Toronto (City), Long Branch Neighbourhood Association v. Singh, 2024 ONTLAB 178

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2024-01-19

22 191936 S45 03 TLAB

Toronto (City), Long Branch Neighbourhood Association v. Singh, 2024 ONTLAB 178

DECISION AND ORDER

Issuance Date:

January 19, 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):

LONG BRANCH NEIGHBOURHOOD ASSOCIATION, CITY OF TORONTO

Applicant(s):

KHALMUR BLDG PRODUCTIONS INC.

Property Address:

18 TWENTY FOURTH ST.

COA File No.:

22 116893 WET 03 MV (A0145/22EYK)

TLAB Case File No.:

22 191936 S45 03 TLAB

Hearing Date(s):

January 10, 2024

Decision Delivered By:

TLAB Panel Member G. Swinkin

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Applicant

Khalmur Bldg Productions Inc.

Appellant

Long Branch Neighbourhood Association

Appellant (CITY)

City of Toronto

M. Lafortune - City of Toronto

D. Abimbola - City of Toronto

Party (TLAB)

Khalmur Bldg Productions Inc.

Party (TLAB)

G. Singh

Party (TLAB)

Kingsmill Construction

Participant

A. Choles

Participant

C. L. Mercado

Expert Witness

H. Savinsky/S. Jorge

INTRODUCTION AND CONTEXT

1This appeal raises significant issues of interpretation and reconciliation of various City of Toronto (“City”) policy instruments and by-laws.

2The Toronto Local Appeal Body (the “Tribunal”) here heard earnest and compellingly delivered evidence and argument by the opposing parties and has deliberated very carefully in coming to its conclusion.

3In addressing the issues raised in this appeal, the Tribunal takes guidance from the City’s Official Plan (“OP”) Implementation policies as set forth in Policy 5.6.1 of the OP, namely that “The Plan should be read as a whole to understand its comprehensive and integrative intent as a policy framework for priority setting and decision making.”; and that “The Plan is more than a set of individual policies. Policies in the Plan should not be read in isolation or to the exclusion of other relevant policies in the Plan. When more than one policy is relevant, all appropriate policies are to be considered in each situation. The goal of this Plan is to appropriately balance and reconcile a range of diverse objectives affecting land use planning in the City.”

4The Tribunal’s exercise here was to engage in that balancing and reconciliation mandate.

THE LEGISLATIVE AND POLICY FRAMEWORK

5Provincial Policy – Section 3, Planning Act

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

6Variance – Section 45(1), Planning Act

In considering the applications for variances from the Zoning By-law, the Tribunal Panel must be satisfied that the application meets all of the four tests under s. 45(1) of the Planning 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

7Gaurav Singh and his spouse (the “Owners”) are the owners of 18 Twenty Fourth Street (the “Property”), which is located in the Long Branch community of the former City of Etobicoke, this being in the southwest portion of the City.

8The property is presently improved with a bungalow whose construction apparently dates back some 95 years. In relation to its neighbours, it is very modest. According to the testimony of Mr. Singh, it has been altered and repaired over the course of years but it is now in a condition requiring much remedy which is not economically practical and which would not in itself yield an outcome that would suit the space needs of their family.

9The Owners wish to demolish the existing dwelling and construct a new two storey single detached dwelling which would have a basement accessory suite, the two storeys above accommodating the principal dwelling unit which would have three bedrooms on the second storey. As well, in lieu of the existing open parking space presently located in the rear yard, they are proposing the construction of a garage in that area served by the existing driveway from Daisy Avenue.

10In conjunction with their building designer and contractor, they developed a proposed design for these structures. There were apparently discussions with City Planning Dept. staff, which led to modifications to the design. It was through those discussions with City staff that the Owners were made aware of a property five doors away at 30 Twenty Fourth Street which had received variance relief similar to that which the Owners would ultimately be seeking.

11Although the timing of the discussions were not made clear to the Tribunal, in light of a concern about the removal of a healthy, large black walnut tree on the Property, consideration was given to shortening the length of the proposed dwelling and providing the required floor area by constructing a three storey dwelling. The Planning Dept. was not enthused by this approach as there is almost no precedent for a three storey dwelling in this neighbourhood and even on the design produced there still would have been some encroachment on the tree protection zone of the black walnut tree.

12The design of the two storey dwelling ultimately settled upon between the Owners and the City did not fully comply with Zoning By-law 569-2013 (the “Zoning By-law”). Consequently, the Owners made application to the Committee of Adjustment (the “Committee”) for variance relief from the Zoning By-law.

13The relief sought was as follows:

Section 900.6.10.(2)(D), By-law 569-2013

The maximum permitted floor space index is 0.35 times the area of the lot (101.35 m²).

The new dwelling will have a floor space index of 0.68 times the area of lot (196.45 m²). [editorial note, which through subsequent minor design modifications has apparently been reduced to 0.669 times the area of the lot.]

Section 900.6.10.(2)(i), By-law 569-2013

The minimum required side yard setback is 0.9 m.

The new dwelling will be located 0.51m from the south side lot line.

Section 10.5.60.20.(6)(B), By-law 569-2013

The minimum required side yard setback for an ancillary building or structure containing a parking space, where it is on a corner lot and vehicle access is from the street abutting the side lot line, is 6 m.

The proposed ancillary building (detached garage) will be located 1.26 m from the south side lot line.

14The City Planning Department did send a communication to the Committee which was supportive of the application, and which requested the imposition of three conditions if the Committee proposed to approve the application.

15The Urban Forestry Division sent communications to the Committee recommending denial of the application on the grounds that the proposal would necessitate the removal of a healthy 52cm dbh (diameter at breast height) Black Walnut tree.

16The Committee received a letter of support from the neighbour on the opposite side of the street at 16A Twenty Fourth Street.

17The Committee received two letters of objection, both from representatives of the Long Branch Neighbourhood Association (“LBNA”), J. Gibson and A. Choles.

18The Committee approved the application and imposed the three conditions requested by the Planning Dept., which were:

1. 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.

2. 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.

3. The proposal shall be constructed substantially in accordance with the Elevation Plans submitted and held on file by the Committee of Adjustment office and date stamped as received on June 27, 2022, to the satisfaction of the Director, Community Planning, Etobicoke York District, as it relates to exterior cladding materials. Any other variances that may appear on these plans but are not listed in the written decision are NOT authorized.

19Subsequent thereto, and within the permitted appeal period, an appeal against the Committee decision was filed by the LBNA and by the City.

20There is some key background here that is important to understand. In response to the original circulation of the application, the City Urban Forestry Division objected to the application on the basis that it would necessitate the removal of a 52cm dbh Black Walnut tree which is located well internal to the Property. The redevelopment proposal also called for the removal of a 44cm dbh Silver Maple tree on the Property adjacent to the existing driveway. It was also clear that a permit would be necessary from the Urban Forestry Division in connection with injury to a City owned 65cm dbh Siberian Elm within the Daisy Road road allowance adjacent to the southeast corner of the Property.

21It was explained to the Owners that the City’s policy and practice is to protect and preserve healthy trees, and this is apparently what triggered the City appeal. However, under Chapter 813-18(B)(10) of the Municipal Code relating to private trees, the General Manager of that Division has authority to issue a tree destruction permit where development is permitted as-of-right and the tree is located within an ‘as-of-right’ building envelope. In this regard, ‘as-of-right’ is defined in Chapter 813-11 of the Municipal Code as “development that complies with the Ontario Building Code, local zoning by-laws and other applicable law and is permitted without further approval by City Planning”.

22Armed with this information, the Owners had their building designer prepare plans for a bungalow dwelling which would fully conform with the restrictions under the Zoning By-law, the Ontario Building Code and other applicable law. The site plan which was produced was for a bungalow dwelling with a Floor Space Index of 0.34. It was compliant with all minimum yard setbacks and building length. As such, a building permit would be available for such a dwelling without any further City approval required.

23The site plan very plainly demonstrated that the building envelope engulfed the black walnut tree and that the tree could not be retained, which then satisfied the condition set forth in Chapter 813-18(B)(10) of the Municipal Code and would empower the General Manager to issue a tree destruction permit for that tree.

24With this demonstration in hand, even though the Owners are not proposing to construct a bungalow dwelling, the City apparently accepted that the intent of the Municipal Code provision was met and altered its position on the redevelopment proposal being advanced by the Owners.

25In advance of this hearing session, counsel for the City advised the Tribunal and the Parties that although it would retain Party status, it was not opposing the approval. Ms. Abimbola, the City’s counsel, in her opening statement made clear that the City’s continuing participation in the hearing was essentially to ensure that the conditions imposed by the Committee were maintained and updated to make reference to the most recent plans (which reflected some minor modifications which actually reduced the floor area marginally). The City called no evidence but Ms. Abimbola did conduct some minimal cross-examination.

26Despite the change in the City position, the LBNA remained ardently opposed to the redevelopment proposal and called two witnesses to advance their views and position.

The Evidence of the Owners

27The evidence of the Owners was delivered through a panel of three witnesses, the principal witness being Gaurav Singh, an owner of the Property, Murray Fearn, the building designer retained by the Owners, and David Haslam, the constructor engaged by the Owners. A joint witness statement was filed by them in advance of the hearing (Exhibit 1).

28Mr. Singh advised the Tribunal that the Owners acquired the Property about four years ago and had been living there until some point in 2022, whereupon they left and have taken up rental accommodation. They ceased living there due to a variety of occupation issues. He advises that the internal pipes (inside the walls) have burst, and the main water supply had to be turned off. The roof leaks. The structure has poor insulation, and the heating is inefficient. Rats and skunks are getting into the structure from under the house (there is no basement).The floor in the kitchen has been damaged due to the roots of the Black Walnut tree located close to the existing structure.

29Mr. Singh advised that they began the process of design of the redevelopment in 2021. Mr. Singh traced the steps which the Owners’ team took in working with City staff to fashion the design to attract the City’s support, the application to the Committee which occurred in 2022 and the Committee’s decision rendered on July 28, 2022.

30Even though not himself a qualified land use planner, Mr. Singh informed himself of the requirements of Section 45(1) of the Planning Act and its four tests that must be satisfied with respect to an application for variance relief.

31In the witness statement and through his oral testimony, Mr. Singh set forth the rationale for each of the three requested variances and he canvassed the four tests. He concluded that the proposed variances do meet the four tests. Although he did not provide tabular information or coloured mapping to depict the character of the geographic neighbourhood or the Immediate Context, as those concepts are detailed in Policy 4.1.5 of the OP, he offered his observations on the character of this neighbourhood and provided photographic evidence of other dwellings in the near vicinity which he suggests are of like density, bulk, height and form. He asserts that the Owners’ proposed structure will present similarly to these examples and thus be in keeping with the character of the neighbourhood.

32In this regard, he relies particularly on 30 Twenty Fourth Street, which he says was brought to his attention by City Planning staff. This property, as noted above, is five doors removed from the Property. The details of that redevelopment, which was finally completed in 2022, are that it was also the subject of a variance application approved on July 18, 2019, through which its owner secured approval for an FSI of 0.68 v. the permitted 0.35, a sideyard setback of 0.66m v. the required 0.9m, a building length of 18.96m v. the permitted 17m and a soffit height of 6.87m v. the permitted soffit height of 6.5m.

33It must be said that Mr. Singh placed great reliance on this property and the permissions which it was granted. In his view, this property and the Owners’ Property are so similarly and proximately situated (even though the Property is a corner property) that it would be entirely unfair and inequitable to deny virtually the same (or actually lesser due to no need for building length of soffit height relief on the Property) relief to the Property.

34Mr. Singh asserts that the sideyard setback reduction here will have no impact as it is not concerning the yard abutting the neighbouring property owner but is on the street flankage side. And in a similar vein, the setback required by the Zoning By-law in this instance of this being a corner lot with the driveway access from Daisy Avenue makes placement of a standard garage impossible due to the limited lot width. All things considered, he says that the proposed garage setback is reasonable and will not impact the neighbour.

35Mr. Singh urges the Tribunal to place great weight on the position of the City Planning Dept. and the Committee itself as it saw fit to grant the requested approval. He takes the view that these entities are well versed in the requirements of the four tests and that their opinions should be received by the Tribunal as an important input into the decision regarding compliance with the four tests.

36Mr. Singh was closely cross-examined by Ms.Gibson on these points. He confirmed to her that he was not educated as a land use planner and that this was not his occupation. Although he asserted that he had read the OP, he was not able to direct her to the specific policies upon which he relied in coming to his conclusion about the variances being in keeping with the general intent and purpose of the OP or Zoning By-law.

37Mr. Singh did acknowledge to Ms. Gibson that before redevelopment there were no trees on 30 Twenty Fourth Street and therefore there was no loss of tree canopy on Twenty Fourth Street as a result of this redevelopment. However, in defence of the proposal, he asserts that the plan is to plant four new trees on the Property and to pay to the City cash-in-lieu of two trees for planting off-site as the City chooses.

38Ms. Gibson took Mr. Singh to Policy 3.4.1 of the OP and its goal of preserving the urban forest. In light of the Owners’ intent to remove two mature trees from the Property in order to achieve the redevelopment, she challenged him on how that action fell in line with this policy. Mr. Singh responded by saying that the proposal would increase the number of trees on the Property but that it would take many years before they became large. He opined that in due course, they may provide greater tree canopy.

39Messrs. Fearn and Haslam contributed advice about the discussions which took place with City staff and their efforts to explore alternative designs which may enable preservation of the Black Walnut tree. Despite those efforts, the exercise did not yield an alternative which would meet the needs of the Owners and which the City was prepared to support.

The Evidence of the Long Branch Neighbourhood Association

40The LBNA called two witnesses, Sylvia Jorge, an urban forestry expert, and Christine Mercado, the Chair of the LBNA. The witnesses were called in that order.

41By way of some history concerning this proceeding, the first sitting of this panel of the Tribunal was on December 6, 2023. This was the date upon which the appeal hearing was to take place. However, the LBNA brought a late motion returnable for that date seeking an adjournment due to the unexpected unavailability of their forestry witness.

42A witness statement had been filed by Hark Savinsky, the LBNA urban forestry expert and Long Branch resident who was expected to testify at the hearing. Very unfortunately, Ms. Gibson was informed a mere few days before the hearing that Mr. Savinsky was admitted to hospital and would be unable to attend the hearing. At the time, it was not certain how long he would be out of commission.

43On the strength of the material filed and the submissions made, the Tribunal granted the requested adjournment and rescheduled the hearing to January 10, 2024 on the consent of the Parties. Ms. Gibson advised at the time that if Mr. Savinsky was not available for the rescheduled hearing, she had an alternate urban forestry expert who could speak to his witness statement and the issues addressed therein.

44As it so happened, that contingency did arise and Ms. Jorge appeared in this proceeding as the alternate urban forestry expert. Her evidence was anchored in Mr. Savinsky’s witness statement (Exhibit 3) and she filed her own Acknowlegment of Expert’s Duty. The Tribunal qualified her to proffer expert evidence with respect to urban forestry.

45Ms. Jorge opened her testimony by advising that the City has adopted a Strategic Forest Management Plan, which has a goal of 40% tree cover in the City by the year 2055. She advised that tree cover in the Long Branch community is presently at only 15%.

46She further advised of the comparative state of tree cover in the Long Branch community as against other areas of Ward 3 (the Etobicoke-York Ward) and its direction over time. Long Branch ranks among areas with the lowest tree cover in the Ward and that tree cover has been in decline for many years. The data which was produced in the witness statement indicated that from 2009 to 2018, tree cover in Long Branch declined by 43.4%, from 25.3% cover to 15% cover. This compares to an increase in tree cover in the neighbouring community of New Toronto of 74%, from 8.7% in 2009 to 15.5% in 2018. And the data indicates a 2018 tree cover in Stonegate-Queensway of 43.4% and in Kingsway South of 42.55%.

47The witness statement said that only 13 neighbourhoods in the city, out of 140, experienced a loss greater than 11.5%, the amount Long Branch lost, making Long Branch among the top 10% of neighbourhoods by tree canopy loss over the indicated time period.

48There are various reasons for reduction in tree cover, including storm damage and normal plant mortality, but a significant reason is development activity, both through compliant construction activity and that which requires development approvals.

49Ms. Jorge brought various OP policies to the attention of the Tribunal as having relevance to the issues in this hearing. In particular, she directed the Tribunal to Policies 2.2.2, 2.3.1 and 3.4.1, which policies call for enhancement of the natural environment and that the natural environment should not be compromised by growth.

50She explained that tall, mature trees have a special place in the natural environment in that they provide safe habitat for birds who do not wish to be too close to the ground and they have the positive effect of mitigating heat.

51Ms. Jorge made her own visit to the Property and had reviewed the Arborist Report and Tree Protection Plan which was prepared for the Owners by The Urban Forest Company.

52She agreed with the Owners’ arborist that the Black Walnut tree was a healthy tree in good condition. She also advised that this tree was over 100 years old and that black walnuts can live to between 150 to 250 years. She further went on to say that black walnuts are rare, especially of this size. By her count, of the 11,000 trees in Long Branch only 28 are black walnuts.

53She also agreed with the Owners’ arborist that the Silver Maple was only in fair condition, was having an impact on the existing driveway and could reasonably be authorized for removal.

54The third significant tree engaged by this application is the Siberian Elm on the City road allowance. Again, she agreed with the Owners’ arborist that this tree was in fair to poor condition with a variety of issues impacting its health.

55The proposal here is that the City tree will be left intact. There is not to be direct construction within the tree protection zone of this tree but there would be activity in connection with demolition of the existing dwelling. The Owners’ arborist has recommended that the removal of the existing structure within the delineated tree protection zone be effected by hand digging in order to minimize root damage. Ms. Jorge did advise that even so, it was likely that there would be injury to some of the feeder root system as it spreads well beyond the designated tree protection zone.

56Ms. Jorge was asked to offer views on the tree planting plan that formed part of the Urban Forest Company Report. She was critical of the proposed placement of the three white pines in that she believed that they were not spaced appropriately for future growth both in relation to each other and to the proposed garage and lot boundary.

57She was concerned that there may be an impact on the red maple by potential conflict with overhead wires.

58She also said that none of these trees would be a true replacement for what is to be removed and would take at least 25 years to reach maturity in any event. The proposed replanting would not replace the tree canopy now in place on this lot.

59In that regard, she advised that the existing tree cover on this lot is 55% of the lot area, which percentage was apparently deduced from interpreting a Google aerial photo of the property flown in May, 2019 (which aerial photo was taken in as Exhibit 2).

60Under cross-examination by Mr. Singh, she did concede that it is hard to deliver housing and tree protection. When challenged by him on whether it was equitable for one owner to bear this extent of tree canopy for the benefit of the community to the detriment of that owner’s development rights, she responded that she would nonetheless choose to protect a mature tree.

61Ms. Gibson then called her second witness, Christine Mercado. As noted above, Ms. Mercado is the present Chair of the LBNA.

62Ms. Mercado does not have credentials as a land use planner, however she is well familiar with the statutory requirements regarding minor variances and with the relevant City planning policies and by-laws that pertain to these applications as the LBNA monitors every Committee application which arises in Long Branch and Ms. Mercado has made submissions to the Committee and appeared before the Tribunal on many occasions. Although Ms. Mercado was not qualified as an expert witness, the Tribunal heard her evidence concerning these matters.

63At the outset of her testimony, Ms. Mercado focussed the grounds for the LBNA’s continuing objection to the application. They are twofold. Firstly, in her view the proposed density of the structure (FSI) is excessive as it is beyond what she treats as the prevailing density of the neighbourhood, contrary to Policy 4.1.5 of the OP. Secondly, the proposal would remove a mature walnut tree contrary to the natural environment policies of the OP.

64In support of her density argument, she mapped out a geographic neighbourhood and an Immediate Context and used City data to tabulate the FSI of the dwellings in these contexts.

65Her tabulations revealed that of the 103 lots in the broader neighbourhood, 65 had an FSI of 0.35 or less. Within the Immediate Context, 17 of 34 lots had an FSI of 0.35 or less. Based upon this data, she concludes that the prevailing density is around 0.35. She advises that the second most prevailing density within the Immediate Context is within a range of 0.455 to 0.59, this category yielding 5 of 34 lots.

66Ms. Mercado advises that the FSI of the existing dwelling on the Property is 0.25

67She asserts in her oral testimony that a density of 0.68 does not exist within the Immediate Context and that it does not exist in significant numbers in the broader context.

68However, a review of her coloured mapping depicts three properties within the defined Immediate Context which have an FSI within the range of 0.645 to 0.68. And it is to be remembered that 30 Twenty Fourth Street, which falls within the Immediate Context was very recently approved for 0.68 FSI.

69A further review of the coloured mapping discloses that within the broad context (including the Immediate Context) there are 24 properties of the 103 which have an FSI of 0.595 to 0.68.

70Ms. Mercado tries to distinguish 30 Twenty Fourth Street on the basis of what it replaced. The prior dwelling was a long dwelling which occupied much of the lot. The redevelopment proposal actually created more rear yard. And there were no trees removed for the redevelopment. Also, she advises that no tree was planted in the front yard due to conflicts with the underground servicing to the dwelling.

71Ms. Mercado addressed various properties, photos of which were identified in the witness statement of the Owners. For the most part, these were dwellings of two storeys. In some cases, she couldn’t find information on the actual FSI. In others, she advised that no trees had been removed and in others that they were just examples of bad planning with dwellings which did not respect the character of the neighbourhood.

72Ms. Mercado then went on to criticize the City Planning Dept. memo to the Committee. She said that it contained no acknowledgment that staff had conducted a site visit. She said that it was devoid of any analysis of OP policy and how the proposal was consistent with such policy. She further says that there is no discussion of how the proposal meets the four tests of Section 45(1) of the Planning Act. She felt that it should have been incumbent on the City to be present at this hearing to defend their position.

73With regard to her summary of the City Planning Dept. failure to adequately assess the application, she said that it is necessary to look at the whole, presumably meaning the whole of the relevant policies, rules and provisions which apply to the matter, which she believes they did not.

74Ms. Mercado concluded this line of comment by expressing her fear of the impact this decision may have on other applications which entail the removal of trees.

75Ms. Mercado then turned to addressing the four tests.

76She suggested that due to the very significant impact of the removal of the Black Walnut tree, the variance could not be treated as minor. As well, her view is that the magnitude of the FSI variance is not minor.

77She is of the view that the proposal is not desirable for the use or development of the property due to the significant loss of tree canopy.

78She is of the view that the proposal is not in keeping with the general intent and purpose of the Zoning By-law or the OP on the basis that the requested density is not the prevailing density and that mature trees will be lost.

79In concluding her testimony, Ms. Mercado engaged in a review of other Tribunal decisions and one Ontario Municipal Board decision regarding other Long Branch applications where variance relief was denied. These applications largely seemed to involve properties with trees. One of the applications, 24 Fairfield Avenue, involved a butternut tree, which would garner special protection by reason of it being an endangered species under the Endangered Species Act.

80However, more importantly, a close review of the decisions makes plain that in virtually all of them, save for a couple, the redevelopment proposal involved a consent to sever and companion applications for variance to minimum lot frontage and lot area to create undersized lots. As such, the principal issue would have been consistency with the character of the area. There is no lot division in this instance. This is a conforming lot of record. Therefore, these decisions are of limited or no value to the Tribunal on this appeal.

Final Submissions

81The conclusion of the evidentiary phase of the hearing occurred late in the day. As such, in order to afford the Parties a proper opportunity to advance their final submissions, the Tribunal directed that final submissions would be in writing and the Parties were given five days for the filing of their submissions plus a further day for any necessary Reply.

82The submissions from the Owners characterized the issues in a pointed way. They opened by asking: “Does a neighbourhood association’s demand to preserve a private tree that falls in the as-of-right building envelope on a designated residential lot override a homeowner’s right to rebuild an uninhabitable structure into a new house for his family, per their needs – when the proposed rebuild already incorporates City department feedback to their satisfaction, and replaces more trees than are to be removed as per the prescribed City rules, is in a form similar to other recent rebuilds on the same street, and where the immediate neighbours have no objections to the proposed rebuild?”

83The balance of the Owners’ submissions were essentially a recap of the evidence they tendered in the hearing. However, specific reference was drawn to a matter of comparative footprint dimensions. That is, the Owners point out that the building length for the as-of-right bungalow which was generated by the building designer was 17m (which is the permitted Zoning By-law maximum) whereas the building length for the proposed dwelling is 16.54m (a difference of 0.46m), and the building width for the as-of-right bungalow was 5,79m whereas the building width for the proposed building is 6.2m (a difference of 0.41m).

84The Owners close by saying “that the opposition to the proposal is discriminatory. They say that there are other houses including two that were built recently (over 2021-23), just a few doors up / down the street, with similar FSI and greater variances. There are also other comparable rebuilds in the vicinity. The proposed rebuild is of a size, within the min-max range of what already exists in the neighbourhood and on the very same street. Given the mixed nature of built-forms in this neighbourhood, the proposed build-form blends in as confirmed by the streetscapes (refer the Long Branch Performance Standards Checklist). The current approach is unfair and inequitable – and it pushes the onus of providing tree cover to the community onto one Homeowner who already has trees on the lot and is planting even more as a part of this proposal, rather than an equitable requirement for the community to plant trees where there are none.”

85The City’s final submissions confirmed that the City, despite its position expressed at the time of its appeal, is not taking a position on the requested variances but if the Tribunal does see fit to allow the variances, that it wishes the three identified conditions to form part of that approval, subject to a change in the date of the plans referenced in Condition 3 to August 18. 2023.

86However, in these final submissions, the City explicitly says that the Urban Forestry Division is no longer opposed to the application as the private black walnut tree to be removed is located in the property owner’s as-of-right building envelope.

87There is then in the submission a reference to presentation notes from the General Manager of the Urban Forestry Division dated February 23, 2018, a copy of which notes are appended to the submission. This document was not tendered in evidence during the evidentiary phase of the hearing and the Tribunal would thus not normally take it in at the time of final submissions. However, in this case, application of that rule is somewhat academic as the complete report itself, which was the subject matter of the notes, entitled “Tree Protection Through the CoA Process”, dated December 13, 2017, and bearing Planning and Environment Committee reference PE25.1, formed part of the LBNA document disclosure and therefore is part of the record.

88The LBNA final submissions echoed the evidence which was led on its behalf. The issues were set forth as follows:

a. Whether or not the variances being requested for 18 Twenty Fourth St meet the 4 tests of the Planning Act

b. Whether or not this application conforms to the City of Toronto Official Plan (“OP”) policies with respect to respecting and reinforcing the character of the neighbourhood

c. Whether or not this application conforms to the environmental and tree preservation policies in the OP and the Provincial Policy Statement (“PPS”)

d. This was a de novo Oral hearing, ordered by TLAB in the Request for Review Order by TLAB Chair Lombardi August 30, 2023, where he noted that the onus is on the Applicant to prove its case for the variances being requested with land use planning evidence to satisfy the four-part tests of the Planning Act.

89The submission focusses in specifically on the loss of the black walnut tree but also on the loss of the silver maple tree and damage to the City Siberian elm.

90The submission makes a blunt declaration that this application (for permits for destruction of trees) is not permitted as-of-right according to the definition that is clearly outlined and applies in Chapter 813 Article III Private Tree Protection 813-11 Definitions 813-13.2

91The LBNA asserts that the Owners failed to prepare for this hearing by not providing expert planning evidence and by not properly addressing the relevant aspects of the OP policy or the four tests mandated by Section 45(1) of the Planning Act.

92In this regard, the LBNA cites four authorities in particular, Ding v. Cruz, OMB Case No. PL141455, issued May 14, 2025; 112 Taysham Crescent, a TLAB decision rendered by Member Talukder on May 17, 2022; 102 Shaver Ave. N., a TLAB decision rendered by Vice-Chair Bassios on May 17, 2023; and 89-91 James St., a TLAB decision rendered by Member Makuch on February 28, 2023.

93The LBNA submission was supported by a Book of Authorities with 22 entries. In addition to the authorities identified above, there were many others but the bulk of them related to decisions involving consent applications along with companion variance applications. As noted above in paragraph 80 in discussing the concluding evidence of Ms. Mercado, due to the general difference in characteristics of such appeals and the additional criteria which must be scrutinized, those decisions were of little or no value to the Tribunal on this appeal.

94Meticulously, Ms.Gibson came back to carefully review all of the applicable natural environment policies and the objectives of protecting, preserving and enhancing the urban forest. She underlined the goal of achieving a 40% canopy cover City-wide. And she conveyed again the advice of Ms. Jorge that black walnuts are important trees in terms of their leaf coverage and relative rarity in Long Branch.

ISSUES AND ANALYSIS

95As noted at the outset of this Decision, there are competing policies engaged by this appeal and the appeal gives rise to the need to reconcile the City’s enactments with these policies.

96In response to the challenge brought by the LBNA as to the preparedness of the Owners for this hearing, the Tribunal is of the view that the Owners mounted a case which touched the necessary factual underpinning required to assess the merits of this proposal, specifically addressing the four tests as they had come to understand them in a proceeding in which a panoply of evidence was before the Tribunal from all Parties so as to enable the Tribunal to make the necessary findings to dispose of the appeals.

97Unlike In the four cases cited by the LBNA, there was no absence of evidence here, brought both by the Owners and the LBNA, for the Tribunal to understand the issues and make an informed decision. In Ding, the OMB recognizes that critical and substantial evidence can come through the cross-examination (and examination-in-chief) of witnesses of the opposition. That did occur in this proceeding.

98As well, there is absolutely no rule that any Party must engage and bring to a hearing a qualified land use planner. That fact was stated by this panel sitting as a Member of the Ontario Municipal Board in North End Neighbours v. Hamilton (City), 2017 CanLII 19974 (ON LPAT), issued April 4, 2017. Paragraph 35 of that decision states: “[35] It is the plain and irresistible conclusion of the Review Panel that the Member’s reasons for the Decision rested entirely on the fallacious proposition that a legitimate land use appeal must involve the testimony of an expert land use planner. The Board’s jurisprudence does not support that proposition. Expert land use planners are a regular feature at Board hearings but there is no statutory provision, rule or policy which necessitates their presence at a Board proceeding or otherwise renders an appeal inauthentic or untenable in their absence.”

99The jurisprudence of this Tribunal does not diverge from that of the former OMB (now Ontario Land Tribunal) on this point. And it cannot escape notice that the LBNA adduced considerable planning evidence in this hearing without calling an accredited land use planner.

100Policy 3.2.1.2 of the OP declares “that the existing stock of housing will be maintained, improved and replenished……New housing supply will be encouraged through intensification and infill that is consistent with this Plan.”

101With regard to this policy, the Tribunal understands that the OP supports the renewal and regeneration of neighbourhoods and their housing stock. Furthermore, this is coupled with a support for intensification. To this panel, the Owners’ proposal here is a replenishment of the housing stock of this area and it also supports the goal of intensification through the intended provision of an accessory dwelling unit.

102Policy 3.4.1 of the OP declares that to support strong communities, a competitive economy and a high quality of life, public and private city-building activities and changes to the built environment, including public works, will be environmentally friendly, based on: …..d) preserving and enhancing the urban forest by: i. providing suitable growing environments for trees; ii. increasing tree canopy coverage and diversity, especially of long-lived native and large shade trees; and iii. regulating the injury and destruction of trees;

103With regard to clause 3.4.1 (d) (iii), City Council has enacted the Trees By-law, which is incorporated as Chapter 813 of the Municipal Code. This policy for regulatory control is entwined with the policy goal relating to preservation and enhancement of the urban forest.

104By the dictates of Section 24(1) of the Planning Act, all by-laws enacted by City Council must conform with the OP.

105It therefore appears to the Tribunal that, in their own interpretation of the OP’s various goals and in pursuit of a reasonable reconciliation and application of those sometimes disparate objectives, they specifically empowered the General Manager of the Urban Forestry Division to issue tree injury or removal permits where an owner can demonstrate an as-of-right building envelope which conflicts with an otherwise healthy tree.

106Even though, in these circumstances, this may result in the diminution of the tree canopy, that in itself does not constitute a violation of the OP but represents a scaling of interests which City Council has clearly felt important to embed in the regulatory control, and which is therefore legitimately exercised by the General Manager.

107Thus, the redevelopment of property in an established neighbourhood, as is the proposal here, fulfills the housing goals of the OP even it it would appear to run contrary to a natural environment objective. Council has essentially chosen to be sensitive to the rights of property owners where those rights are anchored in the Zoning By-law.

108To this panel of the Tribunal, the posture taken by the Urban Forestry Division in this instance appears not only entirely legitimate but to reflect what they treat as the proper interpretation of their authority. The Trees Chapter is, as it were, the ‘home statute’ of the Urban Forestry Division. They work with it day in and day out and they have developed canons of interpretation with respect to those provisions, These were laid out in the 2017 PE 25.1 Report “Tree Protection Through the CoA Process”. Counsel for the City has reiterated in final submissions that the General Manager is prepared to issue a tree removal permit for this black walnut.

109In response to the submission to the Tribunal by the LBNA of the TLAB decision regarding 95 James Street rendered by Member Tassiopoulos, it appears that Member Tassiopoulos elected to adopt his own interpretation of what was meant by “as-of-right” despite the position taken by the Urban Forestry Division. This panel will not do that. The matter of “as-of-right” appears to be an analysis driven by the resultant building envelope after applying Zoning By-law standards. That is what the Owners did here to the satisfaction of the Urban Forestry Division and the Community Planning Division. They demonstrated a building envelope permitted under the Zoning By-law, albeit for a bungalow, which is a permitted building form. And that envelope very closely adheres to the proposal.

110The panel simply notes here the disclaimer which Member Tassiopoulos inserted as the penultimate paragraph of his decision, that the decision related to that specific proposal and its context, having unique and specific attributes, not the least of which was that the tree in question was a 164cm silver maple.

111That then next brings into focus the question of compliance with the Zoning By-law and its intent. On the basis that the sideyard variances are minimal or, in the case of the garage, of necessity, the Tribunal does not find these variance requests to be problematic and does find them to be in keeping with the general intent and purpose of the OP and Zoning By-law, minor and desirable for the development and use of the Property. The variance of contention is with respect to the FSI.

112The challenge advanced here by the LBNA is that this variance request is not in keeping with the prevailing density of the neighbourhood. Numerically it is essentially twice what the Zoning By-law permits and it comes in at the top end of FSI in this neighbourhood.

113The LBNA challenge is rooted in Policy 4.1.5 of the OP. This policy opens with a general introduction as to its purpose and then sets forth a list of characteristics which should guide the determination as to whether proposed development will ‘fit’.

114The Policy says: “Development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including in particular:…..(c) prevailing heights, massing, scale, density and dwelling type of nearby residential properties;”

115It is to be noted though that further on into this Policy 4.1.5 is the following: “While prevailing will mean most frequently occurring for purposes of this policy, this Plan recognizes that some geographic neighbourhoods contain a mix of physical characters. In such cases, the direction to respect and reinforce the prevailing physical character will not preclude development whose physical characteristics are not the most frequently occurring but do exist in substantial numbers within the geographic neighbourhood, provided that the physical characteristics of the proposed development are materially consistent with the physical character of the geographic neighbourhood and already have a significant presence on properties located in the immediate context or abutting the same street in the immediately adjacent block(s) within the geographic neighbourhood.”

116What the Tribunal understands from the application before it is that what is proposed is a two storey single family dwelling with an accessory dwelling unit in the basement. Save for the FSI and the setbacks aforenoted, the proposed construction will be Zoning By-law compliant. The point which Mr. Singh was pressing upon the Tribunal is that there are already numerous two storey single family dwellings throughout the neighbourhood. He provided ample photographic evidence to demonstrate this. He further says that in every instance of a redevelopment of a lot, the new dwelling is a two storey dwelling.

117The Tribunal was able to discern from the extensive photographic evidence of the LBNA that this neighbourhood was initially developed with modest bungalow dwellings, most probably without a basement, and most, if not all, at an FSI of 0.35 or less.

118However, confirming the comments of Mr. Singh, the coloured lot mapping produced by Ms. Mercado also makes very plain that this neighbourhood has been evolving from its inception and that there is now a considerable mix of one and two storey dwellings with a variety of floor areas. In fact, as noted in paragraph 69 above, apparently about one quarter of the dwellings in the area have an FSI in the range of 0.595 to 0.68.

119To this panel of the Tribunal, that fact directly connects to the text of Policy 4.1.5 and specifically to the wording which says that where the physical characteristics of the proposed development will be materially consistent with the physical character of the neighbourhood, such development will not be precluded.

120This panel has observed a tendency in the planning community to be captured by mathematics. The essence of Policy 4.1.5, in fact its express objective, is to respect and reinforce the character of neighbourhoods. To this panel, that necessitates a subjective assessment. The policy suggests various quantitative guides to assist in coming to that assessment but it does not fix them as the controlling measure. They are but tools to help frame out a sense of place. And it refrains from such a stricture as it recognizes that many neighbourhoods have a varied composition of constituent elements. And that neighbourhoods evolve. That reality is crystallized in the dictum found at the outset of Section 2.3 of the OP, that neighbourhoods are stable but not static. That dictum signals to this panel that a broader, more elastic, view must be taken when applying this policy to any given proposal and how it will ‘fit’ within its neighbourhood.

121And finally, the Tribunal is satisfied here that genuine effort was made by the Owners to explore alternative designs that might result in preserving the black walnut tree but that such efforts did not yield a feasible result.

CONCLUSION

122As Ms. Mercado says, it is necessary to look at the whole, to consider all the relevant policies and law. This is also the message from the Implementation policies of the OP, specifically with reference to Policy 5.6.1, which was transcribed into the outset of this Decision. From the evidence produced through the Owners and the LBNA, which was extensive and comprehensive, the Tribunal believes that it has now done that.

123Based upon the foregoing comments, analysis and conclusions, the Tribunal will be authorizing the variances which were granted by the Committee.

124From the evidence, in connection with the four tests of Section 45(1) of the Planning Act, the Tribunal is satisfied that the proposed variances are in keeping with the general intent and purpose of the OP and the Zoning By-law, are minor and are desirable for the development and use of the Property.

125The Tribunal is satisfied that there is no issue as to consistency with the PPS here nor any issue regarding conformity with the Growth Plan.

126In order to facilitate the updating of the plans to reflect the minor adjustments which were made since the filing of the plans which were before the Committee, the Tribunal will be allowing the City appeal strictly for the purpose of modifying Condition 3 so that in lieu of the plans dated June 27, 2022, the condition will refer to plans dated August 18, 2023.

127The Tribunal will be dismissing the LBNA appeal.

128The Tribunal heard evidence that as a result of the new indentation in the north wall in order to permit the creation of a window and some adjustment in the front of the dwelling, there has been a concomitant reduction in floor area and thus FSI. This reduction was calculated by Mr. Fearn as resulting in an FSI of 0.669. However, as Mr. Fearn admitted that they have not obtained a fresh Zoning Examiner’s Notice, that FSI figure has not yet been confirmed by the City Building Dept. As such, just in case there is an issue about this re-computed FSI (and as the Tribunal does not see anything turning on it), the Tribunal will continue with the FSI as approved at 0.68.

129And finally, without making any specific ruling on the matter, the Tribunal acknowledges the concerns which were expressed by Ms. Jorge regarding the proposed planting plan and that this should perhaps be subject to further consideration as to species of tree, number of trees and their location. This review properly belongs with the Urban Forestry Division and the Tribunal trusts that they will bring their expertise to the matter in connection with review of the applications for tree injury and removal which arise in connection with this proposal.

ORDER

130The Tribunal ORDERS THAT the City appeal is allowed strictly for the purpose of modifying Condition 3 so that in lieu of the plans dated June 27, 2022, the condition will refer to plans dated August 18, 2023. In all other respects, the Committee decision is sustained as issued.

131The Tribunal ORDERS THAT the LBNA appeal is dismissed.

G. Swinkin

Panel Member