Mohammadi (Re), 2025 ONTLAB 358

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2025-10-07

25 112820 S45 15 TLAB

Mohammadi (Re), 2025 ONTLAB 358

DECISION AND ORDER

Issuance Date:

October 7, 2025

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

Appellant(s):

H. H. MOHAMMADI

Applicant(s):

N. NASSIRI

Property Address:

137 Teddington Park Ave

COA File No.:

24 230221 NNY 15 MV (A0533/24NY)

TLAB Case File No.:

25 112820 S45 15 TLAB

Hearing Date(s):

September 16, 2025, October 1, 2025

Deadline Date for Closing Submissions/Undertakings:

Decision Delivered By:

TLAB Panel Member G. Swinkin

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Applicant

N. Nassiri

Appellant

H. H. Mohammadi

M. Mazierski

Party

City of Toronto

S. Messini

S. Barnett

Party

Teddington Park Residence Association

A. Bepple

Party

A. Durnford

Participant

V. Hand

Participant

D. Muzyka

Participant

R. Ting

Participant

M. Giffen

Participant

C. Werle

Participant

R. Sharp

Participant

B. Kogut

Participant

S. Pierce

INTRODUCTION AND CONTEXT

1. In matters arising before the Toronto Local Appeal Body (the “Tribunal”), due especially to the prescriptions of the City of Toronto Official Plan, it is not uncommon to have to explore, observe and appreciate the character of the area in which the property is located. That is the case on this appeal.

2. The property under consideration here is municipally known as 137 Teddington Park Avenue (the “Property”).

3. Teddington Park Avenue, in terms of the street roadway, is unique in the neighbourhood inasmuch as it is improved with a treed and grassed median from Yonge Street to a point just beyond the frontage of the Property.

4. This feature is complemented by the many mature trees also on the adjacent municipal right-of-way as well as on the private property fronting on the roadway.

5. The result is one of natural elegance where urban living has been blended with extensive landscaping..

6. Set into this natural air are large lots which considerably vary in lot width. The lots have been developed with large and often ornate dwellings. The dwellings range in age and architectural style.

7. One would easily describe this as a mature neighbourhood in a sylvan setting.

8. The Property was redeveloped with its present two storey dwelling on the strength of a set of five variances (with respect to height, floor space index and side yard setbacks) granted by the Committee of Adjustment in 2018.

9. The May 17, 2018 Committee decision contained a condition that the property be developed substantially in accordance with specifically identified plans, and listed those plans, which included a site plan showing the landscaped areas. No soft landscaping variances were requested as part of that application. The plans tendered by the Applicant, and which had been the subject of agreement with the neighbours, demonstrated that the Property can easily accommodate and exceed the Zoning By-law soft landscaping requirements.

10. The site plan acknowledged by all at that time did not show a rear yard swimming pool, cabana/pool house or any stone patios. In fact, the site grading plan showed the rear yard as a grassed area with no proposed grading changes to that area.

11. In late 2024, the Property was the subject of an application to the North York panel of the Toronto Committee of Adjustment.

12. The Applicant/Owner was seeking four variances from Zoning By-law 569-2013, the purpose as stated on the Notice issued by the Committee being to legalize and maintain the as-built landscape features.

13. The four variances were expressed as follows:

14. Chapter 10.5.40.60(1), By-law 569-2013

Proposed front porch has an encroachment of 2.6m into the minimum required front yard, whereas, maximum permitted encroachment is 2.5m

2. Chapter 10.5.40.60.(3), By-law 569-2013

Proposed steps at front platform are 3.28m wide, whereas, maximum permitted is 2m

3. Chapter 10.5.50.10(3), By-law 569-2013

Proposed rear yard soft landscaping of 30%, whereas, minimum required is 50%.

4. Chapter 10.5.50.10(1), By-law 569-2013

Proposed front yard landscaping of 35%, whereas, minimum required is 60%.

14. The plans tendered to the Committee for this application, and which are now before the Tribunal, depict a rear yard dominated by stone, anchored by an inground swimming pool, accompanying cabana/pool house and extensive patio space. The front yard has been completed with much stone as well, accommodating a circular drive with two accesses to Teddington Park Avenue.

15. The Committee approved variances 1 and 2, and refused variances 3 and 4.

16. The Applicant/Owner appealed that decision to the Tribunal.

THE LEGISLATIVE AND POLICY FRAMEWORK.

17. Provincial Interest - Section 2, Planning Act

A decision of the Tribunal shall have regard to, among other matters, matters of provincial interest, enumerated in clauses (a) – (s) of Section 2 of the Planning Act.

18. Provincial Policy – Section 3, Planning Act

A decision of the Tribunal must be consistent with the 2024 Provincial Planning Statement (PPS).

19. Variance – Section 45(1), Planning Act

In considering an application for variances from the Zoning By-law, the Tribunal must be satisfied that the application meets all of the four tests under Section 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

20. The Owner/Appellant was present represented by counsel, M. Mazierski. The Teddington Park Residents Association was present represented by paralegal A. Bepple. The City of Toronto was present represented by two counsel, S. Messina and S. Barnett, as well as by an articling student, A. H. Chen. Ms. Messina advised the Tribunal that although the City was present, it was taking no position on the appeal and would be calling no evidence.

21. The Tribunal heard evidence from the Owner/Appellant through his retained land use planning consultant, Jonathan Benczkowski. The Tribunal heard evidence from the Teddington Park Residents Association through their retained land use planning consultant, Lynda Macdonald, and from a member and co-president of the Association who lives six houses to the east of the Property, Boris Kogut.

22. The Tribunal also heard evidence from two Participants, Victoria Hand, who lives at 150 Teddington Park Avenue, and from Andrew Durnford, who lives at 133 Teddington Park Avenue (which abuts the Property to the west). Mr. Durnford indicated that he was authorized to speak on behalf of five other Participants who had filed Participant Statements but were not present at the hearing. Those persons reside on Teddington Park Avenue and Golfdale Avenue, which is the street immediately to the south of Teddington Park Avenue, two of which properties abut the rear yard of the Property.

The Evidence of Jonathan Benczkowski

23. Mr. Benczkowski was qualified by the Tribunal to provide expert evidence regarding land use planning matters in the proceeding. He started by advising the Tribunal of the locational features and site data for the Property.

24. The property is situated on the south side of Teddington Park Avenue (it lies east of Mount Pleasant Avenue) and is zoned RD (f22.5; d0.35) (x1345). Overlay maps permit a maximum height of 11m. The 1345 exception is not relevant to any issues before the Tribunal. The Property is designated in the Official Plan as Neighbourhoods.

25. The Property is rectangular in shape with a lot frontage of 27.4m (mistakenly described as 30.48 m in his witness statement due to his failure there to account for the severance and conveyance of 3.1m to the neighbour to the west, which he acknowledged subsequently in his testimony), a lot depth of 56.95 m and a lot area of 1,562.72 m2.

26. Mr. Benczkowski advised that the new dwelling now standing on the Property was approved in May of 2018. He said that during the construction of the dwelling some changes were made to the approved plans.

27. The front stair now encroaches into the required front yard setback by 0.1m beyond what is permitted and the front stair width was increased to 3.28 m. Mr. Benczkowski advised that the front stair width would have been permitted but for the fact that it encroached by 0.1m beyond what is permitted. These circumstances were part of the application and were approved by the Committee as Variances 1 and 2. Although reference was made in the evidence of others to front stair widths and that these appeared more extensive than many in the neighbourhood, the Tribunal did not sense the grant of the variance relief for the stairs to be an issue.

28. The fundamental issue in this hearing was the deficiency of soft landscaping in the front and rear yards.

29. Mr. Benczkowski testified to the Tribunal that after he had visited the Property and familiarized himself with the background documents, he informed the Owner/Appellant that he could take the retainer and would be able to support the proposal before the Tribunal provided that additional landscaping was provided in the front and rear yards. Apparently, no specific quantity of additional landscaping was communicated. It was to be left up to the Owner/Appellant, who apparently responded that he could add landscaping in both yards.

30. The result of the exercise is that the Owner/Appellant is now seeking to modify the relief sought on this appeal to the following:

• The rear yard landscaped area will be 41.27% (330.22 m2)

• The front yard soft landscaped area will be 60.2% (100.98 m2)

31. It is to be noted that the characterization of the front yard landscaping has changed from front yard landscaping to soft landscaping and noted that the Zoning By-law requirement is that front yard soft landscaping be 75% of the required landscaped area (which due to the lot width of the Property is 60%).

32. Mr. Mazierski requested that the Tribunal exercise its authority to allow these modifications to the relief requested, especially as they were reducing the extent of relief requested, and to treat the modifications as minor so as to avoid the need to give further notice about the changes.

33. The Tribunal was satisfied that this was a request within the parameters of Section 45(18.1) and 45(18.1.1) of the Planning Act and allowed the modifications to be considered in this proceeding without need for further notice

34. Mr. Benczkowski identified a study area in keeping with the direction provided in Section 4.1.5 of the Official Plan and laid out the matters to be considered in connection with maintaining the character of the neighbourhood.

35. In keeping with general practice, he examined all available planning decisions within the study area (with those decisions attached to his filed material), although he noted that the decision data only goes back approximately 18 years, and that landscaping work, in isolation of the construction of a building/structure, can be completed without a building permit, meaning that landscaping work done at any time, when not connected to a building/structures building permit, would not be reviewed for zoning compliance by the city and would hence not generate a minor variance for his data set.

36. He did direct the Tribunal to various properties in the neighbourhood with circular drives, particularly to 177 Teddington Park Avenue due to the width of the drive entrances.

37. 177 Teddington Avenue was the only property for which a Committee of Adjustment favourable decision could be found respecting authorization of reduction of front yard landscaping and soft landscaping. That decision was rendered on January 13, 2018 as part of a set of variance relief relating to the construction of a new dwelling. The Committee authorized 31.6% versus 60% of landscaping in the front yard and 49.2% versus 75% of that landscaping as soft landscaping.

38. In Mr. Benczkowicz’s opinion, the finally revised proposal is materially consistent with the prevailing physical character of properties in both the immediate block of the Property and the broader geographic neighbourhood.

39. He also noted that OPA 320 recognizes flexibility in neighbourhoods with a mix of physical characteristics, which is applicable to this neighbourhood study area, which has seen regeneration throughout it, and where only two blocks have some lots with wider frontages similar to the Property. In his view, the general intent and purpose of the Official Plan is maintained.

40. With respect to the intent and purpose of the Zoning By-law, Mr. Benczkowski said that overall, 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.

41. His concluding opinion on this point is that the proposal does maintain this intent and does not introduce an inappropriate building form.

42. His witness statement sets out his opinion regarding the landscaping requirements and whether the revised proposal meets the intent of the Zoning By-law.

43. The statement says that “for rear yard soft landscaping, the general intent and purpose of the rear yard landscaping requirement is to ensure there is an adequate amount of soft landscaping to facilitate proper drainage of stormwater. The rear yard of the property is extremely large due to the depth of it and the associated rear yard setback of 26.9 m (88’3”). Within the rear yard there is 330.22 m2 (3,554.45 ft2) of soft landscaping. The rear yard landscaping has been designed so that all areas that are adjacent to the neighbouring properties to the east, west and south are landscaped with grass and planters which reduces the possibility of any rainwater runoff. The hardscaping in the rear yard is of permeable pavers which increases infiltration. In my opinion the general intent and purpose of the rear yard soft landscaping provision is maintained.”

44. The statement says that “for front yard soft landscaping, the general intent and purpose of the landscaping standards is to achieve a balance of hard and soft surfaces within the front yard in order to achieve landscaping and to facilitate proper drainage of stormwater. The property has a generous City boulevard of approximately 6 m (19’7”) which add additional greenspace from Teddington Park Avenue. With the large boulevard, along with the revised proposed landscaping and permeable pavers in the front yard being already installed, sufficient greenspace and drainage is provided in my opinion. Other then the area (s) required for access to the rear yard all areas adjacent the east and west properties are landscaped which will help to retain any stormwater runoff on the property. I also note that there is no request for an increase to the permitted driveway width which further reduces any impact to the streetscape and demonstrates that the proposal respects and reinforces the intent and purpose of the zoning bylaw. In my opinion the general intent and purpose of the front yard soft landscaping provision is maintained.”

45. With respect to the development appropriateness and desirability test of Section 45 (1), there was an assertion of insufficient driveway width on the original design and that it is desirable for the client to have a functional driveway.

46. Mr. Benczkowski also says that the substantial compliance with the By-law is an indication of the appropriateness for the proposed dwelling within the immediate and broader neighbourhood.

47. With respect to the test of minor, Mr. Benczkowski says that the result will not be out of character with the neighbouring properties. He goes on to say that there will be no impact to the adjacent neighbours or overall neighbourhood than what they would experience with an as of right proposal. He adds that area adjacent to the neighbours to the east, west and south are all extensively landscaped which will prevent stormwater runoff.

The Evidence of Lynda Macdonald

48. Lynda Macdonald was retained by the Teddington Park Residents’ Association (“TPRA”).

49. Ms. Macdonald began her career as a landscape architect and was a member of the Ontario Association of Landscape Architects (now retired). She holds membership in the Ontario Professional Planners Institute and is a Registered Professional Planner. In 1989, she became employed as a Senior Planner in the City of Toronto Planning Division and eventually rose to become Director of Community Planning within that Division until her retirement in 2022. On the basis of her credentials and experience, Ms. Macdonald was qualified to offer opinion evidence on landscape architecture and land use planning in the proceeding.

50. Ms. Macdonald visited the area on apparently three days. She took photos, which were included in her filed material. She describes the physical character of Teddington Park Avenue as characterized by deep setbacks, generous, mature landscapes with hardscape (driveways and walkways) being secondary in area and visual impact. There is a heavy tree canopy and open space character to the street, including the rear yards.

51. By contrast, she says, 137 Teddington Park is dominated by hardscape, which she pointed out as evident in the aerial view provided in her material.

52. With reference to the front yard of the Property, she advises that the majority of the soft landscape is within the City right-of-way. In her view, the landscape, as constructed does not “respect and reinforce the existing physical character of buildings, streetscapes and open space patterns in these areas.” This is a reference to the Official Plan directives in Sections 2.3.1.1 and 4.1.8.

53. On the matter of whether the variances are in keeping with the general intent and purpose of the Official Plan, she concludes that the soft landscape variances requested, do not respect and reinforce, nor are they compatible with the existing physical character of the established residential Neighbourhood. In her opinion, they do not meet the intent and purpose of the Official Plan.

54. Ms. Macdonald spoke to the general intent and purpose of the Zoning By-law. In this regard, she advised that the Zoning By-law clearly sets out the intent that 50% or more of the front yard and rear yard is to be landscaping, defined as “an area for trees, plants, decorative stonework, retaining walls, walkways or other landscape or architectural elements.” Soft landscaping is defined as: “...landscaping excluding hard surfaced areas such as decorative stonework, retaining walls, walkways, or other hard-surfaced landscape-architectural elements”.

55. She takes the position that the proposed increase in soft landscaping advanced at this Tribunal hearing in the rear yard is positive and although it comes closer to the 50% required, even achieving the full 50% does not approach the extent of soft landscaping on the neighbouring properties at 133 and 139 Teddington Park in terms of the neighbourhood’s open space character.

56. In support of this opinion, she says that based on the statistics provided on the revised site plan received by the Tribunal on June 5, 2025, the total rear yard area is 799.85 square metres. 41.27% would equal 330.10 square metres and 50% would equal 399.92 square metres, a difference of 69.82 square metres. Given the extent of remaining hardscape in the yard, in her opinion, the appellant could meet the full 50% to achieve the Zoning By-law requirements while still maintaining the functionality of his rear yard and pool surrounds.

57. She correctly points out that at no time has the Owner/Appellant provided any justification for why this performance standard cannot be met.

58. To underline the importance of the issue, Ms. Macdonald took the Tribunal to a recent City Planning Department report concerning tree canopy cover in the City. In this regard she cautions that the percentage of soft landscaping in the rear yard of 137 Teddington Park Avenue is particularly important as the new home is an example of what is referred to by the City as an iceberg home. An April 17, 2025 staff report to Planning and Housing Committee “PH21.6 Growing Space for Trees: Protecting and Enhancing the Tree Canopy While Supporting Infill Housing and Addressing Concerns with Iceberg Homes - Proposals Report”, states “It is important that iceberg homes be considered through a climate impact lens to protect and enhance the city’s tree canopy and allow for soft landscaping growing space. The addition of subsurface structures reduces available water for trees and increases storm water runoff and risks of undesirable ponding and flooding.”

59. Ms. Macdonald addressed the front yard by responding to the Appellant’s late changes to the front yard landscaping. She pointed out that the Appellant states on the Disclosure Form 3 that they have increased the total landscaping and soft landscaping in the front yard and have applied a different chapter from the Zoning By-law requiring that 75% of the 60% landscaping would be soft landscaping. She further points out that as with the proposed percentage change in the rear yard, the Form 3 submission does not specify how the front yard numbers have been calculated, what has been included in the soft landscaping and whether these numbers have been verified by the City.

60. Her analysis points out that the document states that the new percentage is 60.2% of the 60% rather than the 75% required. She says that the proposed increase is welcome but then goes on to say that there are additional opportunities to increase the soft landscaping given the significant area of the circular driveway.

61. Based on the Appellant’s site plan, the front yard area is 279.53 square metres. The revised proposal representing 60.2% of the 60% as soft landscaping would equal 101 square metres of soft landscaping whereas the full 75% of the 60% would be 125.79 square metres, a difference of 24.79 square metres.

62. She produced a sketch showing a consolidated area as an example of how the soft landscaping requirement could be increased in the front yard. The change would increase the depth of the front planting bed by 1.77 metres resulting in a width for this part of the driveway of 3.25 metres, a common width for a driving lane on a public street and significantly wider than the minimum 2 metre width for a residential driveway set out in the Zoning By-law Chapter 10.5.100.1(1)(A). This would yield an increase in soft landscaping of 26.97 square metres, just over the 24.79 square metres necessary to meet the By-law requirement.

63. Based on this, In her opinion, there is more than adequate space to increase the front yard soft landscape to meet the Zoning By-law requirements and no mitigating circumstances that would prevent it.

64. Ms. Macdonald also took issue with Mr. Benczkowski’s reference for precedent purposes to variance approvals granted to 177 Teddington Park Ave., which were approved on June 13, 2018.

65. The approved front yard landscaping area for that property is 31.6% rather than 60% and of that 49.72% is soft landscaping versus the 75% set out in the By-law. She advised that she was not involved in that decision but noted that Google Street view images of the previous home show a circular drive along with a driveway on one side of the house, and the new driveway appears to have reduced or at least not increased the hardscape. The 177 Teddington Park application did not require any rear yard soft landscaping variances.

66. She declared that as an outlier among the majority of properties on the street that form the existing physical form and character of the Neighbourhood, in her opinion 177 Teddington Park Ave. sets a negative precedent that should not be used to further erode the prevailing context.

67. Her conclusion on the question of whether the requested landscaping variances conform with the general intent and purpose of the Zoning By-law is that the changes proposed by the applicant do not significantly change the physical character of the development and as noted in the City staff report “are not consistent with the existing pattern of development in the neighbourhood and limits opportunities for stormwater management for the site.”

68. Ms. Macdonald also addressed the test of whether the variances are desirable for the use and development of the land.

69. On this count, she referenced back to the 2017 application to the Committee of Adjustment where variances were sought to authorize construction of the house which now stands on the Property. She points out that no soft landscaping variances were requested as part of that application. In fact, she properly asserts that those plans demonstrated that the property can easily accommodate and/or exceed the Zoning By-law soft landscape requirements.

70. Her view is that the current amount of hard landscape can be reduced in a way that still maintains its existing functionality. A narrower driveway can provide through access. Reduced patio space in the rear yard can continue to provide an apron for the pool and seating areas.

71. What is key here is that Ms. Macdonald comes back to the principles which generated the official plan and Zoning By-law requirements for landscaping. These principles were articulated In the November 15, 2023 report “Growing Space for Trees: Protecting and Enhancing the Tree Canopy While Supporting Infill Housing”, City staff noted in that report that the most land area converted from pervious to impervious land cover was in low rise residential neighbourhoods where tree canopy decreased from approximately 35 per cent in 2008 to 31 per cent in 2018. The report cited the potential negative implications of increased impervious cover on stormwater management, water quality, loss of healthy soils, biodiversity, urban heat island effect, and the reduction of growing space for potential tree planting. Adjacent trees can also be negatively affected. In her opinion, this application, and the negative precedent it sets, would contribute to this significant City-wide issue.

72. She says that the erosion of these policies through applications that do not meet the purpose and intent of the Official Plan can make those very policies ineffective. These negative precedents can have repercussions for future policies and decisions in neighbourhoods across the city. On the strength of this, she concludes that the landscape variances are not desirable.

The Evidence of Boris Kogut

73. Boris Kogut was the other witness called by the TPRA. He is a member and co-president of the TPRA and lives six houses east of the Property.

74. Mr. Kogut advised that he observed the construction of the front driveway. As it was designed to be a heated driveway, a concrete base was constructed which was lined with plastic pipes. As such, there is no porosity, no infiltration of surface water to the ground.

75. He believes the owner to be an experienced and knowledgeable builder who undertook these works with a full awareness that the Zoning By-law standards were not being met. In Mr. Kogut’s view this was a deliberate flouting of the by-law.

76. Mr. Kogut also asserts that the owner had removed most of the trees on the property during construction and it's unclear to him whether appropriate approvals were obtained. The Tribunal did note on drawings of the Property before construction that there were a number of trees closer to the rear lot line that would not have interfered with the building envelope which no longer exist.

77. Mr. Kogut takes the position that by virtue of its size, design and position adjacent to the street, the excessively sized hard landscaped circular driveway in the front yard of the Property results in a detrimental impact and creates significant harm to the character and appearance of the existing property and area neighborhood in which it is located.

The Evidence of Victoria Hand

78. Victoria Hand resides at 150 Teddington Park Ave. She is opposed to the variance relief being sought as she believes that the owner knew the rules and deliberately chose to ignore them.

79. She outlined a litany of ills. She says that by intentionally disregarding the by-laws, the builder/owner is not adequately able to manage runoff (critical to protect other properties/the City drain system), water absorption (necessary for the softscape and again protection of other properties), clean air (by cutting down trees, their capacity to act as the lungs of the city is eliminated), privacy (the reduction of softscape/trees/privacy screening means neighbours have had to resort to increasing their own privacy screens at their own costs on their properties to attempt to block both the sights and sounds emanating from 137) and noise pollution (hardscape increased sound transference and there have been countless noise complaints from neighbours with no reduction in sound).

80. She characterizes what has occurred as the opposite of 'greening' the City.

The Evidence of Andrew Durnford

81. Andrew Durnford is the neighbour to the immediate west at 133 Teddington Park Ave.

82. Mr. Durnford apprised the Tribunal of his earlier dealings with the Owner/Appellant back in 2017 when the new dwelling proposal was under consideration and the application to the Committee of Adjustment was being pursued.

83. He advised the Tribunal that he was very concerned that that proposal would leave very little area for soft landscaping, which is very important for drainage on both the Appellant’s and his own property, to provide privacy, muffle noise, blend in with the neighbourhood and soften the presence of his massive house.

84. Along with the other direct neighbour on the east side, Dr. Robert Ting, they approached the owner and expressed their concerns and then negotiated a written agreement with key conditions in exchange for not opposing his application for the material variances that he was seeking at that time.

85. The agreement included a specific clause that “the property being developed is essentially in accordance with the Site plan that has been discussed and agreed upon with the Applicant which are attached to this letter (including the size of the basement and driveway location and design) as Schedule D”. The Site Plan agreed upon and committed to by the owner showed a single width driveway with two points of access and a rear garden that was entirely soft landscaping. The Notice of Decision by the City of Toronto Committee of Adjustment also included the same condition of development substantially in accordance with those plans.

86. The development proceeded but not in keeping with the site plan agreed upon. Mr. Durnford produced photos which clearly show the lack of soft landscaping on the completed property. Mr. Durnford further asserts that the photos also show how out of character this property is with the neighbourhood.

87. Specifically, Mr. Durnford declares that the Appellant developed his property in direct conflict with the specific approvals by the City and the specific written commitments he made to him and his neighbour, Dr. Ting.

88. Mr. Durnford testifies that the Appellant built a double wide driveway across the front yard with two points of access and a massive pool house and pool in the rear garden that were not in the approved plans. He also removed most of the trees and bushes in the front and rear garden including many mature trees. He substituted stone for the soft landscaping throughout the front and back yards.

89. Mr. Durnford advised the Tribunal that properties in the neighbourhood which have two points of access all have much wider frontage, all have a minimum of 32m versus the Property at 27m. He takes the position that the Appellant should not be permitted to have two points of access unless he complies with the front yard landscaping requirements.

90. Mr. Durnford characterized the front yard of the Property now as a stone parking lot for his many cars despite him building an integral 4-car underground garage that extends 5.6M into the rear garden that he doesn’t appear to use, saying that there are always multiple large SUV/Pick-up trucks parked across the front of his home because he also has his children and grandchildren living with him. In his opinion, the view from the street and from neighbouring properties is completely out of character with the neighbourhood.

91. Mr. Durnford spoke to the significant drainage issues in his rear yard that he believes are likely impacted by the Appellant’s hard landscaping as there is no place for water to go from his rear yard which naturally slopes towards the Appellant's property. Before the property was developed, 137 Teddington Avenue had a system to pump water from the rear yard to the street. That system no longer exists.

92. Last summer, Mr. Durnford installed an expensive French Drain in his rear garden because of flooding issues. Despite having the French drain, he had significant flooding issues once again this Spring.

93. Mr. Durnford spoke to the matter of privacy. Given the stonework on the Appellant’s property right up to the property line, there is very little area on his Property to plant trees and bushes to provide adequate privacy between the two properties. As such, Mr. Durnford has had spend a lot of money on plantings on his property.

94. Lastly, Mr, Durnford spoke to an impact arising from the lack of soft landscaping which is very troublesome to him and apparently many of his neighbours, excessive noise, as there is no soft landscaping to absorb sound emanating from this rear garden. The Appellant apparently installed a high-performance surround sound system in his rear garden that he plays regularly in the summer at, as Mr. Durnford characterized it, a deafening high volume with a pounding underlying bass which reflects off of all of the excessive stone work of his pool house, home and extensive stone patios. This sound energy apparently causes Mr. Durnford’s home to actually vibrate. There are apparently numerous records with the City of noise complaints from neighbours (near and far).

95. Mr. Durnford summarized by saying that the Appellant committed to a site plan as part of his initial Committee of Adjustment application that did not require any variances for soft landscaping in the front or rear yards. He made the same commitment to his neighbours, Dr. Ting and himself, in a formal agreement. The Notice of Decision by the Committee included the primary condition that the property had to be developed according to the Site Plan which did not include any variances for soft landscaping.Even though he was aware of this condition, he proceeded to develop the site with extensive hard landscaping.

96. He continues by saying that the Appellant’s decision to ignore the City bylaws has resulted in very negative impacts on his property and those of his neighbours. He asserts that the “as-built landscaping” is off by a huge amount.

97. Mr. Durnford asserts that as an experienced developer, he believes that the Appellant knew what he was doing. He concludes that the proposed variances requested are not minor, the proposal is not desirable nor in keeping with the area,

98. Although not a qualified planner, in his view, the general intent and purpose of the zoning bylaw is not maintained, and the general intent and purpose of the official plan is not maintained. As such, he urges the Tribunal to reject the appeal.

ISSUES AND ANALYSIS

99. Both professional planners agreed on one thing, that nothing in the appeal created an inconsistency with Provincial planning policy. The Tribunal accepts this opinion.

100. Although there was some adverse comment from various participants, no serious objection was taken to the grant of relief for Variances 1 and 2 relating to the front stairs. Of course, these two variances were approved by the Committee and are only before this Tribunal as the whole decision is necessarily under appeal.

101. Based upon the evidence presented, this Tribunal is content that those two variances meet the four tests and that it would be appropriate for the Committee’s decision to stand regarding them.

102. As will be apparent from the foregoing background and summary of evidence, the issue on this appeal concerns Variances 3 and 4 regarding landscaping.

103. In his opening submissions, Mr. Mazierski pointedly reminded the Tribunal that in after-the-fact applications (i.e., where the nonconforming circumstance already exists), the Tribunal is to screen out the fact of the non-conforming circumstance and assess the situation as if it didn’t already exist. That is, no special latitude is to be accorded the applicant just because the non-conformity exists. In this regard, he cites the 1994 Ontario Municipal Board decision of Member Yao in Turner v. Vaughan (which was referred to by Ms. Bepple as well).

104. The rationale behind this is to attempt to be equitable to all applicants and to dissuade owners from presuming that they will receive more benevolent treatment on the premise that deconstructing a non-conformity may be a harsh outcome.

105. Mr. Mazierski is correct in his identification of this approach, which then presents this panel with the central proposition which was articulated by Ms. Macdonald.

106. As an open canvas upon which to lay out the design of the development of the Property, the Appellant had a clear and easy opportunity to ensure compliance with the landscaping requirements of the Zoning By-law, front and back. The Property is a very large site and there are no obvious physical constraints that would have prevented meeting, and likely handily exceeding, the By-law’s minimum landscape requirements. To make it easier, apparently the dwelling does not exceed the maximum lot coverage permitted as no relief for that purpose was sought on the original application to the Committee of Adjustment.

107. The site plan and associated site grading plan filed at the Committee of Adjustment and with the Building Department, as filed in this proceeding, had notations that the rear yard was to be grassed and showed trees existing at the rear of the Property.

108. The Tribunal heard not one bit of evidence from the Appellant which represented an explanation on that point or any type of justification for what presently exists. The Tribunal can only deduce that, despite the By-law’s minimum requirements, this is what the Appellant wants and prefers.

109. Mr. Benczkowski produced photographs and data for a number of properties within this neighbourhood. Save for 177 Teddington Park Avenue, there was no evidence in those cases of relief being sought for a failure to conform with minimum landscaping requirements. And, despite examples of properties with two driveway access points, those properties demonstrated landscaping characteristic of the area landscaping.

110. To this panel of the Tribunal, the Property does not provide any similar demonstration.

111. As Policy 2.3.1.1 of the Official Plan declares that lands in areas designated Neighbourhoods will respect and reinforce the existing physical character of buildings, streetscapes and open space patterns in these areas, based on the evidence adduced in this proceeding, the Tribunal discerns a departure from that dictum regarding the landscape deficient Property in its well landscaped environs.

CONCLUSION

112. Based upon the foregoing, the Tribunal concludes that, in the neighbourhood context of the Property, the requested relief with respect to landscaping, both as regards the front yard and the rear yard, does not maintain the general intent and purpose of the Official Plan, nor of the Zoning By-law.

113. The lack of consistency with the physical character of this neighbourhood in the Property’s present state also drives the Tribunal to the conclusion that authorizing the requested landscaping relief would not be desirable nor represent a minor variance from the provisions of the Zoning By-law in this case.

DECISION AND ORDER

114. The Tribunal ORDERS THAT the appeal is dismissed.

G. Swinkin

Panel Member