the concept of “prevailing” is independent of the sample size, and how many data points fall into which category- in other words, the methodology to determine the prevailing type is the same, irrespective of whether the sample size has, for example, ten houses or a hundred houses. Policy 4.1.5 also recognizes that:

While prevailing will mean most frequently occurring for purposes of this policy, this Plan recognizes that some geographic neighbourhoods contain a mix of physical characters. In such cases, the direction to respect and reinforce the prevailing physical character will not preclude development whose physical characteristics are not the most frequently occurring but do exist in substantial numbers within the geographic neighbourhood, provided that the physical characteristics of the proposed development are materially consistent with the physical character of the geographic neighbourhood and already have a significant presence on properties located in the immediate context or abutting the same street in the immediately adjacent block(s) within the geographic neighbourhood

101However, this perspective is not applicable to the Appeal respecting this Site because 3 storey detached buildings constitute a mere 22% of the houses in the IC, with 2 storey detached houses constituting the overwhelming majority, not to mention that the Applicants’ focus on the IC in this case is not supported by their evidence regarding differences between the IC and the GN/NSA.

102In the second submission, completed on October 31, 2022, which was relied upon by the Applicants for giving evidence, there is a wealth of data, and important data characteristics are listed, such as the average, median, the largest and smallest data points for many variables. The last page of this submission lists the minimum, maximum, median and mode for various properties for the entire NSA, followed by corresponding information for the IC. Unfortunately, this information cannot be relied upon for making findings, because the evidence concentrated on how the information provided is unreliable, as opposed to an analysis of the available data provided in the submission

103As a result, I find that the Applicant’s evidence did not establish the Prevailing type, namely two storeyed, detached buildings in this Immediate Context, and more importantly, did not discuss how their proposal, respects and reinforces the Prevailing type.

104By way of an obiter remark, the reasoning behind why the Applicants chose to rely on the FSI variable to come to conclusions about the “prevailing type”, after pronouncing it to be the “most useless variable”, is best known to the Party, since it is certainly lost on me.

105In the Supplementary information provided on October 31, 2022, the Applicants included numerical information about some of the variables referred to in Policy 4.1.5, but did not present any evidence on these variables. I reiterate that no attempt was made to establish the “Prevailing Type” on the basis of any of these variables.

106To summarize, I find that the Applicants’ evidence does not demonstrate how their proposal respects and reinforces the Prevailing type for the following reasons:

The Applicant’s conclusion about the of the existence of “multiple prevailing” types in the Immediate Context, is flawed because it does not attempt to identify what these types are on the basis of a counting exercise- it instead elevates the assumption of the existence of multiple prevailing types to a conclusion.

A “flawed” statistical distribution, with the type of “flaw” described by the Applicants, does not preclude one from reaching supportable, and reliable decisions about the “prevailing” type

While I accept the Applicant’s conclusion that there could be many challenges to reliance on the FSI parameter to come to conclusions, there was no compulsion on them to rely on this parameter. They had the ability and freedom to rely on one or more of the variables listed in Section 4.1.5 of the OP to come to a supportable decision.

107Consequently, I find that the Applicants have not established the prevailing type with respect to any of the variables listed in Section 4.1.5, which makes it impossible to determine how, or if the requested variances respect and reinforce the Prevailing type of development.

108With specific reference to the FSI variance, I specifically find that it does not satisfy Section 4.1.5 of the OP, and therefore should be refused. Given my finding in Paragraph [79] of this Decision regarding the interaction between all the other requested variances, and the FSI variance, I find that the refusal of the FSI variance results in the refusal of all other variances.

109The above finding also means that it is not necessary to determine the relationship between the variances, and other policies in the OP, because satisfying the test requires the variances to satisfy all applicable policies

110As a result, I find that the requested variances don’t maintain the intent, and purpose of the Official Plan.

111Do findings have to be made on other tests under Section 45.1, such as the tests respecting the Zoning By-Law, test of appropriate development and test of minor, after the finding that the requested variances don’t maintain the intent and purpose of the Official Plan?

As per the principle stated in Paragraph [ 74] (b) of this Decision, there is no need to make findings respecting other tests, should the variances fail even one of the four tests under Section 45.1 of the Planning Act. As a result, there is no need to make findings on the relationship between the variances and other tests.

FINDINGS

112The requested variances don’t maintain the intent and purpose of the Official Plan, and are therefore refused. As a result of the variances not being able to satisfy the test respecting the Official Plan, there is no need to make findings regarding the relationship between the variances and other tests under Section 45.1 of the OP.

FINAL DECISION AND ORDER

113The Appeal respecting 290 Waverley Road is allowed, and the variances are refused. The decision of the Committee of Adjustment respecting 290 Waverley Road, dated August 18, 2021, is set aside.

So orders the Toronto Local Appeal Body.

S. Gopikrishna

Panel Member