Zhang (Re), 2025 ONTLAB 364

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2025-10-15

25 162423 S45 08 TLAB

Zhang (Re), 2025 ONTLAB 364

Issuance Date:

October 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:

436 FAIRLAWN AVE

COA File No.:

2025 131389 NNY 08 MV (A0132/2NY)

TLAB Case File No.:

25 162423 S45 08 TLAB

Hearing Date(s):

October 10, 2025

Deadline Date for Closing Submissions/Undertakings:

Decision Delivered By:

TLAB Panel Member T. Kezwer

People Type

First Initial. Last Name

Representative

INTRODUCTION AND CONTEXT

1This was a settlement hearing before the Toronto Local Appeal Body (the “Tribunal”) for the property municipally known as 436 Fairlawn Avenue (the “Subject Property”). The Subject Property is located on the north side of Fairlawn Avenue, west of Avenue Road, east of Ledbury Street, north of Brookdale Avenue and south of St. Germain Avenue. The Subject Property is zoned RD (f12.0;a370) (x1463). There is an exception 1463, however, the provisions of this exception are not relevant to this matter. The Subject Property is designated Neighbourhoods in the Official Plan.

2The proposal that was before the North York Panel of the Committee of Adjustment was denied, and it was appealed by the Applicant/Appellant (the “Applicant”). In addition, the adjoining neighbour located at 432 Fairlawn Ave. elected party status in opposition to the proposal.

3A settlement was reached between the Applicant and the adjoining neighbour located at 432 Fairlawn Ave. Minutes of Settlement were executed and these were filed with the Tribunal (see Exhibit 1 below).

4Mr. Hoffman was in attendance as legal counsel on behalf of the neighbour located at 432 Fairlawn Ave, and he spoke briefly at the start of the hearing. Mr. Hoffman noted that his client did not have any objections to the revised application, and that his client was satisfied with the revised plans and proposed conditions of approval. Mr. Hoffman then exited the hearing and Mr. Mazierski presented his client’s case.

5Mr. Mazierski asserted in his opening and closing remarks that the planning department and the urban forestry department had no issues with the original proposal at the Committee of Adjustment, and that the Applicant has made material changes to the proposal since that time which reduce the scope of the requested variances. Mr. Mazierski also asserted that all the concerns raised by the neighbour have been addressed.

6There were six variances before the Tribunal, which is a reduction from the nine variances that were originally before the Committee of Adjustment. Three of the six requested variances have also been reduced in scope.

7The original Committee of Adjustment application had nine variances.

8An Applicant’s Disclosure was received by the Tribunal dated July 28, 2025, which removed three of the variances, and modified three of the remaining six variances. The removed variances are as follows:

Chapter 10.5.40.50(2), By-law No. 569-2013

In the Residential Zone category, a platform without main walls, such as a deck, porch, balcony or similar structure, attached to or within 0.3m of a building, must comply with the required minimum building setbacks for the zone: 1.2m from the side lot lines.

The front platform is 1.04m from the east side lot line.

Chapter 10.5.40.60.(1)(A)(i), By-law No. 569-2013

A platform without main walls, attached to or less than 0.3m from a building, with a floor no higher than the first floor of the building above established grade may encroach into the required front yard setback 2.5m if it is no closer to a side lot line than the required side yard setback.

The proposed platform is closer to the side lot line than required side yard setback: 1.2m is required and 1.04m is proposed from the east side lot line.

Chapter 10.5.40.60.(2)(A), By-law No. 569-2013

A canopy, awning or similar structure above a platform may encroach into a required building setback to the same extent as the platform it is covering.

The proposed canopy is above a platform that does not comply with 10.5.40.60(1) at the front main wall.

The proposed side yard setback of the canopy is 1.04m, the same proposed setback as the platform below, where the required side yard setback is 1.2 m from the east side lot line.

9The Minutes of Settlement which were received by the Tribunal on September 17, 2025 (Exhibit 3) provided additional adjustments to the east side yard setback, lot coverage, and building length variances. These can be seen in the Variance Request Chart contained in Mr. Benczkowski’s Expert Witness Statement (Exhibit 2):

Exhibit 2, Tab 8, Page 62: Variance Request Chart

10The Tribunal’s Rules of Practice and Procedure at rule 11.2 provides the following:

11.2 The Applicant shall File using Form 3 an Applicant’s Disclosure, including text and plans, with the TLAB not later than 20 Days after a Notice of Hearing is Served.

11In this case, the Form 3 was filed on time for the first set of revisions. However, Minutes of Settlement were only filed once a settlement was reached. Considering that a settlement was reached between the parties – which is a positive development as it avoided a contested hearing, and it also allowed the Parties to reach an agreement on their own terms - I use my discretion in rule 2.12 to allow the Applicant to modify the proposal that was before the Tribunal. For clarity, rule 2.12 is as follows:

2.12 The TLAB may grant all necessary exceptions to these Rules, or grant other relief as it considers appropriate, to enable it to effectively and completely adjudicate matters before it in a just, expeditious and cost-effective manner.

12I will now review subsection 45(18.1.1) of the Planning Act.

Subsection 45(18.1.1) of the Planning Act

13The proposal before the Tribunal has been modified twice. Mr. Mazierski asserted that the revisions to the proposal have had the impact of reducing the scope of the proposal and to eliminate three of the requested variances. Mr. Mazierski asserted that subsection 45(18.1.1) should be implemented to waive notice of the revised application on the basis that the changes stemming from the Minutes of Settlement are reductions in scope, resulting in the reduction of lot coverage, east side yard setback, and building length.

14The Planning Act at subsection 45(18.1) asserts that written notice must be provided for an application which has been amended to the persons and public bodies who received notice of the original application and to others and agencies prescribed under subsection 45(5).

15In addition, the Planning Act at subsection 45(18.1.1) provides that no new public notice is required under subsection 45(18.1) if in the Tribunal's opinion, the amendment to the original application is minor. There is no further statutory guidance on what constitutes a minor amendment. In my opinion, context is very important when considering whether an amendment to an original application is minor.

16As can be seen in the Variance Request chart, the amendments resulting from the Minutes of Settlement include the reduction in scope of three minor variances. I find that the proposed modified variances result in a reduction in the scope and scale of the variances being requested. Considering these factors, I find that the amendment to the original application is minor, and that no new public notice is required under subsection 45(18.1) of the Act.

17I will now outline the exhibits that were filed during this hearing.

Exhibits

18Three exhibits were entered into the record. The exhibits are as follows:

Exhibit 1: Minutes of Settlement – received by the Tribunal on September 17, 2025.

Exhibit 2: Mr. Benczkowski’s Expert Witness Statement – received by the Tribunal on September 19, 2025 (627 pages).

Exhibit 3: Applicant Document Book – received by the Tribunal on September 19, 2025 (292 pages).

Requested Minor Variances

19The variances before the Tribunal are as follows:

Chapter 10.20.40.70.(3)(C), By-law 569-2013

The required minimum side yard setback is 1.2m where the required minimum lot frontage is 12.0m to less than 15.0m.

The proposed side yard setback is 0.97m from the east lot line.

Chapter 10.20.30.40.(1)(A), By-law 569-2013

The permitted maximum lot coverage is 30% of the lot area.

The proposed lot coverage is 32.56% of the lot area.

Chapter 10.20.40.10.(1)(A), By-law 569-2013

The permitted maximum height of a building or structure is 10m.

The proposed height of the (building/structure) is 10.58m.

Chapter 10.20.40.10.(4), By-law 569-2013

Subject to regulation 10.20.40.10(1), if a permitted residential building in the RD zone has a roof with a slope of less than 1.0 vertical units for every 10.0 horizontal units for more than 50% of the total horizontal roof area:

(A)despite regulation 10.20.40.10(2), the permitted maximum height of all main walls is 7.5m

The proposed main wall height is 8.86m.

Chapter 10.20.40.10(3)(A), By-law 569-2013

The permitted maximum number of storeys is 2.

The proposed number of storeys is 3.

Chapter 10.20.40.20.(1), By-law 569-2013

In the RD zone with a minimum required lot frontage of 18.0m or less, the permitted maximum building length for a detached house is 17.0m.

The proposed building length is 18.75m.

THE LEGISLATIVE AND POLICY FRAMEWORK

20Provincial Interest - S. 2

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

21Provincial Policy – S. 3

A Decision of the Tribunal must be consistent with the 2024 Provincial Planning Statement for the subject area.

22Variance – S. 45(1)

In considering the applications for variances from the Zoning By-laws, the Tribunal 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

23The Tribunal heard from one witness, Jonathan Benczkowski. Mr. Benczkowski was qualified to provide expert opinion evidence in the area of land use planning. Mr. Benczkowski is a land use planning consultant at Sol-Arch (Architecture + Planning), with over 20 years of experience in a variety of planning matters. Since 2005, Mr. Benczkowski has been responsible for all of Sol-Arch’s planning work, including many consent and minor variance matters.

24Mr. Benczkowski has a degree in Urban, Economic and Social Geography from the University of Toronto, and is a full member of the Ontario Professional Planners Institute (RPP) as well as the Canadian Institute of Planners (MCIP).

25Mr. Benczkowski provided his opinion that the application represents good planning, maintains the general intent and purpose of Official Plan and Zoning By-law, that the variances are minor, and that the variances are desirable for the appropriate development of the land. Mr. Benczkowski’s opinion is that the proposed variances individually and cumulatively meet the four tests outlined in section 45(1) of Planning Act, the appeal should be allowed and the application approved with the recommended conditions.

ISSUES AND ANALYSIS

Provincial Interest

26I find that the proposal meets matters of provincial interest outlined in section 2 of the Planning Act, including: (h) the orderly development of safe and healthy communities; and (p) the appropriate location of growth and development.

2024 Provincial Planning Statement

27Mr. Benczkowski noted that the 2024 Provincial Panning Statement (the “PPS”) is a high level planning framework that outlines development criteria for planning matters. Mr. Benczkowski provided his opinion that the proposal is consistent with the policies contained in the PPS. I have considered the PPS and I find the proposal to be consistent with this document.

Geographic Neighbourhood per Policy 4.1.5

28Mr. Benczkowski delineated a geographic neighbourhood, composed of properties which share the same zoning designation. The geographic neighbourhood can be seen as follows:

Exhibit 2 at Tab 5, Page 43: Neighbourhood Study Map

29The Broader Context would be defined as Melrose Avenue to the north, Woburn Avenue to the south, Ledbury Street to the east and the residential properties that share the same zoning designation that back onto Avenue Road to the west.

30The immediate context of Fairlawn Avenue is composed of detached dwellings with varying building heights as well as architectural styles and has experienced substantial regeneration.

31I accept the Geographic Neighbourhood delineated by Mr. Benczkowski, and I will now review the section 45(1) minor variance test.

Minor Variance Test

Do the Variances Maintain the General Intent and Purpose of the Official Plan

32Mr. Benczkowski noted that the Property is designated Neighbourhoods in the City’s Official Plan. The Neighbourhood designation permits low-rise residential uses up to four-storeys in height.

33The main policy that I will focus on in this decision are the development criteria for Neighbourhoods which are outlined in policy 4.1.5. However, I have considered other policies in the Official Plan such as those contained in Chapters 2 and 3 of the Official Plan.

34Mr. Benczkowski reviewed the development criteria in Policy 4.1.5, and provided his opinion on the following:

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

There has been substantial redevelopment of the existing 1 and 2 storey homes on both sides of the immediate block of Fairlawn Avenue. New homes are larger in terms of massing. In addition, these newer homes have similar heights to what is being is proposed. These new homes tend to have the massing of two storeys above an integral garage which is consistent with the proposal before the Tribunal. The proposal maintains the prevailing heights, massing, scale, density and dwelling type of nearby residential properties

e) Prevailing location, design and elevations relative to the grade of driveways and garages

The proposal calls for a positive slope to access an at-grade integral garage for the proposed dwelling. The location of the garage is in keeping with prevailing location of properties in the area.

f) Prevailing setbacks of the buildings from the street or streets

The proposed dwelling is compliant with the required front yard setback in the

Zoning By-law.

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

The proposed rear yard setback does not require a minor variance. The prevailing rear yard setbacks on Fairlawn Avenue are generous due to the deep lots. Four lots to the east have a shorter depth; to the west (including the subject property) to lot depth is 46.22m.

The proposal calls for an east side yard setback at 0.97m, whereas the Zoning By-law requires 1.2m. In addition, the middle portion of the proposed dwelling is compliant with the Zoning By-law. The existing dwelling has an east side yard setback of 0.44m, which indicates that existing dwellings may not be compliant with the Zoning By-law standards. The proposed east side yard setback is consistent with the patterns of development along Fairlawn Avenue.

The proposed landscaped area in the front and rear yard is consistent with the adjacent dwellings and is consistent with the Zoning By-law.

35I accept Mr. Benczkowski’s opinions as noted above regarding policy 4.1.5 and I agree that the proposal respects and reinforces the physical character of the immediate as well as the broader neighbourhood. I agree with Mr. Benczkowski’s opinion that the proposal maintains the general intent and purpose of the Official Plan.

Do the Variances Maintain the General Intent and Purpose of the Zoning By-law

36Mr. Benczkowski provided his opinion that the general intent and purpose of zoning by-laws are to ensure compatible built form within the area, to implement the intent and purpose of the Official Plan, and to ensure that new development does not cause unacceptable undue adverse impacts on the existing neighbourhood. Mr. Benczkowski’s opinion is that the proposal maintains this intent and does not introduce an inappropriate building form.

37In terms of the side yard setback variance, Mr. Benczkowski opined that the general intent and purpose of this provision is to ensure appropriate spatial separation between dwellings and to allow for access and maintenance as well as maintaining a consistent pattern of building locations. Mr. Benczkowski noted that the east side yard setback is proposed to be improved to 0.97m from the existing condition of 0.44 m. Mr. Benczkowski’s opinion is that the proposal provides ample space for access to rear yard and that it is consistent with surrounding dwellings on Fairlawn Avenue. I agree and find that the proposal maintains general intent and purpose of the side yard setback bylaw provision.

38With regards to the proposed lot coverage, Mr. Benczkowski opined that the general intent and purpose of this provision is to ensure that the building envelope does not cover too much space of the lot, and that there is sufficient space for outdoor amenity areas as well as setbacks. Mr. Benczkowski provided his opinion that the proposal allows for exterior amenity space in the rear yard with a proposed setback of 20.91m (68’6”). I agree and find that the general intent and purpose of this provision of the Zoning By-law is met.

39Mr. Benczkowski opined that the general intent and purpose of the height provisions is to create a consistent built form as it relates to height. Mr. Benczkowski noted that all but 4 of 35 lots in immediate context redeveloped with the majority having two functional storeys above garage. In addition, Mr. Benczkowski provided a Buildings Height Report of the geodetic height of properties in the immediate block of Fairlawn Avenue from a professional surveyor. The survey shows that the proposed height of 10.58m would be within the range of prevailing heights on both the north and south sides of the street. The proposal would not be the tallest dwelling on either side of the street, as there are three existing properties on the same (north) side of Fairlawn Avenue which have a greater height.

Exhibit 2, Tab 9, Page 63: Four undeveloped houses in the immediate block

Exhibit 2, Tab 11, Page 65: Building Elevation Report

40Mr. Benczkowski provided his opinion that the proposed height is consistent with the massing and heights of nearby residential properties. I accept Mr. Benczkowski’s opinions and find that the proposed building height maintains the general intent and purpose of the Zoning By-law which is to create a consistent built form as it relates height.

41Mr. Benczkowski provided his opinion that the general intent and purpose of the main wall height of the Zoning By-law is to restrict the effect of massing created by tall walls and maintain an appropriate form for a dwelling. Mr. Benczkowski provided his opinion that although the roof is identified as a flat or shallow roof in the Zoning By-law, the architectural form of the dwelling from the streetscape presents itself as having a mansard roof. Mr. Benczkowski’s opinion is that the main wall has functional roof on top and does not present as a flat roof dwelling.

42I agree and find that the proposed main wall heights maintain the low scale proportion of the neighbourhood. The general intent and purpose of this provision in the Zoning By-law is met.

43Mr. Benczkowski characterized the variance dealing with the number of storeys as a technical variance due to identifying the basement as the first storey. Mr. Benczkowski opined that the proposal is for a grade related house with basement slab only 0.38m below established grade. Mr. Benczkowski’s opinion is that if the basement slab were dropped further it would not change look of the house

44I find that the built form of the dwelling matches the redeveloped dwellings on the subject block, and that the general intent and purpose of the number of storeys in the Zoning By-law is maintained.

45In terms of building length, Mr. Benczkowski opined that the purpose of this provision of the Zoning By-law is to ensure the appropriateness of the dwelling for the particular lot. Mr. Benczkowski’s opinion is that due to the large lot depth an increase in length can be accommodated while maintaining a generous rear yard setback of 20.91 m whereas Zoning By-law requires a 11.55m setback. Mr. Benczkowski opined that the adjacent dwellings are similar in building length and that there is no adverse impacts on adjacent neighbours for length. While there is not an abundance of quantitative data for this requested variance, Mr. Benczkowski did use photographic evidence to compare the lengths, while also referring to Committee of Adjustment data, and I am satisfied that the proposed building length maintains the general intent and purpose of the building length provisions of the Zoning By-law.

46Mr. Mazierski asserted that both the quantitative Committee of Adjustment data and the qualitative data, such as the pictures presented by Mr. Benczkowski should be accepted by the Tribunal as the Committee of Adjustment data only goes back 14-15 years. I agree that there has been redevelopment that is not reflected in this data, and Mr. Benczkowski did a good job of addressing these issues, such as for example, by obtaining the surveyor data for height, and referring to pictures for building length.

47In conclusion, I find that the proposed variances individually and cumulatively maintain the general intent and purpose of the Zoning By-law.

Are the Variances Desirable for the Appropriate Development of the Land

48For the desirability test, Mr. Benczkowski provided his opinion that the proposal appropriately implements the planning framework at both the Provincial and Municipal level. In Mr. Benczkowski’s opinion, the dwelling has been designed in a manner which will limit impacts to adjacent neighbours as well as the overall neighbourhood.

49I agree and find that the proposal is desirable for the appropriate development and/or use of the land.

Are the Variances Minor

50Mr. Benczkowski provided his opinion that the proposed variances are minor in nature in consideration of both the numerical and qualitative aspects of the proposal. Mr. Benczkowski’s opinion is that the existing lot is large in frontage and depth, and can accommodate the increase in building length without adversely impacting the adjacent dwellings.

51Mr. Benczkowski’s opinion is that the proposal will bring the built form of the property more in line with what exists in the immediate and broader context. Mr. Benczkowski’s further opinion is that the proposal is minor, does not push limits for overdevelopment and will not create unacceptable impacts on adjacent neighbours or the streetscape. I agree and find that the proposal is minor in nature.

CONCLUSION

52In conclusion, I find that the six requested variances individually and cumulatively meet the four statutory tests outlined in section 45(1) of the Planning Act.

53I want to thank Mr. Benczkowski for his comprehensive expert evidence provided before the Tribunal. In addition, I want to thank Mr. Mazierski for his thorough and knowledgeable advocacy on behalf of his client.

DECISION AND ORDER

54The Appeal is allowed and the variances requested, as modified before this Tribunal, and stated in paragraph 19 above, are approved, subject to the following three conditions:

a. That the approved building shall be constructed substantially in accordance with the site plan (drawing A1) and elevation drawings (A7. A8, A9, A10) prepared by Contempo Studios, dated September 2025, which are attached to this decision

b. That the external air conditioning units shall be located on the west façade of the building

c. Urban Forestry Tree Protection & Plan Review condition:

i. 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.

T. Kezwer

Panel Member