Toronto Local Appeal Body
40 Orchard View Blvd, Suite 253
Toronto, Ontario M4R 1B9
Date:
2024-04-24
23 220379 S45 25 TLAB
Koneswaran (Re), 2024 ONTLAB 219
DECISION AND ORDER
Issuance Date:
April 24, 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):
S. KONESWARAN
Applicant(s):
FRASCA DESIGN & PLANNING INC
Property Address:
21 Spall Crt.
COA File No.:
23 144548 ESC 25 MV (A0193/23SC)
TLAB Case File No.:
23 220379 S45 25 TLAB
Hearing Date(s):
April 12, 2024
Decision Delivered By:
TLAB Panel Member R. Kanter
REGISTERED PARTIES AND PARTICIPANTS:
People Type
First Initial. Last Name
Representative
Applicant
FRASCA DESIGN & PLANNING INC
M. AMBALAVANAR
Appellant
S. KONESWARAN
S. ERAMBAMOORTHY
Participant
K. MOHAMMED
Participant
B. PELAYO
Participant
M. SYED
INTRODUCTION AND CONTEXT
1This appeal has a lengthy history.
2On May 12, 2021, the Committee of Adjustment refused variances at 21 Spall Crt. (the "Site") to Zoning By-law 569-2013 (the "ZBL") to permit the replacement of an existing structure with a new rear elevated deck with cover, located 2.75 m above the ground and extending 4.93 m beyond the rear main wall (the "2021 C of A Decision)1
3On April 5, 2022, the Toronto Local Appeal Body (the "TLAB") refused an appeal by the Owner/Appellant, S. Koneswaran, and confirmed the 2021 C of A Decision refusing the construction/maintenance of an "as-built" large rear elevated deck (the "2022 TLAB Decision").
4In that 2022 TLAB Decision, the Panel Member stated that:
"the Applicants had little to offer by way of evidence . . . the Applicants had no information whatsoever about the Official Plan, and could not identify applicable Policies, let alone apply them to the proposal . . . I therefore find that the proposal does not satisfy the intent and purpose of the Official Plan."2
5On September 5, 2023, the Applicant applied to the Committee of Adjustment for three minor variances to permit the construction/maintenance of a ground floor extension at the rear of the Site. The variances sought an increase in floor space index ("FSI") to 0.597 (0.5 permitted); building length of 19.85 (17 m permitted) and building depth of 22.06 m (19 m permitted) (the "2023 Application"). The 2023 C of A Application was accompanied by plans dated May 9, 2023, prepared by Frasca Design and Planning (the "2023 Plans")
6The 2023 Application was described as a ground floor addition to the existing building. However, it sought approval to construct/maintain a structure similar to the rear elevated deck with cover refused by the 2021 C of A Decision and the 2022 TLAB Appeal.
7On October 17, 2023, the Applicant submitted 4 Appendices in support of the 2023 Application containing the following information:
Appendix 'A' – addresses showing the location of writers of 14 letters of support;
Appendix 'B' - location of other FSI variances greater, equal to or less than the 2023 Application;
Appendix 'C' – location of other building length variances greater, equal to or less than the 2023 Application; and
Appendix 'D"- location of other building depth variances greater, equal to or less than the 2023 Application.
8On October 18, 2023, the Committee of Adjustment considered and refused the 2003 C of A Application (the "2023 C of A Decision").3
9On October 30, 2023, the Applicant/Appellant appealed the 2023 C of A Decision to the TLAB.
10On December 1, 2023, a Notice of the TLAB hearing scheduled for March was served on the Appellant/Applicant and the Participants.
11On January 16, 29 and 30, three Participants served and filed Witness Statements outlining their intended evidence.
12The Appellant/Applicant did not serve or file a Witness Statement outlining its intended evidence.
13On March 12, 2024, the Applicant/Appellant requested an adjournment due to the death of a witness. After consulting with the Applicant/Appellant and the Participants, the Hearing was rescheduled to April 12, 2024.
14On April 12, 2024, I heard the matter by remote hearing.
THE LEGISLATIVE AND POLICY FRAMEWORK
15Provincial Interest - S. 2
A decision of the Toronto Local Appeal Body (TLAB) shall have regard to, among other matters, matters of provincial interest, enumerated as (a) – (s) in the Planning Act.
16Provincial Policy – S. 3
A decision of the Toronto Local Appeal Body (TLAB) 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.
17Variance – S. 45(1)
In 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. 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
18The Appellant proposed to call Mr. Manoranjan Ambalavanar ("Mr. A") as a witness.
19I noted that the Appellant had not filed a Witness Statement. Rule 16.4 of the TLAB Rules of Practice and Procedure requires a Witness Statement to be served not later than 60 days after a Notice of Hearing is served if a Party intends to call a witness at the TLAB Hearing.
20I advised Mr. A. that I would exercise my discretion under Rules 2.12 & 2.13, and allow him to provide oral evidence as a witness, so that I might effectively and completely adjudicate the matters before me in a just, expeditious and cost-effective manner.
21In response to questions from me, Mr. A. stated that he had attended university for several years, but did not have a degree or post-secondary diploma in urban planning. He was formerly an employee of the City of Toronto, and had acted as a development consultant for twenty or thirty years. I did not qualify Mr. A. as an expert witness qualified to give opinion evidence in the area of land use planning?.
22Mr. A relied on the 2023 Plans and Appendices A-D to support the variances.
23Mr. A. stated that an increase in the floor space of .0997 would result in an increase of approximately 34 square metres. He further stated that there were 14 examples of increases in FSI shown in Appendix B; 24 examples of increases in building length shown in Appendix C; and 14 examples of increases in building depth shown in Appendix D.
24Mr. A. also stated that City Planning and Urban Forestry had no objections to the 2023 Plans.
25Participant Mr. M. Syed asked some clarifying questions of Mr. A. He asked how many applications for greater FSI had been made but refused and how many lots approved for greater FSI were higher than their neighbours (lot topography). Mr. A could not answer the questions.
26Participant K. Mohammed asked whether the lots south of Ellesmere, where FSI increases were granted, were not larger than those north of Ellesmere where the Site is located. Mr. A did not know the relative sizes of the lots.
27I asked Mr. A how many lots there were in the study area shown on Appendices B, C & D. Mr. A relied on the architect (unnamed) who prepared the Appendices, and he did not know how many lots were shown on the appendices.
28I also asked Mr. A how many of the applications for increases in FSI, building length and building depth were greater than those requested by the Applicant. He replied that 7 applications for FSI increases, 9 applications for building length and 6 applications for building depth were equal or greater than those sought by the Applicant/Appellant.
29Participant Syed described the topography of the area. The rear of the lot on the Site was considerably higher than his lot and those of the other Participants, whose lots face on Calverley Trail but back onto Spall Court. He included a photo of the large rear addition, attached as Exhibit 1
30Mr. Syed stated that the 2023 Application was not desirable since the rear addition was located approximately 2.43 m (8 feet) above the ground, higher than his privacy fence. Occupants at the Site could overlook his house from the rear of the addition, reducing his privacy.
31Participant Mr. Syed referenced the Highland Creek Community Secondary Plan. He stated that the 2023 Application did not maintain the general intent and purpose of the Secondary Plan, since the proposed building step-back and setbacks did not mitigate the impact of building height and massing, particularly in view of the additional height of the Spall lots.
32Mr. Syed also stated that the 2023 Application was not minor and did not maintain the general intent and purpose of the ZBL. He also expressed concern that the 2023 Application, if allowed, would set a precedent, particularly if similar variances were approved for lots further north on Spall Crt. with shorter rear yards.
33Participant Syed also expressed frustration that the rear addition had been built without a building permit and had remained in place since 2021, despite the fact it had been refused by the Committee of Adjustment in 2021 and 2023 and by the TLAB in 2022.
34Participant Mohammed agreed with the evidence of Mr. Syed, and also emphasized his concern about water runoff from the proposed addition.
35Participant Pelayo agreed with the evidence of Mr. Syed and Mr. Mohammed, but also expressed concern that the addition would continue and facilitate the use of the Site for multiple rental units.
36In his submissions, Mr. A. emphasized that the 2023 Application received 14 letters of support. He submitted that there would be no additional impact on privacy, since there were existing windows at the rear of the existing house on the Site and noted that "The addition was more of a place for hugs than for overlooking the houses of the Participants."
37Mr. A. submitted that similar variances to the ZBL had been granted for FSI, building length and depth. He stated that the variances did not require a reduction in rear yard or side yard setbacks. However, he did not refer to the Official Plan, in his evidence or submissions. In response to a question from me, he stated that it was up to the architect to review the OP.
ISSUES AND ANALYSIS
38As noted above, I must be satisfied that the application meets all four tests under S. 45(1) of the Planning Act. As has been stated in many previous TLAB cases, the onus is on the Appellant to satisfy the Tribunal that all four tests have been met.
39I find that the Applicant/Appellant failed to address the test of maintaining the general intent and purpose of the Official Plan.
40If the Applicant/Appellant had addressed the OP – and I repeat that its witness did not do so - the witness would have been required to have consideration for Section 4.1.5, which states that:
"Development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including in particular:
g) prevailing patterns of rear and side yard setbacks and landscaped open space."
41It is difficult to see how the existence of 6 applications for increases in building depth out of a large number of lots, perhaps 500 or so, could represent the "prevailing" or most common form of development, including landscaped open space, in the Highland Creek Neighbourhood. The Applicant/Appellant didn't address that issue.
42I find that the Applicant's failure to address the OP is particularly problematic since the same omission was noted in the 2022 TLAB Decision concerning the maintenance of the same structure by the same Owner/Appellant.4
43Nor has the Applicant/Appellant met the onus of showing that the application is desirable in relation to the Participants' lands. Given the difference in grade, the Applicant failed to show how a large rear addition would not result in unacceptable impacts of overlook to and reduction in privacy related to the Participants' properties.
44I share the Participants' concern that the Applicant/Appellant is appealing the 2023 C of A Decision to refuse an application which is essentially the same as that refused by the 2021 C of A Decision and the 2022 TLAB Appeal. While there is no absolute bar preventing an Applicant from reapplying for similar relief, the Participants should not face the same proposal repeatedly.
45I find that the Applicant is abusing the planning process by making virtually the same application to maintain an existing (as-built) structure for the fourth time, while at the same time failing to address an essential element of the statutory test for the second time.
46Consequently, I will add a direction that my Decision and Order be served on Toronto Buildings for appropriate action with respect to the 'as-built' structure on the Site built without a building permit.
CONCLUSION
47I conclude that the 2023 C of A Decision is upheld, and the appeal is refused.
DECISION AND ORDER
48I order that:
- The Appeal respecting the following variances at 21 Spall Court is refused:
(a) The proposed floor space index is 0.5997 times the lot area;
(b) The proposed building length is 19.85 m.; and
(c) The proposed building length is 22.06 m.
The decision of the Committee of Adjustment dated October 18, 2023 is upheld.
A copy of this Decision and Order be forwarded to the Chief Building Official for appropriate action.
R. Kanter
Panel Member
Exhibit 1