Jean (Re), 2023 ONTLAB 158

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9

Date: 2023-11-28

File: 23 144346 S45 15 TLAB

Citation: Jean (Re), 2023 ONTLAB 158

DECISION AND ORDER

Issuance Date: November 28, 2023

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

Appellant(s): W. JEAN

Applicant(s): THOMAS MARZOTTO ARCHITECT

Property Address: 64 MILDENHALL RD

COA File No.: 23 122788 NNY 15 MV (A0141/23NY)

TLAB Case File No.: 23 144346 S45 15 TLAB

Hearing Date(s): October 16, 2023, November 7, 2023

Deadline Date for Closing Submissions/Undertakings: October 2, 2023

Decision Delivered By: TLAB Member T. Kezwer

REGISTERED PARTIES AND PARTICIPANTS:

Applicant: Thomas Marzotto Architect Appellant: W. Jean (Representative: D. Bronskill) Party (TLAB): City of Toronto (Representative: J. Dexter) Party (TLAB): G. Desson Participant: L. Fullgraf Participant: C. Hepburn Expert Witness: M. Rendl Expert Witness: M. Barton

INTRODUCTION AND CONTEXT

1This was a one and a half day hearing before the Toronto Local Appeal Body (the "Tribunal").

2The Appellant, William Jean, appeals a denial by the North York panel of the Committee of Adjustment for variances for a proposed development on the property located at 64 Mildenhall Road (the "Subject Property"). The appeal is being allowed in part. There were changes made to the proposal after the Committee of Adjustment hearing, and the appeal is being allowed in part to accommodate these changes.

Subsection 45(18.1.1)

3I will now address an issue involving subsection 45(18.1.1) of the Planning Act. When the application was before the Committee of Adjustment on April 27, 2023, there were ten requested variances. The Applicant filed an Applicant's Disclosure with the Tribunal on August 25, 2023, and this document is identified as Exhibit 2 further below in this decision. The document was late filed with the consent of the two other parties to the Appeal.

4The Applicant's Disclosure noted that the Applicant had made changes to the proposal which resulted in the elimination of the need for five of the requested variances that were before the Committee of Adjustment. However, the Applicant obtained a Zoning Notice to confirm the variances required for the revised proposal, and at that time, the Zoning Examiner identified an additional variance for the driveway location that was not previously identified. For corner lots in this zone, driveway access must be from a flanking street instead of the street on which the home fronts. The proposed driveway and integral garage are facing Buckingham Avenue, which is the fronting street, and not Mildenhall Road, which is the flanking street.

5The Planning Act at subsection 45(18.1.1) provides that no new public notice is required under subsection 45(18.1) if in the Tribunal's opinion, the amendment to the original application is minor. There is no further statutory guidance on what constitutes a minor amendment. In my opinion, context is very important when considering whether an amendment to an original application is minor.

6In the case at hand, the plans that were before the Committee of Adjustment identify that the proposed driveway is on Buckingham Avenue. I find that the variance that was originally missed by the Zoning Examiner was a feature of the proposal that would be identifiable by any interested party who conducted their due diligence and examined the proposal that was before the Committee of Adjustment. Therefore, the amendment to the original application is minor, and pursuant to subsection 48(18.1.1) of the Planning Act, no new notice is required for the Tribunal hearing.

The Subject Property

7The Subject Property is a corner lot located on the south side of Buckingham Avenue, which is an east-west road, and the west side of Mildenhall Road, which is a north-south road. The Subject Property is located south of Lawrence Avenue East and west of Bayview Avenue, within the Lawrence Park area. The Subject Property is designated 'Neighbourhoods' in the Official Plan and is zoned RD (f18.0; a690) under the City of Toronto Zoning By-law 569-2013 (the "Zoning By-law").

8The Subject Property currently contains a one and a half/two storey single detached dwelling. The Appellant is proposing to demolish the existing dwelling and replace it with a new, larger 3-storey dwelling to be used as a multi-generational home.

9Prior to the hearing I visited the Subject Property and familiarized myself with the neighbourhood in which it is situated.

Hearing Synopsis

10I will now briefly provide a synopsis of the hearing events:

a. Day 1: Mr. Bronskill provided an opening statement on behalf of the Appellant asserting that the proposal is for a new three storey multi-generational home. Since the Committee of Adjustment hearing, the Appellant has eliminated a number of variances that were originally requested, such as variances related to the overall building height and side exterior main wall height. Mr. Bronskill asserted that the key issue is whether from a qualitative perspective, does the proposal fit in with the neighbourhood. Mr. Bronskill argued that it is not appropriate to conduct planning solely by numbers. Mr. Bronskill asserted that the massing for the proposed house is the same even without a third floor. Mr. Bronskill argued that there are no traditional land use planning impacts from the proposal.

Mr. Dexter provided an opening statement on behalf of the City of Toronto in opposition to the proposal, and argued that there is nothing comparable to the proposal's third floor within the geographic neighbourhood. Mr. Dexter asserted that the third-floor approvals in the geographic neighbourhood are for much more modest floor plans. In addition, a full third storey contributes to the overall massing of the proposed house. Mr. Dexter further asserted that the resulting Gross Floor Area would be 60% more than the Zoning By-Law permits.

Mr. Desson, a self-represented party speaking on behalf of himself, neighbours, and the Lawrence Park Ratepayers' Association, stated that he has resided in his property in the neighbourhood for 34 years, and that he has a track record of active involvement with the Lawrence Park Ratepayers' Association. Mr. Desson stated that there has been no serious dialogue with the property owners about the proposal before the Tribunal, and that the changes made to the proposal after the Committee of Adjustments are technical in nature. Mr. Desson is concerned about the size of the proposed house.

After the opening statements were complete, Mr. Rendl was qualified as an expert witness in the area of land use planning and presented his evidence in chief. Mr. Dexter cross-examined Mr. Rendl and then Mr. Desson cross-examined Mr. Rendl. After the cross-examinations were complete, Mr. Bronskill re-examined Mr. Rendl.

Mr. Barton was then qualified as an expert witness in the area of land use planning and presented his evidence in chief. Mr. Barton's evidence in chief was completed and the hearing was adjourned to the next hearing date.

b. Day 2: Mr. Bronskill cross-examined Mr. Barton. After the cross-examination was complete, Mr. Desson declined to re-examine Mr. Barton.

Mr. Fullgraf, a neighbour who stated he was appearing on behalf of the Lawrence Park Rate Payers Association, then presented his participant witness statement.

Mr. Hepburn, a neighbour who also stated he was appearing on behalf of the Lawrence Park Rate Payers Association, then presented his participant witness statement.

Mr. Bronskill then declined to provide reply evidence, and the hearing proceeded to the closing statements.

Mr. Bronskill argued in his closing statement that the only variance which was seriously contested during the hearing was for the third floor, and that the tribunal should prefer the evidence of Mr. Rendl. Mr. Bronskill argued that there are properties in the immediate context which present as three-storeys, and that there was no evidence provided of the density of other homes in the geographic neighbourhood in terms of Gross Floor Area ("GFA") or Floor Space Index ("FSI"). Mr. Bronskill noted that there is no requested variance for the height of the proposed dwelling in metres, or for the main wall height.

Mr. Bronskill argued that the geographic neighbourhood has a diversity of built form, including the number of floors contained in dwellings. Mr. Bronskill asserted that Mr. Barton did not provide evidence of the number of storeys amongst the dwellings in the geographic neighbourhood, nor did he provide an opinion that two-storeys are the prevailing building type. Mr. Bronskill further argued that the proposal complies with most of the as-of-right zoning requirements, and that no meaningful evidence was provided against the requested third storey variance.

Mr. Bronskill reviewed case law which he argued supports his position for how the proposal should be treated. Mr. Bronskill also took the tribunal through the four tests for a minor variance, arguing that the proposal meets this test, and asserting that the Tribunal should allow the appeals in part because the matter before the Tribunal is a revised application from the application that was originally before the Committee of Adjustment.

Mr. Dexter then presented his closing argument, asserting that the minor variance application should be refused and the appeal dismissed. Mr. Dexter argued that the proposal is pushing the building envelop beyond what the Zoning By-law permits. This issue is that the proposal takes a large building envelope and adds a third storey. Mr. Dexter argued that the third floor is larger than the ground floor if one considers that the ground floor contains the garage.

Mr. Dexter further asserted that there are no comparable dwellings within the geographic neighbourhood. In Appendix A of Mr. Barton's witness statement, there are 389 properties, of which there were five minor variance approvals for a third storey, and there are an additional nine three-storey properties that Mr. Rendl identifies in his witness statement through visual observations. Mr. Dexter asserts that none of the properties are reasonably comparable to the proposal: they include partial third storeys, fewer windows in the roofline, and steeper proof pitches which is suggestive of attics, and not livable space. In terms of the issue of determining FSI within the geographic neighbourhood, Mr. Dexter asserts that Mr. Barton's response on cross-examination was that one can reasonably assume that FSI is not going to come close to 1.0. Mr. Dexter asserted that there is a range in the number of storeys in the geographic neighbourhood, however, there are no full three-storey dwellings. Mr. Dexter further argued that the proposed dwelling will appear as a true three-storey home, even though there is technically a sloped roof, as there are two large windows on three sides of the dwelling. Mr. Dexter's position is that this is qualitatively different than conceiving a home as two storeys. The building scale, density, and impact to one's perception is great due to the third floor.

Mr. Desson asserted in his closing argument that there are no neighbours supporting the proposal and that there is something fundamental at stake with the proposal. The neighbours are especially concerned with the enormous Gross Floor Area of the property due to the third floor living space. Mr. Desson argued that this would be the first dwelling with a full recognized third storey in the geographic neighbourhood. Mr. Desson also argued that Mr. Rendl opined that there are 14 buildings within Mr. Rendl's geographic neighbourhood with three storeys, however, no additional information was provided on the extent of these third storeys. Since 2006, there has been no approval for a full 3rd storey, and there is no explanation of the small number of third storey approvals. Mr. Desson argued that the proposal would clearly identify as a full three-storey dwelling from the street. Mr. Desson concluded that an approval would result in a new era of planning in the geographic neighbourhood which would result in the destruction of the existing character of the neighbourhood.

Mr. Bronskill by way of reply made four points largely in response to Mr. Desson's arguments. For example, Mr. Bronskill noted that things stated by lawyers in a hearing are not to be considered evidence. Mr. Bronskill also argued that the three-dimensional image in Mr. Rendl's witness statement is qualitative evidence that should be preferred over academic arguments made without supporting evidence.

11Eight exhibits were entered into the record for this hearing:

Exhibit 1: Applicant's Disclosure dated July 26, 2023, and received by the Tribunal on July 26, 2023.

Exhibit 2: Applicant's Disclosure dated August 24, 2023, and received by the Tribunal on August 25, 2023.

Exhibit 3: Expert Witness Statement of Martin Rendl dated September 5, 2023, and received by the Tribunal on September 5, 2023.

Exhibit 4: Responding Expert Witness Statement of Martin Rendl dated September 19, 2023, and received by the Tribunal on September 19, 2023.

Exhibit 5: Document Disclosure of the Appellant received by the Tribunal on September 5, 2023.

Exhibit 6: Compendium of Decisions provided by the Appellant received by the Tribunal on September 5, 2023.

Exhibit 7: Expert Witness Statement of Michael Barton received by the Tribunal on September 5, 2023.

Exhibit 8: Responding Expert Witness Statement of Michael Barton received by the Tribunal on September 19, 2023.

12I will now outline the legal framework guiding this matter.

THE LEGISLATIVE AND POLICY FRAMEWORK

13A decision of the Tribunal must be consistent with the 2020 Provincial Policy Statement (the "Provincial Policy Statement") and conform to the Growth Plan for the Greater Golden Horseshoe for the subject area (the "Growth Plan").

14In considering a proposal for variances from the applicable Zoning By-law, the Tribunal must be satisfied that the proposal meets 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-law;
• are desirable for the appropriate development or use of the land; and
• are minor.

15The requested variances are as follows:

1. Chapter 10.20.40.20(1), By-law No. 569-2013

In the RD zone with a minimum required lot frontage of 18.0 metres or less, the permitted maximum building length for a detached house is 17.0 metres.

The proposed building length is 21.98 metres.

2. Chapter 10.20.40.30(1), By-law No. 569-2013

The permitted maximum building depth for a detached house is 19.0 metres.

The proposed building depth is 21.98 metres.

3. Chapter 10.20.40.10(3)(A), By-law No. 569-2013

The permitted maximum number of storeys is 2.

The proposed number of storeys is 3.

4. Chapter 10.20.40.70(3)(E), By-law No. 569-2013

The required minimum side yard setback is 1.8 metres where the required minimum lot frontage is 18.0 metres to less than 24.0 metres.

The proposed side yard setback is 1.2 metres at east and west side.

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

The permitted maximum lot coverage is 35 percent of the lot area.

The proposed lot coverage is 37.9 percent of the lot area.

6. 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 Buckingham Ave.

SUMMARY OF EVIDENCE

Mr. Rendl

16Mr. Rendl is an experienced land use planner with over 40 years of professional planning experience in both the public and private sectors. He is the Principal of Martin Rendl Associates, which he founded in 1995.

17Mr. Rendl opined that each of the requested variances meets the s. 45(1) test outlined in the Planning Act for a minor variance. I will now review what I consider to be some of the highlights of Mr. Rendl's testimony.

18Mr. Rendl's evidence was that the 10-metre height for the proposed house complies with the maximum building height in the Zoning By-law. In addition, the length and depth of the proposed structure are consistent with properties in the immediate context. Mr. Rendl opined that dormers are a common feature in the geographic neighbourhood, and reviewed several properties with dormers including properties located on Buckingham Avenue.

19Mr. Rendl opined that it is not the intent of the City to regulate massing beyond the three-dimensional building envelope of the property. Mr. Rendl provided his opinion that the proposed house presents as two storeys with dormers, and not as a dwelling with three distinct storeys. Mr. Rendl's opinion was that there is no Floor Space Index regulation for the property, and that the Zoning By-law only cares about the building envelope parameters such as: height, setback, and lot coverage. Mr. Rendl opined that the building envelope would be the same regardless of whether there is living space on the third floor. The proposed third storey does not result in an increased building height.

20On cross-examination by Mr. Dexter on behalf of the City of Toronto, Mr. Rendl provide his opinion that the proposal is approximately 5,200 square feet with no third storey living space, and nearly 8,000 square feet with the third storey living space. As Mr. Rendl noted in his examination in chief, St. Ives Crescent is a boundary with different Zoning By-Law requirements, being the previous boundary between two municipalities. There would be no requirement for a third storey variance in the west side of St. Ives. However, Mr. Rendl did note on cross-examination that FSI is regulated on the west side of St. Ives, and the property would have an approximate FSI of 1.05, which is almost triple the FSI of 0.35 on the West Side of St. Ives. FSI is calculated by dividing Gross Floor Area over the Lot Area.

21On re-examination, Mr. Rendl opined that the third storey of living space, including the existence of dormers, attic versus living space, etc. is not regulated in the Zoning By-law. There would be no changes to the proposed structure if the third floor is not approved, with the exception of the possible removal of the proposed dormers. Mr. Rendl also opined that the amount of floor area is not regulated under the Zoning By-law.

Mr. Barton

22Mr. Barton is a Registered Professional Planner who has practiced land use planning for over 20 years in communities across Ontario and Canada. Mr. Barton is the President and Founder of MB1 Development Consulting Inc., which he founded in December 2011.

23Mr. Barton opined that the requested variance to add a third storey of living space is the key issue with the proposal, and that the other requested variances exacerbate this requested variance. Mr. Barton opined that there is a lack of three-storey dwellings in the geographic neighbourhood, and that a third storey living space is not a characteristic of the neighbourhood. Mr. Barton provided his opinion that the proposed third-storey variance does not solely deal with massing.

24Mr. Barton's opinion is that the intent behind the regulation of FSI or the number of floors in a Zoning By-Law is the same, which is to regulate the livable area of a property. The addition of a third floor increases the density and scale of a property, and increases the livable space by approximately 50%. Mr. Barton opined that the scale and density of the proposal is greater than that which is permitted as-of-right. In addition, there are full three-storey windows in the proposal. Mr. Barton opined that height does not only mean linear height, as the number of storeys is regulated in the same section of the Zoning By-law. Mr. Barton's opinion is that the third storey increases density and scale, and cannot be discounted solely based on the way the structure looks on the outside. It results in a significant increase in liveable floor area, etc. without considering any other variance. The other variances allow for a bigger building envelope which is replicated to the third floor. For example, the lot coverage increase is replicated across three floors, instead of two floors.

25On cross-examination by Mr. Bronskill, Mr. Barton opined that his primary concern is the variance for the third storey, and that he would have to see the built form to determine whether he had concerns about the remaining five variances if the third storey variance were to be removed. Mr. Barton opined that the removal of the third storey would not result in the same built form because there would be no dormers on the third floor of the structure. There is no required variance for the dormers.

26Mr. Barton opined that there would be a privacy impact to the east across Mildenhall Road, into the property at 3 Bayview Wood, and to the south at 138 Cheltenham Avenue. Mr. Barton provided the opinion that Mildenhall Road provides a greater buffer for the privacy impact. In addition, there is no rear-yard setback, so the rear yard privacy impact opinion is based on the built form and character of the proposal.

27Mr. Barton agreed that there is no difference between the physical structure of houses in the immediate and broader context. One difference he raised about the two contexts is the non-linear configuration of some of the lots in the broader context.

28Mr. Barton admitted that he did not have GFA or FSI data for most of the properties which were used as examples in the immediate context. FSI or GFA data is generally only publicly available if a minor variance is sought or if the property goes through some other public process. Mr. Barton did not provide a table outlining the number of storeys prevalent in the neighbourhood. His data is based on the Committee of Adjustment decisions. Mr. Barton's opinion is that two-storeys is the prevailing number of storeys in the neighbourhood, although other storey types exist as well. Mr. Barton opined that the only way to determine whether dormers contain living space is to review a Committee of Adjustment decision or go into the house to see if there is living space. Mr. Barton opined that is difficult to obtain data to conduct a quantitative analysis of the number of storeys contained in dwellings in a neighbourhood. However, you can have a qualitative analysis where the observation of dormers can result in a structure appearing to be for example, three-storeys.

Mr. Fullgraf

29Mr. Fullgraf, a neighbour who stated he was appearing on behalf of the Lawrence Park Rate Payers Association, presented his participant witness statement, asserting that there was no attempt by the property owner to contact the neighbours to discuss the proposal, and that the first interaction occurred at the Committee of Adjustment. Mr. Fullgraf was happy to see changes to the proposal that was before the Committee of Adjustment, including the elimination of the need for the height variance. However, Mr. Fullgraf's perspective is that the corner on which the lot sits will be dominated by the proposed structure due to the large third floor windows. The proposed structure will change the street and be out of place.

30Mr. Fullgraf noted that the local City Councillor and seven neighbours filed letters in opposition to the proposal at the Committee of Adjustment, and no neighbours filed letters in support of the proposal. On cross-examination by Mr. Bronskill, Mr. Fullgraf agreed that the Committee of Adjustment decision was split 3-2, with the chair breaking the tie.

Mr. Hepburn

31Mr. Hepburn is another neighbour who stated he was appearing on behalf of the Lawrence Park Rate Payers Association. Mr. Hepburn gave his perspective that the entire plane of the south wall for each of the three floors is problematic, as there is no mitigation of the massing. Mr. Hepburn also provided his perspective that the livable third floor will result in privacy concerns, including views into the full bathroom and changing area on the second storey of his house, which is immediately south of the subject property. Mr. Hepburn's perspective is that the proposal would present as a three-storey structure and would negatively impact the neighbourhood.

Provincial Policy Statement, 2020 and Growth Plan for the Greater Golden Horseshoe

32Mr. Rendl opined that the proposal is consistent with the Provincial Policy Statement and conforms to the Growth Plan. Mr. Barton outlined in his Expert Witness Statement (Exhibit 7) that his land use planning evidence focuses on the specific minor variance tests set out in the Planning Act, and does not challenge the development proposal and requested minor variances within the context of consistency with the Provincial Policy Statement or conformity to the Growth Plan.

33Mr. Rendl opined that the Provincial Policy Statement is a high-level policy document that implemented at the local level through the City's Official Plan. Mr. Rendl opined in his Expert Witness Statement (Exhibit 3) that the proposed development:

• Promotes efficient development and land use patterns (PPS Policy 1.1.1(a));
• Promotes cost-effective development patterns and standards to minimize land consumption and servicing costs (PPS Policy 1.1.1(e));
• Is an efficient use of land (PPS Policy 1.1.3.2(a); and
• Efficiently uses the infrastructure and public service facilities which are available (PPS Policy 1.1.3.2(b).

34Mr. Rendl opined that the Growth Plan for the Greater Golden Horseshoe works in conjunction with the Provincial Policy Statement. It is a high level policy document that is implemented at the local level by the City Official Plan. Mr. Rendl cited the following provisions of the Growth Plan in his Expert Witness Statement (Exhibit 3), opining that the proposal conforms to the Growth Plan:

• Policies 2.2.1.2 a) and d) direct the majority of growth to settlement areas with existing or planned servicing infrastructure and supports the achievement of complete communities.
• Policy 2.2.1.4 supports the achievement of complete communities with a compact built form.
• Policy 2.2.2.3(c) encourages intensification generally throughout the delineated built-up area.
• Policy 2.2.2.3(f) states a municipality's intensification strategy will be implemented through the official plan.

35I do not feel it is necessary to review the cited provisions or these policies in detail in this decision as these documents are general in nature and provide the framework within which the Official Plan and Zoning By-Law operate. I accept that the proposal is consistent with the Provincial Policy Statement and Conforms to the Growth Plan.

Policy 4.1.5 of the Official Plan

36The Subject Property is designated Neighbourhoods in the City Official Plan. Policy 4.1.5 outlines Development Criteria for Neighbourhoods.

37Pursuant to Policy 4.1.5 of the Official Plan, both planners delineated an immediate context and broader context. Mr. Rendl had 389 properties in his geographic neighbourhood, with 38 properties located in the immediate context.

Geographic neighbourhood and immediate context delineated by Mr. Rendl. Picture from Tab 1, page 6, Exhibit 5: Document Disclosure of the Appellant received by the Tribunal on September 5, 2023.

38The immediate context is defined by Mr. Rendl to include:

• Properties that face the same street as the proposed development in the same block. This includes both sides of Buckingham Avenue from St. Ives Avenue/Wanless Avenue to Mildenhall Road, 99 to 144 Buckingham Avenue and 64 Mildenhall Road.
• Properties in the block opposite the proposed development. This includes 3 Bayview Wood which was included because like the Subject Property it also faces Mildenhall Road.

39Mr. Barton defined the immediate context to include 37 properties fronting onto the north and south sides of Buckingham Avenue between St. Ives Avenue and Mildenhall Road.

Immediate context delineated by Mr. Barton. Picture from Appendix D, page 615, Exhibit 7: Expert Witness Statement of Michael Barton received by the Tribunal on September 5, 2023.

Broader context delineated by Mr. Barton. Picture from Appendix D, page 614, Exhibit 7: Expert Witness Statement of Michael Barton received by the Tribunal on September 5, 2023.

40I accept Mr. Rendl's delineation of the geographic neighbourhood and the immediate context.

41The broader context determined by the two planners is consistent. Mr. Rendl defined the broader context to include Lawrence Avenue East on the north; St. Ives Crescent and St. Ives Avenue on the west; the north side of Dawlish Avenue on the south; and Bayview Avenue on the east.

42Mr. Barton defined the broader context to include the properties located within the RD (f18.0; a690) zone that includes the Subject Property and is generally bound by Lawrence Avenue East to the north, Dawlish Avenue to the south, Bayview Avenue to the east and St. Ives Avenue to the west.

43Mr. Rendl opined that there is no significant difference between the immediate, adjacent and broader contexts, considering that his entire neighbourhood study area consists of low-rise single-detached dwellings. Furthermore, Mr. Rendl opined that OP 4.1.5 requires that development be materially consistent with properties in both immediate and broader contexts.

44Mr. Barton's opinion is that there is a significant difference in character between the broader context and the immediate context area. His opinion is that there are differences in lot frontages and lot sizes, and scale of buildings. For example, the lots and dwellings on Teddington Park Avenue have a different character to the smaller lots and dwellings on Golfdale Avenue and Snowdon Avenue. Mr. Barton did admit on cross-examination that there is no significant difference between the physical structure of houses in the immediate and broader contexts. Mr. Barton opined that relevance should be placed on the physical characteristics of the immediate context.

45I find that there is no significant difference between the immediate and broader contexts. I find that the area consists of low-rise ground-related single-detached dwellings and that the immediate context cannot be considered independently from or preferred above and beyond the broader context.

46To draw the Neighbourhood boundary, the Official Plan lists nine criteria: "zoning; prevailing dwelling type and scale; lot size and configuration; street pattern; pedestrian connectivity; and natural and human-made dividing features". Below is an analysis of how I determined the neighbourhood boundary for this matter:

a. Lot Size and configuration, zoning: The geographic area contains lots with RD zoning. The lots largely contain low-rise ground-related single-detached dwellings. While there are some lots which have different configurations, such as on the east side of St. Ives Crescent, I do not find that this requires an emphasis on the immediate context over the broader context.

b. Pedestrian connectivity: The geographic neighbourhood is generally paved with sidewalks that allows for easy pedestrian access within the neighbourhood and to the dividing features of the neighbourhood outlined below.

c. Natural and human-made dividing features: This is a walkable neighbourhood with easy access to Lawrence Avenue East to the north and Bayview Avenue to the east. St. Ives Crescent to the West is a human-made dividing feature largely due to it being part of the former City of Toronto and having different Zoning By-law requirements, which includes the measurement of Floor Space Index.

d. Street pattern: There is no major difference in street patterns throughout the geographic neighbourhood. As noted above, the boundaries largely have natural and human-made dividing features.

ISSUES AND ANALYSIS

47I will now go through the four statutory tests and the findings of the Tribunal on each test.

48The key variance that was at issue in this hearing is the variance for a third storey in the proposed dwelling. I will review this variance first, followed by the remaining five variances.

Number of storeys – variance 3

3. Chapter 10.20.40.10(3)(A), By-law No. 569-2013

The permitted maximum number of storeys is 2.

The proposed number of storeys is 3.

Does the proposed variance maintain the general intent and purpose of the Official Plan?

49The Official Plan and its policies on land use, built form, and housing, require that new development respect and reinforce the character of the geographic neighbourhood and the immediate context and to ensure new development fits with the established character of the area.

50Mr. Rendl discussed various Official Policies, including: 2.3 Stable Not Static, 4.1.5 Neighbourhoods, 3.1.2 Built Form, and 3.2.1 Housing. While I accept Mr. Rendl's opinion regarding these Official Plan policies, my main focus in this decision will be on Official Plan policy 4.1.5.

51The Subject Property is designated Neighbourhoods in the Official Plan. The general intent and purpose of the Neighbourhoods designation is to maintain stable low-density neighbourhoods through compatible development.

52The Official Plan requires new development to respect and reinforce the physical character of the neighbourhood and establishes criteria in Section 4.1.5 to ensure new development fits with the character of the area. The relevant subsection for the third-storey variance is: 4.1.5(c) Prevailing heights, massing, scale, density and dwelling type of nearby residential properties.

53The Appellant is proposing to have a third storey of livable space within the dwelling. Mr. Rendl opined that the proposed dwelling is an appropriate development of the Subject Lands, and respects and reinforces the character of the area. Mr. Rendl's opinion was that existing detached dwellings range in height and scale between one and three storeys with a corresponding diversity of massing. Mr. Rendl also noted that the proposed 10 m building height complies with the Zoning By-law.

54Mr. Rendl provided the opinion that the proposed dwelling maintains the established and prevailing character of the geographic area by introducing a three-storey building design and aligning the proposed dwelling with dwellings on the abutting properties. Mr. Rendl's opinion is that the Zoning By-law does not regulate floor area through an FSI which indicates it is not the intent to regulate massing beyond standards like lot coverage, building height and setbacks from lot lines. Mr. Rendl noted that the floor area of the third storey of the proposed dwelling is accommodated within the sloped roof above the eaves.

55Mr. Rendl's opinion is that the building presents itself to the public realm as a two-storey dwelling with dormers rather than a dwelling with three true storeys or floors beneath a sloped or flat roof above. Mr. Rendl opined that this built form of dormers within a sloped roof is found elsewhere in the neighbourhood and is similar in appearance to the front elevations of other dwellings in the neighbourhood that have functional or ornamental dormers above the second storey including for example, the adjacent three-storey dwelling at 138 Cheltenham Avenue.

56Mr. Rendl's opinion is that the height, massing and scale of the proposed dwelling respect and reinforce the height, massing and scale of nearby residential properties as well as the existing physical character of the immediate and broader contexts.

57Mr. Barton opined that the proposed dwelling will not be of a similar scale or density as compared to the other dwellings in the geographic neighbourhood. The proposed third storey in conjunction with the other proposed variance, including building length, building depth, side yard setback, and lot coverage will all contribute to a scale and density of the new dwelling that does not respect or reinforce the prevailing character of the neighbourhood. Further, the Chapter 10.20.40.10 Height of the Zoning By-Law deals with both maximum height in metres and the maximum number of storeys in a building on a lot. Mr. Barton opined that these two items together function as a de facto regulation of the Gross Floor Area for a proposed dwelling within the Zoning By-law. There is no GFA or Floor Space Index regulation within this Chapter of the Zoning By-law. The idea of a de factor GFA regulation was argued for by Mr. Dexter in his closing argument on behalf of the City, along with Mr. Desson on behalf of the Lawrence Park Neighbourhood Association.

58Below are a series of three-dimensional drawings of the proposed development.

This drawing and the previous five three-dimensional drawings are from Tab 6, pages 85 – 90, Exhibit 5: Document Disclosure of the Appellant received by the Tribunal on September 5, 2023.

59Mr. Barton admitted on cross-examination that there was no substantive data provided for the GFA or FSI of other properties within the geographic neighbourhood. Mr. Rendl found 5 approvals for third storey variances in his research of Committee of Adjustment decisions for the geographic neighbourhood, and provided his opinion that there were an additional nine properties that are three-storeys based on his observations of the exterior of these properties and a review of other documents such as sales listings.

60Mr. Rendl opined that the proposed three-storey dwelling will be compatible and will fit in with the prevailing character of the geographic neighbourhood. Mr. Rendl opined that the proposal will result in a dwelling of similar massing and height of other properties in the geographic neighbourhood.

61Mr. Rendl's opinion is that the proposal with dormers in the sloped roof of the dwelling gives the appearance of a two-storey dwelling with elevations consistent with elevations found in other area dwellings, which may include dormers in their roofs. Mr. Rendl's opinion is that the conversion of the third storey floor area to attic space would not change how the dwelling looks from the street or its visual presentation.

62Mr. Barton opined that the proposed new three-storey dwelling will not be compatible and will not fit in with the prevailing character within the geographic neighbourhood, which is typically composed of one to two storey dwellings. I note that there was no table outlining the number of dwellings and their storeys in the geographic neighbourhood.

63The three-dimensional drawings above provide appropriate context for the proposal. I find that the proposed massing and density, in combination with the proposed building depth, building length, and all remaining requested variances are not over and above what is contemplated by the Official Plan.

64I find that the proposed third storey will result in a degree of massing that is compatible with and will fit in with the prevailing character within the geographic neighbourhood. Mr. Barton took the position that without the third-storey variance, he would still need to see the proposal to determine whether his planning opinion would agree that the structure would be compatible and fit in with the prevailing character of the geographic neighbourhood. Mr. Barton cited the proposed dormer windows on the third storey as one area of concern. However, the dormer windows are not an item which require a variance under this proposal. I agree with Mr. Rendl's opinion that the proposal will be compatible and fit in with the prevailing character of the geographic neighbourhood. The proposal maintains the general intent and purpose of the Official plan.

Does the variance maintain the general intent and purpose of the Zoning By-Law?

65Mr. Rendl opined that the general intent and purpose of regulating building height is to achieve dwellings with an appropriate scale and height from established grade. Mr. Rendl further opined that it is not the Zoning By-law's intent to further regulate massing and floor space beyond lot coverage, building height, and setback from lot lines. In other words, the FSI is not intended to be regulated by proxy through the use of the number of storeys in a dwelling.

66Mr. Rendl opined that the proposal complies with maximum building height and has a sloped roof that tapers on all sides. Mr. Rendl's opinion is that the proposed built form is consistent with the prevailing built form and character of dwellings in the neighbourhood which generally feature a sloped roof above one or two floors of living space, often with functional or decorative windows in the roof.

67Mr. Rendl provided his further opinion that the third storey floor area is accommodated entirely within the area of the sloped roof above the eaves, in what would otherwise be the attic. Mr. Rendl's opinion is that because the third-floor area is contained within the sloped roof, it has no impact on the exterior massing as the built form of the dwelling is the same regardless of whether there is livable floor area above the second storey beneath the roof. The Zoning-Bylaw does not regulate the number of storeys for a duplex, triplex, or fourplex, which can be constructed as-of-right on the subject property as a three-storey building within a 10.0 m maximum building height.

68Mr. Barton provided his opinion that there is a clear intent to regulate both linear height and number of storeys, and that an evaluation only of the linear height of the proposed dwelling relative to the surrounding neighbourhood is not adequate to demonstrate that the general intent and purpose of the Zoning By-law is met. Mr. Barton's opinion is that the intent of the two-storey regulation is to control the floor area and density and regulate the overall scale and intensity that can be constructed in conjunction with the other applicable regulations. Mr. Barton's opinion is that permitting a third storey will allow a floor area and density that is significantly greater than permitted through the as-of-right regulations. Mr. Barton is of the opinion that this outcome will be density and scale that is not contemplated under the Zoning By-law.

69I agree with Mr. Rendl that it is not the Zoning By-law's intent to further regulate massing and floor space beyond lot coverage, building height, and setback from lot lines. The general intent and purpose of regulating building height is to achieve dwellings with an appropriate scale and height from established grade. The structure has a scale and height that fits in with the geographic neighbourhood. I find that the proposal with a third storey meets the general intent and purpose of the Zoning By-law.

Is the variance desirable for the appropriate development or use of the land?

70The variance for a third storey is appropriate for the development of the Subject Property and area. The variance results massing in the that is consistent with neighbouring properties, and respects and reinforces the established and emerging building pattern in the geographic neighbourhood. The proposed third storey will result in development that is compatible with surrounding uses.

Is the variance minor?

71The proposed increased third storey will not facilitate development that is incompatible with the area. The increase in the number of storeys does not result in privacy and overlook impacts that are not minor and will not result in a built form that will adversely impact the use of the back yard amenity area for neighbours. Mr. Barton opined that there would be a privacy impact for the neighbours to the east across Mildenhall Road, and the neighbours to the south on Cheltenham Avenue. I do not agree with this opinion because the neighbours to the east are separated by a public road which accommodates vehicular and pedestrian traffic. In addition, there is a large distance between the proposed house and the dwelling on the property on Cheltenham Avenue.

72I find that the proposed third storey will not cause an impact which rises to the level of undue adverse impact. The variance requested is minor.

Conclusion

73I find that the third storey variance meets the requirements of section 45(1) of the Planning Act.

Building Length, Depth– variances 1 and 2

1. Chapter 10.20.40.20(1), By-law No. 569-2013

In the RD zone with a minimum required lot frontage of 18.0 metres or less, the permitted maximum building length for a detached house is 17.0 metres.

The proposed building length is 21.98 metres.

2. Chapter 10.20.40.30(1), By-law No. 569-2013

The permitted maximum building depth for a detached house is 19.0 metres.

The proposed building depth is 21.98 metres.

Do the proposed variances maintain the general intent and purpose of the Official Plan?

74Policy 4.1.5 requires that development in established Neighbourhoods respect and reinforce the existing physical character of the neighbourhood. The key criteria relevant to the consideration of the building length and depth variances is: 4.1.5(c) Prevailing heights, massing, scale, density and dwelling type of nearby residential properties.

75Mr. Rendl noted that the proposed 21.98 m building length and depth of the proposed dwelling are composed of the following components:

• 20.22 m dwelling length for the principal rooms and massing.
• 0.76 m bay windows extension beyond main front wall on the first and second floors facing Buckingham Avenue.
• 1.0 m one storey rear breakfast nook extension past the rear main wall.

76Mr. Rendl's opinion is that the majority of the dwelling's massing is accommodated within a 20.22 m building length. Mr. Rendl further opined that as shown on the site plan, the main rear wall of the proposed dwelling generally aligns with the rear of the adjacent dwelling at 141 Buckingham Avenue which was approved for a 20.93 m building length. Mr. Rendl's opinion is that the proposed length and depth respects and reinforces the existing physical character of the geographic neighbourhood.

77I find that the proposed building length and building depth for the proposed dwelling will fit with the established character of the area and will maintain the general purpose and intent of the Official Plan.

Do the variances maintain the general intent and purpose of the Zoning By-Law?

78Mr. Rendl opined that the general intent and purpose of regulating building length is to control the length of a dwelling from its front wall to the rear wall.

79Mr. Rendl opined that the general intent and purpose of regulating building depth is to control the extent to which a dwelling extends into the lot from the minimum required front yard setback.

80Mr. Rendl further opined that the general intent and purpose of both standards is to provide for a generally consistent pattern along the rear walls of dwellings.

81Mr. Rendl opined that there is a non-unform pattern of rear yard setbacks with existing dwellings in the immediate context, and that while the rear walls of neighbouring dwellings do not always align, the front yard setbacks generally adhere to the required minimum front yard setback resulting in a consistent street wall.

82Mr. Rendl's opinion is that most of the proposed dwelling's massing and living areas are located within a building length of 20.22 m which is 1.22 m greater than the Zoning By-law's 19 m maximum, and 0.32 m greater than the 19.9 m length of the current dwelling.

83Mr. Rendl's opinion is that the length and depth maintain the general intent and purpose of the Zoning By-law as they locate the proposed dwelling appropriately on the lot in relation to the adjacent dwelling at 141 Buckingham Avenue.

84Mr. Rendl noted that the subject property has a lot depth of 45.72 m, which is 8 metres deeper than the 38 metres lot depth that can be calculated from the Zoning By-law's minimum parameters for a lot. Mr. Rendl's opinion is that the deep open rear yard mitigates any perceived adverse impact of the additional building length and depth.

85Mr. Rendl outlined several properties which have similar building lengths including:

• 2 Bayview Wood – approximately 22 m
• 3 Bayview Wood – approximately 22 m
• 141 Buckingham Avenue – 20.93 m (20.93 m building depth)
• 144 Buckingham Avenue – 19.75 m
• 138 Cheltenham Avenue – 19.45 m (20.20 m building depth).

In addition, The City's measuring tool returned a building length of 22.6 m for 2 Bayview Wood and 22.8 m for 3 Bayview Wood. While there are limitations with the City's base mapping tool, I find that this measurement is useful for showing the approximate length of these two properties.

86I find that the building length and depth will maintain the general intent and purpose of the Zoning By-Law.

Are the variances desirable for the appropriate development or use of the land?

87I find that the building length and depth variances are appropriate for the development of the Subject Property. The variances respect and reinforce the established building pattern in the area, and do not result in an overdevelopment of the site. I accept Mr. Rendl's opinion that the building length and building depth of the proposed dwelling are consistent with buildings in the immediate context.

Are the variances minor?

88I find that the proposed building length and building depth are consistent with the buildings on the abutting properties and in the broader context and do not create undue adverse impacts. The proposed building length and building depth variances are minor.

Conclusion

89I find that the building length and depth variances meet the requirements of section 45(1) if the Planning Act.

Building Lot Coverage – variance 5

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

The permitted maximum lot coverage is 35 percent of the lot area.

The proposed lot coverage is 37.9 percent of the lot area.

Does the proposed variance maintain the general intent and purpose of the Official Plan?

90Policy 4.1.5 requires that development in established Neighbourhoods respect and reinforce the existing physical character of the neighbourhood. It states proposed development within a Neighbourhood will be materially consistent with the prevailing physical character of properties in both the immediate and broader contexts.

91Policy 4.1.5 has no explicit criteria for lot coverage. Mr. Rendl chose and I accept 4.1.5(f) Prevailing setbacks of buildings from the street, and 4.1.5(g) Prevailing patterns of rear and side yard setbacks and landscaped open space, as proxies since they deal with setbacks and open space which are determinants and components of lot coverage.

92Mr. Rendl noted that the footprint of the proposed dwelling covers 37.9% of the lot, and that the additional 2.9 % of lot coverage above the Zoning By-law standard is equivalent to 20 m² of the lot's 696.7 m² area. Mr. Rendl's opinion is that the 2.9% additional lot coverage above 35% is minor and not of a scale or magnitude that materially reduces or impacts the amount of open space on the lot available for landscaping and outdoor amenity in the front or rear yard areas.

93Mr. Rendl opined that the Official Plan permits a garden suite which could alone be a further 8.6% of the lot's coverage in addition to a dwelling with 35% lot coverage. Mr. Rendl also noted that the rear yard setback is approximately 15.96 m, which is greater than the 11.43 m minimum rear yard setback. The rear yard is approximately 243 m² in area or 35% of the area of the lot. Mr. Rendl opined that the 37.9% lot coverage maintains an open and spacious character on the Subject Property that is consistent with prevailing patterns of open space in the area, and that the proposed lot coverage maintains the general intent and purpose of the Official Plan

94I find that the requested lot coverage maintains an appropriate amount of open space on the property and is appropriate for the subject property and compatible with development in the geographic neighbourhood. It maintains the general intent and purpose of the Official Plan.

Does the variance maintain the general intent and purpose of the Zoning By-Law?

95The general intent and purpose of lot coverage regulations in the Zoning By-law is to ensure that there is a sufficient amount of undeveloped area on a lot in order to accommodate adequate landscaping space, along with front and rear yard outdoor amenity areas.

96Mr. Rendl's opinion is that the proposed 37.9% lot coverage maintains the general intent and purpose of the Zoning By-law because the proposed dwelling's footprint on the lot at grade corresponds with the area of the lot defined by the required setbacks from the front and rear lot lines and the prevailing pattern of 1.2 m side yard setbacks of dwellings in the immediate vicinity. There is no variance being sought for the required percentage of soft landscaping. Mr. Rendl further opined that the proposed lot coverage maintains generous open areas on the lot for outdoor amenity space in the front and rear yards, consistent with prevailing open space patterns in the neighbourhood.

97I find that the requested lot coverage maintains an appropriate amount of open space on the property and is appropriate for the subject property and compatible with development in the geographic neighbourhood. It maintains the general intent and purpose of the Zoning By-law.

Is the variance desirable for the appropriate development or use of the land?

98I find that the increases in building lot coverage is desirable for the orderly development of the Subject Property and area. The proposed building lot coverage will be compatible with the surrounding area as there is no variance being sought for the required percentage of soft landscaping, and the proposed lot coverage maintains generous open areas on the lot for outdoor amenity space in the front and rear yards, consistent with prevailing open space patterns in the neighbourhood. The building lot coverage variance is compatible with and fits with the immediate context and the broader context.

Is the variance minor?

99The intent of regulating the lot coverage is to is to ensure that there is a sufficient amount of undeveloped area on a lot in order to accommodate adequate landscaping space and outdoor amenity space. The intent is also to help maintain a consistent scale of development within a given neighbourhood. For the proposed dwelling, there is no variance required for the front yard setback or rear yard setback. There is also no variance required for the percentage of soft landscaping.

100I find that the proposed lot coverage is minor and will facilitate development that is compatible with the area. The lot coverage will not result in an undue adverse impact for the neighbours or the geographic neighbourhood.

Conclusion

101I find that the requested building lot coverage variance meets the requirements of section 45(1) if the Planning Act.

Side Yard Setback – Variance 4

4. Chapter 10.20.40.70(3)(E), By-law No. 569-2013

The required minimum side yard setback is 1.8 metres where the required minimum lot frontage is 18.0 metres to less than 24.0 metres.

The proposed side yard setback is 1.2 metres at east and west side.

Does the proposed variance maintain the general intent and purpose of the Official Plan?

102Policy 4.1.5 requires that development in established Neighbourhoods respect and reinforce the existing physical character of the neighbourhood. I consider the following criteria relevant to the consideration of the side yard setback variance: 4.1.5(f) Prevailing setbacks of buildings from the street; and 4.1.5(g) Prevailing patterns of rear and side yard setbacks and landscaped open space.

103Mr. Rendl provided evidence regarding the following properties in the immediate context:

• The adjacent corner lot to the south at 138 Cheltenham Avenue has a 0.72 m side yard setback from Mildenhall Road which was approved in 2016.
• 144 Buckingham Avenue is at the north-west corner of Mildenhall Road. It has a 1.2 m side yard setback from Mildenhall Road for the new dwelling approved in 2010.
• 141 Buckingham Avenue is immediately to the west and had a 1.2 m side yard setback approved.

Mr. Rendl opined that the proposed 1.2 m east side yard setback on the Subject Property from Mildenhall Road is consistent with the prevailing pattern of side yard setbacks in the immediate vicinity which in recent years have received approval for side yard setbacks on Mildenhall Road of 1.2 m or less.

104Mr. Rendl noted that the proposed 1.2 m west side yard setback is the same as the 1.2 m side yard setback approved for the adjacent dwelling at 141 Buckingham Avenue. Mr. Rendl opined that side yard variances approved on Buckingham Avenue range from 0.8 m to 1.23 m. Mr. Rendl provided his opinion that the most frequently approved side yard setback in the immediate and broader contexts is 1.2 m.

105Mr. Rendl opined that the proposed 1.2 m setback from the west side lot line maintains prevailing pattern of side yard setbacks and separation of dwellings from their side lot lines found in the immediate vicinity.

106I find that the requested side yard setbacks maintain an appropriate separation between the side yard of the proposed dwelling and the property immediately to the west, and between the side yard and the boulevard to the east. These setbacks are consistent with other setbacks in the geographic neighbourhood, and maintain the general intent and purpose of the Official Plan.

Does the variance maintain the general intent and purpose of the Zoning By-Law?

107The general intent and purpose of side yard setback regulations is to provide an appropriate separation between the side wall of a dwelling and the side lot lines of adjacent properties and dwellings. The side yard setback also functions to ensure there is sufficient space for residents to move between the front and rear yards and conduct maintenance.

108The 1.2 m setback for the east side yard is adjacent to Mildenhall Road, as the subject property is a corner lot. The public street is roughly 6.0 m wide between the side lot line and the pavement. Mr. Rendl opined, and I accept that the boulevard space mitigates any potential impact from the 0.6 m reduction in the east side yard reduction in the minimum side yard setback.

109Mr. Rendl provided that side yard setbacks for other properties in the immediate context include a 1.2 m east side yard setback at 144 Buckingham Avenue and a 0.72 m east side yard setback on Mildenhall Road at 138 Cheltenham Avenue which also has a reduced 1.08 m west side yard setback. Mr. Rendl opined that the COA and TLAB routinely approve 1.2 m side yard setbacks. In addition, for a property with a minimum frontage of 12.0 m to less than 15.0 m, the minimum side yard setback is 1.2 m. For a property with 15.0 m to less than 18.0 m frontage, the minimum side yard setback is 1.5 m. The property has a frontage of 15.24 m.

110I find that the requested side yard setbacks maintain an appropriate separation between the side yard of the proposed dwelling and the property immediately to the west, and between the side yard and the boulevard to the east. These setbacks are consistent with other setbacks in the geographic neighbourhood, and maintain the general intent and purpose of the Zoning By-law.

Is the variance desirable for the appropriate development or use of the land?

111I find that the decreases in the side yard setback are desirable for the orderly development of the subject lands and area. The proposed east side yard setback fronts on Mildenhall Road which is a public boulevard. There is no undue impact from this set back. The proposed west side yard setback is consistent with other lots in the immediate and broader contexts. I find that the side yard setback variance is compatible with and fits in with the immediate and broader contexts.

Is the variance minor?

112I find that the proposed side yard setbacks are minor and will facilitate development that is compatible with the area. The east side yard setback faces a public boulevard. The west side yard setback is consistent with other side yard setbacks in the neighbourhood. The decrease in the side yard setbacks will not result in an undue adverse impact for the neighbours and will not have undue adverse streetscape impacts.

Conclusion

113I find that the side yard setback variance meets the requirements of section 45(1) of the Planning Act.

Vehicle Access – variance 6

6. 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 Buckingham Ave.

Does the proposed variance maintain the general intent and purpose of the Official Plan?

114This variance arises due to the decision taken for the proposed dwelling, which is on a corner lot, to have the garage and driveway access being on Buckingham Avenue, rather than the flanking street which is Mildenhall Road.

115Policy 4.1.5 requires that development in established Neighbourhoods respect and reinforce the existing physical character of the neighbourhood. The following criteria is relevant to the vehicle access variance: 4.1.5(e) Prevailing location, design and elevations relative to the grade of driveways and garages.

116Mr. Rendl provided his opinion that the proposed driveway location on Buckingham Avenue fits the prevailing pattern and location of driveways on Buckingham Avenue, including 144 Buckingham Avenue immediately across the street which also flanks on Mildenhall Road.

117Mr. Rendl noted that the driveway is 6.84 m west of the Subject Property's east lot line and an additional 5.5 m from the pavement of Mildenhall Road. Mr. Rendl opined that the location of the driveway on Buckingham Avenue will not interfere with traffic operations on Buckingham Avenue. Mr. Rendl also opined that locating the driveway on Buckingham Avenue removes it from potential conflict with the greater amount of through traffic on Mildenhall Road as well as conflict with the pedestrian/bicycle lane on the southbound lane of Mildenhall Road on the west side of the street and adjacent to the Subject Property.

118I find that the proposed vehicle access variance respects and reinforces the established pattern of garage and driveway access in the immediate context and geographic neighbourhood. The proposed driveway access from Buckingham Avenue maintains the general intent and purpose of the Official Plan.

Does the variance maintain the general intent and purpose of the Zoning By-Law?

119This variance arises due to the proposed the garage and driveway access being located off of Buckingham Avenue, rather than the flanking street which is Mildenhall Road.

120As noted above, locating the driveway on Buckingham Avenue removes it from potential conflict with the greater amount of through traffic on Mildenhall Road as well as conflict with the pedestrian/bicycle lane on the southbound lane of Mildenhall Road.

121The location of all driveways on the lots fronting onto Buckingham Avenue is on Buckingham Avenue. The proposed driveway location fits this prevailing pattern and location of driveways on Buckingham Avenue.

122Similar variances were approved for other corner lots within the geographic neighbourhood including 99 Buckingham Avenue and 103 Rochester Avenue. I note that 144 Buckingham Avenue which is directly across the street from the Subject Property is also a corner lot and it also has its driveway on Buckingham Avenue rather than the flanking street Mildenhall Road

123I find that the proposed driveway access from Buckingham Avenue maintains the general intent and purpose of the Zoning By-law.

Is the variance desirable for the appropriate development or use of the land?

124The proposed vehicle access variance is desirable for the orderly development of the Subject Property and area. The driveway access on Buckingham Avenue removes the driveway from the greater amount of through traffic on Mildenhall Road and avoids any potential conflicts with the pedestrian/bicycle lane on the southbound lane of Mildenhall Road.

125The proposed vehicle access from Buckingham Avenue is desirable for the orderly development of the Subject Property, and represents a compatible built form for the geographic neighbourhood.

Is the variance minor?

126I find that the vehicle access variance will create a compatible and similar built form with other properties in the immediate context. All the lots fronting Buckingham Avenue have driveways on Buckingham Avenue.

127The proposed vehicle access variance is minor and will not cause an impact which rises to the level of undue adverse impact.

Conclusion

128I find that the vehicle access variance meets the statutory test to be considered a minor variance pursuant to section 45(1) if the Planning Act.

CONCLUSION

129I find that each of the variances individually and cumulatively, meet the four statutory tests for a minor variance outlined in section 45(1) of the Act.

DECISION AND ORDER

130The appeal is allowed, in part, and the variances detailed in paragraph 15 are approved, subject to the following conditions:

a. The building length and building depth be developed in accordance with the site plan drawing from Thomas Marzotto, Architect, with the TLAB Revisions dated August 2023, included in the Applicant's Disclosure (Exhibit 2).

b. Submission of a complete application for a permit to injure or remove a City owned tree(s), as per City of Toronto Municipal Code Chapter 813, Trees Article II Trees on City Streets.

c. Submission of a complete application for a permit to injure or remove a privately owned tree(s), as per City of Toronto Municipal Code Chapter 813, Trees Article III Private Tree Protection.

T. Kezwer Panel Member