Kuganesaphavan (Re), 2024 ONTLAB 235

Toronto Local Appeal Body

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

Date: 2024-06-21

File Nos.: 24 109139 S53 22 TLAB 24 109141 S45 22 TLAB 24 109142 S45 22 TLAB

Kuganesaphavan (Re), 2024 ONTLAB 235

DECISION AND ORDER

Issuance Date: June 21, 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): S. KUGANESAPHAVAN

Applicant(s): RUBINOFF DESIGN GROUP

Property Address: 2 Emmeline Cres.

COA File No.: 23 176980 ESC 22 CO (B0028/23SC), 23 177032 ESC 22 MV (A0156/23SC), 23 177052 ESC 22 MV (A0157/23SC)

TLAB Case File No.: 24 109139 S53 22 TLAB, 24 109141 S45 22 TLAB, 24 109142 S45 22 TLAB

Hearing Date(s): May 30, 2024

Decision Delivered By: TLAB Vice-Chair A. Bassios

REGISTERED PARTIES AND PARTICIPANTS:

People Type	First Initial. Last Name	Representative
Owner	T. KUGANESAPHAVAN
Owner	V. KUGANESAPHAVAN
Appellant	S. KUGANESAPHAVAN	M. MAZIERSKI
Expert Witness	J. BENCZKOWSKI

INTRODUCTION AND CONTEXT

1This is an appeal of the City of Toronto (City) Committee of Adjustment’s (COA) refusal of an application for consent to sever the property known as 2 Emmeline Cres, as well as an application for variances for one new detached dwelling on the proposed new lot. The house that currently exists on the subject property will remain unaltered, but requires variances as a result of the reduction in lot size and reconfiguration.

2The subject property is located in the Agincourt South-Malvern West neighbourhood of the former City of Scarborough.

3It is designated Neighbourhoods in the Toronto Official Plan and zoned RD (x274) under Zoning By-law 596-2013.

4The Applicant filed the Applicant Disclosure (TLAB Form 3) as required by the TLAB Rules and in compliance with the date set in the Notice of Hearing. The Applicant Disclosure stated that there would be no changes to the plans that were refused by the COA, but noted that the variance for front yard setback had been eliminated with agreement of the Plans Examiner.

5Subsequent to the filing of the Applicant Disclosure, the Applicant revised their proposal, changing the dimensions of the proposed lots, which in turn also altered the scope of the variances required. They have requested that the TLAB consider this revised proposal.

6Anticipating that the TLAB might not be amenable to waiving the requirement for notice under s.45(18.1.1) and s.53(35.1) of the Planning Act¹ because of the scope of the changes, Mr. Mazierski circulated an affidavit from his client advising of the revisions to persons prescribed in the original Notice.

7No Parties or Participants had elected status prior to the Hearing. Midway through the Hearing, a Ms. Robinson identified herself and wished to be heard on the matter. She is an owner of an abutting property.

8I advised those present at the Hearing that, in accordance with Council direction, I had attended at the site and the surrounding area and that I had reviewed the pre-filed materials in preparation for the hearing of their evidence.

9Recently appointed members of the TLAB, Members Herscher, Mullock and Gallaugher were in attendance at the Hearing, observing the proceedings.

10THE CONSENT REQUESTED:

To sever the property into two residential lots.

Part 1, Conveyed Lot, Draft R-Plan (Address to be determined)

Lot frontage: 15.22m

Lot area: 517.3m²

Part 2 and 3, Retained Lot, Draft R-Plan (Address to be determined)

Lot frontage: 20.15m

Lot area: 517.3m²

(Part 3 is subject to an easement (Instrument No. SC204139))

11VARIANCES REQUESTED:

Part 1:

1. Exception RD 274.(A), By-law No. 569-2013

The minimum required lot frontage is that which existed on the date of the enactment of this By-law (21.82m).

The proposed lot frontage is 15.22m.

2. Exception RD 274.(B), By-law No. 569-2013

The minimum required lot area is that which existed on the date of the enactment of this By-law (1034.7 m²).

The proposed lot area is 517.3 m².

3. Chapter 10.20.40.70.(2)(A), By-law No. 569-2013

The minimum required rear yard setback is 7.5 m.

The proposed rear yard setback is 1.29 m.

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

The maximum permitted building length is 17 m.

The proposed building length is 20 m.

Part 2:

1. Exception RD 274.(A), By-law No. 569-2013

The minimum required lot frontage is that which existed on the date of the enactment of this By-law (21.82m).

The proposed lot frontage is 20.15m.

2. Exception RD 274.(B), By-law No. 569-2013

The minimum required lot area is that which existed on the date of the enactment of this By-law (1034.7 m²).

The proposed lot area is 517.3 m².

3. Exception RD 274.(G), By-law No. 569-2013

Site Specific Provisions:

(A)The maximum floor space index for a lot with a dwelling unit in a permitted building type is: …(ii)the lesser of 0.5 times the lot area or 279 square metres, if the lot area is 408 square metres to 697 square metres.

Permitted 258.65m² (0.5 x 517.3m²)

The proposed floor space index is 281.6 m² (0.54 FSI)

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

The maximum permitted lot coverage is 33%.

The proposed lot coverage is 35.9%

THE LEGISLATIVE AND POLICY FRAMEWORK

12Provincial 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.

13Provincial 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 for the subject area (‘Growth Plan’).

14Consent – S. 53

TLAB must be satisfied that a plan of subdivision is not necessary for the orderly development of the municipality pursuant to s. 53(1) of the Act and that the application for consent to sever meets the criteria set out in s. 51(24) of the Act. These criteria require that " 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 as referred to in section 2 of the Planning Act;

(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;

(d) the suitability of the land for the purposes for which it is to be subdivided;

(d.1) if any affordable housing units are being proposed, the suitability of the proposed units for affordable housing;

(e) the number, width, location and proposed grades and elevations of highways, and the adequacy of them, and the highways linking the highways in the proposed subdivision with the established highway system in the vicinity and the adequacy of them;

(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;

(i) the adequacy of utilities and municipal services;

(j) the adequacy of school sites;

(k) the area of land, if any, within the proposed subdivision that, exclusive of highways, is to be conveyed or dedicated for public purposes;

(l) the extent to which the plan’s design optimizes the available supply, means of supplying, efficient use and conservation of energy; and

(m) the interrelationship between the design of the proposed plan of subdivision and site plan control matters relating to any development on the land, if the land is also located within a site plan control area designated under subsection 41 (2) of this Act or subsection 114 (2) of the City of Toronto Act, 2006. 1994, c. 23, s. 30; 2001, c. 32, s. 31 (2); 2006, c. 23, s. 22 (3, 4); 2016, c. 25, Sched. 4, s. 8 (2).

15Variance – 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

EXPERT WITNESS BENCZKOWSKI

16Mr. Benczkowski was qualified as an Expert in land use planning and provided evidence in support of the applications.

17He identified that exception 274 in the Zoning By-law applies to the subject property. The exception stipulates a number of site specific standards, including that the minimum required lot frontage and lot area are those which existed on the date of enactment of the By-law.

18Mr. Benczkowski described the proposal as follows:

• The property is to be severed into two lots, with the existing dwelling to be maintained in its current state on one lot. It is a one-storey dwelling with an integral garage.

• By convention, when a lot abuts two streets (a corner lot), the shorter of the two lot lines is defined as the frontage, or front lot line of the lot. The east/west division of the existing lot would result in the Scotland St side, not the Emmeline Cres side, becoming the defined front, or frontage, of both resulting lots.

• This redefinition of the frontage, in turn, changes which lot lines are identified as side lot lines and rear lot lines for the Part 1 lot that contains the existing house.

• If the severance is approved as submitted, the existing dwelling will remain unchanged, but the Emmeline Cres frontage would no longer be considered the front of the property but the side.

• The built form of the proposed new dwelling requires small variances for floor space index and coverage, but otherwise respects the Zoning By-law.

19Mr. Benczkowski noted a number of conditions of approval that had been required by public agencies. Of particular note is a condition from Metrolinx requiring the registration of an easement on the severed property.

20Mr. Benczkowski identified a neighbourhood study area in accordance with the direction of Official Plan Policy 4.1.5. He noted that the study area contains only detached dwellings.

ISSUES AND ANALYSIS

NOTICE AND PARTICIPATION

21Ms. Robinson’s arrival in the Hearing once it was underway with the expectation that she be allowed to participate was unexpected, as no Parties or Participants had been identified in the filings.

22My consideration of Ms. Robinson’s status in the Hearing was complicated by the unusual re-circulation of notice after the Applicant’s Disclosure had been filed, and, notably, after the TLAB deadlines for the election of Party and Participant status had passed.

23After the Applicant’s evidence had been heard, Ms. Robinson’s expectation that she was going to be able to participate in the Hearing was discussed.

24Ms. Robinson said that she was following the instructions in the document that she received that if she wished to “make her views known” she could send an email with her comments or participate in the Webex TLAB virtual Hearing.

25In response to my question regarding the date on the documents to which she was referring, Ms. Robinson identified February 28, 2024 and April 23, 2024.

26February 28, 2024 was the date of the TLAB’s Notice of Hearing and April 23, 2024 was the date on the “affidavit of service” that Mr. Mazierski circulated to notifiable persons after the proposal had been changed.

27Both of the above documents include clear instructions that it is necessary to declare party or participant status ahead of the scheduled hearing date, using the prescribed forms. The TLAB Notice of Hearing, (which was appended to the “affidavits of service” as well), contained information identifying the required forms to fill out to elect Party or Participant status and the subsequent requirements and deadlines for Witness Statements etc..

28Ms. Robinson said that she had sent an email to TLAB staff saying she was not able to fill out a form and she wished to send an email instead. She acknowledged that TLAB staff had responded to her email and informed her that she would need to submit a Notice of Election to be a Party or Participant in order to be heard.

29Every document in a TLAB proceeding must be provided and shown in electronic format. The TLAB website provides guidance for people who may not have technical expertise with computers, but reiterates that the format must be observed and that the individual may need to obtain the advice of persons qualified to provide assistance.

30I am sympathetic to the struggles of keeping up with changing technology, however, I would have expected that Ms. Robinson make some greater effort to comply with the expectations of the TLAB. This is not a matter of “red tape”, or adherence to “paperwork”. The imperative to be identified as an interested party and to give fair notice to the TLAB and other persons with standing in a Hearing is a fundamental principle of procedural fairness and natural justice.

31With Mr. Mazierski’s agreement, I allowed Ms. Robinson to make her comments. I did so for the following reasons:

• I recognize that she may have had some level of technological barrier to participation, although she acknowledged that she was required to make efforts to fulfil the TLAB requirements.

• I recognize that the recirculation of a revised proposal may have confused Ms. Robinson about the due dates for filing and the steps which are necessary to do so.

• A copy of Ms. Robinson’s email stating her objection and her reasons for the objection was contained in the Appellant Disclosure (Exhibit 2). Mr. Mazierski was therefore aware of Ms. Robinson’s objection although she had not registered as a Party or Participant in the Hearing.

32I explained to Ms. Robinson that I would give her an opportunity to say what she wished to say, with Mr. Mazierski’s agreement, but that I could give limited weight to her concerns and comments as she had not elected, or been granted, party or participant status and had not provided a Witness Statement in advance of the Hearing.

33Ms. Robinson’s brief comments concerned her property value, enjoyment of her property, noise and overcrowding that she said would result from the severance and construction of another house on the property.

THE PLANNING ACT AND PROVINCIAL POLICY

34The Applicant has initiated this appeal of the COA’s decision to refuse the applications. In order for the TLAB to approve the requested consent to sever and variances, I must be satisfied that the applications meet the requirements of the Planning Act. The burden rests therefore on the Applicant to provide evidence that fully substantiates that the applications meet the relevant requirements of s.53 and the four tests stipulated in s.45.

35I accept Mr. Benczkowski’s evidence that the proposal is consistent with the 2020 Provincial Policy Statement and conforms to the Growth Plan for the Greater Golden Horseshoe for the subject area.

36I find that in this application for a lot severance in an existing neighbourhood, the high-level policies of the Provincial Policy Statement and the Growth Plan are not directly engaged. I shall rely on application of the Official Plan policies and the Zoning By-law provisions to implement provincial policy directions.

CONSENT TO SEVER

37I am satisfied that a plan of subdivision is not required pursuant to s. 53(1) of the Planning Act as the proposal is a division of the existing legal lot in a long-established area. No adaptation or construction of public infrastructure is required.

38Of the criteria set out in s. 51(24) of the Planning Act, I consider criteria (c) and (f) to warrant further discussion in this Decision.

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

(f) the dimensions and shapes of the proposed lots.

39As the Official Plan contains policy about dimensions and shapes of lots within the criteria for development in Neighbourhoods, I have folded consideration of both criteria c) and f) above into the discussion of the Official Plan, the general intent and purpose of which is the first test for the approval of variances under s. 45(1) of the Planning Act.

OFFICIAL PLAN TEST

40Mr. Benczkowski referenced the Healthy Neighbourhoods section of the Official Plan (s.2.3.1), which recognizes that neighbourhoods will experience physical change and will not stay frozen in time.

41Mr. Benczkowski reviewed applicable Official Plan policies and provided an analysis of the criteria identified in Official Plan Policy 4.1.5.

42OP Policy 4.1.5 provides direction for assessing the “fit” of development within a Neighbourhood. The policy contains within it development criteria that are intended to give greater specificity regarding the expectation for development in Neighbourhoods.

4.1.5 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) prevailing location, design and elevations relative to the grade of driveways and garages;

f) prevailing setbacks of buildings from the street or streets;

g) prevailing patterns of rear and side yard setbacks and landscaped open space;

h) continuation of special landscape or built-form features that contribute to the unique physical character of the geographic neighbourhood; and

i) conservation of heritage buildings, structures and landscapes.

43The majority of the development criteria listed in OP Policy 4.1.5 relate to the built form. Criterion 4.1.5 b) prevailing size and configuration of lots is most relevant to the creation of new lots (the consent) and will be discussed first in this Decision. Criterion c) prevailing heights, massing, scale, density and dwelling type of nearby residential properties will also be considered in relation to the variances for floor space index and lot coverage requested for the Part 2 and 3 lot.

OP POLICY 4.1.5 – PREVAILING SIZE AND CONFIGURATION OF LOTS

44In considering OP Policy 4.1.5 criterion b), prevailing size and configuration of lots, two lot characteristics are relied upon; lot frontage and lot area.

45In the revised proposal, the existing lot has been divided into two lots of equal area (517.3m²). This has resulted in a shorter frontage for the Part 1 lot, where the existing house is located, and a longer frontage for the “new” lot (Parts 2 and 3) than was the case for the application that was before the COA.

46The requested frontage for the Part 1 lot is 15.22m and for Parts 2 and 3, it is 20.15m. The lots would be considered to “front” onto Scotland Rd.

Figure 1: Draft R Plan. Ex 1, Tab 3.

47Mr. Benczkowski provided data from the City’s property database that includes lot frontage information and lot area information (Exhibit 1, Tab 10). The release of the data is accompanied by a disclaimer that states the data must be independently verified for legal use. Acknowledging that property data in general can be out of date, I am prepared to consider this data regarding lot frontage and lot area for the purposes of comparison in this case.

Lot Area

48Mr. Benczkowski provided a map showing lot areas within his study area (Exhibit 1, Tab 11). There are a number of lots shown within the study area with similar lot areas as those proposed in these applications. I note from the property data that the lot area for 26 Scotland Rd, which is contiguous with the subject property and faces onto Scotland Rd, is 81m² larger than the proposed area of each of the new lots.

49Referring to the property data, there is one lot on Scotland Rd that is smaller than the proposed lots, although it is located at the end of the street, some distance from the subject property. The property at 25 Scotland Rd (almost directly across the road from the proposed new Part 2 and 3 lot) is barely 1m² larger than the proposed lots.

50There are a substantial number of lots in the neighbourhood study area that have a similar or smaller lot area than those proposed for the two new lots and on this basis, I find that the proposed lot areas respect the neighbourhood and should not be precluded (Official Plan Policy 4.1.5).

Lot Frontage

51Mr. Benczkowski noted that the proposed new lot (Parts 2 and 3) frontage of 20.15m is larger than all of the lots that front Scotland Rd. I agree that the proposed frontage of this new lot “fits” with the frontages prevailing on Scotland Rd.

52Mr. Benczkowski did not, however, consider the shortened Scotland St frontage of the Part 1 lot in the same way. His opinion was that “(a)long the Emmeline Crescent there is no change to the perceived frontage of the dwelling as it fronts the streetscape. The dwelling is proposed to be maintained as it fronts Emmeline Crescent”. What his comments do not address is the “fit” of the now foreshortened frontage of the Part 1 lot onto Scotland Rd.

53Of the Scotland Rd frontages listed in the property data provided by Mr. Benczkowski, none are as short as the frontage proposed for Part 1.

54Official Plan Policy 4.1.5 recognizes that some geographic neighbourhoods contain a mix of physical characters. In such cases, the direction to respect and reinforce the prevailing physical character (most frequently occurring) 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 (my emphasis).

55Looking at the property data table, there are some lots on Scotland Rd that have frontages close to that which is being proposed for Part 1, with four lots fronting Scotland Rd being less than 15.5m. None of these four lots, however, are situated in the same block as the subject property and none are in Mr. Benczkowski’s immediate context area.

56From the data, the adjacent property at 26 Scotland St is 16.88m, approximately 1.6m longer than the proposed Part 1 lot.

Figure 2 :Extract Lot Frontage Map. EX1, Tab 13

57A quantitative analysis of the data provided reveals some information gaps and also an open question of whether the configuration of the proposed lots respects and reinforces the prevailing size and configuration of lots as is required by Official Plan Policy 4.1.5 b).

58Considering the quantitative analysis in context with land use planning principles as outlined by Mr. Benczkowski, I find on balance, that I am satisfied that the size and configuration of the proposed lots does respect and reinforce the physical character of the neighbourhood for the following reasons.

59As the existing footprint will not change and the face of the existing dwelling will continue to orient to Emmeline Cres, the frontage onto Scotland Rd will likely read as a side yard to the neighbourhood and to casual passersby.

60The proposed Part 1 lot’s location on the corner of Emmeline Cres and Scotland Rd, together with the segmented nature of streetscape on the west side of Scotland Rd mitigates against any noticeable disruption of streetscape rhythm caused by the short frontage.

61While the length of the Part 1 frontage proposed is shorter than all of the frontages on Scotland Rd, the difference between the proposed lot and many of the other Scotland Rd lots is less than 2m. In my opinion, the difference between the frontage proposed and that of the lot adjacent to the subject property (26 Scotland) is not discernable to the casual observer.

62I find that proposed size and configuration of lots respects and reinforces the physical character of the neighbourhood. I find that the proposed consent to sever the property maintains the general intent and purpose of the Official Plan with respect to the creation of new lots.

63In conjunction with my finding on the general intent and purpose of the Official Plan, I find that the requested consent to sever has had due regard for criterion (f) the dimensions and shapes of the proposed lots and that the requirements of s. 51(24) of the Planning Act have been met.

OP POLICY 4.1.5 - PREVAILING HEIGHT, MASSING, SCALE AND DENSITY

64OP Policy 4.1.5 c) requires that the proposal respect and reinforce prevailing heights, massing, scale, density and dwelling type of nearby residential properties.

65I accept the advice of Mr. Benczkowski that the existing house on the subject property is already part of the physical character of the neighbourhood. Therefore, I am satisfied that the requested variances for maximum building length and minimum rear yard setback that are required for the Part 1 lot maintain the general intent and purpose of the Official Plan.

66The house proposed to be constructed on the Part 2 and 3 lot requires variances for lot coverage and for floor space index (FSI).

Lot Coverage

67With reference to OP Policy 4.1.5 c), specifically, Mr. Benczkowski advised that “the increase in coverage for the property is driven by the inclusion of the open air front porch and rear deck”. I do not see how the “inclusion” of the porch and deck drives the need for this variance.

68The definition of lot coverage in the Zoning By-law is as follows

Lot Coverage

means the portion of the lot that is covered by any part of any building or structure on or above the surface of the lot.

69The need for a lot coverage variance is not caused by the deck or the porch specifically but by the total amount of area covered, whether accounted for by any part of the ground floor footprint, the three car garage, or the porch and deck that are included in this calculation per the By-law.

Floor Space Index (FSI)

70A design analysis of the massing and density of the proposed new house, in comparison to the massing and density of other nearby residential properties, or the prevailing massing and density in the neighbourhood, was not provided in the Expert Witness Statement.

71Mr. Benczkowski’s justification for his support of the FSI variance (the “density” in the language of the Official Plan) is that it is “not related to any built form deficiency in the Zoning By-law. The proposed building length, depth, ALL setbacks, and height are all as per the provisions of the Zoning By-law”.

72I do not agree with this proposition. From this perspective, the FSI maximum is presented as a number with limited importance or meaning, as just a number, while the building envelope is relied upon as the primary reference for the consideration of potential overdevelopment.

73The purpose of a density/ FSI maximum in the By-law is specifically and purposefully to regulate the size and scale of physical form in relation to the area of the lot; it is not a postscript to the other requirements of the By-law, and it is a separate consideration in OP Policy 4.1.5 c). One may construct at a maximum height, building length and minimum setbacks for front rear and sides, but one may seldom build to the limits of this prescribed “building envelope”, all at once, in the face of a floor space limit. The purpose of the FSI provision is to regulate the overdevelopment of lots and the principle entrenched is that larger lots can accommodate more development than smaller lots.

74Compliance with all other Zoning By-law provisions does not demonstrate, at all, that the proposed FSI will respect and reinforce the existing physical character of the neighbourhood. Respect for the character of the neighbourhood, as per OP Policy 4.1.5 c), must be demonstrated by an examination of the proposed structures in relation to the prevailing heights, massing, scale, density and dwelling type of nearby residential properties. In creating what would be amongst the smallest lots in the neighbourhood, close attention must be given to the massing, scale and density of the proposed new house.

75The photobook that is included in Exhibit 1 (Tab 18) provides some photographs of homes in the neighbourhood. The photographs of 26 Scotland Rd, 16 Scotland Rd, and 18 Scotland Rd, (the photographs of houses closest to the proposed new house on Scotland Rd), and the existing house on the subject property, show a lower profile and contained massing that presents, at least from the few photographs, quite differently than the elevations for the new house. The scale of the proposed new house must be considered in relation to the nearby houses on Scotland Rd.

76In his Expert Witness Statement, Mr. Benczkowski stated that “the design of the proposed new homes (sic) has resulted in a built form, scale and massing that is characteristic of this neighbourhood…)”. I respect that this is Mr. Benczkowski’s opinion, but substantiation of this opinion is necessary for me to be satisfied that the policies of the Official Plan have been met.

77The Official Plan defines “prevailing” as “most frequently occurring”. Mr. Benczkowski’s COA Decision Chart (Exhibit 1, Tab 17) identifies only one variance in the study area for an FSI greater than the 0.54 FSI that is proposed for the Part 2 and 3 lot. (88 Havendale Rd at 0.55).

78I note from Mr. Benczkowski’s testimony that the proposed floor area for the new house is only 21m² above the floor area that the By-law permits as of right. I recognize that the additional floor area might seem to be inconsequential, but a justification is still required, and “fit” with the existing massing, scale and density of the nearby houses is important.

79In the absence of contextual analysis of the prevailing massing or densities/ FSIs in the neighbourhood, I have little reference for accepting that the density/ FSI proposed for the Part 2 and 3 lot respects and reinforces the prevailing massing, scale and density of nearby residential properties (as required by OP Policy 4.1.5 c)).

ZONING BY-LAW TEST

80Mr. Benczkowski’s advice was that the general intent and purpose of zoning by-laws are to ensure compatible built form within the area and to ensure that new development does not cause unacceptable undue adverse impacts on the existing neighbourhood.

81The Zoning By-law contains a specific exception which applies to the subject property.

(274) Exception RD 274

The lands, or a portion thereof as noted below, are subject to the following Site Specific Provisions, Prevailing By-laws and Prevailing Sections.

Site Specific Provisions:

(A) The minimum required lot frontage is that which existed on the date of the enactment of this By-law;

(B) The minimum required lot area is that which existed on the date of the enactment of this By-law;

(C) The minimum building setback from a front lot line that abuts Midland Ave. is 22.0 metres measured from the original centreline of Midland Ave.;

(D) The minimum building setback from a side lot line is 1.2 metres;

(E) The minimum building setback from a side lot line that abuts a street is 5.7 metres;

(F) An attached or detached garage must be set back a minimum of 0.3 metres from a side lot line that does not abut a street; and

(G) These lands must comply with exception 900.3.10(1462)

• Minimum Lot Frontage and Lot Area (both lots)

Exception RD 274: no change permitted to lot area and lot frontage.

82Exception RD 274 restrains the minimum lot frontage and the minimum required lot area to that which existed on the date the By-law was enacted. There is therefore no specific number for minimum lot area or minimum lot frontage beyond which a reconfigured lot area or lot frontage would be permitted as of right. Any change/ reduction to a lot area or lot frontage requires the approval of a variance.

83Mr. Benczkowski has addressed the overall general intent and purpose of a zoning by-law but has not in this instance addressed the general intent and purpose of the minimum lot area and minimum lot frontage provision which applies to the subject property through Exception RD 274.

84His opinion is that the proposed lot frontages and lot areas maintain the general intent and purpose of (the) provision “which is to achieve an appropriate lot size within the physical context of its surroundings”.

85I accept Mr. Benczkowski’s advice that achievement of an appropriate lot size within the context could well be the overall objective of a zoning by-law provision, but it is not the general intent and purpose of this By-law provision. The clear intent of this provision is to maintain the lot configurations as they existed at the time the By-law was enacted.

86This gap in the evidence of the Applicant is not inconsequential. It goes to the heart of the second test, which is what is the general intent and purpose of the Zoning By-law and can the variance be accommodated within that intent and purpose?

87A Zoning By-law represents parameters of development that can be permitted as of right; it is not intended to be an “ideal” but rather a threshold beyond which appropriate development within the planning context must be considered, often through the process of application for variances. I find it difficult to accept that no variance to the lot area and frontages provision of the By-law is permissible, given the Official Plan’s direction that neighbourhoods will not stay “frozen in time”.

88Accepting, therefore, that variances to the minimum lot area and lot frontage are permissible, I must decide whether a wholesale subdivision of a lot into two parts is a stretch too far, given the language of Exception RD 274.

Comparable COA Variances

89For reference, I reviewed the COA decision data contained in Exhibit 1, Tabs 16 and 17 to understand the extent of lot configuration changes that have been approved within the neighbourhood.

90Mr. Benczkowski identified approvals for two consents to sever; one at 88 Havendale Rd and one at 104 Havendale Rd. Reading the decisions enclosed, neither of these two properties was subject to the same zoning exception as the subject property. In the case of 104 Haverdale Rd, no variance was required for the lot areas and lot frontages resulting from the severance.

91Reference to the two cited cases do not provide useful guidance with respect to varying the standards in Zoning By-law Exception 274.

Approval of the consent to sever application and consideration of lot variances

92I have found that the proposal meets the requirements of s.53 and the criteria listed in s.51(24) of the Planning Act. The criteria for approval of a consent to sever reference the Official Plan. They do not require conformity or regard for the Zoning By-law.

93I have found the application for consent to sever meets the Planning Act requirements and so should be approved. As the characteristics of the two new resultant lots and the buildings on them do not comply with all the provisions of the Zoning By-law, two separate applications are required to approve the required variances, which include variances for the lot frontages and the lot areas.

94The Planning Act tests for approval of variances require that the variances relating to the lot configuration maintain the general intent and purpose of the Official Plan, which I have found they do, but also that the requested variances maintain the general intent and purpose of the Zoning By-law.

95A finding that the application for consent to sever should be approved, but that the variances for lot area and lot frontage for the two resultant lots should not be approved, on the basis that they do not respect the general intent of the Zoning By-law, would result in a fundamental inconsistency. Put another way, this scenario would result in two legal lots being created while permission for their lot areas and lot frontages could be withheld.

96While I recognize that the general intent and purpose of the Zoning By-law provisions for lot area and lot frontage that apply to the subject property is to limit changes to the dimensions of each lot and to the lot fabric subject to this Zoning Exception, it is not within the scope of the Zoning By-law to prohibit the creation of new lots that comply with the policies of the Official Plan.

97While it is possible to approve the consent to sever and deny the variances for lot area and lot frontage, I see this as an impractical and undesirable outcome. It serves no purpose to allow the creation of legal lots while frustrating their use by denying variances on the basis of the lot characteristics.

98I respect the intentionality of the limitations of lot area and lot frontage set out in Exception 274, and I am cognizant that the overall purpose of the Zoning By-law is to implement the policies of the Official Plan through site standards and performance standards. In this case and in these particular circumstances, however, I will resolve the disconnect between the approval of the consent to sever and the limitations created by the Exception to the Zoning By-law through reference to the guidance of the Official Plan. Neighbourhoods are subject to change and change must be sensitive and “fit” the physical characteristics of the neighbourhood.

99I am satisfied that approval of the requested variances for lot areas and lot frontages constitutes good planning and that the general intent and purpose of the Zoning By-law is maintained in concert with the general intent and purpose of the Official Plan.

• Rear Yard Setback (Part 1)

100Mr. Benczkowski advised that the general intent and purpose of the minimum rear yard setback provision is to ensure that there is sufficient space to accommodate amenity and accessory features.

101Mr. Benczkowski’s evidence was that there is ample room in what will become the side yard of Part 1 (formerly the rear yard of the subject property) to fulfil a backyard function.

102The reoriented side yard will be 19.98m in length and 1.48m wide. Given the location of the existing house on the site, I accept that the side yard provides sufficient area to accommodate amenity and accessory functions in this instance. It is important, however, that this side yard be maintained as an amenity space and therefore approval of this variance will be subject to the protection of the space and no further variance is to be permitted to what will now be the side yard.

• Building Length (Part 1)

103Mr. Benczkowski advised that the general intent and purpose of the building length provision is to “ensure the appropriateness of a dwelling for a particular lot”.

104I note that this variance applies to the existing house which is located on the subject property and is triggered by the redefinition of the frontage of the reduced lot (Part 1) from Emmeline Cres to Scotland Rd.

105As no further construction is proposed for this lot and the house already exists at this building length, I am satisfied that the variance requested for building length maintains the general intent and purpose of the Zoning By-law.

• Floor Space Index (FSI) (Part 2 and 3)

106In reference to the FSI provision in the Zoning By-law, Mr. Benczkowski advised that the general intent and purpose of the density standard is “to ensure buildings within that designated zone are all compatible in scale and massing”.

107Floor Space Index, or FSI, is the ratio of the gross floor area (GFA) of the proposed structure in relation to the area of the lot. In the By-law, FSI is the numerical description of what the Official Plan refers to as “density”.

108As alluded to previously in this Decision, the FSI provision in the Zoning By-law overarches other provisions such as building length, setback minimums, building length maximums etc.. This FSI provision specifically relates the overall size/ floor space of the built structure to the size/area of the lot. The function of this provision in the Zoning By-law is pointedly to scale the size of the house to the size of the lot.

109I must be satisfied that the proposed construction does not constitute an over-development of the lot. For the same reasons outlined above in consideration of density in the Official Plan, I find that I do not have sufficient basis to conclude that the general intent and purpose of the FSI provision in the Zoning By-law is maintained.

CONCLUSION – OFFICIAL PLAN AND ZONING BY-LAW

110I have found that the lot areas and the lot frontages requested for the two proposed lots maintain the general intent and purpose of the Official Plan and the Zoning By-law.

111I have found that the minimum rear yard setback and maximum building length variances required for the Part 1 lot, where the existing house is located, maintain the general intent and purpose of the Official Plan and the Zoning By-law.

112I have found that there is an insufficient evidentiary basis for finding that the maximum lot coverage and floor space index variances for the Part 2 and 3 lot maintain the general intent and purpose of the Official Plan and the Zoning By-law.

TESTS FOR ‘MINOR’ AND DESIRABLE FOR THE USE OF THE LAND

113I find no undue adverse impact of a planning nature arising from approval of the variances requested for minimum lot area and minimum lot frontage, and for the additional variances relating to the Part 1 lot (minimum rear yard setback and maximum building length).

114I find that the variances set out in the above paragraph are also desirable for the use of the land for the reasons outlined previously.

115I find that the variances requested for floor space index and lot coverage are not desirable for the development of the land.

CONDITIONS

116The standard conditions for approval of a consent to sever will be applied.

117Metrolinx requested that a condition of approval be required to register an easement that would include the following wording:

Warning: The Applicant is advised that the subject land is located within Metrolinx’s 300 metres railway corridor zone of influence and as such is advised that Metrolinx and its assigns and successors in interest has or have a right-of-way within 300 metres from the subject land. The Applicant is further advised that there may be alterations to or expansions of the rail or other transit facilities on such right-of-way in the future including the possibility that Metrolinx or any railway entering into an agreement with Metrolinx to use the right-of-way or their assigns or successors as aforesaid may expand or alter their operations, which expansion or alteration may affect the environment of the occupants in the vicinity, notwithstanding the inclusion of any noise and vibration attenuating measures in the design of the development and individual lots, blocks or units.

118It is unusual for the TLAB to be asked to impose an easement on the property for warning purposes, such as is proposed by Metrolinx. The Applicant had not objected to the condition. When I questioned Mr. Benczkowski about the condition, he did not think the easement was a good practice, but his client had not opposed the condition.

119I will include the condition as requested by Metrolinx though I question the usefulness of applying such an easement to one property in a neighbourhood that has long existed, presumably without such warnings on title.

NOTICE

120A tribunal is permitted to make a decision on applications that have been amended from the original application provided that notice is given to the persons and public bodies who received notice of the original application. There are provisions for the tribunal to waive notice if, in its opinion, the amendments are minor.

121In this instance, I would not employ the TLAB’s authority to waive notice as the lot frontage and lot areas changed significantly.

122The Applicant’s circulation of Notice was done without the prior direction or knowledge of the TLAB, happened subsequent to the Applicant’s Declaration and was circulated after the period for election of Party or Participant status had passed. Self-initiated re-circulation of notice potentially causes confusion for other potential Parties and Participants and undermines the confidence of the TLAB and the public in the veracity of the Applicant’s Disclosure.

123In this case, I will exercise the TLAB’s discretion to make a decision on the amended application as there was little public engagement in the applications and Ms. Robinson was heard. However, the employment of a recirculation strategy is not to be encouraged as it undermines the sequence and timing of key processes in the proceedings and potentially compromises procedural fairness for all.

CONCLUSION

124I have found that the proposed lot frontages and the proposed lot areas maintain the general intent and purpose of the Official Plan, and therefore I have found also that the criteria for the approval of a consent to sever set out in s.51(24) of the Planning Act have been met.

125I have found that the variances which apply to the Part 1 lot, for minimum rear yard setback and maximum building length maintain the general intent and purpose of the Official Plan, the Zoning By-law and are desirable for the use of the land, subject to a condition.

126I have found that there is insufficient basis to approve the variances for lot coverage and floor space index that were requested for the Part 2 and 3 lot.

DECISION AND ORDER

127The Appeal is allowed in part.

128The application for consent to sever is approved subject to the conditions contained in Appendix A.

129The variances to the Zoning By-law set out in Appendix B are authorized, subject to the conditions contained therein.

A. Bassios Panel Member

APPENDIX A

130Schedule A: Standard Consent Conditions

The Consent Application is approved on Condition

The TLAB has considered the provisions of Section 51(24) of the Planning Act and is satisfied that a plan of subdivision is not necessary. The TLAB, therefore, consents to the transaction as shown on the plan filed with the TLAB or as otherwise specified by this Decision and Order, on the condition that before a Certificate of Official is issued, as required by Section 53(42) of the Planning Act, the applicant is to fulfill the following conditions to the satisfaction of the Deputy Secretary-Treasurer of the Committee of Adjustment:

(1) Confirmation of payment of outstanding taxes to the satisfaction of the Revenue Services Division, in the form of a statement of tax account current to within 30 days of an applicant's request to the Deputy Secretary-Treasurer of the Committee of Adjustment to issue the Certificate of Official as outlined in Condition 6.

(2) Municipal numbers for the subject lots, blocks, parts, or otherwise indicated on the applicable registered reference plan of survey shall be assigned to the satisfaction of the Supervisor, Surveys, Engineering Support Services, Engineering and Construction Services.

(3) One electronic copy of the registered reference plan of survey integrated to NAD 83 CSRS (3 degree Modified Transverse Mercator projection), delineating by separate Parts the lands and their respective areas, shall be filed with, and to the satisfaction of, the Manager, Land and Property Surveys, Engineering Support Services, Engineering and Construction Services.

(4) One electronic copy of the registered reference plan of survey satisfying the requirements of the Manager, Land and Property Surveys, Engineering Support Services, Engineering and Construction Services shall be filed with the Deputy Secretary-Treasurer of the Committee of Adjustment.

(5) Prepare and submit a digital draft of the Certificate of Official, Form 2 or 4, O. Reg. 197/96, referencing either subsection 50(3) or (5) of the Planning Act if applicable as it pertains to the conveyed land and/or consent transaction to the satisfaction of the Deputy Secretary-Treasurer of the Committee of Adjustment.

(6) Once all of the other conditions have been satisfied, the applicant shall request, in writing, that the Deputy Secretary-Treasurer of the Committee of Adjustment issue the Certificate of Official.

(7) Within TWO YEARS of the date of the giving of this notice of decision, the applicant shall comply with the above-noted conditions.

131Urban Forestry

1. The owner shall be required to submit 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.

2. Where there is no existing street tree, the owner shall provide payment in lieu of planting of one street tree on the City road allowance abutting each of the sites involved in the application. The current cash-in-lieu payment is $583/tree.

Metrolinx

132The Owner is advised to register an easement that would include the following wording:

Warning: The Applicant is advised that the subject land is located within Metrolinx’s 300 metres railway corridor zone of influence and as such is advised that Metrolinx and its assigns and successors in interest has or have a right-of-way within 300 metres from the subject land. The Applicant is further advised that there may be alterations to or expansions of the rail or other transit facilities on such right-of-way in the future including the possibility that Metrolinx or any railway entering into an agreement with Metrolinx to use the right-of-way or their assigns or successors as aforesaid may expand or alter their operations, which expansion or alteration may affect the environment of the occupants in the vicinity, notwithstanding the inclusion of any noise and vibration attenuating measures in the design of the development and individual lots, blocks or units.

APPENDIX B

APPROVED VARIANCES:

Part 1 Lot (Existing Dwelling) (A0156/23SC)

1. Exception RD 274.(A), By-law No. 569-2013

The minimum required lot frontage is that which existed on the date of the enactment of this By-law (21.82m).

The proposed lot frontage is 15.22m.

2. Exception RD 274.(B), By-law No. 569-2013

The minimum required lot area is that which existed on the date of the enactment of this By-law (1034.7 m²).

The proposed lot area is 517.3 m².

3. Chapter 10.20.40.70.(2)(A), By-law No. 569-2013

The minimum required rear yard setback is 7.5 m.

The proposed rear yard setback is 1.29 m.

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

The maximum permitted building length is 17 m.

The proposed building length is 20 m.

Part 2 and 3 Lot (A0157/23SC)

1. Exception RD 274.(A), By-law No. 569-2013

The minimum required lot frontage is that which existed on the date of the enactment of this By-law (21.82m).

The proposed lot frontage is 20.15m.

2. Exception RD 274.(B), By-law No. 569-2013

The minimum required lot area is that which existed on the date of the enactment of this By-law (1034.7 m²⁾.

The proposed lot area is 517.3 m².

Any other variances that may appear on these plans that are not listed in this decision are NOT authorized

CONDITIONS:

Part 1 lot (Existing Dwelling)

1. The proposed dwelling shall be maintained substantially in accordance with the Proposed Site Plan (Drawing A) prepared by Rubinoff Design Group and dated April 3, 2024, attached hereto.

2. The Part 1 rear yard/ side yard setback from the shared property line between the new lots will not be further reduced.

Planning Act s.53(35.1)

Footnotes

1. 1Planning Act s.45(18.1)