Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9
File: 24 127212 S45 13 TLAB
FINAL DECISION AND ORDER
Issuance Date: November 25, 2024
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): C. BEINTEMA
Applicant(s): DAN HUTCHINSON INTERIOR DESIGN
Property Address: 40 NASMITH AVE
COA File No.: 23 212790 STE 13 MV (A0887/23TEY)
TLAB Case File No.: 24 127212 S45 13 TLAB
Hearing Date(s): October 30, 2024
Decision Delivered By: TLAB Panel Member A. Brown
REGISTERED PARTIES AND PARTICIPANTS:
| People Type | First Initial. Last Name | Representative |
|---|---|---|
| Appellant | C. BEINTEMA | DAN HUTCHINSON INTERIOR DESIGN |
| Applicant | DAN HUTCHINSON INTERIOR DESIGN | |
| Participant | B. CONNELL | |
| Participant | B. ERAMO | |
| Participant | G. BLOEM | |
| Participant | J. PETTIGREW | |
| Participant | V. BRCIC | |
| Participant | M. POTVIN | J. GUSPIE |
| Participant | L. HUNTER | J. GUSPIE |
| Participant | L. WARREN | J. GUSPIE |
| Participant | D. HARRISON | |
| Party (TLAB) | M. VOYSEY | |
| Party (TLAB) | J. GUSPIE | |
| Party (TLAB) | V. BOSHEVSKI |
INTRODUCTION AND CONTEXT
1This Appeal was heard on October 30, 2024, by way of a virtual Hearing.
2Parties in attendance were:
The Appellant, Christena Beintema, owner of 40 Nasmith Avenue
Dan Hutchinson Interior Design, Applicant
M. Voysey
J. Guspie
V. Boshevski
Participants in attendance were:
B. Jean Connell
B. Eramo
G. Bloem
J. Pettigrew
V. Brcic
M. Potvin
L. Hunter
L. Warren
D. Harrison
3The subject property is designated as "Neighbourhoods" in the City of Toronto (City) Official Plan (OP) and is zoned R (d1.0) (x851) in the City-wide Zoning By-law 569-2013.
4The Appellant's Notice of Appeal seeks four variances:
Chapter 10.5.40.60.(1) C), By-law No. 569-2013 A platform without main walls, attached to or less than 0.3 metres from a building, with a floor no higher than the first floor of the building above established grade may encroach into the rear yard setback 2.5 metres if it is no closer to a side lot line than 0.94 metres. The proposed platform encroaches 3.05 metres into the rear yard setback.
Chapter 10.5.40.60.(3) A), By-law No. 569-2013 Exterior stairs providing pedestrian access to a building or structure may encroach into a required building setback if the stairs are no wider than 2.0 metres. The proposed stairs encroach into the rear yard setback and are 2.82 metres wide.
Chapter 10.10.40.70.(2) By-law No. 569-2013 The required minimum rear yard setback is 7.5 metres. The proposed variance for the 2 storey rear addition is 5.41 metres.
Chapter 200.5.10.1.(1), By-law No. 569-2013 The required minimum number of parking space(s) for the existing single-family dwelling is 1 space. The proposal will have 0 spaces.
5The Applicant's application to the Committee of Adjustment did not accurately summarize the variances that she was seeking. However, the proposed site plan and drawings, and the Zoning Examiner's Notice, were filed at the Committee of Adjustment and clearly identified the four proposed variances. They are unchanged in this Appeal, In my opinion, a new Notice is not required pursuant to s.45 (18.1.1) of the Planning Act.
6The application and requested variances were refused by the Committee of Adjustment (COA) on March 5, 2024, and the Appellant filed a Notice of Appeal dated March 18, 2024, with the TLAB, which set a Hearing date for October 30, 2024, to hear the matter.
THE LEGISLATIVE AND POLICY FRAMEWORK
7Provincial Interest - S. 2
A decision of the Toronto Local Appeal Body (TLAB) shall have regard to, among other matters, matters of provincial interest, enumerated as (a) – (s) in the Planning Act.
8Provincial Policy – S. 3
A decision of the Toronto Local Appeal Body (TLAB) must be consistent with the new Provincial Planning Statement (2024) for the subject area.
9Variance – S. 45(1)
In considering applications for variances from the Zoning By-laws, the TLAB Panel must be satisfied that the applications meet all of the four tests under s. 45(1) of the Act. The tests are whether the variances:
- maintain the general intent and purpose of the Official Plan;
- maintain the general intent and purpose of the Zoning By-laws;
- are desirable for the appropriate development or use of the land; and
- are minor.
SUMMARY OF EVIDENCE
10All of the evidence and testimony in this matter has been carefully reviewed and the omission of any point of evidence in this summary should not be interpreted to mean that it was not fully considered, but rather that the recitation of it is not material to the analysis that will be outlined below.
11At the Hearing, the Parties and Participants requested that the TLAB enter twelve (12) Exhibits into the record and each was so marked.
12Pursuant to City Council's direction, I advised that I had visited the subject site prior to the Hearing and familiarized myself with the surrounding neighbourhood. My observations are not evidence, but they assist me in understanding the evidence and submissions. I also familiarized myself with the materials filed in this matter, in advance of the Hearing.
13There were two preliminary matters to be addressed before hearing the evidence.
14By Order of the TLAB issued on June 20, 2024, the Hearing originally scheduled for July 9, 2024, was adjourned at the request of Party Guspie in order that she could retain an expert. A new Notice of Hearing was subsequently issued by the TLAB on October 7, 2024. Several Parties and Participants subsequently filed their Elections and Witness Statements, and these were marked "late" by the TLAB. However, as permitted by the Tribunal's Rules, I accepted the filings.
15In doing so, I note that the Parties and Participants were granted appropriate time to respond and, in doing so, I find that they were not prejudiced. Moreover, there were no objections raised.
16A second preliminary matter was raised by way of a Notice of Motion filed by Party Guspie for consent to file late an Expert Witness Statement from Dr. Gary Davidson. This Motion was received by the TLAB on October 21, 2024.
17The Appellant did not file an objection or response to the Motion, and there were no objections raised at the Hearing. Party Guspie had originally obtained an adjournment in order to obtain an Expert Witness Statement, and the Appellant was therefore apprised that such a document would be forthcoming.
18As a result, I allowed the Motion and permitted Dr. Davidson's Expert Witness Statement to be entered into the record at the Hearing.
The Appellant's Evidence
19Dan Hutchinson (Dan Hutchinson Interior Design), the Authorized Representative, appeared at the Hearing on behalf of the Appellant/Owner, Christena Beintema.
20Mr. Hutchinson, the sole witness for the Appellant, did not assert that he has any expertise in land use planning. This being the case, the TLAB does not accept his opinion on matters of land use planning or the four tests in s. 45(1) of the Planning Act.
21In his testimony, Mr. Hutchinson focussed almost entirely on the issue of the encroachment of the proposed addition into the rear yard setback. He explained that the planned addition to the rear of the existing dwelling would be comprised of a two-storey extension, with a roof sloping down to a one-storey extension.
22Mr. Hutchinson testified that the City's Heritage Department had advised the Appellant that she could not enclose the open front porch on her dwelling in order to use that space to expand the living area. Given this restriction, the Appellant wishes to expand into the rear yard, instead. Mr. Hutchinson testified that several dwellings on Nasmith Avenue have enclosed front porches, including houses at numbers 2, 8, 9,10,11, 20 and 22.
23Mr. Hutchinson testified that dwellings on various other streets in the Cabbagetown neighbourhood were permitted to encroach into the rear yard setback in varying amounts. He asserted that these streets include Carleton Street, Sackville Street, Gerrard Street, Sumach Street, Spruce Street, Winchester Street, Wellesley Street and Geneva Street. He further asserted that 39 Nasmith Avenue and 24 Nasmith Avenue had reduced rear yard setbacks.
24No details were provided by the Appellant as to the circumstances of how these encroachments occurred, whether by an approved variance or otherwise.
25The focus of Mr. Hutchinson's testimony was on the issue of adverse impacts and whether or not the proposed variances for the addition are "minor", particularly in respect of possible impacts related to shadows and privacy/overlook due to the proposed addition.
26Mr. Hutchinson testified that the two-storey portion of the addition extends the building into the rear yard by 3.353 metres, with a height of 6.782 metres. He asserted that this portion complies with the Zoning By-law, and any shading onto adjoining properties is therefore "irrelevant". The one-storey portion, which extends the addition further into the rear yard by 2.134 metres, has a sloped roof and its height varies from 3.442 to 4.706 metres.
27In his opinion, the amount of shade from the one-storey extension onto the neighbouring properties would be "negligible".
28Regarding the issue of privacy, Mr. Hutchinson testified that a 2-metre fence (if built) would effectively block off half of the glazing in the openings across the back of the one-storey extension, in addition to blocking sunlight. In addition, the design does not have a flat roof, eliminating the possibility of a roof deck that could affect the neighbours' privacy. He stated that the one-storey design was developed with the neighbours' privacy and sunlight in mind.
The Evidence of the Opposing Parties
29Party Voysey called Dr. Gary Davidson to give expert testimony. Dr. Davidson filed an Expert Witness Statement (Form 14), to which he referred during his testimony.
30In light of his extensive expertise as a Land Use Planner, I qualified Dr. Davidson to provide expert opinion evidence at the Hearing.
31Dr. Davidson began by showing a map of Nasmith Avenue and Gifford Street. Dwellings on the east side of Gifford Street back onto the dwellings on the west side of Nasmith Avenue. The area is designated "Neighbourhoods" in the City of Toronto Official Plan.
32The general policy for "Neighbourhoods" is found in Section 2.3 of the Official Plan. This Policy states:
"Neighbourhoods are low rise and low density residential areas that are considered to be physically stable. Development in Neighbourhoods will be consistent with this objective and will respect and reinforce the existing physical character of buildings, streetscapes and open space patterns in these areas." (Policy 1)
33Dr. Davidson also explained that other policies in the Land Use Designation Chapter of the Official Plan (Chapter 4) in section 5 are also relevant. The Official Plan states that development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including in particular: patterns of streets, blocks and lanes, parks and public building sites; prevailing heights, massing, scale, density and dwelling type of nearby residential properties; and prevailing patterns of rear and side yard setbacks and landscaped open space.
34In addition, Official Plan Policy 8 states:
"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."
35Dr. Davidson stated that, in his expert opinion, the proposed development does not maintain the general intent of these Official Plan policies because "the addition is too large and encroaches into the rear yard too much".
36Dr. Davidson testified that the Zoning By-law sets the standards required by the Official Plan. In his view, the Appellant's proposed changes are "substantial" and "are the type of development that the Zoning By-law standards aim to prevent."
37The map filed with the Expert Witness Statement shows the block bounded by Spruce St., Nasmith Ave., Gerrard St. E., and Gifford St. Dr. Davidson explained that this a fully developed block with old established residences built in the early 1900's. Not one of the dwellings in the immediate vicinity of 40 Nasmith Ave. on either Nasmith Avenue or Gifford Street protrudes into the rear yard as much as the proposed addition at 40 Nasmith Ave.
38Dr. Davidson stated that rear space is important to residents with houses on small lots both in this block, and other stable neighbourhoods. "Rear yards are an extension of the living space and provide much needed open space for ground water infiltration." Moreover, the proposed variance for the addition would negatively impact the neighbours' properties "through visual intrusion and loss of light for landscapes and gardens."
39Dr. Davidson concluded that the proposed development does not maintain the general intent and purpose of the Zoning By-law. Moreover, he stated that, given the potential impact on the neighbours, the proposed development cannot be considered desirable.
40Dr. Davidson testified that the requested variances to the rear yard setback are not minor in that they would remove approximately half of the required rear yard if one considers the addition to the building along with the stairs and platform.
41Further, he stated that "as the addition is mostly 2 storeys in height, its impact on the surrounding neighbours is not minor." Dr. Davidson stated that his examination of the Map filed with his Expert Witness Statement did not reveal any intrusions into the 7.5 metre rear yard setback by any of the properties on the west side of Nasmith Avenue.
42Dr. Davidson concluded that in his opinion, the proposed development does not satisfy any of the four tests in section 45(1) of the Planning Act.
43Party Voysey testified that she resides at 44 Nasmith Avenue. She objects to the proposed extension because it would result in the loss of "light and sunlight" reaching her neighbour's property at 42 Nasmith Avenue and reaching the small addition at the rear of her own property, where she eats and works. Further, she asserted that the extension would result in a loss of the visual connection with neighbours. In her view, the proposed extension would be "excessive" and out of character with the neighbourhood. Moreover, the windows in the addition would overlook the neighbours to the south, at 38 Nasmith Avenue, affecting their privacy. Party Voysey also asserted that the proposed deck would be intrusive. Photographs of the rear yards between Nasmith Avenue and Gifford Street were provided by Party Voysey, whose Witness Statement was admitted as Exhibit 6.
44Party Guspie occupies 42 Nasmith Avenue. Her dwelling is semi-detached and is attached to the north side of the subject property. She has lived there since 1986, and stated that she takes great pleasure from gardening, looking out of her rear windows, and sitting at the rear of her dwelling enjoying the garden and sunlight. She strongly opposes the proposed extension because it would block the sunlight for much of the day. The windows in the extension and the height of the deck would also result in a "total loss" of her privacy. Party Guspie also testified that the proposed extension would isolate her from her neighbours and friends. Her Witness Statement was admitted as Exhibit 7.
45Party Guspie asserted that it is important to take into account the overall size of the property. The one-storey extension is not negligible on a small property like 40 Nasmith Avenue, and would mean losing "almost all of the backyard greenspace". In her view, it is not minor. Further, she submitted that the variance to the rear yard setback is not desirable for the development or use of the land, as it is incompatible with the established uniform building style and character of the street. Accordingly, in her view, it does not maintain the general intent of the Zoning By-law or the Official Plan.
46Party Boshevski owns the property at 39 Gifford Street, adjacent to the west (rear) lot line of the subject property. He asserted that the proposal does not align with or maintain the intent of the Zoning By-law or the Official Plan. The proposed changes would bring the dwelling "extremely close to the back yard and west lot line, causing a substantial impact on privacy". The distance from the west lot line to the dwelling would be only 5.4 metres, compared to the current 11 metres. He asserted that the stairs and landing would encroach an additional 1.92 metres toward the rear lot line. The patio would come as close as 0.991 metres from the west lot line. In his view, this represents a significant impact of privacy and a "significant breach" of the Zoning By-laws. He stated that no other property in the neighbourhood comes as close to the rear lot line, and the variances, if approved, would set a significant precedent, "almost eliminating the distance between dwellings". Party Boshevski showed photographs of rear yards between Gifford Street and Nasmith Avenue, attached to his Witness Statement (Exhibit 8).
The Evidence of the Participants
47Participant Harrison testified in opposition to the Appeal. He resides at 46 Nasmith Avenue. In his view, the proposed variances would, if approved, change the character of the neighbourhood, eliminate gathering spaces and reduce light for neighbouring properties and that this should not be considered "minor". His Witness Statement was admitted as Exhibit 5.
48Participant Connell resides at 37 Gifford Street, backing onto the adjacent property of 40 Nasmith Avenue. She stated that the proposed development is too large and comes too close to the rear lot line. The lots on Nasmith Avenue and Gifford Street are small. She is concerned that allowing the variance would affect the residents' sunlight, green space, environment, privacy, atmosphere and community.
49Participant Eramo resides at 38 Nasmith Avenue, next door to the subject property. He provided photographs of rear yards between Gifford Street and Nasmith Avenue, and these were admitted as Exhibit 10, along with his Witness Statement (Exhibit 9). Mr. Eramo stated that he is opposed to the encroachment into the rear yard setback. His rear yard would be overlooked by the south-facing windows in the extension.
50Participant Pettigrew resides at 32 Nasmith Avenue. She stated that the proposed addition would affect the sunlight on the neighbours' properties and is "overbuilding" for such a small lot. Her witness statement was admitted as Exhibit 11.
51Participant Brcic lives on Gifford Street, north of the subject property. She stated that the houses on Gifford Street and Nasmith Avenue are unique in that they were constructed two or three decades later than the rest of Cabbagetown. This grouping of houses is commonly referred to as "workers' cottages". She asserted that the proposed addition would be larger than any other extension in the area, and out of character with the other dwellings.
52Participants Warren, Potvin and Hunter had belatedly filed Authorized Representative (Form 5) forms, authorizing Party Guspie to speak on their behalf. Ms. Guspie read out their Witness Statements, which are not evidence in this Hearing. Participant Connell asked to speak on behalf of Participant Bloem, who was not present at the time. This was denied as she was not Mr. Bloem's Authorized Representative.
ISSUES AND ANALYSIS
53The issue in this matter is whether the Tribunal should allow the Appeal and approve the four requested variances.
54A hearing before the TLAB is a hearing 'de novo' under s.45(18) of the Planning Act (Act), meaning the entire application that was before the Committee of Adjustment must be considered anew.
55The burden is on the Appellant to prove her case and to satisfy the Tribunal that the application before it meets the four statutory tests mandated by s.45(1) of the Act. That is, do the variances maintain the general intent and purpose of the Official Plan and the Zoning By-law? Are they desirable for the appropriate development or use of the land? Are they minor in nature?
56A variance is a privilege and not a right, and a variance will not be approved if it fails to meet all four tests.
57The Appellant must satisfy her onus by producing evidence. Evidence may include, for example, oral testimony, expert testimony, records, photographs, and drawings. The reliability and probative value of evidence is considered and weighed by the Member hearing a matter before the TLAB. Documents, such as the drawings and plans, are evidence when they are identified for the Tribunal and accepted as an exhibit. The arguments made by a Party or Participant are not evidence. Rather, their important function is to explain a position and to persuade the Tribunal how it should interpret the evidence.
58Has the Appellant satisfied her onus in this Appeal? In my view, she has not.
59The Provincial Planning Statement (2024)
60The Tribunal must have regard to the matters of provincial interest enumerated in section 2 of the Planning Act, and its decision must be consistent with the 2024 Provincial Planning Statement (PPS). The policies in this document are not of assistance in making a decision in respect of the proposed variances which pertain to a single lot in an established urban area.
61General Intent and Purpose of the Official Plan
62As mentioned, the onus is on the Appellant to satisfy the Tribunal that the requested variances maintain the general intent and purpose of the Official Plan. The Official Plan addresses, among other things, the need to respect open space patterns and prevailing patterns of rear yard and side yard setbacks and landscaped open space in neighbourhoods. As stated by Dr. Davidson, the Policy in respect of Neighbourhoods specifically states that:
"Neighbourhoods are low rise and low density residential areas that are considered to be physically stable. Development in Neighbourhoods will be consistent with this objective and will respect and reinforce the existing physical character of buildings, streetscapes and open space patterns in these areas."
63The Official Plan also states:
Chapter Four Policy 5.
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;
(f) continuation of special landscape or built-form features that contribute to the unique physical character of the geographic neighbourhood; and
(g) conservation of heritage buildings, structures and landscapes.
64In addition, Official Plan Policy 8 states:
"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."
65Having no planning or land use expertise, Mr. Hutchinson was not qualified to provide an expert opinion on the proposed variances in relation to the intent and purpose of the Official Plan and Zoning By-law.
66Dr. Davidson was the only person qualified by the TLAB to provide professional planning opinion evidence and his evidence was uncontroverted. I agree that the relevant "neighbourhood" for considering physical character is not the larger Cabbagetown area, but rather the block consisting of Nasmith Avenue and Gifford Street. The dwellings on these streets were constructed later than those prevailing in Cabbagetown and are uniform in physical character, almost all semi-detached, with small rear yards.
67Dr. Davidson testified that the proposed development does not maintain the general intent and purpose of the Official Plan. In particular, the size of the proposed encroachment is "too large" and does not reflect the prevailing character of the neighbourhood.
68According to Dr. Davidson, no dwelling in the immediate vicinity of 40 Nasmith Ave. on either Nasmith Avenue or Gifford Street protrudes into the rear yard as much as the proposed addition at 40 Nasmith Ave. As best as he could determine, drawing a line along the City map showing the rear setback of 7.5 metres, no dwelling encroached into the setback. Dr. Davidson stated that two "structures" (at 22 and 24 Nasmith Avenue) may intrude over the setback line, but it is not clear from the map.)
69I am satisfied, based on Dr. Davidson's evidence, and City map itself, that there is an open space rear corridor between Nasmith Avenue and Gifford Street in the vicinity of 40 Nasmith Avenue, and that no dwelling projects into the rear yard setback to the extent proposed by the Appellant.
70I find that the encroachment of the addition and deck is too large for the small lot at the subject property and is inconsistent with prevailing patterns for rear yard open space in the immediate context. Accordingly, I find that the proposed variances to the rear yard setback do not maintain the intent and purpose of the Official Plan.
71General intent and purpose of the Zoning By-law.
72The onus is on the Appellant to provide evidence that the proposed variances are consistent with the general intent and purpose of the Zoning By-law. The Appellant did not provide sufficient evidence in this respect. In particular, Mr. Hutchinson did not demonstrate how the elimination of approximately 40 percent of the rear yard setback in a small yard would maintain the general intent and purpose of the Zoning By-law, whose purpose is to ensure, among other things, the provision of adequate open space and landscaping by imposing setback requirements on semi-detached and detached dwellings.
73Dr. Davidson stated that rear space is important to residents with houses on small lots both in this block, and other stable neighbourhoods. "Rear yards are an extension of the living space and provide much needed open space for ground water infiltration." Moreover, he agreed with the opposing Parties and Participants that the proposed variance for the addition would negatively impact the neighbours' properties "through visual intrusion and loss of light for landscapes and gardens." In his opinion, the proposed encroachment into the rear yard setback is inconsistent with the Zoning By-law. I agree.
74I find that the proposed variances to the rear yard setback do not maintain the general intent and purpose of the Zoning By-law.
75Are the variances desirable for the appropriate development or use of the land?
76The Appellant did not provide me with evidence to assist in determining whether the proposed variances would be desirable for the appropriate development or use of the land. Therefore, I find that the proposed variances fail to meet this test.
77Are the variances minor?
78The test for "minor" focuses on the scale and nature of the perceived impact caused by the variance. The test is not merely a matter of mathematical calculation. The courts have established that the test is not that there be no impact, but that the imputed impact rises to the level of being an undue adverse impact of a planning nature.
79Mr. Hutchinson explained the rationale for the addition, and he asserted that the potential impact would not be unduly adverse. He submitted that the addition would not be evident from the street. Moreover, there are already fences separating rear yards on Nasmith Avenue and Gifford Street, thus restricting access and visual sightlines among neighbours to some extent. However, Mr. Hutchinson has no expertise in planning or land use, and was therefore not in a position to provide an expert opinion on adverse impact from a planning perspective.
80Dr. Davidson's uncontroverted expert opinion is that the variances for the proposed development are not minor. The proposed addition is 5.488 metres. It would encroach into the rear yard setback by 2.134 metres. The deck would encroach a further 0.914 metre. The total proposed encroachment is 3.05 metres. This would leave an open space of approximately 4.5 metres between the platform and the rear lot line.
81There was some evidence from the Parties and Participants about the impact of the proposed variances upon the neighbours' sunlight and privacy. To a limited extent, Mr. Hutchinson rebutted this evidence by explaining his efforts to design the one-storey portion with sunlight and privacy in mind.
82However, it is not necessary for me to determine whether the impact on individual neighbours' sunlight or privacy would be unduly adverse.
83The core issue is whether the encroachment is too large and whether its impact on the open space in the corridor at the rear of the dwellings on Nasmith Avenue and Gifford Street would be unduly adverse from a planning perspective.
84The visual corridor in the vicinity of 40 Nasmith Avenue was readily apparent from the photographs and the City map provided in this hearing.
85"Open space" is important within a neighbourhood of semi-detached and detached dwellings, as is very clear from the Official Plan and Zoning By-law. I find that an encroachment that leaves a rear yard of 4.5 metres (a reduction of approximately 40 percent of the zoning requirement) is not minor in relation to the subject property. Secondly, from a planning perspective, I find that the encroachment would leave the neighbours along the west side of Nasmith Avenue with a significant diminishment of the visual connection within the open space corridor between Nasmith Avenue and Gifford Street, which the setback was intended to maintain.
86I find that the impact of the proposed variances for the encroachment into the rear yard setback would be unduly adverse from a planning perspective and are not minor.
87Mr. Hutchinson did not speak to the proposed variance to eliminate the parking space at the front of the subject property. Accordingly, for lack of evidence, I find that this proposed variance does not satisfy the four tests. The proposed variance for the width of the stairs leading to the platform is tied to the variances for the addition and platform, and cannot reasonably be approved in isolation. Accordingly, it, too, must fail.
88Before concluding, I would be remiss not to mention that the Appellant/Owner did not come to the Hearing adequately prepared. Her authorized representative had no expertise in land use or planning, and was unfamiliar with the TLAB's Rules. As this Tribunal stated in Tsialtas (Re), 2024 ONTLAB 236:
The TLAB is committed to sustaining an accessible forum for the resolution of land use planning disputes within its mandate. On occasion, this means that latitude will be granted to those who are self-represented and those who are not familiar with the TLAB Appeal process. However, this does not mean that a Party involved in a Hearing before this Tribunal is excused from the basic responsibilities and respect that must be accorded to the TLAB process.
The TLAB has numerous resources, both on the TLAB's website and elsewhere, that are available to assist the public in understanding what a hearing entails and the obligations of a Party, especially the Applicant/Appellant in TLAB Appeals.
CONCLUSION
89I find that the proposed variances do not satisfy the four tests found in section 45(1) of the Planning Act.
DECISION and ORDER
90The Appeal is dismissed and the variances sought are not authorized. The decision of the Committee of Adjustment dated March 5, 2024, is confirmed.
A. Brown
Panel Member