Pereira (Re), 2025 ONTLAB 331

Toronto Local Appeal Body

40 Orchard View Blvd, suite 253

Toronto, Ontario M4R 1B9

Date:

2025-05-15

25 108447 S45 09 TLAB

Pereira (Re), 2025 ONTLAB 331

Issuance Date:

May 15, 2025

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):

Applicant(s):

Property Address:

431 CONCORD AVENUE

COA File No.:

24 215940 STE 09 MV (A0833/24TEY)

TLAB Case File No.:

25 108447 S45 09 TLAB

Hearing Date:

05/09/2025

Decision Delivered By:

People Type

First Initial, Last Name

Representative

Appellant

Applicant

INTRODUCTION AND CONTEXT

1The Appellant and owner of 431 Concord Avenue, Rui Pereira, applied to the City of Toronto Committee of Adjustment for four minor variances in order to convert an existing one-storey garage at the rear of the subject property into a 2-storey 2-bedroom laneway suite fronting onto the back laneway. The one-storey detached garage in the rear yard is accessed from Via Pasquino Lane. There is an existing three-storey semi-detached dwelling at 431 Concord Avenue containing four two-bedroom dwelling units, including the basement.

2In 2018, the City of Toronto adopted Official Plan Amendment 409 and corresponding amending Zoning By-law 810-2018 to permit the development of laneway suites and garden suites, for the purpose of creating new rental housing in urban neighbourhoods.

3The application before the Committee of Adjustment sought four variances from the City of Toronto’s harmonized Zoning By-law 569-2013:

Chapter 150.8.60.40(1)(A)

The maximum permitted height of an ancillary building containing a laneway suite is 4 metres, if the ancillary building containing a laneway suite is located a minimum of 5 metres to less than 7.5 metres from the residential building on the lot. The ancillary building containing a laneway suite will be located 6.23 metres from the residential building on the lot and will have a height of 5.96 metres.

Chapter 150.8.60.30(1)(B)

An ancillary building containing a laneway suite must be no less than 7.5 metres from a residential building on the same lot if the height of the ancillary building is greater than 4 metres. The ancillary building containing a laneway suite will be located 6.23 metres from a residential building on the same lot and will have a height of 5.96 metres.

Chapter 150.8.60.30(2)

No part of an ancillary building containing a laneway suite may penetrate a 45- degree angular plane projected towards the rear lot line beginning from a height of 4 metres at a distance of 7.5 metres from rear main wall of the residential building on the same lot. In this case, the ancillary building containing a laneway suite will penetrate the angular plane.

Chapter 150.8.50.10(1)(B)

With a lot frontage of greater than 6 metres, a minimum of 85% (19.72²metres) of the area between all rear main walls of the residential building and the front main wall of the ancillary building containing a laneway suite must be for soft landscaping, excluding a pedestrian walkway which may have a maximum width of 1.5 metres. In this case, 50% (11.61² metres) of the area between all rear main walls of the residential building and the front main wall of the ancillary building containing a laneway suite will be maintained as soft landscaping

4On January 8, the Committee of Adjustment refused the variances. The Appellant appealed the decision of the Committee of Adjustment to the Toronto Local Appeal Body (TLAB).

5The TLAB issued a Notice of Hearing in respect of the appeal and scheduled a hearing of this matter for May 9, 2025. The TLAB heard testimony from only one witness, an expert in land use planning retained by the Appellant.

6I advised those present at the TLAB hearing that I had attended at the site of the subject property and the surrounding area, and had reviewed the pre-filed materials.

THE LEGISLATIVE AND POLICY FRAMEWORK

7Provincial Interest - Section 2 of the Planning Act

A decision of the TLAB shall have regard to matters of provincial interest, as enumerated in clauses 2(a) through (s) of the Planning Act.

8Provincial Plans and Policy Statements – Section 3 of the Planning Act

A decision of the TLAB must be consistent with the 2024 Provincial Planning Statement.

9Variance – Subsection 45(1) of the Planning Act

In considering an application for variance from the zoning by-law, the TLAB must be satisfied that an application meets the four tests under subsection 45(1) of the Planning Act. The tests are whether the variance,

is minor,
is desirable for the appropriate development or use of the land,
maintains the general intent and purpose of the official plan, and
maintains the general intent and purpose of the zoning by-law.

SUMMARY OF EVIDENCE

10The only evidence proffered at the hearing was by the Appellant’s expert planner, David Riley. I accepted Mr. Riley’s qualifications as an expert in land use planning. His evidence is described in paragraphs 11 – 39 below. Two exhibits were marked:

Exhibit 1 – Expert Witness Statement (Form 14), dated April 7, 2025

Exhibit 2 – Acknowledgement of Expert’s Duty (Form 6), dated April 7, 2025

Description of the Property

11The subject property is located on the east side of Concord Avenue, north of Bloor Street and south of Dupont Street. The section of Concord Avenue on which the subject property is located is within an established residential neighbourhood characterized by single, semi-detached and row-house dwellings.

Provincial Plans and Policy

12The expert witness stated that the proposal has regard for the matters of provincial interest enumerated in section 2 of the Planning Act.

13With respect to the 2024 Provincial Planning Statement (PPS), its policies direct growth to settlement areas and require land use patterns within settlement areas to be based on densities and a mix of land uses that make efficient use of land, minimize impacts to the environment, are transit and active transportation supportive, and make efficient use of existing infrastructure. Recognizing the high-level nature of the policies, Mr. Riley indicated that the proposal for the subject lands is consistent with the PPS.

Official Plan Designation

14The subject property is designated as “Neighbourhoods” in the City of Toronto official plan.

15Policy 2.3.1 of the official plan recognizes that neighbourhoods are physically stable areas but this does not mean that they are to remain static; it recognizes that some physical change within “Neighbourhoods” will occur over time. Policy 2.3.1.1 requires all development within “Neighbourhoods” to respect and reinforce the existing physical character of buildings, streetscapes and open space patterns of “Neighbourhoods”.

16Section 3.1.3 of the official plan contains policies on the built form of development, stating that new development will be located, organized, massed and designed to fit harmoniously into its existing and/or planned context in terms of its relationship to the public realm and neighbouring properties.

17In Mr. Riley’s opinion, the proposed variances to facilitate the creation of the 2-storey laneway suite maintain the general intent and purpose of the policies of sections 2 and 3 of the official plan and, moreover, the proposal respects and reinforces the existing physical character of the neighbourhood and is appropriate.

18In the “Development Criteria in Neighbourhoods” sub-heading under policy 4.1.1 of the official plan, it states that physical changes within “Neighbourhoods” must be sensitive, gradual and “fit” the existing physical character. Policy 4.1.5 provides specific development criteria for new development within “Neighbourhoods”, requiring that changes be in keeping with the physical character of each geographic neighbourhood.

19Mr. Riley reviewed the criteria in policy 4.1.5 and testified as to the applicable criteria being satisfied, as follows:

c) prevailing heights, massing, scale, density and dwelling type of nearby residential properties

The proposal does not propose to change the prevailing dwelling type on the subject lands. There are multiple prevailing dwelling types within the neighbourhood, including single and semi-detached dwellings.

With respect to density, the proposal seeks to add one additional unit to the property, within the proposed laneway house, for a total of five dwelling units. There is no variance related to the number of secondary suites that can be provided on the property, as multiple secondary suites are permitted within the dwelling.

In terms of massing, scale and height, the proposal seeks an increase to the maximum permitted height of an ancillary building containing a laneway suite, and permission to penetrate the required angular plane.

While the proposed height would be permitted as-of-right were the garage to be located at a minimum distance of 7.5 metres from the rear of the main dwelling, the height variance is required as the laneway suite is proposed to be constructed within an existing garage, and within a proposed 2^nd storey addition above it, which is located closer than 7.5 metres to the rear wall of the main dwelling (6.23 metres).

Related to this, and due to the reduced separation distance between the main dwelling and the existing garage, a variance is required to allow penetration of the upper level into the angular plane.

These provisions of the zoning by-law work together to regulate the height, massing and scale of laneway suites. The size and scale of the proposed laneway suite are similar to those of others in the neighbourhood, and is appropriately sized to accommodate two bedrooms and adequate living space.

The overall height of the structure will be less than what would otherwise be permitted if the building were located slightly further from the main dwelling itself. However, the proposal reflects an existing condition on the property, where the laneway suite will be located within and above an existing garage.

It was Mr. Riley’s opinion that the design of the proposed laneway suite mitigates any potential impacts of the additional requested height and resulting impact to massing and scale as it relates to overlook and privacy, with appropriate window sizing and placement, and recognizing that the proposed second storey will be in line with the existing wall of the existing garage below and adjacent garages to the north and south.

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

A variance is required for a reduction in the minimum separation distance between the main dwelling and the ancillary building containing the proposed laneway suite, and another variance required for a reduction in minimum required soft landscaping in the rear yard.

With respect to the prevailing patterns of rear yard setbacks, Mr. Riley’s opinion was that there is a varying range of rear yard setbacks in the neighbourhood and along this block, and there is no variance related to the rear yard setback itself.

With respect to the reduced separation distance between the rear wall of the main dwelling and the ancillary building containing the proposed laneway suite, he opined that the proposal reflects an existing condition on the subject property, with the ancillary building already existing and in line with adjacent garages. The proposed laneway suite will be contained within the existing garage, and within a new 2^nd storey built atop the existing structure.

The variance for reduced soft landscaping in the rear yard is directly related to the reduced separation distance between both structures on the subject property, the presence of the rear fire exit stairs, and the need to accommodate a pathway connecting to the proposed laneway suite. However, in order to mitigate the impact of these proposed reductions, the pathway has been constructed of permeable pavers, such that surface water runoff will be able to drain through the pathway itself.

Zoning By-law 569-2013

20Mr. Riley testified that there are no minimum parking requirements under the zoning by-law for this type of proposal, so no variance from any parking standards is needed.

21Mr. Riley reviewed the four variances requested to the “Residential” zone in the Zoning By-law 569-2013 for the subject property and outlined how, in his opinion, each the proposed variances meet the tests in subsection 45(1) of the Planning Act, as follows:

Chapter 150.8.60.40(1)(A)

22Since the ancillary building containing a laneway suite is located at a distance between 5 and 7.5 metres from the rear wall of the main dwelling, the zoning by-law limits the maximum height of the ancillary building containing a laneway suite to a maximum of 4.0 metres. If the ancillary building were located at least 7.5 metres from the rear of the dwelling, the maximum height of the structure would be permitted to be 6.3 metres.

23The intent of the maximum permitted height provision for an ancillary building containing a laneway suite is to protect adjacent properties from potential adverse impacts associated with overlook, privacy and shadows.

24The existing detached garage on the subject property has a height of 2.8 metres. By adding a second storey (2.44 metres), and the required drainage infrastructure for a flat roof, the building height increases to 5.96 metres.

25To mitigate privacy and overlook concerns, the laneway suite has no windows on the north and south elevations, eliminating overlook into the adjacent yards.

26On the west elevation, looking towards the amenity space between the main dwelling and the laneway suite, there is one window on the second storey, which is a bedroom window. The sill window height on the laneway suite’s second floor is proposed at 1.2 metres, which prevents direct overlook when seated or lying down within the bedroom and, as such, there will be no overlook into the yard.

27There are no balconies proposed for the laneway suite, further minimizing privacy concerns.

Chapter 150.8.60.30(1)(B)

28On the subject property, the zoning by-law requires a separation distance of 7.5 metres between a semi-detached dwelling and the ancillary building containing the proposed laneway suite. The proposal is to recognize an existing condition of 6.23 metres between the existing semi-detached dwelling and existing ancillary building (garage).

29The intent of the minimum required setback between the rear wall of the dwelling and the ancillary building containing the laneway suite is to maintain privacy between the dwelling and the laneway suite and to ensure an adequate amount of amenity space. Any privacy concerns have been addressed through the design of the laneway suite and the window placement as described above.

Chapter 150.8.60.30(2)

30The zoning by-law does not allow for any part of an ancillary building containing a laneway suite to penetrate the angular planes that are projected towards the rear lot line. No part of an ancillary building containing a laneway suite may penetrate a 45-degree angular plane projected towards the rear lot line beginning from a height of 4 metres at a distance of 7.5 metres from rear main wall of the residential building on the same lot. The angular plane provisions are intended to minimize privacy concerns and limit shadow impact on adjacent properties.

31In this proposal, the ancillary building containing a laneway suite will penetrate the angular plane. The existing garage is located 6.23 metres from the primary residential building, limiting its ability to accommodate a second floor without projecting into the angular plane. However, to mitigate privacy concerns, there are no windows on the north and south sides of the laneway suite, and the west facing window has been designed to mitigate any potential overlook conditions.

32The proposed laneway suite is adjacent to existing garages to the north and south and the laneway to the east and therefore new shadows on any adjacent private amenity spaces are minimal, given that the garage is situated east of the main building. There would be no shadows on the neighbouring north or south residential dwellings.

Chapter 150.8.50.10(1)(B)

33The zoning by-law requires that a minimum of 85 percent of the area between the rear main wall of the residential building and the front main wall of the ancillary building with a laneway suite be soft landscaping to support water infiltration and reduce surface runoff.

34The application is for 50 percent of the rear yard to be soft landscaping. The rear yard is limited in its ability to accommodate landscaping as a result of the primary residential building’s emergency fire exit stairs, as the land beneath them are included in the calculation of what constitutes the rear yard (to which the minimum requirement of 85% soft landscaping applies).

35However, the emergency fire exit stairs are metal, which will allow water to pass through the stairs themselves to the ground below, where an appropriate drainage solution is provided. As well, the walkway in the rear yard is constructed entirely of permeable pavers. While not counting towards soft landscaping, the provision of a permeable walkway fulfils the intent of the bylaw to reduce surface water runoff and contain it on-site.

36Although also not counting towards the rear yard landscaping, soft landscaping is proposed in the space between the laneway itself and laneway suite, which provides an additional 3.4 square metres of soft landscaping and potentially adding to the permeability and aesthetics of the laneway itself.

Desirable for the Appropriate Development or Use of the Property

37Mr. Riley testified that the proposal promotes reinvestment within an established neighbourhood and facilitates a desirable outcome for the subject property, whereby the proposal can be adequately and appropriately accommodated on the subject property, while also helping the City to achieve its goals for providing more opportunities for housing, particularly in close proximity to rapid transit, in line with provincial and City policies.

Is the Variance Minor?

38Mr. Riely assessed whether the proposed variances should be considered minor. In his opinion, the basis for determining whether or not a proposed variance is minor is one of impact.

39Mr. Riely reiterated that any potential impacts associated with the proposed variances associated with the laneway suite are mitigated by the design having only east and west-facing windows and, in particular, limiting the size and sill height of the west-facing window on the second floor. In addition, the proposed laneway suite will be located within the footprint of an existing garage, which aligns with the orientation of the adjacent garages to the north and south.

ISSUES AND ANALYSIS

40I accept the evidence of the expert planner that the application has regard to matters of provincial interest as stated in section 2 of the Planning Act and is consistent with the Provincial Planning Statement.

41In considering an application for variance from the zoning by-law, the TLAB must be satisfied that an application meets the four tests under subsection 45(1) of the Planning Act. The tests are whether the variance,

is minor,
is desirable for the appropriate development or use of the land,
maintains the general intent and purpose of the official plan, and
maintains the general intent and purpose of the zoning by-law.

42The subject lands are designated as “Neighbourhoods” in the City of Toronto official plan. Based on the evidence of the expert planner, the TLAB finds that the proposal conforms to the land use policies of the official plan, including but not limited to the policies in sections 2.3.1, 3.1.3 and 4.1, and specifically with respect to the development criteria in section 4.1.5.

43Toronto Zoning By-law 569-2013 zones the subject property as “Residential”, permitting the existing semi-detached dwelling and proposed laneway suite. Four variances to the zoning by-law are required to facilitate the proposal.

44The TLAB has reviewed the applicable provisions of the zoning by-law in the context of the proposal for the subject property and finds that the proposed variances maintain the general intent and purpose of the zoning by-law.

45The proposed laneway suite can be adequately and appropriately accommodated on the subject property in such a way that reinforces the existing physical form along Via Pasquino Lane, which already includes laneway suites. Considering the neighbourhood and broader area around the subject property, the TLAB finds that the proposed variances are desirable for the appropriate development and use of the property.

46In terms of any perceived negative impacts by local residents, no written or verbal public objections were filed with the TLAB. There were no objections raised by any City department, which is typically understood as representing a position of no objection to the proposal.

47I agree with the opinion of the expert planner that the basis for assessing whether or not a proposed variance is minor is one of impact. The determination as to whether a proposed variance is minor is if the actual effects of the variance do not rise to a level of undue adverse impacts of a land use planning nature on the surroundings.

48I concur with Mr. Riley’s opinion that any potential impacts associated with the proposed variances associated with the laneway suite are mitigated by the design having only east and west-facing windows, and limiting the size and sill height of the west-facing window on the second floor. The proposed laneway suite is located within the footprint of an existing garage, which aligns with adjacent garages to the north and south.

49I find that the variances for the laneway suite are adjudged to be minor as they will not introduce any adverse impacts to adjacent properties.

50I am satisfied that the proposal represents good land use planning and is in the public interest. Therefore, I find that the application for the four variances requested, individually and cumulatively, satisfies the four tests set out in subsection 45(1) of the Planning Act. I authorize the variances, subject to the condition contained herein.

DECISION AND ORDER

51The TLAB orders that the appeal is allowed and that the following variances to the zoning by-law are authorized, subject to the condition outlined in paragraph 52 below:

Chapter 150.8.60.40(1)(A), By-law 569-2013

Whereas the maximum permitted height of an ancillary building containing a laneway suite is 4 metres, if the ancillary building containing a laneway suite is located between 5 metres to 7.5 metres from the residential building on the lot, the ancillary building proposed in this application containing a laneway suite (located 6.23 metres from the residential building on the lot) will have a height of 5.96 metres.

Chapter 150.8.60.30(1)(B), By-law 569-2013

Whereas an ancillary building containing a laneway suite must be no less than 7.5 metres from a residential building on the same lot if the height of the ancillary building is greater than 4 metres, the proposed ancillary building containing a laneway suite (at a height of 5.96 metres) will be located 6.23 metres from a residential building on the same lot.

Chapter 150.8.60.30(2), By-law 569-2013

Whereas no part of an ancillary building containing a laneway suite may penetrate a 45-degree angular plane projected towards the rear lot line beginning from a height of 4 metres at a distance of 7.5 metres from rear main wall of the residential building on the same lot, the proposed ancillary building containing a laneway suite will penetrate the angular plane.

Chapter 150.8.50.10(1)(B), By-law 569-2013

Whereas a minimum of 85% (19.72² metres) of the area between all rear main walls of the residential building and the front main wall of the ancillary building containing a laneway suite must be for soft landscaping, excluding a pedestrian walkway which may have a maximum width of 1.5 metres (due to the lot frontage being greater than 6 metres), the minimum requirement is reduced to 50% (11.61² metres) of the area between all rear main walls of the residential building and the front main wall of the ancillary building containing a laneway suite to be maintained as soft landscaping

52Condition of Approval

The proposal shall be constructed substantially in accordance with the plans identified as Sheet Nos. SK1 through SK8 for Project No. A24120 as prepared by Ambient Designs Ltd. and dated August 23, 2024, and submitted as part of the document disclosure dated April 7, 2025 for TLAB File No. 25 108447 S45 09. Any other variance or variances that may appear as required on these plans that are not listed in the written decision and order are not authorized.

Y. Herscher

Panel Member