Toronto (City) v. Wood, 2024 ONTLAB 217

Toronto Local Appeal Body

40 Orchard View Blvd,

Suite 253

Toronto, Ontario M4R 1B9

Date:

2024-04-23

20 230446 S53 02 TLAB,

20 230447 S45 02 TLAB,

20 230450 S45 02 TLAB

Toronto (City) v. Wood, 2024 ONTLAB 217

DECISION AND ORDER

Issuance Date:

April 23, 2024

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

Appellant(s):

CITY OF TORONTO

Applicant(s):

D. WOOD

Property Address:

84 NORTH DR

COA File No.:

20 158548 WET 02 CO (B0024/20EYK),

20 158552 WET 02 MV (A0243/20EYK),

20 158553 WET 02 MV (A0242/20EYK)

TLAB Case File No.:

20 230446 S53 02 TLAB,

20 230447 S45 02 TLAB,

20 230450 S45 02 TLAB

Hearing Date(s):

June 17, 2021, September 13, 2021, September 14, 2021, December 2, 2021, December 16, 2021, April 29, 2022, July 22, 2022, September 27, 2022

Decision Delivered By:

TLAB Panel Member T. Yao

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Applicant

D. WOOD

Appellant (CITY)

CITY OF TORONTO

D. ELMADANY

M. MAHONEY

Party (TLAB)

H. KRZYWUCKA,

P. KRZYWUCKI

D. WOOD,

E. BASHURA,

A. FANG (WOOD BULL LLP)

Participants

G. CANCELLI, M. J. ORR, A. ZRADO, J. COMELLA, S. YIP, L. CANTARUTTI, T. SAMILA, D. OLYNYK, BUTTONWOOD HILL RESIDENTS' ASSOCIATION, M. NOTTEN, L. NOTTEN, E. BURLACOFF, L. ANDERSON, R. BASSYOUNI, I. ANDERSON, C. WALTER LEM, I. PASECHNIK, N. ROPER, P. SALIBA, D. MURRAY, R. A. PEREZ, A. ANDERSON, J. S. SMITH, M. SHOSTAK, M. VETTESE, G. MCKETTON, C. COSTA, P. COSTA, S. TEHRANCHI, F. RACCO, M. VETTESE, M. TKACH, A. BARNES, M. COUTTS, G. COUTTS, T. COLANGELO, M. GALATI-MATAR, L. ARMOUR, I. KREMBLEWSKI, A. LEES, J. MCCUTCHEON, S. ROPER, B. K. WILDS, J. CHU, F. PLASTINA, G. YIP, J. LEM, T. KULAR, S. KULAR, R. ZRADO, G. COOK-BENNETT, M. SMITH

INTRODUCTION AND CONTEXT

1Halina Krzywucka and Piotr Krzywucki, whom I will refer to the “proponents”, own a house on the south side of North Drive, in the Royal York/Eglinton/Scarlett Rd area of Etobicoke. Mr. Romano, their planner, described their proposed development as follows:

The proposal is to subdivide the property into two properties having lot frontages of 21.29m (69.8 ft and lot areas of 1844.9 m² and 1902.4 m².

2The two new lots on the draft R-Plan consist of a west half composed of parts 1 and 2, and an east half composed of parts 6 to 11. The east half contains more “parts” because an easement is being created to allow the Toronto and Region Conservation Authority (TRCA) personnel to access the tributary of the Humber that is at the back of the property. The new lots will each have approximately 21 m wide back yards and contain a swimming pool and extend to a depth of about 40 m deep (131 ft) to the “top of bank”¹. Below top of bank lands will be conveyed at no cost to the TRCA and thus this application satisfies TRCA’s Living City Policies guidelines for development permits.

Figure 1 Site Plan

On December 3, 2020, the Committee of Adjustment granted the severance and variances; the City of Toronto appealed and so this matter came to the TLAB. This TLAB hearing concluded almost 18 months ago. Under the TLAB Rules, the Chair issued an Interim Decision and Order on March 26, 2024, appointing me, (Ted Yao):

to complete the Proceeding regarding 84 North Drive, who will be expected to conclude the Proceeding and issue a final decision and order in a timely manner.

In addition to the severance, Table 2 sets out the variances required to build the two houses. The transcript indicates that there was little discussion about these variances except for lot frontage.

Table 2. Variances from By-law 569-2013

sought for 84 North Drive:— proposed west and east lots

Required/Permitted

Proposed

1

Frontage

30 m. (98.42 ft)

21.29 m. (69.8 ft for both lots

2

Minimum front yard setback

41.22 m

20.22 m for both lots

3

Side yard setback for front part

3 m

1.29 m from common side lot line for both lots

4

Side yard setback for rear part

7.5 m

2.21 m from common side lot line and 3.02 m from the exterior side lot lines

5

Building height

9.5 m.

West lot 10.51 m;

east lot 10.01 m

6

Soffit height

6.5 m

West lot 7.54 m;

east lot 7.05 m

7

Roof projection

0.9 m, subject to closeness to lot line

21.21 m (west lot and 21.29 m (east lot into the front setback

1.09 m (west lot and 1.4 (east lot into the common side lot line for front part of building

4.78 m (west lot and 5.09 (east lot into the common side lot line for rear part of building

8

Exterior main walls

7 m

7.54 m (west lot)

7.05 m (east lot

9

Max. height of front door sill

1.2 m above grade

1.88 m (west lot)

1.33 m (east lot)

10

Max. height of front and rear porches

1.2 m above grade

1.83 m (front porch, west lot);1.38 m (front porch, east lot), 1.85 m (rear deck, east lot)

11

Min. side lot line setbacks for rear part of building, specifically for rear deck

7.5 m

3.86 m from exterior lot line, 6.89 m (interior lot line); both lots

12

Max. intrusion into front lot line setback for porch

2.5 m

22.32 m (west lot);

20.68 m (east lot)

13

Porch roof

Can’t project beyond porch

Roof projects 0.76 m beyond porch (west lot); 0.31 m beyond porch (east lot)

14

Max. width of stairs to front porch

2 m

4.4 m (west lot 3.03 m (east lot)

15

Driveway width

6 m

7.8 m (west lot); 7.16 m (east lot)

16

Below grade garage sill (reverse slope driveway)

West lot garage sill must be above 129.32 m above sea level

129.15 m; a difference of 0.17 m or 0.56 ft

East lot garage sill must be above 128.72 m above sea level

128.65 m; a difference of 0.07 m or 0.23 ft

Provincial interest – s. 2 of the Planning Act

3A decision of the Toronto Local Appeal Body (TLAB shall have regard to, among other matters, matters of provincial interest. ² I did have regard for these matters but found that they used language that was too high-level or general for the circumstances of a single lot development that does not involve, for example, affordable housing. ³

Provincial Policy – s. 3 of the Planning Act

4A decision of the Toronto Local Appeal Body must be consistent with the 2020 Provincial Policy Statement and conform to the Growth Plan for the Greater Golden Horseshoe guidance. The issues in this hearing involve a single lot, 42.57 m by 119.90 m on one side (139.7 by 392.3 ft) in an urbanized area of the Province. There are no issues raised, such as servicing, agricultural lands, creation of employment or provision of affordable housing, to name just a few. The first document covers the entire province, and the second, more than twenty upper and lower tier governments. The issues concerning the Toronto and Region Conservation Authority have been satisfactorily addressed. The parties agreed that an important provision to consider was the following:

Municipal official plans are the most important vehicle for implementation of this Provincial Policy Statement and for achieving comprehensive, integrated and long-term planning. Official plans shall identify provincial interests and set out appropriate land use designations and policies. (Preamble, PPS)

In this case I focussed on Planning Act and Official Plan issues.

Consent⁴ – s. 53 of the Planning Act

5The TLAB must be satisfied that the application for consent meets the criteria set out in s. 51(24 of the Planning Act. These criteria require that " regard shall be had to”:,

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

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

(g the restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land; . . .(This is just a partial list).

Variance – s. 45(1 of the Planning Act

6In considering the applications for variances from the Zoning By-laws, the TLAB Panel must be satisfied that the applications meet all of the four tests under s. 45(1 of the Act and related case law.⁵ The tests are whether the variances cumulatively and individually:

• 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.

Right to develop

7The obligation is on the proponents to demonstrate to the decision-maker that the statutory tests are met on the balance of probabilities; there is no right to a severance or variance.

EVIDENCE

8Member Gopikrishna heard from Franco Romano, urban planner, Celine Batterink, arborist for the proponents and Trista James, urban planner for the City of Toronto. He qualified all three as able to give opinion evidence in their respective fields. I reviewed the relevant information presented, (the CVs and oral testimony) and I concur with his findings as to their ability to offer opinion evidence.

9In preparing this decision I reviewed filed written materials and listened to recorded audiovisual transcripts of the hearing conducted before Member Gopikrishna.

ISSUES AND ANALYSIS

10In my view, the key issue is s. 4.1.5 of the Official Plan, which states that the development (i.e., the proposed development “fits into” the existing neighbourhood,⁶) or in the words of the Official Plan, “whether the development will respect and reinforce the existing physical character of the geographic neighbourhood”.⁷

11Mr. Romano’s position was that it does “fit in”:

In my opinion, the proposed 21.29m lot frontage (variance and lot areas of

1902.4m2 (no variance and 1844.9m2 (no variance create large to estate

sized lots which will respect and reinforce the prevailing lot size within the

geographic neighbourhood (broader context). The proposed lot sizes will

fit in comfortably. (Romano Witness Statement 3.18 (i))

12While Ms. James agreed with Mr. Romano in many respects, she felt there was a “distinctive lotting pattern” on the south side of the street, very different from the other side of North Drive. While the north and south sides formed a relevant neighbourhood for both planners, there were sufficient differences between the two sides for her to conclude the proponents’ proposed frontages were out of character in her relevant neighbourhoods.⁸

The study areas (“geographic neighbourhoods”)

13The Official Plan directs the planner to “delineate”, that is, define the neighbourhood to serve as the model by which the development’s physical characteristics are to be measured, to see if it “fits in”. Frontage (captured under the words “lot size”) was the main characteristic to be examined. At the outset, the boundary lines of the geographic neighbourhood appeared not to be at the root of the differences between the planners; ⁹ Mr. Romano stated he was “not opposed” to Ms. James’ geographic neighbourhood. Ms. James noted a prominent “distinctive lotting fabric”, which Mr. Romano also observed, but thought it should be subsumed in his neighbourhood character.

14Mr. Romano’s broader study area (red outline) is shown below. I have drawn Ms. James’ study area (dashed line), with the watercourse called “Humber River Tributary” in blue.

Figure 3. The two planners’ study areas

15The Official Plan directs that the boundary-drawing exercise to be based on, among other factors, zoning.¹⁰

Figure 4. Zoning districts with my handwritten frontage requirements copied from By-law.

16Toronto’s zoning bylaw divides the City into hundreds of zones. These regulate use (such as whether apartments or commercial are permitted) and physical measures, such as lot frontage, area and building height. The by-law uses an “f” to denote minimum lot frontage and “a” to denote minimum lot area. Thus, the subject property is zoned “f30 a1350”, or having a minimum frontage of 30 m (98 feet) and a minimum lot area of 1350 m². I greyed this zone in Figure 3. Grey has the largest minimum frontage and lot area requirements out of the nine or ten zones in Mr. Romano’s study area. Since the frontages played a large part in this appeal and this the City map information in the basemap for Figure 4 is in small font, I have hand marked the minimum frontage requirements for the major zones to be considered.

“No prevailing lot size”

17Both planners attempted to come to terms with “neighbourhood character” which is an inference to be drawn from looking at the physical characteristics and typical houses in their respective study areas. Both included both the north side and south sides of North Drive, which is also divided by a key zoning boundary. For Mr. Romano there was one character: “large to estate sized” lots instead of two distinct characters.

18Mr. Romano justified one compendious (my word) character in part by the definition of immediate context” (the immediate block), including both sides of the street.¹¹

19The “respect and reinforce” test in OP Policy 4.1.5 applies to approximately nine “factors”, including “prevailing lot size”,¹² The nine factors suggest character is multidimensional and since the word “including” is used, the test contemplates that some factors will be respected and others not. I find that if character can be multifaceted, this is more helpful for Ms. James than Mr. Romano.

20The three most important conclusions for me from Mr. Romano’s evidence were:

• There is no prevailing lot size;

• Lots with a frontage of less than 22 m are the most frequently occurring; and

• The applicant fell within the “mix of characters” exception.

21I preface the analysis that while there is constant reference to the Official Plan, and the words “official Plan” appear in both the s 51(24) test for consents and the s 45(1) test for variances, they are different but overlapping tests.

“Prevailing”

22The Official Plan states, “The development will respect and reinforce the existing physical character . . .including in particular:. . .the prevailing size and configuration of lots”. There three key words to consider: “prevailing”, “size” and “lots”. A” lot” is a parcel of land that can be conveyed under the Planning Act,¹³ therefore the inclusion of this term, rather than “property”, or a similar word, must be aimed directly at severance applications, since a severance means the ability to convey the two pieces of land to two different owners.

23The Official Plan states “prevailing” means “most frequently occurring”. ¹⁴ Mr. Romano concluded that there was no prevailing lot size, and this evidence was relied on by Mr. Woods in his closing submissions.¹⁵ Mr. Romano said:

[The frontage measurement of] 18.28 m (59,97 ft) occurs twenty-eight times. This means that there are 603 properties with lot frontages which are different than this most frequently occurring lot frontage. (Romano Witness Statement 3.18 d)

24I do not accept the conclusion that there is no prevailing lot size.

Figure 5 Romano frontages

frontage

No. of lots

42.51 m and more

(139.5 ft and more)

12

1.9 %

30 to 42.5 m

64

10 %

22 to 29.99 m

92

14.3 %

Less than 22 m (72.17 ft)

475

73.8%

25If there is no prevailing lot size, then any proposed size can meet the test, not just 21.29 m. That cannot be. Mr. Romano assumed (correctly) that “prevailing” lot size can refer to lot frontages or lot areas, characteristics which that can be counted — for example, “thirty-nine 50-foot lots”; “thirty-nine lots with an area greater than the a390¹⁶ zoning provision”. However, the Official Plan uses the same word to describe factors that can’t be counted: — for example, “prevailing massing”, “prevailing design of driveways”. The application of this planning term needs judgement within a broader planning perspective.

26Mr. Romano also took a second approach, presenting four colours, representing four subgroups, within the neighbourhood, rather than 603. His frontage map (above) shows “yellow” or “less than 22 m”, is the most frequently occurring.

27In the circled section, on the north side of North Dr, there are two colours: pale green (22 to 29.99) and yellow. On the south side, are the two yellows, to the right of the subject, with the others being among the darker colours. Ms. James called the two yellows “anomalies” and if we discard them, the south side clearly is different from the north, not only in frontages but in lot area, depth and having table land and below top of bank land. .This was also evident to Mr. Romano who used the words “conventional” and “unconventional” lotting fabric; this difference being subsumed in his main conclusion that the is but one character throughout his study area. I find that on the evidence, the Mr. Romano’s opinion that there is only one character throughout the study area, and that there is no prevailing lot size, to be unsupportable.

Exception where characteristic is “not the most frequent”

28Part of s. 4.1.5 allows for exceptions where the physical character in the neighbourhood is “not the most frequent”. This is the third bullet point in paragraph 22.

29If I accept Mr. Romano’s evidence that there are 603 properties whose frontage is not the most frequent, this leads to the assumption that I should apply the “material consistency” test to all 603, which is not my reading of the Official Plan. If 22 m is the most frequently occurring frontage, then there isn’t a mix of characters.

30At the risk of belabouring the same issue, a distinctive lotting pattern that may or may not be caused by the f30 restriction, but coincides with it fairly faithfully, is a reasonable basis for a conclusion as to physical character. For the variance test, both the intent of both the zoning by-law and Official Plan must be maintained and reading both together, this test is not met.

31I now look at the other contentious phrase in this hearing, “lot size”

Lot size”

32Mr. Woods took Member Gopikrishna through a detailed chain of reasoning of the word “lot size” and asserted that Ms. James relied too heavily on frontage in assessing the neighbourhood characteristics.¹⁷ “Lot size” can refer to “frontage” or “lot area” or both. It is accepted that the proponents need no lot area variance, and this is a strength of this application. However, they still need a frontage variance and I do not agree that Ms. James overemphasized “frontage” in her planning analysis. Of the two characteristics, lot frontage is the more immediately apparent from the public realm perspective.

Figure 6. Property map with frontages (all data from Romano Witness Statement)

33Figure 6 is an enlargement of Figure 3, with frontages in metres written in by me from Mr. Romano’s spreadsheets. I find there is a uniformity of frontages on the north side in the high teens or low 20s, conforming to the f15 zone. There are some exceptions. Similarly, the south side and other f30 properties are in the low thirties, high thirties and a few, like the subject, low forties. We return to the same issue of two separate characters and I find the patterning I have described is supportive of two distinctive lotting patterns, thus supporting Ms. James’ conclusion.

34The Planning Act uses the words “Official Plan” in both the severance and variances tests, so there is some overlapping. But to respond to Mr. Wood’s criticism, I will focus on the s. 51(24) test that uses a different wording from “lot size”, (the words from Official Plan and in turn the starting point for some of his closing submissions). The Planning Act says ”dimensions and shapes of the proposed lots” ¹⁸ not “lot size”. The Planning Act is the superior document. “Dimensions” must include “frontage” and “depth”; for many lots these are the only “dimensions”. In addition, the section talks about “shapes”, and referring to Figure 6, the north side shapes are mostly different from south side ones. Finally, s. 51(24) refers to

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

which I find refers to the f30 zone on the land which is proposed to be divided and on the adjoining land. I reject Mr. Woods’ criticism of Ms. James that she overemphasized the frontages. The severance test requires frontages to be considered.

35I now turn to the photographic evidence.

The two different visual characters

Figure 7. Romano photographs looking north and south at 84 North Dr

36Figure 7 (above) shows two suburban-style single detached dwellings at the corner of North Drive and Courtsfield Crescent. The lower photo shows the subject site, in which it is difficult to discern the house (it is easier in the winter). Further photos were tendered by Mr. Romano in Figure 8, showing other properties along the north side of North Drive (i.e., odd numbers, and smaller lots). I find that besides frontage, the north side, has its own lotting pattern that includes not only smaller frontages, and areas but different road patterns: for example, cul de sacs and crescents, while the south side does no. These cul de sacs led to distinctive pie shaped lots. It is likely as well that this pattern was driven by the relatively flatter topography compared to the central part which Mr. Romano found had an “unconventional” lotting fabric.

Figure 8. Romano f15 houses

37I accept Ms. James’ thesis of two neighbourhoods. I accept that besides having different frontages, there are differences in trees, driveway design, size of front yards, streetscape, landscaping and porosity, i.e., the ability to see between houses.

Application of the [Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

38For the variances, the burden on the proponents is not just to show 22 m or less is the most prevalent, but ultimately that the frontage variance “maintains the intent of the Official Plan and zoning by-law”¹⁹ as well as the other two tests of being minor and desirable for the use of the land. The severance test requires that I have regard for whether there is Official Plan conformity and application of the two separate tests will rely on overlapping facts.

39What the Figure 5 map shows is that the “most prevalent” frontage is yellow. And the two 21.29 m lots are numerically close to this yellow subgroup. But this is but one step on the way to “respecting and reinforcing neighbourhood character”. I do not agree that the character of the large, “unconventional” lotting fabric on the south side and elsewhere is respected. It certainly is not reinforced.

40Nor do find the frontage variance to be “minor”. The Courts have observed that “minor” may mean minor numerically or minor in importance.²⁰ I find a 21 m frontage as opposed to 30 m is not “minor” numerically. I find that frontage is important in the determination of a neighbourhood’s character, and the variance is not minor in importance. Turning to the other test, a reduction in frontage is directly referred to in “the dimensions and shapes of the proposed lots”, and this is what I am directed to have regard to.

41Because s. 45(1) requires consideration of the intent of the zoning by-law, and the severance section of the Planning Act speaks of “restrictions”, we come back to the two separate lotting fabrics, specifically zoning. The zoning restrictions exist and . the drafter of the f30 zone followed precisely certain lot lines, including some properties, and excluding others. The intent must have been to maintain this distinctive lotting fabric and the drafter of the zoning lines must have made a conscious decision to exclude the “conventional” lots. As such the new lot cannot be created without a variance, which find is a restriction ontheland proposed to be subdivided.

42The Official Plan has many objectives, including maintaining stability, but yet permitting gradual and sensitive change. It asks us to balance and reconcile them.²¹

43The TLAB’s duty is to apply sections 51(24) and 45(1) in a purposeful way that also takes into consideration the intent of the Legislature, the author of the Planning Act. Ms. James appreciated this, noting that 13 lots out of 39 could potentially follow, which I find is not in furtherance of “stability but permitting gradual and sensitive change”.²² I find stability would not be promoted and the potential for similar possibly widespread applications would open the door to major changes. In balance, I find Council’s Official Plan goal is not achieved and thus the development is not “desirable for the appropriate development of the land”. Although this discussion has largely focussed on the variance, I find the separate test for the severance is also not met for the same reasons. A global assessment of the two different lotting patterns considered under s. 51(24) does not lead to Official Plan conformity.

44Virtually all of the evidence was directed at support of the severance and very little was said about the other variances besides frontage, As the severance is not approved, the variances for the houses are not viable and will not be further considered.

45In conclusion, the evidence falls short of the tests imposed by the Planning Act, and the appeal by the City of Toronto is allowed.

DECISION AND ORDER

46I refuse to grant the consent (i.e. severance and refuse to authorize the variances requested in Table 2.

T. Yao

Panel Member

Footnotes

1. 13.4.8 Development will be set back from the following locations by at least 10 metres, or more if warranted by the severity of existing or potential natural hazards:
   a) the top-of-bank of valleys, ravines and bluffs; (Official Plan p 3-46)
2. 2Provincial interest
   2 The Minister, the council of a municipality, a local board, a planning board and the Tribunal, in carrying out their responsibilities under this Act, shall have regard to, among other matters, matters of provincial interest such as,
   (a) the protection of ecological systems, including natural areas, features and functions;
   (b) the protection of the agricultural resources of the Province;
   (c) the conservation and management of natural resources and the mineral resource base;
   (d) the conservation of features of significant architectural, cultural, historical, archaeological or scientific interest;
   (e) the supply, efficient use and conservation of energy and water;
   (f) the adequate provision and efficient use of communication, transportation, sewage and water services and waste management systems;
   (g) the minimization of waste;
   (h) the orderly development of safe and healthy communities;
   (h.1) the accessibility for persons with disabilities to all facilities, services and matters to which this Act applies;
   (i) the adequate provision and distribution of educational, health, social, cultural and recreational facilities;
   (j) the adequate provision of a full range of housing, including affordable housing;
   (k) the adequate provision of employment opportunities;
   (l) the protection of the financial and economic well-being of the Province and its municipalities;
   (m) the co-ordination of planning activities of public bodies;
   (n) the resolution of planning conflicts involving public and private interests;
   (o) the protection of public health and safety;
   (p) the appropriate location of growth and development;
   (q) the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians;
   (r) the promotion of built form that,
   (i) is well-designed,
   (ii) encourages a sense of place, and
   (iii) provides for public spaces that are of high quality, safe, accessible, attractive and vibrant;
   (s) the mitigation of greenhouse gas emissions and adaptation to a changing climate. (Planning Act s 2)
3. 3Affordable housing is an important issue, but this is not affordable housing.
4. 4This consent has nothing to do with the parties consenting or not consenting; it is another name for a severance.
5. 5For example, in Marquis Manors Ltd. v. Kennedy, 2023 ONSC 1134. Justice Nishigawa stated:
   [10] In this case, Marquis alleges two errors of law on the part of the TLAB Member. First, , Marquis submits that the Member applied the wrong statutory test for a minor variance under s. 45(1) of the Planning Act, by: (i) applying the intent and purpose of the wrong zoning by-law; . . .
   [12] On the first issue, , Marquis alleges that the Member applied the wrong legal test. However, in the decision, the Member stated the correct test under s. 45(1) of the Planning Act and then proceeded to apply the four parts of that test. {the legislative background of the TLAB Marquis decision is the same wording as in this decision.]
6. 6Physical changes to our established Neighbourhoods must be sensitive, gradual and “fit” the existing physical character. (Development Criteria, Official Plan, p 4-3)
7. 75. Development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including in particular:. . .(official Plan p4-4)
8. 816. Within the broader context of the neighbourhood there is a distinctive lotting pattern,
   whereby the lots along the south and east side of North Drive have distinguishably wider
   lot frontages and open space and have a unique estate feel, whereas the configuration of
   the lots along north side of North Drive have narrower lot frontages and smaller separation
   distances between dwellings. While all lots are a part of the broader context of the
   neighbourhood, the lots on the north side of North Drive have a different character than
   the unique streetscape of the lots on the south side of North Drive. (James Witness Statement, par 16)
9. 9Mr. Romano: I've also outlined my understanding of the city's study area, which is within the same the same geographic neighborhood that I have, so this so this is the neighborhood map and I'm going to respond-- find an overview on. . .
   Mr. Wood: And what am I to make of this? Is, is is the conclusion that that you're comfortable working with the City’s?. I'm going to call it broader context study area?
   Mr. Romano: I'm more comfortable with my geographic neighborhood study area, but I'm not opposed to the City’s study area as well. Our findings and conclusions do not differ regardless of what the geographic study area boundary is. . .
10. 10The geographic neighbourhood for the purposes of this policy will be delineated by considering the context within the Neighbourhood in proximity to a proposed development, including: zoning; prevailing dwelling type and scale; lot size and configuration; street pattern; pedestrian connectivity; and natural and human-made dividing features. among other factors.
11. 11The physical character of the geographic neighbourhood includes both the physical characteristics of the entire geographic area in proximity to the proposed development (the broader context) and the physical characteristics of the properties that face the same street as the proposed development in the same block and the block opposite the proposed development (the immediate context). Proposed development within a Neighbourhood will be materially consistent with the prevailing physical character of properties in both the broader and immediate contexts. In instances of significant difference between these two contexts, the immediate context will be considered to be of greater relevance.
12. 124.1.5. 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) . . .
    f) prevailing setbacks of buildings from the street or streets;
    g) prevailing patterns of rear and side yard setbacks and landscaped open space;. . .(Official Plan p 4-4)
13. 13Lot means a single parcel or tract of land that may be conveyed in compliance with the provisions of the Planning Act. (Zoning By-law, definitions)
    Subdivision control
    (3 No person shall convey land . . .unless, . .
    (b) the person does not retain the fee . . .in respect of, any land abutting the land that is being conveyed or otherwise dealt with other than,
    (i land that is the whole of one or more lots or blocks within one or more registered plans of subdivision, (Planning Act, s. 50)
14. 14The prevailing building type and physical character of a geographic neighbourhood will be determined by the most frequently occurring form of development in that neighbourhood. Some Neighbourhoods will have more than one prevailing building type or physical character. The prevailing building type or physical character in one geographic neighbourhood will not be considered when determining the prevailing building type or physical character in another geographic neighbourhood. 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. (Official Plan p 4-5)
15. 15Mr. Woods stated in closing submissions, “By deduction, a proposed lot which satisfies the criterion of being of a prevailing size would respect and reinforce the existing physical character”.
16. 16390 m² = .039 hectare = about a tenth of an acre
17. 17. . .[T]hen we move to the immediate context boundary. Um, she acknowledged what are boundaries in the Official Plan, in her paragraph 17, however unfortunately, she didn't conduct her analysis of prevailing lot frontage in the context of either of these boundaries. And if you look at her Witness Statement, you you will will not um, find any of that analysis. Rather, she studied the existing lot frontage characteristics as a surrogate for lot size within the novel study area of her creation composed of 81 lots within the south block of the study area, (she called it), In fact, the only statistics provided in the graphic documentation related to her Witness Statement, are for only those lots within two subsets of the 81-lot study, comprised of properties:
    1 on the south side of North drive and on both sides of the north-south vein of North drive and
    2, on the north side of North drive.
    And that you can see by looking at our graphic documentation. So, um what what what has happened here is that rather than, uh, well, let me just complete this. As a result, the Witness Statement fails to meet the requirements of 45.1 , or 4.1.5, in that she failed to delineate a geographic, broader context neighborhood in accordance with the required factors. She failed to determine the prevailing lot from these characteristics within our geographic neighborhood, other than to show a range of lot frontages on a map. She created a novel study area, (should say “area”), of 81 lots within the geographic neighborhood boundary, and even within it, she subdivided further between lots on the south and north sides of North Drive all without any methodological justification. Although she indicated that she knew how to delineate an immediate context, she failed to delineate such context and determine the prevailing lot frontages within that context. The story and doesn't end there, as you sir, sought from her a statistical analysis which addressed the right question um which was: the prevailing lot frontage and lot area, within the context of her delineated geographic neighbourhood and her delineated immediate neighbourhood. (Woods final submissions)
18. 18S. 51(24) of the Planning Act governs consents:
    Criteria
    (24) In considering a draft plan of subdivision, regard shall be had, among other matters, to the health, safety, convenience, accessibility for persons with disabilities and welfare of the present and future inhabitants of the municipality and to,
    (a) the effect of development of the proposed subdivision on matters of provincial interest. . .
    (b) whether the proposed subdivision is premature or in the public interest;
    (c) whether the plan conforms to the official plan and adjacent plans of subdivision, if any;. .
    (f) the dimensions and shapes of the proposed lots;
    (g) the restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land;
    (h) conservation of natural resources and flood control;. . . .(Planning Act)
19. 19Powers of committee
    45 (1) The committee of adjustment, upon the application of the owner of any land, building or structure affected by any [zoning] by-law . . .may. . . authorize such minor variance from the [zoning] by-law, . . .as in its opinion is desirable for the appropriate development or use of the land, building or structure, if in the opinion of the committee the general intent and purpose of the by-law and of the official plan, if any, are maintained. (s. 45(1), Planning Act)
20. 2012] A minor variance is, according to the definition of “minor” given in the Concise Oxford Dictionary, one that is “lesser or comparatively small in size or importance”. This definition is similar to what is given in many other authoritative dictionaries and is also how the word, in my experience, is used in common parlance. It follows that a variance can be more than a minor variance for two reasons, namely, that it is too large to be considered minor or that it is too important to be considered minor. The likely impact of a variance is often considered to be the only factor which determines whether or not it qualifies as minor but, in my view, such an approach incorrectly overlooks the first factor, size. Impact is an important factor but it is not the only factor. Vincent v. Degasperis, 2005 CanLII 24263 (ON SCDC), par 12
21. 21INTERPRETATION
    The following policies provide guidance for the understanding and interpretation of the text, maps, schedules, figures and images of this Plan.
    POLICIES
    1. 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.
    1.1 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. (Official Plan p 5-23)
22. 22For the lots along the south side of North Drive, which require lot frontages of 30 metres under the City of Toronto Zoning By-law 569-2013, should the lots at 84 North Drive be permitted to be severed into two substandard 21.29 metres lots, a total of 13 lots out of 39 lots (this equates to approximately 33%) on North Drive could potentially be severed similarly. This has the potential of changing the spatial composition and streetscape of North Drive, which is of larger lots, greater open space, and separation between buildings along the lower half North Drive. (James Witness Statement, par 61)