Natale (Re), 2025 ONTLAB 367

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2025-10-23

25 162541 S53 02 TLAB

25 162548 S45 02 TLAB

25 162551 S45 02 TLAB

Natale (Re), 2025 ONTLAB 367

DECISION AND ORDER

Issuance Date:

October 23, 2025

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):

P. NATALE

Applicant(s):

A. PALUMBO

Property Address:

39 YORKLEIGH AVE

COA File No.:

23 230893 WET 02 CO (B0054/23EYK)

23 230894 WET 02 MV (A0471/23EYK)

23 230895 WET 02 MV (A0472/23EYK)

TLAB Case File No.:

25 162541 S53 02 TLAB

25 162548 S45 02 TLAB

25 162551 S45 02 TLAB

Hearing Date(s):

SEPT. 12, 2025

Deadline Date for Closing Submissions/Undertakings:

Decision Delivered By:

A. BROWN

REGISTERED PARTIES AND PARTICIPANTS:

People Type

First Initial. Last Name

Representative

Appellant

P. NATALE

S. MALONEY

Party

J. KENNEDY

Participant

L. SANTOS

Participant

A. VLASSOPOULOS

Participant

A. RUGGIERO

Participant

A. GALLIPPI

INTRODUCTION AND CONTEXT

1These are appeals of the refusal by the Committee of Adjustment to approve an application for consent to sever the property known as 39 Yorkleigh Avenue and its refusal of applications for variances to the zoning requirements to construct a new dwelling on each of the two resulting lots. The existing dwelling would be demolished.

2The Owner’s applications to the Committee of Adjustment were refused by a Decision dated May 1,2025 and mailed May 9, 2025.

3The three Appeals to TLAB were duly filed and were heard together. The Hearing occurred by Electronic Hearing via the City’s Webex platform on September 12, 2025.

4The subject property is designated Neighbourhoods in the Toronto Official Plan and zoned RD (f21.0; a695; d0.45; (x26) under Zoning By-law 569-2013. This Zone applies to properties along Yorkleigh Avenue and to some lots on Freemont Avenue and Leggatt Avenue.

5I advised those present at the Hearing that, in accordance with City 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.

THE LEGISLATIVE AND POLICY FRAMEWORK

6Provincial 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.

7Provincial Policy – S. 3

A Decision of the Toronto Local Appeal Body (TLAB) must be consistent with the 2024 Provincial Planning Statement for the subject area.

8Consent – 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).

9Variance – 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.

10CONSENT REQUESTED

RETAINED PART 1

The proposed lot frontage is 16.7m

The proposed lot area is 737.75²

CONVEYED PART 2

The proposed lot frontage is 19.13m

The proposed lot area is 791.75m².

11PROPOSED VARIANCES

Part 1 Variances (Retained Part)

Variance #1 Section 10.20.30.20(1)(A), By-law 569-2013

The minimum required lot frontage is 21m.

The proposed lot frontage is 16.7m.

Variance #2 Section 10.5.40.60(3) By-law 569-2013

Exterior Stairs providing pedestrian access to a building or structure may encroach into a required building setback if the stairs are no wider than 2.0m.

The proposed front stairs located at the front porch are 2.74m. wide.

The proposed stairs located at the rear are 3.05 m. wide.

12Part 2 Variances (Conveyed Part)

Variance #1 Section 10.20.30.20(1)(A), By-law 569-2013

The minimum required lot frontage is 21 m.

The proposed lot frontage is 19.13 m.

Variance #2 Section 10.5.40.70.(1)(A) By-law 569-2013

The minimum required front yard setback is 16.81m.

The proposed front yard setback is 14.88m.

Variance #3 Section 10.5.40.60.(3)(a((ii) By-law 569-2013

Exterior Stairs providing pedestrian access to a building or structure may encroach into a required building setback if the stairs are no wider than 2.0 m.

The proposed stairs are 2.22m. wide.

Variance #4 Section 10.20.40.50.(1)(B) By-law 569-2013

The maximum permitted area of a platform at or above the second storey of a detached house is 4m².

The proposed area of the rear platform at or above the second storey is 5.71m².

13Preliminary Matter

14Mr. Maloney, Legal Counsel to the Appellant, raised an initial objection. He asserted that Party Kennedy’s own residence was not close enough to the subject property to give him an interest in this Appeal. Secondly, he asserted that Mr. Kennedy had filed a Witness Statement that was clearly cribbed from the expert witness statement of a professional planner in a prior severance and variance matter that pertained to 8 Yorkleigh Avenue, and that Mr. Kennedy should not be able to use the Witness Statement.

15Mr. Kennedy responded that he is an Engineer and has resided for many years in his house on Yorkleigh Avenue and has been involved in matters before the COA and TLAB in the past concerning the neighbourhood. The Expert Witness Statement that he filed in this proceeding relied heavily on the Expert Witness statement that he had filed in respect of 8 Yorkleigh Avenue. However, he stated that he has personal knowledge of some of the content in the Statement and had assisted the Planner (whom he had retained for 8 Yorkleigh Avenue) in compiling some of factual explanations (e.g. Tables) within the Statement.

16I decided that Mr. Kennedy does have a genuine interest in the instant Appeals, and secondly, if he testified, he would not be qualified to provide expert opinion evidence on land use planning but could refer to parts of the witness statement he has filed in this Appeal of which he had personal knowledge and that did not require an expert opinion. That is, Mr. Kennedy’s witness statement would not be admitted in its entirety, and if Mr. Kennedy wished to refer to parts of it, I would deal with that on a case-by-case basis at the appropriate juncture.

17SUMMARY OF EVIDENCE

18Exhibits:

1. Appellant’s Book of Documents, including plans, drawings, maps, Arborist Report, Tables and photographs

2. Appellant’s Expert Witness Statement (Andrew Palumbo)

3. By-law 3148 (approved in September 1974) and an Etobicoke Planning Department Memo dated December 18, 1973. (Party Kennedy)

4. Map showing an area that was formerly included within a “preservative area” established by Etobicoke By-law 3148. (Party Kennedy)

5. Table of lots on central portion of Yorkleigh Avenue (Kennedy Document Book)

6. Table of Variance and Severance Decisions - Table #3 in the Kennedy Document Book)

7. Aerial photograph of the subject property (Kennedy Document Book)

8. Participant Witness Statement – Louise Santos

9. Participant Witness Statement - Anthony Vlassopoulos

10. Participant Witness Statement - Anthony Gallippi

19A summary of the evidence is presented here to provide some context for the following sections of this Decision and Order. All of the evidence and testimony in this Proceeding have been carefully reviewed and the omission of any point of evidence in this summary should not be interpreted to mean that it was not fully considered, but rather that the recitation of it is not material to the threads of reasoning that will be outlined in the Issues and Analysis section below.

20Andrew Palumbo testified for the Appellant. His Expert Witness Statement was filed with the TLAB, along with his resume. Mr. Palumbo is a Registered Professional Planner and has qualifications and experience in the area of land use planning. I qualified him to provide expert opinion evidence.

21Mr. Palumbo explained that the subject property is situated on the south side of Yorkleigh Avenue, an east-west local road. The lot has an irregular lot depth of approximately 44.3m. with a frontage of 36.01m. on Yorkleigh Avenue.

22Mr. Palumbo defined the study area for his analysis as consisting of 44 lots in the immediate vicinity of the subject property, between Scarlett Road and Roxaline Street (from 4 to 83 Yorkleigh Avenue). The zoning requirement for minimum lot frontage on Yorkleigh Avenue is 21m. In the broader neighbourhood the Zoning By-law prescribes a minimum lot frontage of 13.5m. and smaller lot areas. Accordingly, the streets in the broader neighbourhood were not included in the study area. (A few large lots on Freemont Avenue and Leggatt Avenue are also covered by the 21m. zoning requirement. These were not included in the study area.)

23Mr. Palumbo’s lot study revealed that 15 of the 44 lots (34%) have “substandard” lot frontages, less than the By-law requirement of 21m. The average frontage for the 15 substandard lots is 16.67m. This is very close to the proposed frontage (16.7m.) for Part 1.

24Mr. Palumbo stated that 8 of the 44 properties are “large lots” having a frontage greater than 30m. In Mr. Palumbo’s opinion, these lots are a “more suitable candidate” for severance.

25Twenty-one of 44 properties (48%) have lot frontages between 21m. and 30m. These are By-law compliant, but in Mr. Palumbo’s opinion, are not candidates for severance because a severance would result in small lot frontages.

26The smallest lot frontage in the study area is 13.72m., at 79A and 83 Yorkleigh Avenue. The largest lot frontage is 52.12m., at 11 Yorkleigh Avenue. The subject property has the third largest frontage on the street, greater than 95% of the remaining lots.

27In Mr. Palumbo’s opinion, the subject property, if left unsevered, would “remain more out of character than if it were severed, given the range of lot sizes”.

28Mr. Palumbo referred the Tribunal to three maps in the Appellant’s document disclosure.

29Map#1 (lots 4-25) shows 8 compliant lots with municipal addresses on Yorkleigh Avenue. In addition, one substandard lot resulted from the severance of 8 Yorkleigh Avenue.

30Map #2 (the central portion of the street comprising lots 26-56) includes the subject property. In this “block”, there are 7 substandard lot frontages and 11 compliant frontages, not counting the subject property. Map #3 (lots 57-83) shows 8 substandard lots and 9 compliant lots.

31Mr. Palumbo provided photographs of the existing streetscape, as found in the Appellant’s Document Book. In his opinion, there is minimal perceptible difference between what is proposed and the existing streetscape. The proposed frontages do not “rise to the level of an unacceptable or adverse impact of a planning nature”, and they would “fit harmoniously” within the existing lots and would respect and reinforce the existing character of the neighbourhood.

32Mr. Palumbo stated that severances are one of the few ways to create new single detached housing within built-up areas. The proposal is for two new dwellings that have an appropriate size and scale, and they will differ from each other in appearance. Most other lots on the street are not large enough to be candidates for severance, minimizing the risk of “de-stabilization” of the neighbourhood. Mr. Palumbo observed that the City did not raise an objection at the Committee of Adjustment or at the TLAB, and no concerns were raised by City Planning staff.

33Mr. Palumbo referred the Tribunal to 8 Yorkleigh Avenue. The owner of this property received Committee of Adjustment approval for a severance on February 8, 2024. One of the severed lots was By-law compliant and required no variances. The other lot was approved for a lot frontage of 19.22m and lot area of 644m².

34In Mr. Palumbo’s opinion, the application for consent to sever the subject property does have sufficient regard for the matters enumerated under section 51(24) of the Planning Act, as required by s.53(12) of the Act, in particular, paragraphs 51(24)(a), (b), (c), (f) and (i). In his opinion, a plan of subdivision is not required for a simple proposal to split a lot into two lots. The proposal is consistent with the safe and orderly development of the community, the provision of adequate housing, and the appropriate location of growth and development of the area. The lot is located on an existing road and is not premature. The resulting buildings would require only minor variances and the subject property is one of the largest on the street. The proposal conforms to the Official Plan and is a modest form of intensification.

35Appellant’s Evidence about the Proposed Variances

36In Mr. Palumbo’s opinion, the proposed variances are consistent with Provincial Planning Statement (2024), have regard for the provincial interests in the Planning Act s.2 and meet the four tests set out in s.45(1) of the Act.

37Provincial Planning Statement (2024)

38According to Mr. Palumbo, the Provincial Planning Statement “directs development to “established built-up areas and encourages intensification and redevelopment”. He stated that the proposed development is consistent with these policy objectives and utilizes existing infrastructure. The proposed building type is permitted in the neighbourhood.

39General Intent and Purpose of the Official Plan

40The subject property is designated by the Official Plan as “Neighbourhoods”. Mr. Palumbo stated that Chapter 2.3 of the Official Plan states that Neighbourhoods are considered to be physically stable areas but not static:

Some physical change will occur over time as enhancements, additions and infill housing occurs on individual sites." (Ch. 2.3.1)

41In reference to O.P. Policy 3.4.1.(d), Mr. Palumbo further stated that the Official Plan is also directed at preserving and enhancing the urban forest. The Appellant filed with the TLAB an Arborist Report to address the concerns raised by City Urban Forestry staff. The proposal would remove two trees that are in poor health. Otherwise, the existing canopy would be preserved. Secondly, the Appellant’s Arborist has proposed a plan to protect trees in the Tree Protection Zone, using irrigation techniques during construction in relation to the proposed driveway associated with Part 2.

42Mr. Palumbo stated that Chapter 4.1 of the Official Plan requires that “Physical changes to our established neighbourhoods must be sensitive, gradual and generally ‘fit’ the existing physical character.” In his opinion, the proposal “represents a gradual/modest intensification that reinforces the general physical patterns of this neighbourhood”.

43Mr. Palumbo stated that there is no variance proposed for the lot areas in Part 1 or Part 2. The lot frontages are “in keeping” with existing lot frontages. The proposed variances are minor. The front yard setback for the building on Part 1 is By-law compliant. A front yard setback for the building on Part 2, requires a variance. Rear yard and side yard setbacks are By-law compliant. Dwelling length, FSI and height for both buildings are By-law compliant. A second floor platform on one building exceeds the By-law requirement. The width of exterior stairs require variances on both buildings. No variances are required for gross floor area, lot coverage, building height, main wall height, building length or depth, or landscape open space.

44Mr. Palumbo also referred to Official Plan 4.1.5, which states in part:

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.

45Mr. Palumbo stated that the proposed redevelopment maintains the “street/block pattern” in the Neighbourhood. The frontages are of sufficient size compared to the By-law requirement. The proposal is “in keeping with the prevailing scale, massing, height, grades, landscape open space and dwelling type of other properties” in the area and on Yorkleigh Avenue. The front yard setback variance on Part 2 will still maintain the general setback pattern in the Neighbourhood.

46In Mr. Palumbo’s expert opinion, the proposed variances meet the general intent and purpose of the Official Plan.

47General Intent and Purpose of the Zoning By-law

48Mr. Palumbo explained that the intent and purpose of the minimum lot frontage requirement in the Zoning By-law is to “maintain some control over the size, scale and configuration of the overall fabric” within the neighbourhood. In this regard, he opined that it is important to note that there is no requested variance to the minimum lot area on either Part. The resulting lots are of sufficient size to be able to build two dwellings that satisfy many of the By-law requirements. Accordingly, the proposal is not an overdevelopment.

49Mr. Palumbo asserted that there is a range of lot frontages along Yorkleigh Avenue, with several substandard lot frontages. He referred to the Lot Study Data requested from the City, mentioned at paragraph 23-26, above. He opined that the existing property at 39 Yorkleigh Avenue was actually more out of character than if it were severed, given its size. Mr. Palumbo also referred the Tribunal to the three Maps of the blocks along Yorkleigh Avenue, as summarized above at paragraphs 29 and 30.

50Mr. Palumbo referred the Tribunal to photographs of the streetscape and asserted that there was minimal difference between what the Appellant has proposed and what already exists along the streetscape. The proposal would respect and reinforce the existing physical character of the neighbourhood.

51The dwelling to be constructed on Part 2 requires a variance of 1.93m. to the minimum front yard setback. In Mr. Palumbo’s opinion, this would still maintain the front yard setback character in the neighbourhood and would not be perceptible from the street. The front yard setback would be greater than that of the neighbouring dwelling at 35 Yorkleigh Avenue.

52With regard to the variances for the exterior stair width, Part 1 would require a variance of 74cm. at the front and 1.05m. at the rear. This is the only built form variance required for the dwelling on Part 1. Part 2 requires a variance of 22cm. for the width of the front stairs. Mr. Palumbo observed that, in both Parts, the stairs do not require any setback or encroachment variances and have no adverse impacts on the surrounding properties.

53Mr. Palumbo explained that the dwelling on Part 2 would require a variance to permit an additional 1.71m² platform space over the 4m² By-law standard. No variance is required for its projection toward adjacent properties or into the rear yard setback. The proposed variance would improve the functionality of the platform but would not be sufficient for large gatherings.

54Appropriate for the Desirable Development of the Subject Property

55Mr. Palumbo stated that the proposal would create two new residential lots with single family dwellings of an appropriate size and scale. It would increase housing stock in the area. It is in keeping with a gentle or modest intensification within the existing neighbourhood character. As there are only 8 "large” lots on the street, there is only a marginal risk of destabilization of the neighbourhood. The Committee of Adjustment approval for a severance at 8 Yorkleigh Avenue shows that the neighbourhood is gradually evolving.

56Are the Variances Minor in Nature?

57In Mr. Palumbo’s opinion, the proposed variances “do not rise to a level of unacceptable adverse impacts of a planning nature”. There is no undue adverse impact on the streetscape or the adjacent neighbours with respect to “shadowing, privacy, massing, scale or overlook”.

58Evidence of Party Kennedy

59Joseph Kennedy testified at the hearing. He acknowledged that he was not an expert in land use planning. His witness statement was not admitted as an Exhibit in its entirety because much of it was borrowed from an expert statement written by a registered planner whom Mr. Kennedy had retained in respect his opposition to a proposed severance of 8 Yorkleigh Avenue. However, I permitted him to refer to certain portions (Tables) of the witness statement, as indicated below.

60Mr. Kennedy asserted that the proposed variances do not meet the four tests in the Planning Act, and the severance does not present good planning and does not respect or reinforce the large lot character of the neighbourhood. He is worried that the severance would set a precedent if it were approved.

61Mr. Kennedy referred the Tribunal to Etobicoke By-law 3148 (approved in September 1974) and an Etobicoke Planning Department Memo dated December 18, 1973. These were in his Document Book and were marked as Exhibit #3.

62Mr. Kennedy testified about the lot frontages in his proposed “study area”. He referred the Tribunal to a map (Exhibit #4) showing an area that was formerly included within a “preservative area” established by Etobicoke By-law 3148. Mr. Kennedy stated that 64 lots were zoned with a minimum 70 foot frontage.

63The Preservative By-law 3148 required a minimum lot frontage of 21.4m (70 feet) and a minimum lot area of 698.8m² (7500 ft²). By-law 569-2013 prescribes a minimum frontage of 21m. and a minimum lot area of 695m².

64According to Mr. Kennedy’s Table in his Document Disclosure (which he stated that he helped to compile), 20 of lots in his study area have a frontage between 13.5m. and 20.99m. Thirty-two lots have frontage between 21m. and 30.99m., 9 lots are between 31m. and 40m. and 3 lots are greater than 41m. in width.

65Mr. Kennedy, who is not a planning expert, defined the “immediate context” of the subject property as consisting of the central portion of Yorkleigh Ave. - lots 26 to 49 - not including the subject property. A table of these 15 lots, that he helped to prepare, was filed as Exhibit #5. According to the Table, the average lot frontage is 21.9m. Five of the lots were created prior to 1974 when the zoning requirements were different, and they have smaller frontages. The average lot area of the 15 lots is 1291.1m².

66Mr. Kennedy also referred to a Table of Variance and Severance Decisions affecting the neighbourhood. This Table (identified as Table #3 in the Kennedy Document Book) was entered as Exhibit #6. Mr. Kennedy’s disclosure also included photographs of the properties. One of the photographs is an aerial shot of the subject property, filed as Exhibit #7. The Appellant’s Disclosure also included many photographs of the properties along Yorkleigh Avenue.

67Mr. Kennedy testified that he is concerned that the Appellant’s applications would be a precedent if they were approved. He considers a “20%” variance to the lot frontage requirement not to be minor. He submits further that the TLAB must consider both lot area and lot frontage. The proposed lots are “undersized”. In his view, the proposal does not meet the requirements for consent to a severance and does not meet the four tests under the Planning Act. He wants to see the character of the neighbourhood, with its predominantly large lots, preserved, and he maintains that this is the intent of the current Zoning By-law.

68Participants

69Participant Louise Santos testified that she resides at 35 Yorkleigh Avenue, next door to the subject property, to the east. Her Witness Statement was filed as Exhibit #8. She stated that her family moved into the neighbourhood because of its low density and large lots, which permit large homes. The proposed lots are “undersized” and do not represent the character of the neighbourhood, particularly with regard to scale, spacing, privacy, setbacks and lot size. The proposed lot frontage is not minor compared to the zoning requirement of 21m. The sightline to the front from the west window of her house at 35 Yorkleigh Avenue will be obstructed due to the proposed front yard setback variance. The proposal does not comply with City of Toronto policies or the Zoning By-law. She is concerned about what might happen to the neighbourhood if the current Applications are approved. She referred the Tribunal to the history of 8 Yorkleigh Avenue, which was turned down by the COA and the TLAB but was eventually approved by the Committee of Adjustment for a severance into two lots after the owner returned to the COA with changes to the original attempt, proposing one lot that was By-law Compliant and a second lot that required a frontage variance. She stated that the original dwelling at 8 Yorkleigh Avenue remains on the lot and is being used as a rooming house. Ms. Santos is also concerned about what will happen to the large trees at the front of the subject property.

70Participant Anthony Vlassopoulos resides at 17 Mountbatten Road, not far from Yorkleigh Avenue. His Witness Statement was filed as Exhibit #9. Mr. Vlassopoulos objects to the proposed severance and variances. He referred to the former Etobicoke Preservative By-law and he believes that the resulting lots will be undersized. The proposed lot frontages are too small, with the smaller lot representing a 21% difference from the 21m. standard. He noted, also, that the City’s Urban Forestry Department objected to the proposal. He is concerned about the precedent if the instant Appeals were to succeed. The neighbourhood has a unique character. The residents of the Humber Heights neighbourhood, including Yorkleigh Avenue, are concerned about the loss of estate lots through severance applications. Smaller lots on Yorkleigh Avenue were created prior to the Preservative By-law. Mr. Vlassopoulos supplied aerial photographs and information about the Preservative By-law and a Motion at Etobicoke York Community Council.

71Participant Anthony Gallippi testified that he resides at 44 Yorkleigh Avenue, across from the subject property. His Participant Witness Statement was filed as Exhibit #10. He objects to the two proposed “undersized” lots. The proposal will erode the neighbourhood’s character (large lots, tall trees and landscaped gardens) and represents a major change. The footprints of the two dwellings are too large and there are encroachments. The variances are not minor. There are not many streets left that have large lots. The proposal, if approved, would be a harmful precedent and would encourage other severance applications.

72Participant Ruggiero filed a witness statement consisting of six photographs of properties on Yorkleigh Avenue but did not testify.

ISSUES AND ANALYSIS

73The onus is on the Appellant to provide evidence to support the request for a consent to sever the existing lot. The Appellant also has the onus to prove that the proposed variances meet all four statutory tests in section 45(1) of the Planning Act, That is, do the variances maintain the general intent and purpose of the Official Plan and the Zoning By-law? Are they desirable for the appropriate development or use of the land? Are they minor in nature?

74A hearing before the TLAB is a hearing “de novo” under s.45(18) of the Planning Act (Act), meaning that the entire application that was before the Committee of Adjustment must be considered anew.

75A variance is a privilege and not a right, and a variance will not be approved if it fails to meet all four tests.

76The evidence before the Tribunal consists of the testimony and Expert Witness Statement of Mr. Palumbo, including his expert opinion. It also consists of the admissible testimony of Party Kennedy and three Participants. Further, it consists of photographs, maps, tables, existing and proposed site plans, the R-Plan, drawings and elevations, and an Arborist Report. If relevant, the Tribunal will also consider the history of the Neighbourhood as evidenced by background documents such as the Etobicoke Preservative By-law 3148 and past decisions of the Committee of Adjustment and the TLAB. The Tribunal must decide what weight, if any, is to be given to the evidence before it.

77The Participants who testified spoke passionately about the need to preserve the character of the street, with its large lots and mature trees. They were concerned about setting a precedent. They did not feel that the Appellant had satisfied the tests for the variances or the requirements to obtain consent to a severance.

78The Proposed Severance

79I shall first consider the Appeal of the Committee of Adjustment’s decision to refuse the application for Consent to Severance.

80Provincial Planning Statement (2024)

81The Provincial Policy Statement is a high level document that offers little guidance for the severance of one lot in a settlement area. Nevertheless, in my view the Proposal is consistent with the PPS 2024 in that this Policy encourages intensification at locations that can take advantage of existing services and infrastructure.

82The Planning Act, s.53(12) and 51(24)

83In Mr. Palumbo’s opinion, a plan of subdivision is not required for a simple proposal to split a lot into two lots on Yorkleigh Avenue. I agree.

84In Mr. Palumbo’s opinion, the application for consent to sever the subject property has sufficient regard for the matters enumerated under section 51(24) of the Planning Act, as required by s.53(12) of the Act, in particular, paragraphs 51(24)(a), (b), (c), (d), (f) and (i):

(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) prevailing building type(s);

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

(i) the adequacy of utilities and municipal services;

The other criteria are not applicable, in his opinion.

85I agree with Mr. Palumbo that s. 51(24)(a), (b) (d) and (i) are satisfied in this Appeal.

86I find that the matters enumerated in s.2 of the Planning Act are high level matters of provincial interest and are not in conflict with the proposals in this Appeal.

87Mr. Palumbo’s expert opinion defined a study area that was limited to Yorkleigh Avenue, and all of the relevant evidence in this Hearing pertained to Yorkleigh Avenue. Mr. Palumbo delineated his geographic neighbourhood in accordance with the direction of OP Policy 4.1.5 which relies on criteria such as zoning and prevailing dwelling type and scale.

88Mr. Palumbo also gave evidence about the three blocks or sections of Yorkleigh Avenue, as shown on three Maps that I have referenced previously. These Maps are central to an understanding of the physical character of the street, as explained below.

89With due respect to Mr. Palumbo, I do not propose to distinguish between “compliant lots” versus those “larger compliant” lots that would be more likely candidates for a severance. I acknowledge that Mr. Palumbo’s analysis was directed (at least partly) at the issue of “destabilization” and was responsive to the concerns of the opposing Party and Participants about whether the current Appeals were likely to set a precedent if approved. However, a lot frontage is either compliant or it is not.

90One of the requirements of the Planning Act for a consent to severance is that the proposal must conform to the Official Plan.

91Official Plan

92Mr. Palumbo stressed the importance of Chapter 2.3 of the Official Plan that states that Neighbourhoods are considered to be a “physically stable area but not static”. The Official Plan is not intended to freeze development within Neighbourhoods. Chapter 4.1 of the Official Plan requires that “Physical changes to our established neighbourhoods must be sensitive, gradual and generally ‘fit’ the existing physical character.” In Mr. Palumbo’s opinion, the proposal represents a gradual and modest intensification that reinforces the general physical patterns of the neighbourhood. Those in opposition regard the proposed lots and dwellings to be not in keeping with the physical character of properties on the street. In their view, the proposed lots are “undersized” and the dwellings would be an “over development”.

93Chapter Four of the City of Toronto Official Plan includes Policies on “Neighbourhoods” and I have included the most relevant sections below.

Development Criteria in Neighbourhoods

The stability of our Neighbourhoods’ physical character is one of the keys to Toronto’s success.

While communities experience constant social and demographic change, the general physical character of Toronto’s residential Neighbourhoods endures. Physical changes to our established Neighbourhoods must be sensitive, gradual and “fit” the existing physical character. A key objective of this Plan is that new development respect and reinforce the general physical patterns in a Neighbourhood.

O.P. Policy 4.1.5 (Excerpts) 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.

The geographic neighbourhood for the purposes of this policy will be delineated by considering the context within the Neighbourhood in proximity to a proposed development, including: zoning; prevailing dwelling type and scale; lot size and configuration; street pattern; pedestrian connectivity; and natural and human-made dividing features.

The physical character of the geographic neighbourhood includes both the physical characteristics of the entire geographic area in proximity to the proposed development (the broader context) and the physical characteristics of the properties that face the same street as the proposed development in the same block and the block opposite the proposed development (the immediate context). Proposed development within a Neighbourhood will be materially consistent with the prevailing physical character of properties in both the broader and immediate contexts. In instances of significant difference between these two contexts, the immediate context will be considered to be of greater relevance. The determination of material consistency for the purposes of this policy will be limited to consideration of the physical characteristics listed in this policy.

The prevailing building type and physical character of a geographic neighbourhood will be determined by the most frequently occurring form of development in that neighbourhood. Some Neighbourhoods will have more than one prevailing building type or physical character. The prevailing building type or physical character in one geographic neighbourhood will not be considered when determining the prevailing building type or physical character in another geographic neighbourhood.

While prevailing will mean most frequently occurring for purposes of this policy, this Plan recognizes that some geographic neighbourhoods contain a mix of physical characters. In such cases, the direction to respect and reinforce the prevailing physical character 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.

No changes will be made through rezoning, minor variance, consent or other public action that are out of keeping with the overall physical character of the entire Neighbourhood.

4.1.8. Zoning by-laws will contain numerical site standards for matters such as building type and height, density, lot sizes, lot depths, lot frontages, parking, building setbacks from lot lines, landscaped open space and any other performance standards to ensure that new development will be compatible with the physical character of established residential Neighbourhoods.

94In my view, the Appellant has proposed construction of two dwellings that have a built-form that would fit within the physical character of the Neighbourhood. The proposed dwellings are not an over-development, and the requested variances are modest in the context. Moreover, the Appellant has obtained a detailed “Arborist Report” to try to address potential issues at the City about the urban forestry. The lot area is By-law compliant in both Parts. The primary issue in this Appeal is the lot frontage, particularly for Part 1.

95The Official Plan is clear that development in Neighbourhoods is not intended to be frozen or static. Sensitive and gradual development that “fits” the existing physical character is permitted. The Plan also encourages gentle intensification. A development must “respect and reinforce the general physical patterns in a Neighbourhood”.

96Chapter Four further states that “Proposed development within a Neighbourhood will be materially consistent with the prevailing physical character of properties in both the broader and immediate contexts. In instances of significant difference between these two contexts, the immediate context will be considered to be of greater relevance.” The prevailing building type and physical character of a geographic neighbourhood will be determined by the most frequently occurring form of development in that neighbourhood.

97The Official Plan must be read as a whole. This sometimes requires a balancing of objectives. As noted above, the OP Policy 4.1.5 also states that “the direction to respect and reinforce the prevailing physical character 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.”

98As explained above, the frontage of the proposed lot on Part 1 would be 16.7 metres. Based on the City data provided by the Appellant, this is smaller than 33 of the total 44 lots (75%) in the study area. The proposed lot frontage for Part 2 is 19.13m., smaller than 30 properties out of 44.

99Although it is true that lots with compliant frontages are more typical of the properties on Yorkleigh Avenue than substandard lots, closer scrutiny reveals a somewhat different picture of the physical character in the immediate context, the section of the street that includes the subject property.

Figure 1: Exhibit #1, page 119

100As explained in Paragraphs 29 and 30 (above), Map #2 (the central portion of the street comprising lots 26-56) includes the subject property. In this “block”, there are 7 “substandard” lot frontages and 11 compliant frontages, not counting the subject property. Six of the 18 lots have a frontage that is less than the proposed 16.7m. frontage for Part 1. The other substandard lot is 18.59m., under the frontage for Part 2.

101Map #3 (lots 57-83) shows 8 substandard lots and 9 compliant lots. Four of the 17 lots have frontages under 16.7m. Six of the lots are under the 19.13m. frontage for Part 2.

102The lots on Map #1 are all compliant for lot frontage, with the exception of a substandard lot arising from the severance of 8 Yorkleigh Avenue.

103Fifteen of the 44 lots on Yorkleigh Avenue have frontages under the zoning requirement of 21m. Ten of those lot frontages are under 16.7m.

104As noted above, the Official Plan does 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.”

105The block of properties in Map #1 has a prevailing character of large lots. However, in the immediate context (Map #2) that comprises the lots relatively close to the subject property, there are a substantial number of lot frontages that approximate the proposed frontages in Part 1 and Part 2. A few of the smaller lots arose prior to the Etobicoke “Preservation” By-law. Nevertheless, those lots are part of the existing context and streetscape.

106I agree with Mr. Palumbo’s expert opinion that the proposed development meets the requirements of O.P. 4.5.1, fits within the immediate context and represents a gentle intensification, as envisaged by the Official Plan.

107Party Kennedy and the Participants made much mention of former Etobicoke “Preservative” By-law 3148. This By-law is an important part of the history of Yorkleigh Avenue. However, the instant Appeals are decided solely on the basis of current law, current policy and the proven facts.

108Another requirement of the Planning Act that must be considered by the Tribunal is found in s. 51(24)(g), namely: 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”. Zoning By-law 569-2013 imposes a minimum lot frontage requirement of 21m. This requirement is different from the lot frontage requirement for nearby streets, and it flows from the previous zoning and the desire to preserve the features of the street, with its comparatively large lot areas and lot frontages.

109However, the requirements in Zoning By-law 569-2013 are intended to implement the Policies in the Official Plan. Those policies encourage intensification and gradual development, and the By-law is not intended to be an impermeable barrier to responsible development within the City. It is a broad instrument. The proposed development adheres to the general intent of the By-law, including the lot area for Part 1 and Part 2. In my view, the proposed severance meets the s.51(24)(g) criterion.

110Section 51(24) of the Planning Act requires the Tribunal to have regard to the “dimensions and shapes of the proposed lots”. Lot frontage (or width) is one lot “dimension”. I have discussed the evidence about the proposed lot frontages for Part 1 and Part 2 at some length. Based on that evidence, I find that the proposal satisfies the requirement found paragraph s.51(24)(f) with respect to the dimension and size of the proposed lots.

111I conclude that the proposed severance does meet the criteria in s.51(24) in respect of the Official Plan, the Zoning By-law and the dimension of the proposed lots. As explained above, the other criteria (e.g. suitability, utilities, not premature) are also met, as opined by Mr. Palumbo, or are not applicable.

112Variances

113I must determine whether the proposed variances are consistent with Provincial Planning Statement (2024), have regard for the provincial interests in the Planning Act s.2, and meet the four tests set out in s.45(1) of the Planning Act.

114I accept Mr. Palumbo’s evidence that the Proposal is consistent with the 2024 Provincial Policy Statement. The general direction of the Provincial Policy is to encourage intensification at appropriate locations that can take advantage of existing services and infrastructure. The Proposal meets this objective. Moreover, I agree with Mr. Palumbo that the proposal is consistent with the Provincial Interest specified in s.2(j) of the Planning Act, namely, the provision of a full range of housing, including affordable housing.

115Do the proposed variances satisfy the four tests in section 45(1) of the Planning Act?

116General Intent and Purpose of the Official Plan

117I have discussed the Official Plan in the context of the proposed severance. I find that the proposed variances are consistent with the General Intent and Purpose of the Official Plan.

118The plans and drawings for the proposed dwellings show that they will “fit” within the surrounding properties on Yorkleigh Avenue, especially those in the immediate vicinity of the subject property. There are no requests for minimum side yard or rear yard setbacks. As stated by Mr. Palumbo, the proposal is “in keeping with the prevailing scale, massing, height, grades, landscape open space and dwelling type of other properties” on Yorkleigh Avenue.

119General Intent and Purpose of the Zoning By-law

120The front yard setback variance on Part 2 will maintain the general setback pattern in the Neighbourhood. It is comparable to the front yard setback of the neighbouring property at 35 Yorkleigh Avenue. I agree with Mr. Palumbo that the variance will not disrupt the streetscape. I also agree with Mr. Palumbo’s uncontroverted evidence that the variances in respect of the width of the exterior stairs (both dwellings) and the size of the platform on the dwelling on Part 2 are appropriate in the context and consistent with the general intent and purpose of the Zoning By-law.

121Appropriate for the Development or Use of the Land

122I agree that the proposed dwellings would be a modest intensification within the existing neighbourhood character and would be an appropriate development of the land. The frontage of the subject property is one of the widest on the street and therefore the proposed development is more viable than it would be on most of the other lots if those lots were severed.

123Are the Variances “Minor”?

124The “test” for whether a variance is minor requires consideration of whether it would have an undue adverse impact of a planning nature. Numerical considerations can also be relevant but they are only one factor. There is insufficient evidence that the variances would have a negative impact of a planning nature. No concerns about overlooks, shading, noise or other considerations were identified in the evidence. The side yard setbacks do not require variances. The expanded second story platform will not be large enough to permit large gatherings and does not require a setback. The width the exterior stairs will be expanded very slightly and this does not affect the neighbours. I acknowledge that Participant Santos is concerned that the front yard setback would interrupt the view from a window from her house, but that is a common urban condition and the effect does not rise to the level of an undue adverse impact.

125The variances to the frontage on Part 1 and Part 2 will not have an adverse impact of a planning nature. The frontage, for Part 1, is 4.3m. below the zoning requirement. The proposed frontage for Part 2 is 19.13m. or 1.87m. short of the required minimum. Mr. Palumbo’s expert opinion is that the lot frontages will fit in with the other lots on the street, particularly in the immediate block. The lot frontages will enable the Appellant to build two dwellings that, themselves, will fit in with the streetscape. The lot areas for both Parts are By-law compliant. The lots are not “undersized”. I agree.

126I find that the proposed variances are minor.

CONCLUSION

127I have found that several of the criteria for approval for consent to sever set out in in s.51(24) of the Planning Act have been met, and that no plan of subdivision is required.

128I have found that the proposed variances maintain the general intent and purpose of the Official Plan and the Zoning By-law, are desirable for the development and use of the land, and are minor.

DECISION AND ORDER

129The three Appeals are allowed.

130The application for consent to sever is approved subject to the conditions contained in Appendix A.

131The variances to the Zoning By-law set out in Appendix B are authorized, subject to the conditions contained therein.

SCHEDULE A - CONSENT

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:

Consent Conditions

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.

2. Municipal numbers for the subject lots 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. Submission of a complete application for a permit to injure or remove a City-owned

tree(s), as per City of Toronto Municipal Code Chapter 813, Trees Article II Trees on City

Streets.

7. Submission of a 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.

8. The following conditions shall be fulfilled to the satisfaction of Heritage Planning,

Urban Design:

8.1 The applicant shall retain a consultant archaeologist, licensed by the

Ministry of Citizenship and Multiculturalism, under the provisions of the

Ontario Heritage Act (R.S.O 1990 as amended) to carry out a Stage 1- 2

archaeological assessment of the entire development property and follow

through on recommendations to mitigate, through preservation or resource

removal and documentation, adverse impacts to any significant

archaeological resources found. The assessment is to be completed in

accordance with the Ministry of Citizenship and Multiculturalism's 2011 Standards and Guidelines for Consultant Archaeologists.

8.2 Should the archaeological assessment process continue beyond a Stage

1-2 assessment, any recommendations for Stage 3 - 4 mitigation

strategies must be reviewed and approved by Heritage Planning prior to

commencement of the site mitigation.

8.3 The consultant archaeologist shall submit a copy of the relevant Assessment

report(s) to the Heritage Planning Unit in both hard copy format and as an

Acrobat PDF file. All archaeological assessment reports will be submitted to the

City of Toronto for approval concurrent with their submission to the Ministry of

Citizenship and Multiculturalism.

8.4 No demolition, construction, grading or other soil disturbances shall take

place on the subject property prior to the City’s Planning Division (Heritage

Planning Unit) and the Ministry of Citizenship and Multiculturalism

(Archaeology Programs Unit) confirming in writing that all archaeological

licensing and technical review requirements have been satisfied.

9. 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.

10. Within TWO YEARS of the date of the giving of this notice of decision, the applicant

shall comply with the above-noted conditions.

SCHEDULE B

VARIANCES

Part 1 Variances (Retained Part)

Variance #1 Section 10.20.30.20(1)(A), By-law 569-2013

The minimum required lot frontage is 21m.

The proposed lot frontage is 16.7m.

Variance #2 Section 10.5.40.60(3) By-law 569-2013

Exterior Stairs providing pedestrian access to a building or structure may encroach into a required building setback if the stairs are no wider than 2.0m.

The proposed front stairs located at the front porch are 2.74m. wide.

The proposed stairs located at the rear are 3.05 m. wide.

Part 2 Variances (Conveyed Part)

Variance #1 Section 10.20.30.20(1)(A), By-law 569-2013

The minimum required lot frontage is 21 m.

The proposed lot frontage is 19.13 m.

Variance #2 Section 10.5.40.70.(1)(A) By-law 569-2013

The minimum required front yard setback is 16.81m.

The proposed front yard setback is 14.88m.

Variance #3 Section 10.5.40.60.(3)(a((ii) By-law 569-2013

Exterior Stairs providing pedestrian access to a building or structure may encroach into a required building setback if the stairs are no wider than 2.0 m.

The proposed stairs are 2.22m. wide.

Variance #4 Section 10.20.40.50.(1)(B) By-law 569-2013

The maximum permitted area of a platform at or above the second storey of a detached house is 4m².

The proposed area of the rear platform at or above the second storey is 5.71m².

Conditions:

1. The new dwellings must be built substantially in accordance with the Proposed Site Plans dated August 20, 2024 and the Proposed Building Plans and Elevations

dated August 20, 2024, as prepared by A. Soppelsa Architect Inc., as attached hereto.

2. Urban Forestry conditions as contained in Schedule A (i.e. permit to injure or remove tree(s)).